• Finley Employment Law

K.S. v. Department of Corrections & Rehabilitation

Updated: Apr 27


If you are a state civil service employee who has been served with a Notice of Adverse Action, you have the right to file an appeal with the State Personnel Board (“SPB”) Appeals Division within thirty (30) calendar days after the effective date of the adverse action. An “adverse action” is a formal disciplinary measure that is taken against state civil service employees. The formal disciplinary measure may include, but is not limited to, dismissals, suspensions, demotions, salary reductions, and disciplinary transfers.

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 K.S. v. California Department of Corrections and Rehabilitation (“CDCR”), Case No. 17-0511 (November 2, 2017), the SPB upheld the demotion of Appellant, a Correctional Lieutenant with the CDCR, finding that Appellant had engaged in conduct constituting inexcusable neglect of duty, insubordination, and willful disobedience, among other things. Some of the salient facts of K.S. v. CDCR are set forth below:

2007 or 2009 Discussion with Warden Hernandez

Robert Hernandez (“Warden Hernandez”) was the warden at the prison at which Appellant worked. At some point in 2008 or 2009, Warden Hernandez learned that Correctional Sergeant Steven Vasquez (“Sgt. Vasquez”) filed a written complaint against Appellant because Appellant had borrowed money from Sgt. Vasquez and had not repaid him. Shortly after learning about the complaint, Warden Hernandez told Appellant that it was inappropriate for a supervisor to borrow money from a subordinate employee and that Appellant must pay Sgt. Vasquez back. Warren Hernandez told Appellant not to borrow money from subordinate employees.

Appellant’s Prior Adverse Action

Effective March 31, 2015, the CDCR issued Appellant a ten percent salary reduction for 13 months for borrowing money from Correctional Officer Jeffrey Springer (“CO Springer”). This Notice of Adverse Action referred to Warden Hernandez’s direction to Appellant that he not borrow money from subordinate employees. (This Notice of Adverse Action is hereinafter referred to as the “March 2015 NOAA.”)

Appellant’s Personal and Financial Stress

During the period from 2014 to 2016, Appellant’s father had serious health problems, and Appellant was in the process of divorcing is wife with whom he had two sons. Appellant experienced financial difficulty as a result of his father’s medical bills, the expenses relating to his divorce, and child support owed to the mother of his third son.

Appellant began gambling frequently at a nearby casino during this time period and often incurred financial losses as a result of this gambling.

Loan from CO Richard Lopez

At all relevant times, Correctional Officer Richard Lopez (“CO Lopez”) worked at the same prison as Appellant and often worked in the same area as Appellant. On February 17, 2014, Appellant telephoned CO Lopez at home and told CO Lopez that he was having financial difficulties relating to his divorce, child support, and other factors. Appellant asked CO Lopez if he could borrow $5,000. CO Lopez told Appellant that he could not lend Appellant such a high amount.

The next day (February 18, 2014), Appellant called CO Lopez into his office and asked CO Lopez whether he was able to obtain the money. CO Lopez replied that he might be able to lend Appellant a lesser amount, like $1,500, and that he would see what he could do. Appellant asked CO Lopez if he could “make it at least $3,000.” (Id. at 6.)

The next day (February 19, 2014), Appellant again called CO Lopez into his office and asked if CO Lopez could lend him money. When CO Lopez replied that he could possibly lend $1,500 to Appellant, Appellant asked CO Lopez whether he could increase the amount to $2,000. CO Lopez agreed.

After work, Appellant followed CO Lopez to the latter’s bank and waited in the parking lot. CO Lopez withdrew $2,000 and handed the amount to Appellant. Appellant stated that he would repay CO Lopez the following month.

During the next few months, CO Lopez periodically asked Appellant about repayment of the loan, and Appellant replied with various reasons as to why he could not repay CO Lopez at that time.

In January 2015, CO Lopez again asked Appellant to repay the loan. CO Lopez and Appellant eventually agreed that Appellant would make installment payments of $100 per month. Appellant made a total of $300 in installment payments and made no further payments to CO Lopez.

Loan from CO Otis Mack

At all relevant times, Correctional Officer Otis Mack (“CO Mack”) worked at the same prison as Appellant, and Appellant supervised him at times.

In late April or early May 2016, Appellant telephoned CO Mack at home and asked to borrow $200. CO Mack agreed.

Appellant drove to CO Mack’s home to pick up the money. Appellant promised CO Mack that he would pay him back the next pay period.

During the next several months, CO Mack asked Appellant several times to repay the loan. Appellant provided an excuse each time. As of the date of the hearing, Appellant had not repaid CO Mack the $200 loan.

Inexcusable Neglect of Duty

Inexcusable neglect of duty is when an employee “intentionally or with gross negligence fail[s] to exercise due diligence in the performance of a known official duty.” (Id. at 17 (citation omitted).) “To be subject to discipline for inexcusable neglect of duty, an employee must have actual or constructive notice of expected standards of conduct unless the conduct is so clearly wrong that notice is not necessary.” (Id. at 17 (citation omitted).)

The Administrative Law Judge (the “ALJ”) found that Appellant had a known duty not to borrow money from subordinate employees. For instance, Warden Hernandez had specifically directed Appellant not to borrow money from subordinate employees, and the March 2015 NOAA penalized Appellant for borrowing money from CO Springer. The ALJ pointed out that Appellant “should have known that asking a subordinate employee to borrow money may cause that employee to feel pressured to loan money to his supervisor, and may create the appearance that Appellant’s supervisorial decisions could be affected because of the employee’s decision whether to loan money.” (Id. at 17.)

Insubordination

“To support a charge of insubordination, an employer must demonstrate that an employee engaged in mutinous, disrespectful, or contumacious conduct under circumstances where the employee has intentionally or willfully disobeyed an order or instruction that a supervisor is entitled to give and have obeyed.” (Id. at 18 (citation omitted).)

The ALJ found that the March 2015 NOAA “explicitly punished Appellant for borrowing money from subordinate employees, and recited Warden Hernandez’s instruction not to borrow money from subordinate employees.” (Id. at 18.) Thus, the ALJ found, the March 2015 NOAA “constituted clear instructions from CDCR management. . .not to borrow money from subordinate employees.” (Id.)

Willful Disobedience

“Willful disobedience is a knowing and intentional violation of a direct command or prohibition.” (Id. at 19 (citation omitted).)

The ALJ found that Warden Hernandez had specifically instructed Appellant not to borrow money from subordinate employee, and the March 2015 NOAA specifically penalized Appellant for borrowing money from CO Springer. Therefore, the ALJ found, Appellant had been clearly directed not to borrow money from subordinate employees, but he engaged in willful disobedience by subsequently borrowing money from subordinate employees.

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 (contact@finleyemplaw.com) Finley Employment Law today. We serve clients throughout California, including Sacramento, Roseville, Walnut Creek, San Ramon, and Concord.

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.

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