Superior Court orders State Personnel Board reconsider its decision
Date: 11/25/2009
If it hadn't already, the State Personnel Board can now accept as a matter of faith that there is one association of state employees which will stand by its members through every step of the disciplinary appeal process, and it will make certain real -- not capricious -- justice is meted out.
A Superior Court judge in Sacramento last week agreed with Christiana Dominguez and the CSLEA legal team that the State Personnel Board's disciplinary action against Game Warden Alan Weingarten was excessive and that -- in the judge's words -- "the penalty came out of nowhere."
Weingarten is one step closer to winning his appeal, now that the judge has ordered SPB to re-evaluate its decision. In its tentative ruling, the court found that the board overstepped its bounds and abused its discretion when it upheld the warden's six-month suspension by misapplying law and ignoring gaps in the evidence in its October, 2008 decision upholding the discipline.
Most importantly, the court agreed with CSLEA's long-fought contention that the Department of Fish & Game excessively disciplined the warden based on two incidents, separated by months, which bore little relationship to one another. One part of the six-month suspension was based on Weingarten's mistaken radio broadcast of a profane remark in September, 2006. As part of the comment, he also used warden-jargon to refer to a co-worker earning overtime at a home office in a state of undress. The board upheld the department's discipline on the grounds that the comment constituted sexual harassment or discrimination. The superior court disagreed, finding nothing harassing or discriminating in the warden's comment.
The department also disciplined Weingarten for an incident with a group of river rafters in June, 2006. The department began an internal affairs investigation into it after receiving a complaint from one of the rafters -- nearly three months after the incident -- when the complainant was faced with paying a $400 citation for littering near a public waterway. Ultimately, she avoided paying her fine while her fellow rafters - who did not file complaints against Weingarten - were left to pay theirs in full.
The incident in question concerned Weingarten's agreement to transport a female citizen to her car as darkness fell and the group of rafters faced the prospect of being locked out of the parking lot by the time they were able to find transportation to return to their vehicle. Against his normal practice, he forgot to notify dispatch of the transport and failed to note the transport on his Daily Activity Report, although he did discuss the contact with his supervisor on the day it occurred. SPB upheld the discipline based on these errors. However, the court again reversed this finding because the department failed to introduce evidence demonstrating that wardens were required to report their transports as part of an official duty.
After receiving the superior court's tentative ruling, the Department of Fish and Game requested oral argument and informed the judge it believed, despite the findings the court had reversed, there remained ample evidence to uphold the six-month suspension. The judge, however, was unmoved and noted the six-month suspension was excessive based on the totality of the transgressions. The final ruling did not alter the court's tentative decision. The case now returns to the State Personnel Board for reconsideration of the penalty in light of the superior court's decision.
"I am proud of the aggressive representation displayed by Christiana and the CSLEA Legal team," said CSLEA President Alan Barcelona. "Despite CSLEA's ongoing differences with a handful of Fish and Game Wardens, CSLEA has not allowed this campaign of attack to detract from the services that our members expect and deserve. We are the envy of all 21 state bargaining units for the in-house legal team we've assembled for our members. Our ability to provide such representation is due to the size and strength of our organization. This case illustrates the power of unity."
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