GLENDALE – A California Department of Consumer Affairs (DCA) investigator who sought California Statewide Law Enforcement Association (CSLEA) legal representation after receiving a Notice of Adverse Action (NOAA) that called for her dismissal will keep her job.
“We were pleased that we prevailed after presenting the facts in this case to a receptive pre-disciplinary hearing officer who thoroughly considered this matter,” said CSLEA Legal Counsel Erin Eckelman-Ray, who represented the investigator. “We will fight vigorously to uphold our peace officers’ rights, including untimely disciplinary actions which are prohibited under Government Code section 3304.”
On February 16, 2016, Eckelman-Ray represented the investigator in a Skelly hearing before California Highway Patrol (CHP) Assistant Chief Dan Minor. The investigator, who has requested to remain anonymous, was served with a NOAA with a dismissal date of February 1, 2016. The NOAA alleged several charges under Government Code section 19572, including but not limited to a charge of dishonesty.
The investigator had been working closely with CSLEA Legal Counsel while under investigation, and upon being served with the NOAA, immediately contacted CSLEA. Eckelman-Ray requested a Skelly hearing and the matter was assigned to CHP Assistant Chief Minor. During the hearing, Eckelman-Ray stated that the NOAA was untimely pursuant to Government Code section 3304(d), and that DCA could not pursue action against the peace officer because there was evidence DCA knew of the alleged misconduct for more than a year before serving the discipline. Eckelman-Ray introduced evidence that showed the investigator was not dishonest and that a charge of dishonesty would not be sustained by the State Personnel Board. Furthermore, there was no evidence of progressive discipline and/or efforts on the part of DCA to give the investigator the opportunity to learn from mistakes and correct them.
Assistant Chief Minor took the matter under submission, and in his decision, stated that the charge of dishonesty was not sustained, and therefore struck from the action. He further stated that “the information and/or opinion presented in your response raised issues which gave cause for mitigation of the penalty.” Ultimately, it was his decision as the pre-disciplinary hearing officer to modify the adverse action from a dismissal to a five-day suspension.
“The previous year has been difficult for me,” the investigator said. “Luckily, I had the support of CSLEA. As an employee you pay your union dues never thinking that you may one day need their assistance. CSLEA provided me with the advice and guidance that I needed. My attorney, Erin Eckelman-Ray, was
extremely knowledgeable. Eckelman explained each step of the process and spoke up for me when I couldn’t. I am eternally grateful to her and CSLEA for their comprehension of the law and their dedication.”
“This case involved no progressive discipline what so ever by the employer,” said Eckelman-Ray. “The employee should be provided with the opportunity to learn from prior mistakes and take steps to improve job performance before taking such unforgiving punishment like a dismissal.”
CSLEA full membership entitles members to legal counsel throughout an investigation and subsequent appeal of disciplinary action. This is an example in which a CSLEA member utilized the legal services afforded to her and successfully obtain a modified penalty that put her back to work. CSLEA reminds Bargaining Unit 7 employees that the difference between maintaining full membership versus fair-share status is between $5 and $14 per month, based on the member’s affiliate association. This is a small price to pay given that a decision to modify the dismissal in this case would have cost the officer several thousands of dollars and could have served to permanently tarnish her reputation as an officer, had the charge of dishonesty not been removed. The stakes are too high to ignore the virtues of full membership.