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By Messing Adam & Jasmine | February 1, 2021 | Posted in PORAC LDF News

COURT OF APPEAL REVERSES DISCIPLINARY “DO-OVER,” CURBS AGENCY AD HOC RULEMAKING IN PUBLISHED OPINION

GARY M. MESSING
Partner
LINA BALCIUNAS COCKRELL
Senior Counsel
Messing Adam & Jasmine LLP

Finality is an often-overlooked element of public employee discipline. A collective bargaining agreement or agency’s personnel rules typically provide a deadline for the employee to appeal a disciplinary action, but little or no specific reference as to when the employer is unable to impose new or additional punishment for sustained misconduct. In the criminal context, the Constitution prohibits “double jeopardy,” that is, being forced to stand trial twice for the same crime. While California law does not mandate employment double jeopardy, several jurisdictions have recognized that, based on principles of fundamental fairness, an employer should not be able to discipline an employee more than once for the same underlying misconduct.
The California State Personnel Board (SPB) expressly prohibits employment double jeopardy for state employees, but it took many years and a Court of Appeal decision to determine what exactly this means. In Chaplin v. State Personnel Board (2020) 54 Cal.App.5th 1104, the First District Court of Appeal ruled that once the statutory deadline passes and the employee chooses not to appeal to the SPB, the discipline imposed is final and the hiring authority may not later rescind it and impose new discipline.
The court’s decision ends a long, tumultuous saga for three CAL FIRE firefighters. In January 2015, CAL FIRE issued disciplinary notices to Justin Chaplin and two other fire captains, all assigned as instructors at its Academy in Ione. CAL FIRE hired an outside law enforcement agency to investigate the allegations as part of a statewide investigation of its Academy, which lasted several months. After pre-disciplinary due process hearings, CAL FIRE upheld the demotion of all three from the Fire Captain classification to Fire Apparatus Engineer and a 5% pay reduction for 12 months. Each of the adverse actions expressly provided that, “[r]ecognizing your honesty during this investigation, the Department feels you can serve in a lower-level position immediately and will remain eligible to fairly compete for promotional positions.” 
CAL FIRE also transferred the now-engineers out of the Academy and back to their respective home units. All three accepted the discipline and the deadline passed to appeal to the SPB, as prescribed by statute and SPB rules. Within a month of the effective date of the adverse actions, Chaplin and another engineer re-promoted back to Fire Captain positions. 
On March 21, 2015, upon learning that The Sacramento Bee newspaper had published a story detailing the adverse actions and naming the firefighters, one of the captains felt forced to publicly defend himself, so he sought — and received — a good cause exception to the SPB limitations period. He late-filed an appeal to the SPB. 
On May 6, 2015, The Sacramento Bee published an interview with CAL FIRE Director Ken Pimlott. The article referenced the adverse actions against Chaplin and the other re-promoted captain, noted their “promotional boomerangs” and queried why the discipline did not “stick.” In filings with the SPB dated the same day, May 6, 2015, CAL FIRE withdrew the discipline previously imposed against the firefighters and, concurrently, placed all three on administrative time off. Approximately a week later, CAL FIRE served all three with a second adverse action, demoting each of them (indefinitely) to the rank of Firefighter II (two ranks below Fire Captain). The new discipline was based on the same general factual allegations as the original and contained the same supporting materials, but this time CAL FIRE charged all three firefighters with dishonesty under Government Code
Section 19572.
With the support of their union, CAL FIRE Local 2881, all three firefighters appealed this “do-over” to the SPB. Represented (at all stages of the proceedings) by Gary M. Messing and Lina Balciunas Cockrell of Messing Adam & Jasmine LLP, the firefighters then filed motions with the SPB to dismiss the second adverse actions as improper employment “double jeopardy” under established SPB precedent — that is, that the firefighters had been improperly disciplined twice for the same underlying misconduct. The SPB denied these motions, finding that “[a]lthough an appointing power may not discipline an employee twice for the same offense, the Board has repeatedly recognized an appointing power’s ability to withdraw a [Notice of Adverse Action], and serve the employee a new [Notice of Adverse Action], without violating the ‘double jeopardy’ prohibition.”
However, there was no SPB decision, precedential or non-precedential, that analyzed the propriety of withdrawing adverse actions and issuing new, more severe discipline on the same underlying misconduct after the time to appeal had passed and with no appeal pending.
Following an evidentiary appeal hearing, the SPB upheld the second set of adverse actions and CAL FIRE’s “do-over.” The SPB then denied the firefighters’ petition for rehearing. Represented by Messing Adam & Jasmine LLP, the firefighters sought judicial review of the decision in the San Francisco County Superior Court.
But the Superior Court upheld the SPB’s decision. The court found that the SPB’s determination that withdrawal of an adverse action accompanied by backpay “wipes the slate clean,” allowing an employer to issue a second discipline based on substantially the same misconduct without violating its own “double jeopardy” rule, was “reasonably based” on SPB precedent. The Superior Court expressed sympathy for the firefighters’ fairness concerns, but ruled that the state statute setting the limitations period for an appeal did not constrain the SPB’s authority to essentially engage in its own rulemaking without a showing that the action was arbitrary and capricious.
Even in the face of yet another defeat, the firefighters tried again, appealing to the First District Court of Appeal. On September 23, 2020, more than five and a half years after CAL FIRE’s “do-over,” the Court of Appeal reversed the Superior Court’s ruling as to Chaplin and the other captain who had not at any time appealed the original discipline to the SPB. The court found that the state statute, Government Code Section 19575, provides for the finality of discipline if the employee does not appeal to the SPB within the limitations period. Once that discipline is final, the employer does not have the authority to unilaterally withdraw the discipline and issue new discipline, even if the employer reimburses the employee for lost backpay and benefits. The court concluded that this statute does not give the SPB leeway to read anything into the absence of an express prohibition on the withdrawal procedure, nor the authority to uphold withdrawal in contradiction of the plain language of statutory law. In other words, if the discipline was final after 30 days as to the employee, it was also final as to the employer.
In reversing the SPB’s decision upholding the withdrawal procedure, the court denounced and curtailed the SPB’s “ad hoc” rulemaking. The SPB has authority to designate its decisions as precedential, which can serve to create policy, such as the employment “double jeopardy” rule. However, the SPB’s rulemaking — essentially “ad hoc” through legal opinion rather than lawmaking — is not absolute. The court concluded there was no precedent for the withdrawal procedure after the appeal limitations period had passed, and that it was improper to create a rule that conflicts with the plain language of Government Code Section 19575 providing for finality of discipline.
However, the Court of Appeal upheld the “do-over” as to the captain who had been granted leave to file a late appeal with the SPB, because his appeal of the original discipline was still pending, it was not “final” when CAL FIRE withdrew it. He no longer works for CAL FIRE.
The court directed the Superior Court to order the SPB to grant the original motions to dismiss the second adverse actions as to Chaplin and the third captain and reinstate the original adverse action. Both will be entitled to receive all backpay and benefits, plus interest, that they have lost over the last five years as a result of the improper second adverse action. 
The Court of Appeal certified its decision for publication, which means that it is precedential authority impacting employees statewide. While the split outcome for the three firefighters was unexpected, it provides a clear rule on the finality of discipline that state employees can rely on moving forward.
Based on the court’s analysis, local ordinances and policies that have similar rules as those considered in this case should be interpreted in a similar manner. Most, if not all, local agencies have deadlines for when an employee can appeal discipline. So, if an employee chooses not to appeal, the local agency should not be able to withdraw the original discipline and impose new discipline after the deadline passes (like CAL FIRE attempted to do). And the local agency should not be able to use an ad hoc rulemaking process to change the administrative rules that the employee relied on (like the SPB attempted to do). An arbitrator or trial court judge will likely find the Court of Appeal’s decision persuasive on this issue, broadening the impact of the two employees’ victory
in this case.
CAL FIRE Local 2881 is a member of PORAC and has members covered by the Legal Defense Fund.

About the Authors
Gary M. Messing, of Messing Adam & Jasmine LLP, is chief counsel for CAL FIRE Local 2881. Lina Balciunas Cockrell is senior counsel at Messing Adam & Jasmine LLP.