Cal Fire Cannot Withdraw Discipline To Enhance Penalty Once Discipline is Final

The California Court of Appeals has ruled that Cal Fire is prohibited from giving firefighters a more serious penalty for a disciplinary infraction after an initial punishment has been administered, and the period for an appeal has run. That much is relatively straight forward.

As for how the Court of Appeals reached that decision, and just how much precedential value the ruling will have beyond Cal Fire, requires a more detailed look into the facts. The case involved a cheating scandal that occurred in Cal Fire during a promotional process for captain in 2014. Three firefighters, Justin Chaplin, James Michels, and Frank Schonig, were scheduled for interviews as part of the process. As explained in the decision:

  • Before the interviews, a battalion chief surreptitiously texted information to appellants about the interview, including interview questions and desired responses.
  • Without reporting that they had received this information, appellants proceeded with the interview and performed well.
  • Chapin and Schonig were appointed to be limited-term fire captains, and Michels was appointed to be a permanent fire captain.
  • An investigation was launched against the battalion chief after he was accused of murdering his girlfriend and engaging in wrongdoing at CAL FIRE’s Academy.
  • In the course of this investigation, appellants admitted that they had received the text messages about the interviews.
  • In January 2015, CAL FIRE served disciplinary notices, known as notices of adverse action, on appellants.
  • Chaplin and Schonig were notified that their appointments as limited-term fire captains would end, and Michels was notified that he failed his probationary period.
  • They were also all notified that their pay would be reduced by five percent for 12 months.
  • This discipline was upheld in February, after each of the men was given a hearing conducted in compliance with Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194 [124 Cal. Rptr. 14, 539 P.2d 774]
  • The three firefighters did not appeal their discipline to the Board before the deadline to do so, but Schonig later sought and received a good-cause exception to the deadline. His appeal was therefore allowed to proceed.
  • Within weeks of their discipline being upheld, two of the three firefighters were given new interviews and were again promoted: Schonig to be a permanent fire captain, and Chaplin to be limited-term fire captain at a different unit from his previous appointment.
  • In early May, the Sacramento Bee published an article with comments by the director of CAL FIRE about Schonig and Chaplin’s “boomerang promotions.”
  • The article reported that the firefighters’ “re-promotions caught [the director] off-guard,” and he was “unhappy that both men so quickly regained the rank he stripped from them.” According to the article, the director would “like to bust them down again.”

Cal Fire then “withdrew” the original discipline and provided Chaplin and Michels with a new notice of adverse action. Because Schonig’s discipline has not been finalized he was notified that the prior discipline was “rescinded”, and he was given a new notice of adverse action.

Despite their respective arguments related to double jeopardy and finality, all three men were then given the enhanced discipline and demoted. The enhanced discipline was upheld by the State Personnel Board. The men then appealed to the Superior Court of San Francisco County, who upheld the Personnel Board. The men then appealed to the Court of Appeal of California, First Appellate District.

From the decision:

  • The firefighters here argued that the [administrative law judge for the State Personnel Board] was required to dismiss the new disciplinary actions because they could not be disciplined twice for the same conduct under … precedential Board decisions.
  • CAL FIRE argued that [the cases] were distinguishable.
  • Here, the firefighters have consistently claimed that the Board lacked the legal authority to proceed against them twice for the same behavior.
  • Their specific argument that a substitution of disciplinary charges must occur before an action is concluded is based on principles related to statutory finality.
  • On the merits, we agree with the firefighters that once a disciplinary action becomes final, the employer is prohibited from withdrawing it and initiating a new adverse action.
  • The plain language of section 19575 could not be clearer: an appointing power’s discipline is final where no appeal is taken within 30 calendar days.
  • In sum, we agree with the firefighters that the discipline against Chapin and Michels became final under section 19575 because they did not appeal their discipline to the Board within 30 days of its imposition.
  • And because their discipline was final, CAL FIRE was not permitted to withdraw the notices of adverse action and serve new and different notices.
  • Our analysis is different, however, for Schonig, who appealed the first notice of adverse action to the Board. His discipline thus was not final under section 19575 when CAL FIRE served him with the new notice of adverse action.

With that, the court overturned the discipline for Chapin and Michels, and upheld it for Schonig. Here is a copy of the ruling:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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