The reason(s) for the adverse action can be one or more of the 24 causes for discipline set forth in California Government Code section 19572. These 24 causes for discipline include incompetency, insubordination, misuse of state property, and dishonesty, among other things. Your Notice of Adverse Action will identify why an adverse action is being taken against you (i.e., which of the 24 causes for discipline apply to you).
In In the Matter of the Appeal by Haji Jameel, SPB Case No. 04-0330A (April 5-6, 2005), Appellant Haji Jameel (“Appellant”) was dismissed from his position as a Supervising Transportation Engineer with the California Public Utilities Commission (“CPUC”) because Appellant had allegedly failed to meet with a CPUC investigator and provide documents to assist the CPUC in its investigation of the State Auditor’s allegations that Appellant had misappropriated funds from the CPUC.
The SPB found that the CPUC had established that Appellant had “impermissibly failed to provide documents to investigators” but that dismissal is “too severe a penalty under all the circumstances.” (Id. at 2.) The SPB noted (a) that Appellant was not charged with misappropriating CPUC funds; (b) that Appellant had “based his decision not to provide the requested documents on legal advice from his attorney;” and (c) that Appellant “has been employed with the CPUC for 26 years with no history of discipline.” (Id.) Some of the salient facts of In the Matter of the Appeal by Haji Jameel are set forth below:
Factual Summary
On June 30, 2003, the California State Auditor sent a letter to Michael Peevy (President of CPUC’s Board of Commissioners), stating that the Bureau of State Audits (“BSA”) had completed its investigation of Appellant’s alleged financial improprieties in connection with railroad conferences conducted in 1999, 2000, and 2001.
On October 10, 2003, Appellant was placed on paid administrative time-off while the CPUC conducted an investigation of BSA’s allegations against Appellant.
On October 20, 2003, CPUC Labor Relations Officer Patrick McDermott (“McDermott”) asked Appellant to collect information relating to CPUC’s investigation. Appellant was given no deadline; nor was he provided guidance regarding what constitutes relevant information.
On November 17, 2003, McDermott sent an email to Appellant, specifically describing what information Appellant must produce to CPUC investigators. That same day, Appellant sent an email to McDermott, asking that the CPUC contact Appellant’s attorney Douglas Rappaport
(“Rappaport”), about the requested information.
On November 24, 2003, Rappaport sent a letter to McDermott, stating that Appellant had retained him to represent Appellant in the CPUC investigation. The CPUC subsequently retained the Office of the Attorney General to represent the CPUC in obtaining the requested information from Appellant.
On December 3, 2003, Rappaport informed McDermott that he had subpoenaed the requested checks from Appellant’s bank.
On December 18, 2003, Rappaport informed McDermott that he had received the requested checks from Appellant’s bank and that he would produce the requested checks to the CPUC by the first of next year. McDermott informed Rappaport that the CPUC wants Appellant to meet with CPUC’s auditor and that Appellant should report to work on December 29, 2003 with the requested documents. Rappaport asked McDermott to send an email to Appellant about meeting with CPUC’s auditor.
On December 23, 2003, CPUC Deputy Director David Trojacek (“Trojacek”) left a voicemail message with Appellant, instructing him to meet with CPUC investigators on December 29, 2003, and directing him to bring the requested documents. That same day, Rappaport called Trojacek, advising him that Appellant would not produce the requested documents because they are “attorney work product.” Appellant did not meet with CPUC investigators on December 29, 2003.
On January 7, 2004, Supervising Deputy Attorney General Fiel Tigno (“Tigno”) sent a letter to Rappaport, stating that she represents the CPUC. She also stated that Appellant must meet with the CPUC auditor Michael Kohaya (“Kohaya”) on January 9, 2004 and provide the documents (that had been previously requested by McDermott) at that time.
According to Appellant, Rappaport did not inform Appellant about the January 9 morning meeting until the afternoon of January 9. As such, Appellant did not attend the meeting.
On January 9, 2004, Rappaport requested Tigno to cite the legal authority purportedly requiring Appellant to produce the requested documents. On January 12, 2004, Tigno sent a facsimile, citing various legal authorities. Tigno warned that Appellant’s continued failure to cooperate with the investigation could be cause for discipline (up to and including dismissal) and requested that Appellant meet with Kohaya on January 14, 2004 and bring the requested documents at that time.
According to Appellant, on January 13, 2004, Rappaport told Appellant that CPUC wanted Appellant to attend a meeting the following day. Rappaport also told Appellant that Appellant was not required to attend the meeting because Rappaport was still discussing the matter with CPUC’s attorney. As such, Appellant did not attend the meeting.
On January 15, 2004, Rappaport sent Tigno a letter via facsimile, asking for a continuance of several days so that Rappaport could research the issue of whether Appellant was required to produce the requested documents. He also requested that his letter not be interpreted as non-cooperation by Appellant.
On January 20, 2004, Tigno sent Rappaport a letter via facsimile, requesting that Appellant meet with Kohaya on January 26, 2004 and that Appellant produce the requested documents. Tigno warned that Appellant’s failure to cooperate in the investigation would subject him to discipline (up to and including dismissal).
Appellant believes that Rappaport informed him about the January 26, 2004 meeting after the meeting was scheduled to have taken place. As such, Appellant did not attend the meeting.
During the afternoon of January 27, 2004, CPUC Director Richard Clark (“Clark”) sent a facsimile to Appellant (in care of Rappaport), directing Appellant to meet with Kohaya on January 28, 2004 and to produce the requested documents.
That same afternoon, Rappaport sent a facsimile to Tigno, requesting that Tigno provide Appellant with an immunity agreement ensuring that Appellant’s “statements, documents, and any evidence derived therefrom, would not be used against appellant in any subsequent criminal proceedings, and would not be disclosed by the Department of Justice to any law enforcement agency.” (Id. at 8.)
According to Appellant, Rappaport informed him about the January 28, 2004 meeting at the time that the meeting was scheduled to begin. Rappaport told Appellant that he was trying to obtain clarity from CPUC’s attorney regarding the issue of Appellant’s immunity. As such, Appellant did not attend the meeting.
Procedural Summary
The CPUC served Appellant with a Notice of Adverse Act dismissing him from state service, effective February 13, 2004. The CPUC alleged that Appellant’s failure to cooperate with the CPUC investigation and produce the requested documents constituted cause for discipline under California Government Code section 19572, subdivisions (d) inexcusable neglect of duty, (e) insubordination, (f) dishonesty, (j) inexcusable absence without leave, (o) willful disobedience, and (t) other failure of good behavior either during or outside of duty hours that is of such a nature that the failure causes discredit to the appointing authority or the person’s employment.
Appellant subsequently filed an appeal of the disciplinary action.
The CPUC Established Cause for Discipline
The SPB found that Appellant was required to attend the January 9, 14, 26, and 28, 2004 meetings with Kahayo because Appellant was not excused from producing the requested documents to the CPUC and the CPUC was authorized to direct Appellant to cooperate in the investigation. Even though the CPUC did not directly notify Appellant about the meetings, the CPUC did notify Rappaport about the meetings (pursuant to Appellant’s request). “It is well settled that notice to an individual’s attorney constitutes notice to that individual, and that the individual is bound by the actions of his legal representative.” (Id. at 16.)
The SPB further found that Appellant’s failure to produce the requested documents and attend the above-referenced meetings constituted violations of California Government Code section 19572, subdivisions (d) inexcusable neglect of duty, (j) inexcusable absence without leave, (o) willful disobedience, and (t) other failure of good behavior either during or outside of duty hours that is of such a nature that it causes discredit to the appointing authority or the person’s employment. However, the SPB found that Appellant’s failure to comply with the CPUC’s directive did not constitute insubordination under subdivision (e) or dishonesty under subdivision (f).
Penalty
The SPB next addressed the issue of the appropriate penalty. “When performing its constitutional responsibility to review disciplinary actions, the Board is charged with rendering a decision that is ‘just and proper.’” (Id. at 17 (citation omitted).) “In exercising its judicial discretion in such a way as to render a decision that is ‘just and proper,’ the [SPB] considers a number of relevant factors to assess the propriety of the discipline imposed. . . .” (Id. at 17-18.) “[T]he overriding consideration in these cases is the extent to which the employee’s conduct resulted in, or if repeated is likely to result in [h]arm to the public service. (Citations.) Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence.” (Id. at 18 (citation omitted).)
In determining the appropriate penalty for Appellant, the SPB pointed out that the CPUC “did not charge appellant with misappropriation of funds. . . . Instead, the sole issue before the Board is whether appellant improperly failed to cooperate with CPUC investigators in obtaining documents relevant to CPUC’s investigation.” (Id. at 19 (underlining in original).) The SPB also noted that Appellant “has been employed by CPUC for 26 years, and that during that time he has never been subject to disciplinary action.” (Id.) The SPB further noted that “absent the present issues surrounding his employment, appellant appears to have been an exemplary employee.” (Id.) Finally, the SPB stated that it is “cognizant of the fact that appellant’s failure to cooperate with CPUC investigators appears to have resulted from appellant’s reliance upon – albeit ultimately misguided – the advice of his attorney.” (Id.)
In light of the above, the SPB found that the “just and proper” penalty in these circumstances was suspension for three months instead of dismissal.
If you are a state civil service employee who has been served with a Notice of Adverse Action and are contemplating filing an appeal with the SPB Appeals Division, call ((916) 612-0326) or email ([email protected]) Finley Employment Law today. We serve clients throughout California, including Sacramento, Roseville, Davis, Folsom, and Elk Grove.
The information in this blog post is for general informational and advertising purposes only and is not, nor is it intended to be, legal advice. Instead, you should speak with a California employment attorney for advice regarding your individual situation.