Rodgers v. State Personnel Board ( 2022 )

Filed 9/9/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
STEVEN RODGERS,
Plaintiff and Appellant, E075803
v. (Super.Ct.No. CIVDS1921826)
STATE PERSONNEL BOARD, OPINION
Defendant and Respondent;
DEPARTMENT OF CORRECTIONS
AND REHABILITATION,
Real Party in Interest and
Respondent.
APPEAL from the Superior Court of San Bernardino County. Donald R. Alvarez,
Judge. Reversed with directions.
Castillo Harper, Brandi L. Harper, and Michael A. Morguess for Plaintiff and
Appellant.
No appearance for Defendant and Respondent, State Personnel Board.
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Department of Corrections and Rehabilitation and Leslie Wagley for Respondent
and Real Party in Interest.
Steven Rodgers is a correctional sergeant employed by the Department of
Corrections and Rehabilitation (CDCR). He appeals the denial of his writ petition seeking
to set aside the State Personnel Board’s (SPB) decision to reduce his salary by 10 percent
for two years as a penalty for an incident that occurred in July 2017 while he was
supervising a contraband surveillance watch shift at Pelican Bay State Prison.
Rodgers argues the factual findings the SPB adopted after his administrative
hearing are (i) not supported by substantial evidence and (ii) significantly different from
those alleged in the notice of adverse action (NOAA), and as a result, SPB’s decision
violated his due process right to notice of the charges against him. We agree with his
second contention and therefore reverse.
I
FACTS
A. Contraband Surveillance Watch
Contraband surveillance watch is a procedure for monitoring inmates suspected of
hiding drugs or weapons inside their body. The inmate is physically restrained and placed
in an isolated cell under constant, one-on-one observation until they excrete the
contraband (or until 72 hours have elapsed, at which point special approval is needed to
extend the procedure). The physical restraints are designed to prevent the inmate from
accessing and re-ingesting the contraband before staff has a chance to retrieve it. They
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consist of leg irons and handcuffs that connect to a waistband, and a “hand isolation
device” resembling a mitten that attaches to the handcuffs. The leg irons and handcuffs
are equipped with a double-locking mechanism that keeps the restraint secure and
prevents it from becoming too tight and cutting off the inmate’s circulation when
manipulated.
Each watch is divided into shifts and every shift is supervised by a sergeant. There
is one officer assigned to each inmate under surveillance. Every 15 minutes, the officer
must perform a wellness check of their inmate and record their observations on their
watch form. The officer must also periodically check the temperature of the cell.
At least twice during each shift, the supervising sergeant must help the officer
conduct a restraint check, which is a physical inspection of the inmate’s restraints to
ensure they are both secure and comfortable. Pelican Bay’s contraband surveillance
watch policy states the restraint checks must occur “at a minimum twice per shift” and
“preferably at the beginning and then again at the end of the shift.” Every restraint check
must be documented on the watch form and signed by the supervising sergeant.
B. The Notice of Adverse Action
Rodgers has worked for CDCR since November 2008 and has served as a
correctional sergeant since 2014. In early May 2018, CDCR served him with an NOAA
stating they were reducing his salary by 10 percent for two years, effective the end of that
month. CDCR alleged that while supervising a contraband surveillance watch shift
Rodgers refused to perform a restraint check at the beginning of the shift and directed his
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officers to falsify the watch form to say they had performed the check. CDCR also
alleged that when Rodgers found out the officers had reported his misconduct to another
sergeant, he angrily confronted them and used profanity in asking them who had ratted
him out.
CDCR alleged the following factual basis to support their proposed penalty. On
the evening of July 22, 2017, correctional officers Angulo and Palafox reported to the “C
facility” of Pelican Bay’s Security Housing Unit (SHU) for their contraband surveillance
watch shift, which started at 10:00 p.m. and ended at 6:00 a.m. the following day. The
officers began reviewing their documentation packets for their shift, which included the
watch form for their inmate and a copy of CDCR’s contraband surveillance watch
procedures.
Shortly after the shift began, they asked Rodgers to conduct the restraint check and
he told them he was “too busy.” At about 10:30 p.m., Palafox found Rodgers in the C
Facility Program Office, and asked him to do the restraint check. Rodgers told Palafox to
“pencil whip” (a military term that means forge or falsify) the form to say they completed
the inspection, and if anything happened, he’d “take the hit.”
When Palafox told Angulo what had happened, they became uncomfortable with
the idea of not doing the inspection and falsifying the form. Angulo contacted Sergeant
Moore, who was on duty in a different area, for advice. Moore told him inspections were
mandatory and one must be done at the beginning of the shift. Moore then contacted
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Rodgers’s supervisor, Lieutenant Vanderhoofven, and informed him that Rodgers was
“refusing to perform the inmate restraint checks at the beginning of the shift as required.”
At about 11:15 p.m., Angulo found Rodgers in his office and asked him to conduct
the restraint check, at which point Rodgers became irritated with the officers for
repeatedly asking about the inspection. It wasn’t until around midnight (two hours into
the shift), Rodgers returned to the watch area and finally conducted the restraint check,
during which they discovered one of the inmate’s leg cuffs was not double-locked.
A couple hours after that, around 2:00 a.m., Vanderhoofven visited C Facility to
discuss proper procedure with Rodgers. He told Rodgers that another sergeant had
informed him of his refusal to inspect the restraints at the beginning of the shift. After
Vanderhoofven left, Rodgers returned to the watch area and angrily asked the officers,
“Which one of you mother fuckers spoke to another sergeant about this?” When Angulo
responded that it had been him, Rodgers complained that he had received training as a
result.
Due to the difficulties the officers had in getting Rodgers to inspect the restraints,
when they saw Sergeant Reynoso arriving to take over as supervising sergeant for the
next shift at 5:30 a.m., they asked him to do the inspection with them. When Rodgers
arrived about 10 minutes later to do the final inspection and saw the officers had gotten
another sergeant to do it, he became upset again and said, “What the hell, you trying to
have another sergeant do my job?”
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CDCR alleged Rodgers’s conduct violated Government Code section 19572,
subdivisions (d) (inexcusable neglect of duty); (m) (discourteous treatment); (o) (willful
disobedience); and (t) (behavior either during or outside duty hours of such a nature to
cause discredit to his employer). (Unlabeled statutory citations refer to this code.)
Specifically, CDCR alleged that Rodgers had: (i) neglected his duties by “refusing to
perform” the inspection at the beginning of shift; (ii) treated his subordinates in a
“discourteous and disrespectful” manner when he angrily, and with profane language,
“confronted and intimidated” them about reporting his neglect of duty to another
sergeant; and (iii) “misused [his] authority” when he directed the officers to “pencil
whip” their inspection documentation, thereby “instructing them to fill in inaccurate
information regarding the restraint inspections on official records.”
C. The SPB’s Decision
Rodgers appealed his discipline to the SPB, and his administrative hearing took
place before Administrative Law Judge (ALJ) John Johnson in November 2018. After
hearing testimony from Rodgers, Palafox, Angulo, Moore, Reynoso, and Vanderhoofven,
the ALJ issued a 25-page ruling with detailed credibility determinations and findings of
facts.
The ALJ concluded CDCR had failed to prove that Rodgers had refused to
perform the restraint check on time and directed his officers to falsify their watch forms.
Instead, the ALJ found the following facts true.
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On the evening of July 22, 2017, Rodgers met with Palafox and Angulo at the start
of the shift. He briefly went over the contraband surveillance watch procedures with
them, “reminding them to document everything and to use the proper terminology.”
Though he didn’t perform the restraint check at that time, he told “Palafox and Angulo
that he would return later to perform it.”
About 15 minutes later (at approximately 10:15 p.m.), Palafox left his post to find
Rodgers and ask him to perform the restraint check. Palafox found Rodgers at the
corridor control booth where Rodgers was having the corridor control officer sign his
time sheet. Rodgers told Palafox he was in the middle of completing other duties and
would come back later to do the restraint check. He told Palafox to “pencil in” his portion
of the watch form and “I’ll come back later and, you know, we’ll figure it out.” Palafox
responded, “Oh, okay,” then he and Rodgers went to the watch area where Rodgers
performed a quick visual wellness check on the inmates and signed the watch form noting
he’d done so.
After Rodgers left, Palafox and Angulo began discussing the restraint check.
Palafox considered the first 30 minutes to be the beginning of the shift; Angulo, the first
hour. They were both aware that the prison closely scrutinized the watch forms as a result
of inmate lawsuits alleging the conditions of contraband surveillance watch were
inhumane, and they were worried Rodgers wasn’t going to come back to do the
inspection in a timely manner.
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At approximately 10:25 p.m., Angulo called Moore and implied that Rodgers was
refusing to do the restraint check. Moore told Angulo the inspections were mandatory and
said she would “take care of it.” She then called Rodgers’s supervisor, Vanderhoofven,
and told him Rodgers was refusing to do the restraint checks.
After his conversation with Moore, Angulo left his post to speak with Rodgers in
his office. He asked Rodgers about the restraint checks, and Rodgers said he would do so
later. Since the start of the shift, Rodgers had been busy with his other duties, which
included ensuring that all the correctional officers under his supervision in C Facility
(which that evening was about 30 people) had reported for duty, made it to their assigned
posts, and signed in on their timesheets.
At approximately 10:45 p.m., Rodgers returned to the watch area and performed
the restraint checks with the officers. They discovered one of the inmate’s leg cuffs had
not been double-locked and corrected the issue.
Around 2:00 a.m., Vanderhoofven went to C Facility to give Rodgers a mid-shift
training on contraband surveillance watch procedures. He informed Rodgers that he was
receiving the training because “another sergeant had called him and told him that [he] had
not performed the restraints check when he should have.” After the training session,
Rodgers went to the watch area to ask the officers what had happened. He asked them in
an “upset and angry” tone, “Which one of you mother fuckers spoke to another sergeant
about this?” Angulo responded that he had, and Rodgers replied, in an “irritated” tone,
“Great. Thanks a lot. Just great.” He asked if they were trying to get him fired, then left.
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At 5:30 a.m., Palafox and Angulo saw Reynoso arriving to supervise the next
shift. Because they felt uncomfortable around Rodgers after their last interaction, they
asked Reynoso if he would do the end-of-shift restraint checks with them. Ten minutes
later, when Rodgers arrived to do the inspection and saw the officers had gotten Reynoso
to do it, he said angrily, “You don’t tell me how to do my job. I know how to do my job.
You don’t need to find other sergeants to do my job for me.” He then performed another
restraint check, signed the watch forms, and left.
In finding these facts to be true, the ALJ explained that he had largely credited
Rodgers’s testimony over the officers’ testimony. Specifically, he found the allegation
that Rodgers had refused to perform a timely restraint check at the beginning of the shift
unsubstantiated. Instead, he credited Rodgers’s testimony that he had repeatedly assured
the officers that he was busy but would come by and do the inspections with them later.
Additionally, the ALJ discredited Angulo’s testimony that Rodgers didn’t perform the
first inspection until about two hours into the shift. Rather, he found Rodgers to be
credible when he said he performed the restraint check 45 minutes into the shift,
testimony that was corroborated by Palafox’s watch form.
The ALJ also credited each witness’s testimony about what they believed
constituted the “beginning” of a shift and found the answers to range from the first 15
minutes to the first hour. Because Rodgers had performed the restraint check within that
range—and because Pelican Bay’s contraband surveillance watch procedures do not
require restraint checks at the beginning or end of the shift nor do the procedures specify
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what constitutes the beginning and end of a shift—he concluded Rodgers had not
neglected his duties in this regard.
The ALJ also concluded the document falsification allegation was unsubstantiated.
He discredited Palafox’s testimony that Rodgers told him to “pencil whip” the form,
finding instead that Rodgers had told him to “pencil in” his portion and that he (Rodgers)
would come by later for the inspection.
Finally, as to the discourteous confrontation charge, the ALJ found Rodgers had
been angry and used profanity as alleged in the NOAA, but for a different reason than
alleged in the NOAA. He credited the officers’ testimony that Rodgers had been angry
and used profanity over Rodgers’s testimony that he was simply curious about who had
reported him and hadn’t used profanity. In reaching this credibility determination, the
ALJ noted that Vanderhoofven, “who otherwise liked and respected [Rodgers] and
believed [him] to be a good sergeant, testified that [Rodgers] did not like to have his
authority challenged, and appeared to be upset that someone had reported him when [he]
came to train him.” During their testimony, Moore and Vanderhoofven said they too
would be upset if they were in Rodgers’s position, though both agreed that expressing
anger and using profanity in such situations is unprofessional and discourteous.
Weighing all the testimony on this issue, the ALJ found it unbelievable that
Rodgers wouldn’t be angry that one of his subordinates had reported him for refusing to
perform the restraint check in a timely manner. Thus, he found Rodgers was angry
because he believed the officers had inaccurately reported him for a neglect of duty he
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had not committed—not because he believed the officers had accurately reported his
intentional misconduct.
The ALJ concluded that Rodgers’s angry confrontation and use of profanity
toward the officers violated section 19572, subdivisions (d) (inexcusable neglect of duty),
(m) (discourteous treatment), (o) (willful disobedience), and (t) (other discrediting
behavior) because CDCR has a policy requiring employees to treat each other with
respect and prohibiting the use of profanity while on duty. (Cal. Code Regs., tit. 15,
1
§ 3391, subd. (a).) Finally, the ALJ concluded the full proposed salary reduction was an
appropriate penalty for these violations.
The SPB adopted the ALJ’s decision, and Rodgers filed a petition for rehearing
with the SPB arguing the penalty was not supported by substantial evidence and was
excessive based on the facts the ALJ found to be true. SPB denied the petition, and
Rodgers filed a petition for writ of mandamus under Code of Civil Procedure section
1094.5 in the superior court raising the same arguments. The superior court denied
Rodgers’s petition, and Rodgers appealed.
II
ANALYSIS
Rodgers argues the SPB’s decision “violates due process [because he] was not
notified that he was to be disciplined with a ten percent reduction in salary for two years
1 This regulation states in relevant part: “Employees shall be alert, courteous, and
professional in their dealings with inmates, parolees, fellow employees, visitors and
members of the public. . . . Employees shall not use indecent, abusive, profane, or
otherwise improper language while on duty.” (Cal. Code Regs., tit. 15, § 3391, subd. (a).)
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based on a single allegation of misconduct.” We agree with Rodgers. Because the ALJ
found he engaged in significantly different conduct than that alleged in the NOAA, we
conclude he lacked notice such conduct could subject him to the full penalty proposed in
the NOAA.
A. Generally Applicable Legal Principles
The procedure by which a permanent state employee may be dismissed or
otherwise disciplined is described in sections 19574 through 19588. The employer, in this
case CDCR, must first determine whether there is cause for discipline and, if so, what
discipline to impose. (§ 19574.) To comply with due process, the employer must give the
employee notice of and reasons for the proposed disciplinary action and give the
employee an opportunity to respond. (Ibid.; Skelly v. State Personnel Bd. (1975) 15
Cal.3d 194, 215 (Skelly).)
“Due Process requires that [an employee] be given ‘notice . . . of the standards by
which his conduct is to be measured’ [citation] and ‘fair notice as to the reach of the
[disciplinary] procedure.’ [Citation.] That requires that the respondent be given adequate
notice both of the claimed legal standard and the events which are alleged to contravene
it and an opportunity to challenge them. Where the cause alleged has potential application
to a broad range of conduct, such as unprofessional conduct, the events alleged to
contravene the charge do more than allege what must be proved. They also provide
criteria by which the charge is narrowed.” (Brown v. State Personnel Bd. (1985) 166
Cal.App.3d 1151, 1164, fn. 5 (Brown).)
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Except in cases involving minor disciplinary matters, the employee has a right to
challenge the action at an evidentiary hearing before the SPB at which the employer must
prove the charges by a preponderance of the evidence and establish that the proven
misconduct constitutes cause for discipline under the relevant statutes. (Skelly, supra, 15
Cal.3d at pp. 202-204 & fn. 19.)
The SPB is a statewide administrative agency created by the California
Constitution and vested with quasi-judicial powers for the purpose of reviewing punitive
action taken against state employees. (Skelly, supra, 15 Cal.3d at p. 201; Fisher v. State
Personnel Bd. (2018) 25 Cal.App.5th 1, 13.) The SPB’s ALJ presides over the hearing as
the fact finder and adjudicator and issues a proposed decision which the SPB may adopt,
modify or reject. (Skelly, at p. 204.) If the SPB renders an adverse decision, the employee
may seek review of that decision in the superior court by means of a petition for writ of
administrative mandamus. (Code Civ. Proc., § 1094.5.)
Trial and appellate courts review petitions for administrative mandamus under the
same standards. The question we must answer is whether the agency has proceeded
without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was
any prejudicial abuse of discretion by the agency. (Code Civ. Proc., § 1094.5, subd. (b);
City of Hesperia v. Lake Arrowhead Community Services Dist. (2019) 37 Cal.App.5th
734, 748.) Abuse of discretion “is established if the respondent [agency] has not
proceeded in the manner required by law, the order or decision is not supported by the
findings, or the findings are not supported by the evidence.” (Code Civ. Proc., § 1094.5,
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subd. (b).) Factual findings are reviewed under the substantial evidence standard and
purely legal questions like whether the appellant was given sufficient notice are reviewed
de novo. (Department of Corrections & Rehabilitation v. State Personnel Bd. (2016) 247
Cal.App.4th 700, 707; Conlan v. Bonta (2002) 102 Cal.App.4th 745, 753.)
B. Lack of Notice
Brown is instructive to our analysis of whether Rodgers received sufficient notice
of the charges against him and the penalty that could be imposed as a result. In that case,
a state university served a professor with a notice of dismissal alleging he had engaged in
a “pattern” of misconduct by retaliating against women who had refused his sexual
advances. (Brown, supra, 166 Cal.App.3d at p. 1155.) After an evidentiary hearing, the
SPB found only three of the five alleged incidents of sexual misconduct substantiated but
nevertheless imposed the full discipline of termination. (Ibid.) On appeal, the court
dismissed two of the three substantiated incidents based on laches and concluded the
remaining incident—while involving a sexual advance—did not involve retaliatory
behavior. (Id. at p. 1163.)
Left with a single finding significantly less egregious than the university had
alleged, the court concluded the professor was not on notice that the sole substantiated
allegation could support the full proposed penalty of dismissal. Whereas “the charging
document . . . alleged a linked set of events as the singular ground constituting the cause
for discipline,” the record revealed “the finding of a single sexual advance . . . made
without threat or retaliation.” (Brown, supra, 166 Cal.App.3d at p. 1163, italics added.)
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Although the professor had been put on notice that “the events which constitute the
remaining finding were in issue,” their “significance as a singular ground of discipline
was not charged or communicated to him.” Had he been so informed, the court
concluded, it “might have entirely altered the cast of [his] case.” (Id. at p. 1164, fn. 5,
italics added.)
Rodgers’s penalty suffers the same infirmity as the penalty in Brown. The facts the
ALJ found true at the hearing are significantly different from those CDCR alleged in their
charging document as the basis for the penalty. The NOAA alleged that Rodgers had
attempted to cover up his own intentional neglect by ordering subordinates to falsify
official documents and then had gotten angry with his subordinates for reporting that
misconduct. Such behavior on the part of a supervisor represents a serious transgression,
one that, if found true, would undoubtedly have supported a severe punishment like the
salary reduction proposed in the NOAA. However, the ALJ found all three of those
charges unsubstantiated and instead found true a very different version of events.
In that version, Rodgers, while busy performing other duties, repeatedly assured
his subordinates he would perform the required inspection, but at a later time. A few
hours after having performed the required inspection in a timely manner, Rodgers’s
supervisor informed him that his subordinates had told another sergeant he was refusing
to do the inspection on time. Crucially, the ALJ found Rodgers was confronting the
officers for making what—in his mind—was a false accusation against him; he was not
confronting the officers for accurately reporting his own misconduct.
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CDCR argues we should uphold the SPB’s decision because in imposing the full
proposed penalty the ALJ considered the proper factors, as articulated in Skelly.
Specifically, CDCR points to the fact the ALJ concluded that Rodgers’s discourteous
treatment of the officers was likely to recur and “might well have a chilling effect on
them and their willingness to report any misconduct they observe in the future.”
According to CDCR, we should not substitute our view of the appropriate penalty for the
ALJ’s.
This argument misses the threshold point. “Disciplinary action cannot be founded
upon a charge not made” (Wheeler v. State Bd. of Forestry (1983) 144 Cal.App.3d 522,
527), and neither section 19575.5 nor any other provision of law permits CDCR to amend
the charging document after they have taken their disciplinary action. (See Brown, supra,
166 Cal.App.3d at p. 1164, fn. 4 [noting that section 19575.5 authorizes “amendment of
the charging document only prior to the submission of the appeal for decision by the
board”].) In other words, if an employee did not receive notice that the proposed penalty
could be imposed based on the facts that were found true after the evidentiary hearing,
then the Skelly factors do not even come into play. (See Barber v. State Personnel Bd.
(2019) 35 Cal.App.5th 500, 505-506 [because “the notice of adverse action did not
provide Barber with sufficient notice of the workplace rules he allegedly violated or the
specific manner in which the violation occurred . . . ‘he was deprived of his due process
right to prepare an effective defense against the charge and to argue the appropriate
punishment’”] italics added.)
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During oral argument, CDCR asserted Rodgers did have notice he could be
subjected to the full penalty based on the ALJ’s findings because the charge of
discourteous treatment was listed as one of the grounds for the penalty in the NOAA. In
support, CDCR cited the following allegations in the NOAA: “Your confrontation of
Officers Angulo and Palafox regarding their reporting of your failure to perform the
requisite inspections was discourteous and disrespectful towards employees you were
tasked with the duty of supervising. Rather than acknowledge your neglect of your duty
to inspect the CSW inmate restraints at the beginning of the First Watch shift, you
verbally confronted and intimidated Officers Angulo and Palafox and used profanity in
demanding to know who had contacted Sgt. Moore after you had been advised that the
inspections were to take place at the beginning of the shift.”
Contrary to CDCR’s contention, those allegations do not solve the due process
problem, they underscore it. This is because the problem is not with the charge of
discourteous treatment, it’s with the alleged basis for that charge. As those allegations
make clear, the charge was premised on an underlying neglect of duty: CDCR claimed
Rodgers angrily confronted his subordinates for accurately reporting his refusal to
perform the beginning-of-shift inspection. But that is not what the ALJ found. Instead,
the ALJ found that, having properly discharged his duty, Rodgers angrily confronted his
subordinates because he honestly believed they’d wrongly accused him of shirking his
duties.
17
To be clear, we aren’t condoning Rodgers’ behavior or saying it’s not punishable.
As the ALJ observed, Rodger’s decision to confront his subordinates with anger and
profanity was unprofessional, discourteous, and violated CDCR’s policy on treating other
employees with respect. But the issue before us is not whether he committed any
misconduct, it’s whether he was on notice that his alleged actions could subject him to
the proposed penalty. To answer that question, due process requires us to compare the
facts alleged to those found true after an evidentiary hearing. In the alleged version,
Rodgers engaged in grave misconduct, contributing to a culture of silence that fosters
corruption. The ALJ rejected that theory, however, and found he’d simply failed to keep
his temper in check and treat his subordinates with respect when confronting them over a
misunderstanding. Given the significant difference between the two kinds of misconduct,
we conclude Rodgers lacked notice that his actions could subject him to the imposed
penalty.
Our conclusion makes it unnecessary to address Rodgers’s contention that the
ALJ’s finding he used profanity when confronting the officers is not supported by
substantial evidence.
III
DISPOSITION
We reverse the judgment and direct the trial court to issue a peremptory writ of
mandate directing the SPB to set aside its decision sustaining CDCR’s disciplinary action
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against Rodgers and to accord him any other relief to which he is entitled. Rodgers shall
recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
CERTIFIED FOR PUBLICATION
SLOUGH
J.
We concur:
RAMIREZ
P. J.
CODRINGTON
J.
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