Report Title: “The Department Violated Its Own Policy When It Failed to Include a No-Rehire Clause in a Settlement of a Strong Dismissal Case Against a Sergeant Accused of Soliciting a Minor for Sex.”
We respectfully disagree with the OIG’s assessment of this Sentinel case. The department’s settlement in this case was consistent with that of other state agencies and current interpretation of existing law. It is also important to note that the OIG did not seek executive review, which they have the authority to do. While this incident was troubling, we followed proper protocols stipulated in the State’s no re-hire procedure with the State Personnel Board, reduced a likely lengthy litigation process, and ensured there was proper communication and resolution. Ultimately, the case resulted in holding the Sergeant accountable.
CDCR’s Use of “No Rehire” Provisions
The OIG’s report does not accurately describe the history of the Department’s approach to “no rehire” provisions, and the discussions between the Department, OIG, and the State Personnel Board (SPB).
On January 1, 2020, Code of Civil Procedure section 1002.5 (“section 1002.5”) went into effect. It prohibited the use of “No-Rehire” clauses in agreements resolving claims with an “aggrieved person,” except under incredibly limited circumstances. Section 1002.5 was amended effective January 1, 2021. That amendment added a third exception, but did not alter or narrow the definition of an “aggrieved person.”
Given the language of the statute, and consistent with other State agencies, the Department interpreted section 1002.5 to apply to employee appeals to the SPB. In late January 2020, representatives from the Department and OIG discussed the application of section 1002.5 to SPB actions. The Department also provided OIG with a written summary regarding its interpretation of section 1002.5, explaining, in part, that the term “aggrieved person” was broadly defined and the plain language of the statute governed its interpretation, and addressed the strong public policy underlying the statute.
OIG representatives maintained that the Legislature did not intend to include employee appeals to the SPB. In an effort to resolve the different interpretations, the Department arranged for a meeting with high-level representatives from the SPB, which was attended by representatives from the OIG. Following that meeting, OIG did not raise this issue again with the Department until over a year later.
Again, OIG took the position that section 1002.5 did not apply to SPB appeals, and advised that it would maintain its position until the Department could produce a rejected settlement agreement. The Department provided OIG with three settlement agreements from other state agencies that were rejected because they included an impermissible No-Rehire provision. In response, OIG representatives advised the Department that it would still negatively assess the attorneys because the policy language requires the provision, even if SPB would not permit it.
CDCR’s attorneys will seek to utilize no-rehire provisions when permitted by law, consistent with its existing practices. OIG’s criticism that the Department is not strictly following its policies ignores changes to the law that made such provisions largely unenforceable. When, as here, the Department’s policy is in conflict with newly announced law, the Department’s attorneys will represent the Department in settlement negotiations in accordance with applicable law and not the outdated policy.
The Decision to Settle This Matter Was Within CDCR’s Discretion
CDCR entered into a settlement allowing the Sergeant to resign with the appropriate waivers. The resignation eliminated any further litigation, as well as the chance that the SPB may rule in the Sergeant’s favor. When employees resign under these circumstances, the Stipulation and Agreement indicating they resigned in lieu of dismissal will remain in Official Personnel Files, as well as a letter indicating they resigned under unfavorable circumstances. This settlement brought finality to the matter, and moreover, accomplished the end-goal of ending the Sergeant’s employment with CDCR.
In addition, this case would likely have been delayed for a significant period of time pending the resolution of the criminal matter. Indeed, the Sergeant asked that the case be delayed in order to enable him to resolve the criminal matter before having to testify in an administrative matter. Additionally, given the pending criminal matter, there was uncertainty as to what testimony would be introduced at the SPB hearing.
Finally, the OIG’s assertion that the Sergeant would have been prejudiced by his failure to file a Pre-Hearing Settlement Conference Statement is misplaced. The Sergeant was in pro per and the SPB often provides pro per parties an opportunity to file a Statement after the settlement conference, which would have allowed the Sergeant to list witnesses and documentary evidence. There was no reason to expect that the SPB would treat the Sergeant any differently than it treats other appellants acting in pro per.
In light of all of these considerations, CDCR determined it was in its best interest to settle the case. That the OIG would have made a different litigation decision does not equate to poor handling or serious errors by the Department.
Unfortunately, the OIG elected not to follow its own policy and established protocols for elevating these concerns to CDCR’s Secretary in a timely manner. This deprived the Department of the opportunity to “repair the [alleged] damage,” which the OIG indicates is a precondition to issuing a Sentinel Report.
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