Employee Disciplinary Process California Department of Corrections

(cid:1)(cid:4)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8) (cid:9)(cid:4)(cid:8) (cid:10)(cid:11)(cid:7)(cid:8) (cid:2)(cid:12)(cid:13)(cid:14)(cid:7)(cid:6)(cid:10)(cid:9)(cid:15)(cid:8) (cid:3)(cid:7)(cid:12)(cid:7)(cid:15)(cid:16)(cid:17) (cid:1)(cid:1)(cid:2)(cid:3)(cid:2)(cid:4)(cid:2)(cid:5)(cid:6)(cid:1)(cid:2)(cid:7)(cid:4)(cid:3)(cid:8)(cid:9)(cid:10)(cid:2)(cid:11)(cid:1)(cid:12)(cid:13)(cid:4)(cid:4)(cid:2)(cid:8)(cid:2)(cid:13)(cid:14)(cid:15) (cid:1)(cid:1)(cid:2)(cid:3)(cid:1)(cid:4)(cid:5)(cid:6)(cid:7)(cid:5)(cid:8)(cid:9)(cid:1) (cid:2)(cid:10)(cid:11)(cid:12)(cid:6)(cid:13)(cid:1)(cid:1)(cid:5)(cid:3)(cid:3)(cid:14)(cid:15)(cid:3)(cid:11)(cid:12)(cid:3)(cid:16)(cid:17)(cid:18)(cid:13)(cid:5)(cid:4)(cid:18)(cid:6)(cid:15)(cid:1)(cid:14)(cid:14) (cid:15)(cid:5)(cid:6)(cid:4)(cid:7)(cid:8)(cid:9)(cid:10)(cid:4)(cid:5)(cid:5)(cid:19)(cid:11)(cid:3)(cid:5)(cid:9)(cid:12)(cid:13)(cid:11)(cid:10)(cid:12)(cid:14)(cid:8)(cid:7)(cid:5)(cid:15)(cid:8)(cid:9)(cid:9)(cid:11)(cid:15)(cid:12)(cid:4)(cid:8)(cid:10)(cid:16) (cid:1)(cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:2)(cid:3)(cid:3)(cid:2) (cid:1)(cid:1)(cid:2)(cid:3)(cid:4)(cid:2)(cid:2)(cid:5)(cid:6)(cid:7)(cid:8)(cid:4)(cid:1)(cid:9)(cid:5)(cid:10)(cid:1)(cid:11)(cid:9)(cid:1) (cid:3)(cid:1)(cid:9)(cid:12)(cid:9)(cid:13)(cid:6)(cid:11)(cid:14)(cid:4)(cid:4)(cid:11)(cid:13)(cid:10)(cid:14)(cid:1)(cid:6)(cid:13)(cid:3) OFFICE OF THE INSPECTOR GENERAL STEVE WHITE, INSPECTOR GENERAL REVIEW OF THE EMPLOYEE DISCIPLINARY PROCESS CALIFORNIA DEPARTMENT OF CORRECTIONS REPORT MARCH 2002 PROMOTING INTEGRITY STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 1 CONTENTS EXECUTIVE SUMMARY.......................................................................................................3 INTRODUCTION...................................................................................................................6 BACKGROUND.....................................................................................................................6 OBJECTIVES, SCOPE, AND METHODOLOGY.......................................................................6 FINDINGS AND RECOMMENDATIONS..................................................................................8 FINDING 1......................................................................................................................9 FINDING 2....................................................................................................................11 FINDING 3....................................................................................................................13 FINDING 4....................................................................................................................14 FINDING 5....................................................................................................................16 ATTACHMENT A................................................................................................................20 ATTACHMENT B................................................................................................................21 STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 2 EXECUTIVE SUMMARY This report presents the results of a special review conducted by the Office of the Inspector General of the employee disciplinary process established by the California Department of Corrections. The review was performed pursuant to the oversight authority provided to the Office of the Inspector General under California Penal Code Section 6126. The review centered on the procedures used by the department to carry out the employee disciplinary process within statutory deadlines, to properly prepare adverse action cases, and to negotiate adverse action settlements with employees. The Office of the Inspector General found deficiencies in the employee disciplinary process that affect the department’s ability to meet the one-year statutory deadline for imposing adverse actions against public safety officers. The department also has not established needed policies and procedures or provided the training necessary to ensure that employee disciplinary actions and settlements are handled properly. Specifically, the Office of the Inspector General found the following: FINDING 1 The Office of the Inspector General found that the needless complexity of the employee disciplinary process causes delays that impair the ability of the Department of Corrections to take appropriate action against employees found to have engaged in misconduct. Under California Government Code Section 3304(d), employing agencies may not take adverse action against a public safety officer for misconduct unless the investigation into the misconduct is completed within one year of the date of discovery—that is, one year from the date a person authorized to initiate an investigation learned of the misconduct. Except in specified circumstances, the agency must also notify the officer in writing within the one- year period of its decision to impose disciplinary action and must provide the notification within 30 days of that decision. But the employee disciplinary process at the Department of Corrections is so needlessly complex and involves so many different entities that the department often is unable to meet the one-year deadline. In a review of selected cases, the Office of the Inspector General found that 43 percent were not completed within the required time limit. FINDING 2 The Office of the Inspector General found that the Department of Corrections has no clear guidelines for defining the prescribed one-year period for investigating alleged misconduct and imposing disciplinary action against peace officers or for identifying the required 30-day notification period. Despite the requirements set forth in the California Government Code, the Department of Corrections has no clear criteria for determining when the one-year period for investigating misconduct and imposing disciplinary action begins and ends. The Office of the Inspector General found that the department has no clear guidelines for establishing the date the STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 3 alleged misconduct was discovered, for defining who is “authorized to initiate an investigation,” or for determining the date the department decided to impose disciplinary action in order to identify the 30-day notification period. The absence of such guidelines likewise impairs the department’s ability to impose adverse action. FINDING 3 The Office of the Inspector General found that employee relations officers at institutions are not provided with adequate training and often lack the experience necessary to properly handle employee disciplinary actions. Core responsibility for preparing adverse actions and representing institutions at State Personnel Board hearings falls to employee relations officers, but these employees typically have neither the training nor the experience to fulfill that responsibility. The Department of Corrections has not established either minimum background requirements or regular mandatory training for employee relations officers, and the position is most often designated as a training and development assignment with a two-year limited term. The absence of adequate training and experience requirements for employee relations officers and the regular turnover in employee relations officer positions both contribute to the department’s difficulty in meeting the one-year statutory deadline for completing the employee disciplinary process in cases involving public safety officers. FINDING 4 The Office of the Inspector General found that most of the employee disciplinary actions at the Department of Corrections proceed all the way through settlement and hearings before the State Personnel Board without advice or assistance from the department legal staff. The Employment Law Unit of the Department of Corrections Legal Affairs Division is responsible for providing legal assistance and representation to the department in employee disciplinary cases. Yet, most employee disciplinary cases are handled from start to finish by employee relations officers, who are on temporary assignment and have little training in employment law. In many of the cases in which the Employment Law Unit does participate, that involvement is limited to representing the department or institutions at State Personnel Board hearings. Even in those cases, the legal staff often does not become involved until shortly before the hearing—after adverse action packages have already been prepared and served and the ability to correct errors or defects is limited. FINDING 5 The Department of Corrections has not established policies and procedures governing settlement of employee disciplinary actions and has no means of monitoring or evaluating the settlement process. STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 4 About one-third of employee disciplinary cases in which allegations are sustained are resolved with the Department of Corrections agreeing to a settlement. But the department has no policies or procedures governing the settlement process and no means of evaluating the appropriateness of the settlements. The department has not defined the types of circumstances in which a settlement would be appropriate, who has authority to initiate and accept a settlement, or what information must be maintained to document and support the settlement agreement. Nor does the department maintain the information necessary to identify systemic problems in the settlement process. RECOMMENDATIONS The Office of the Inspector General recommends that the Department of Corrections take the following actions: • Establish a centralized system to monitor and track the status of employee disciplinary cases. The department should consider modifying either the personnel operations information management system or the Employment Law Unit information management system to include this tracking capability. The system should also include an early warning mechanism for cases in danger of exceeding statutory time limits. • Issue clear guidelines defining what constitutes the date of discovery, who is “authorized to initiate an investigation,” and the date the department makes its decision to impose discipline. • Establish a formalized training program for employee relations officers at the institutions. The department should also convert the employee relations officer positions from temporary training assignments to permanent positions. • Establish formalized policies and procedures to expand the role and responsibility of the Employment Law Unit in the preparation of employee disciplinary actions. Implement a process for monitoring court decisions and State Personnel Board rulings affecting employee disciplinary actions. Provide Internet access to employee relations officers and conform to standard management practices by instituting a comprehensive e-mail system to improve communication between headquarters staff and institution employees. • Establish policies and procedures governing employee disciplinary action settlements and require that the necessary documentation be maintained for monitoring and evaluating the settlement process. STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 5 INTRODUCTION The Office of the Inspector General was established by California Penal Code Section 6125 to provide oversight for the Youth and Adult Correctional Agency, and its subordinate departments. Pursuant to California Penal Code Section 6126, the Office of the Inspector General is responsible for reviewing policies and procedures and conducting audits of departments within the Youth and Adult Correctional Agency. The audits and reviews are intended to identify areas of noncompliance with statutory and regulatory requirements, to specify deficiencies, and to recommend corrective actions. BACKGROUND The California Department of Corrections employs a workforce of approximately 46,000 to fulfill its oversight responsibility for 160,000 state prison inmates and 90,000 parolees. An essential function of the department as an employer is to ensure appropriate conduct on the part of its employees and to take disciplinary action against those found to have engaged in misconduct. For that purpose, the department has established a comprehensive employee disciplinary process, which is subject to statutory and regulatory provisions setting forth employee rights and due process considerations. The principal laws affecting the department’s ability to take administrative action against employees are California Government Code Sections 19635 and 3300 et seq. California Government Code Section 19635 establishes that no adverse action may be taken against a state employee unless the notice of adverse action is served within three years of the action that is the basis for the discipline, or within three years of the date of discovery for adverse actions based on fraud, embezzlement, or falsification of records. California Government Code Sections 3300 through 3311 define employee disciplinary protections granted to public safety officers. Specifically, Section 3304(d) precludes an employing agency from taking punitive action against a public safety officer based on an investigation of misconduct if the investigation is not completed and the public safety officer notified within one year of the public agency’s discovery of the misconduct by a person authorized to initiate an investigation. Section 3304(f) requires a public agency to notify a public safety officer in writing of its decision to impose discipline, within 30 days of its decision. Such notice must also include the date on which the discipline will be imposed. Consistent with these statutory provisions, the department is required to notify its employees of its intent to take adverse action within three years of occurrence for non-peace officers and within one year of discovery for peace officers. OBJECTIVES, SCOPE, AND METHODOLOGY The objective of this review was to evaluate the department’s employee disciplinary process, beginning with the date of discovery and the institution’s submission of a request for investigation (form CDC-989) and following the process to the ultimate disciplinary action taken. The review was undertaken to identify administrative and procedural weaknesses in the disciplinary process that might adversely affect the department’s ability to take appropriate adverse action against employees found to have engaged in misconduct. STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 6 Fieldwork for the review was conducted from August through November 2001 and covered the procedures used by the following units of the California Department of Corrections headquarters: • Director’s office • Regional administrator’s office – Institutions Division • Regional administrator’s office – Health Care Services Division • Legal Affairs Division – Employment Law Unit • Office of Investigative Services • Personnel management office - Operations Unit Employee disciplinary procedures and sample cases were also reviewed at six selected state correctional institutions. The institutions reviewed included two institutions each in the northern, central, and southern regions. The review covered: • Timeframes for preparing and submitting investigation requests • Timeframes for investigating cases • Adherence to departmental and statutory deadlines • Timeframes for preparing and submitting adverse action packages • Training of employee relations officers in employment law and adverse actions • Timeframes for headquarters review by personnel operations, the regional administrator, legal affairs, and the director’s office • Settlement policies and procedures • Timeframes for serving notice of adverse action The review focused on the policies and procedures established by the department to ensure the timely and appropriate processing of employee disciplinary actions and on the time required to complete the review of adverse actions at each stage of the disciplinary process. The review also examined 52 sample cases, selected from six state correctional institutions predominantly from the 1999 and 2000 calendar years. The procedures used in the review included the following: • Review of policies and procedures related to the employee disciplinary process, investigative case acceptance, logging, and tracking • Review of training programs and training histories related to the employee disciplinary process • Review of investigative case files • Interviews with representatives of the Department of Corrections (headquarters and institutions), the Attorney General’s Office (defendant’s counsel), and the Prison Law Office (plaintiff’s counsel). • Interviews with the U.S. Special Master for Pelican Bay State Prison STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 7 • Interview with the U. S. Special Master’s use-of-force expert • Interviews with officials and staff of the six selected state correctional institutions, including wardens, chief deputy wardens, investigation staff, and employee relations officers. STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 8 FINDINGS AND RECOMMENDATIONS FINDING 1 The Office of the Inspector General found that the needless complexity of the employee disciplinary process causes delays that impair the ability of the Department of Corrections to take appropriate action against employees found to have engaged in misconduct. The employee disciplinary process at the Department of Corrections is so complex and involves so many different entities that the department often is unable to meet the one-year deadline for investigating alleged misconduct and imposing disciplinary action against public safety officers. Although the department acknowledges the problem, it has not sought to quantify the percentage of cases in which the deadline is not met. Meanwhile, the inability of the department to take disciplinary action against employees found to have engaged in misconduct undermines the credibility of its commitment to require appropriate conduct, and fosters the perception that misconduct is tacitly accepted. Under California Government Code Section 3304(d), employing agencies may not take adverse action against a public safety officer for misconduct unless the investigation into the misconduct is completed within one year of the date of discovery—that is, one year from the date a person authorized to initiate an investigation learned of the misconduct. Except in specified circumstances, the agency must also notify the officer in writing within the one- year period of its decision to impose disciplinary action and must provide the notification within 30 days of that decision. When an alleged incident of misconduct results in an investigation by the Office of Investigative Services, the employee disciplinary process generally involves the following five steps: • The warden initiates an investigation by signing a request for investigation (Form CDC 989). • The Office of Investigative Services conducts the investigation • The institution submits its decision of proposed disciplinary action to Department of Corrections headquarters for review. • Department of Corrections headquarters makes its decision about disciplinary action and notifies the institution of its decision. • The institution notifies the employee of the proposed disciplinary action. In 43 percent of cases tested, the disciplinary process was not completed on time. The Office of the Inspector General selected a sample of 52 investigations completed during fiscal years 1999-00 and 2000-01 in which misconduct allegations were sustained to determine whether the employee disciplinary process was completed within the one-year STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 9 time limit. The 52 cases represented 31 percent of the 168 cases at six selected institutions that resulted in sustained allegations during the 1999-00 and 2000-01 fiscal years. Of the 52 cases, 40 cases involve allegations of misconduct by public safety officers. The review of the 40 cases showed that 17—43 percent—were not completed within the required one-year time frame. The average time between the date of discovery and the date of notification in the 40 cases was 325 days. In the 17 cases that exceeded the one-year requirement, the elapsed time ranged from 367 days to 566 days. An analysis of the 17 cases revealed the following: • In five cases, the department took no disciplinary action against employees found to have engaged in misconduct because it failed to meet the one-year time limit. • In one case, the employee voluntarily resigned while the investigation was in progress. • In four cases, it appears that the department imposed formal adverse action against the employee by calculating the one-year time limit from the date of signature on the request for investigation CDC Form 989 instead of from the date of discovery. • In seven cases, the department apparently was able to take disciplinary action against the employee because of special circumstances that exempted the department from the one-year requirement. Special circumstances included cases originally opened as criminal investigations and cases involving multiple subjects. Unreasonable delays occur at every step of the disciplinary process. With an average of 325 days needed to complete a case, a delay in any of the five steps can cause the disciplinary process to exceed the one-year limit. Table 1, below, shows the average number of days and highest number of days required to process a case through each phase of the disciplinary process in the cases selected for review: Table 1. Days Required for Each Phase of the Disciplinary Process AVERAGE DAYS TO HIGHEST NUMBER OF ACTION COMPLETE DAYS Initiate Investigation 032 345 Complete Investigation 192 449 Institution Decision 036 216 Headquarters Review 037 130 Service of Notice 010 067 Transfer or Mail 018 054 The process is complex, with no single entity responsible for monitoring case status. The Department of Corrections employee disciplinary process is a complicated procedure requiring multiple reviews or processing by various units within the department (see flowchart in the Attachment to this report, which diagrams the employee disciplinary STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 10 process). For example, a case might be subject to review by various institution officials, including the investigative staff, the employee relations officer, the associate warden, and the chief deputy warden, before the warden signs the request for investigation form. Similarly, at the headquarters review phase, a case could be subject to review by the personnel office, the legal affairs division, the regional administrator, and the director’s office. Each additional level of review and processing carries an inherent risk of additional delay, mishandling, and miscommunication, especially given the geographic location of some of the institutions. Each unit in the process monitors case status within its area of responsibility. For example, the investigation units monitor open investigations, employee relations officers monitor cases received from the investigation unit and returned from headquarters, and the personnel unit tracks the cases through the headquarters review process. But the monitoring occurs at the discretion of the individual units. No single unit has responsibility for tracking cases from beginning to end to identify those in danger of exceeding the one-year time limit. RECOMMENDATION The Office of the Inspector General recommends that the Department of Corrections establish a centralized system to monitor and track the status of employee disciplinary cases. The department should consider modifying either the personnel operations information management system or the Employment Law Unit information management system to include this tracking capability. The system should also include an early warning mechanism for cases in danger of exceeding statutory time limits. FINDING 2 The Office of the Inspector General found that the Department of Corrections has no clear guidelines for defining the prescribed one-year period for investigating alleged misconduct and imposing disciplinary action against peace officers or for identifying the required 30-day notification period. Despite the requirements set forth in the California Government Code, the Department of Corrections has no clear criteria for determining when the one-year period for investigating misconduct and imposing disciplinary action begins and ends. The Office of the Inspector General found that the department has no clear guidelines for establishing the date the alleged misconduct was discovered, for defining who is “authorized to initiate an investigation,” or for determining the date the department decided to impose disciplinary action in order to identify the 30-day notification period. Department employees also appear to be uncertain about whether the one-year statute of limitations applies only to peace officers or to all employees. The absence of guidelines likewise impairs the department’s ability to impose adverse action. In one recent case, for example, the department significantly reduced the severity of disciplinary action against two medical technical assistants at Pelican Bay State Prison because the institution was uncertain how to apply the one-year statutory limit to multiple allegations. In that instance, each of the allegations had a different discovery date and STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 11 therefore a different one-year statutory period. In an effort to make the strongest possible case, the institution bundled all of the sustained allegations together into one adverse action. The effect was to begin the one-year statutory period on the earliest date of discovery. But when it appeared that the one-year period associated with the earliest allegation might expire, thereby jeopardizing the entire case, the department decided to settle with much- reduced punishments. Establishing the date of discovery. The department has not established clear criteria for determining the date alleged misconduct was discovered by a person authorized to initiate an investigation. In the past, the department has sometimes used the date the warden signed the request for investigation Form 989 as the date of discovery. But on October 16, 2001, the State Personnel Board dismissed a case on the grounds that the department failed to comply with the one-year time limit even though the elapsed time between the date of the investigation request and the date of notification was less than a year. The board’s finding appears to be logical, in that the date the warden formally requested the investigation might be much later than the date the warden or other person authorized to initiate an investigation learned of the alleged misconduct. Who is “authorized to initiate an investigation?” The department also has not clearly defined who is authorized to initiate an investigation. In an April 17, 2001 memorandum, the director of the California Department of Corrections identified those authorized to initiate an investigation as follows: • The hiring authority of an institution (the warden); • The department director, chief deputy directors, deputy director, regional administrators, assistant directors, and other top managers; • Citizens; • The assistant director or any of the special agents-in-charge of the Office of Investigative Services; • The hiring authority or chief of the Inmate Appeals Branch, when serious allegations are included in the appeal of an inmate or parolee; • In cases where an investigation may be compromised, any employee. (In those instances, the employee may go directly to the Office of Investigative Services.) Despite the guidelines set forth, the memorandum did not sufficiently settle the question of when discovery occurs or who is authorized to initiate an investigation; nor it is clear that either the State Personnel Board or the courts have accepted the department’s definition of those authorized to initiate an investigation. The memorandum did not clearly define “top- level managers,” for example. At an institution, top-level managers might mean only the chief deputy warden or might include employees down to the level of lieutenant. The Office of the Inspector General found from its investigation that the department staff lacks consistent understanding of this provision and of how it relates to the one-year statute of limitations. Establishing the date of the decision to impose disciplinary action. Similarly, the department has no clear guidelines for defining the date on which the department made its decision to impose discipline so as to define the 30-day period in which it must notify the STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 12 peace officer in writing of its decision. The decision date could be the date the warden approved the adverse action package, the date the Department of Corrections headquarters approved the package, or the date the institution was given approval to serve the employee. In the 40 test cases described in Finding 1, the Office of the Inspector General used as the decision date the date the institution received approval to serve the employee. Even with that generous interpretation of the decision date, the department did not meet the 30-day notification requirement in five of those cases. Confusion about to whom the one-year statute of limitations applies. The Office of the Inspector General also found that many department employees mistakenly believe that the one-year statute of limitations on imposing disciplinary actions applies not just to public safety officers, but to all employees. The confusion stems from a March 16, 1998 memorandum issued by the department announcing a policy to apply the one-year statute of limitations to all employees of the department. The policy was rescinded by a second memorandum dated April 27, 2001 affirming that the one-year time limit applies only to sworn peace officers, but, according to a high-ranking official, many investigators and employee relations officers appear to be unaware of the policy change. The result may be that disciplinary actions against non-peace officers may be unnecessarily dropped or settled if it appears that the statute is running out or that these actions might be improperly given precedence over investigations of peace officers to whom the time limit does apply. RECOMMENDATION The Office of the Inspector General recommends that the Department of Corrections issue clear guidelines defining what constitutes the date of discovery, who is “authorized to initiate an investigation,” and the date the department makes its decision to impose discipline. FINDING 3 The Office of the Inspector General found that employee relations officers at institutions are not provided with adequate training and often lack the experience necessary to properly handle employee disciplinary actions. Core responsibility for preparing adverse actions and representing institutions at State Personnel Board hearings falls to employee relations officers, but these employees typically have neither the training nor the experience to fulfill that responsibility. The Department of Corrections has not established either minimum background requirements or regular mandatory training for employee relations officers, and the position is most often designated as a training and development assignment with a two-year limited term. Because of the lack of background requirements, those assuming employee relations officer positions have widely varying experience and often have little knowledge about labor law, adverse actions, supervision, or investigations. An employee relations officer may be a lieutenant with investigative and supervisory experience, a sergeant with no investigative experience and little supervisory experience, or a personnel relations specialist. Despite the obvious need for training, the department has no mandatory formalized training program for STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 13 employee relations officers and the type and amount of training these employees receive is inconsistent. Although the Department of Corrections Employment Law Unit has prepared resource materials to assist employee relations officers, there are no regularly scheduled training classes to provide basic information to employees assuming the position. Instead, most employee relations officers are faced with the need to learn on the job, finally gaining proficiency just as the two-year term ends and a new person is moved into the assignment. The absence of adequate training and experience requirements for employee relations officers and the regular turnover in employee relations officer positions both contribute to the department’s difficulty in meeting the one-year statutory deadline for completing the employee disciplinary process in cases involving public safety officers. The inherent inefficiency associated with the inadequately trained staff impairs the ability of institutions and the department to assemble and present the strongest adverse action cases possible and makes meeting the statutory deadlines more difficult. In interviews with the Office of the Inspector General, department and institution staff consistently identified the need for formal training for employee relations officers as central to improving the quality and timeliness of adverse actions. The staff also cited the need for adverse action training to be provided to employees in legal affairs, personnel operations, and investigations units to help bring about congruence in the nature and format of information maintained. Employees noted, for example, that information contained in investigative files often is not sufficient or well-suited to the preparation and defense of an adverse action. Moreover, the quality of evidence and witness testimony deteriorates over time—witnesses may no longer be available and physical evidence may be lost, destroyed, or otherwise compromised. Also, testimony that was admissible in an administrative hearing may not be admissible in a judicial proceeding. If the department cannot use the information developed in the course of an investigation to take appropriate disciplinary action, the investigation is rendered moot. RECOMMENDATION The Office of the Inspector General recommends that the Department of Corrections establish a formalized training program for employee relations officers at the institutions. The department should also convert the employee relations officer positions from temporary training assignments to permanent positions. FINDING 4 The Office of the Inspector General found that most of the employee disciplinary actions at the Department of Corrections proceed all the way through settlement and hearings before the State Personnel Board without advice or assistance from the department legal staff. The Employment Law Unit of the Department of Corrections Legal Affairs Division is responsible for providing legal assistance and representation to the department in employee disciplinary cases. Yet, most employee disciplinary cases are handled from start to finish by STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 14 employee relations officers, who are on temporary assignment and have little training in employment law. The employee disciplinary process and resulting adverse actions against employees are administrative actions and processes governed by statutory and case law, as well as by contractual provisions. Most employees facing adverse actions are represented by full-time labor relations specialists or attorneys provided by unions. These matters call for comparable legal expertise on the part of the department, and in some cases, the involvement of the legal staff is particularly critical. But under the department’s current practice, the role of the Employment Law Unit is only advisory and must be requested by one of the participants. Unless the employee relations officer, the personnel operations staff, the regional administrator, or the director requests assistance, the legal staff has no involvement in the process. The Office of the Inspector found, in fact, that most employee disciplinary actions at the Department of Corrections proceed with no participation at all by the Employment Law Unit staff. In many of the cases in which the Employment Law Unit does participate, that involvement is limited to representing the department or institutions at State Personnel Board hearings. Even in those cases, the legal staff often does not become involved until shortly before the hearing—after adverse action packages have already been prepared and served and the ability to correct errors or defects is limited. Instead of active participation by the Employment Law Unit, most employee disciplinary actions are handled by employee relations officers, who, as discussed in the previous finding, usually have little background or training in employment law, employee discipline, or adverse actions and are not well-equipped to prepare adverse action packages. With inadequately prepared adverse action packages and insufficient time to prepare for hearings, the legal staff cannot effectively represent the department and the institutions against defendants’ attorneys, who typically are provided by the union at the inception of the case. The department has attempted to furnish legal support for employee relations officers by assigning two attorneys to each region from the Office of Investigative Services, along with an “attorney of the day” in headquarters. The attorneys are available to provide assistance in drafting adverse actions and representing institutions at State Personnel Board hearings, but they also function only in an advisory capacity and only upon specific request. And the one- year statutory deadline for serving an adverse action may discourage employee relations officers from using this resource by seeking what they may fear could be a time-consuming legal review. The Office of the Inspector General also found that the Department of Corrections has no process for monitoring court decisions and State Personnel Board rulings that might affect employee disciplinary actions at the department and no mechanism for disseminating information about precedential decisions to employee relations officers. Most employee relations officers do not have access to the Internet, which precludes them from independently monitoring State Personnel Board decisions posted on the board’s website. And despite its large size and geographic diversity, the Department of Corrections lacks a STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 15 comprehensive e-mail system to facilitate communication between headquarters staff and employees at the institutions. Internet access and e-mail capability could help offset the limited knowledge of employee relations officers and enable the department legal staff to disseminate relevant legal rulings and analyses affecting staff disciplinary matters. Also in question is whether the Legal Affairs Division’s process for evaluating State Personnel Board decisions and appealing lost cases is adequate to protect the department’s right to discipline employee misconduct. The department currently has only ten cases in appeal, spanning the years 1999 to present. Many factors, such as the nature of the misconduct, the proposed adverse action, the precedential importance of the case, the division’s caseload, and staff availability affect the decision to appeal. But, nonetheless, the number of cases under appeal appears to be small given the size of the department and the number of adverse actions undertaken each year. RECOMMENDATION The Office of the Inspector General recommends that the Department of Corrections establish formalized policies and procedures to expand the role and responsibility of the Employment Law Unit in the preparation of employee disciplinary actions. As part of that effort, the department should implement a process for monitoring court decisions and State Personnel Board rulings affecting employee disciplinary actions. The department also should provide Internet access to employee relations officers and conform to standard management practices by instituting a comprehensive e-mail system to improve communication between headquarters staff and institution employees. In addition, the department should review its policies and procedures for evaluating and appealing cases to ensure that it is vigorously defending its right to discipline employees guilty of serious misconduct. FINDING 5 The Department of Corrections has not established policies and procedures governing settlement of employee disciplinary actions and has no means of monitoring or evaluating the settlement process. About one-third of employee disciplinary cases in which allegations are sustained are resolved with the Department of Corrections agreeing to a settlement. But the department has no policies or procedures governing the settlement process and no means of evaluating the appropriateness of the settlements. The department has not defined the types of circumstances in which a settlement would be appropriate, who has authority to initiate and accept a settlement, or what information must be maintained to document and support the settlement agreement. Nor does the department maintain the information necessary to identify systemic problems in the settlement process. In a sample of 52 cases, the Office of the Inspector General found that 16 (31 percent) were resolved by a stipulated settlement agreement between the department and the employee, but none of the files for those cases included information documenting the rationale for the STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 16 settlement. And, while the authority to offer or accept a settlement rests with the warden and settlements are supposed to be approved by the regional administrator or, in some instances, the director, the department maintains no information verifying that the settlements have been reviewed or approved. Settled cases do not appear to share particular characteristics. In an attempt to evaluate the appropriateness of the settlements, the Office of the Inspector General examined various characteristics of the 16 sample settled cases. The review revealed few common attributes to distinguish those ultimately resolved by settlement. The characteristics examined included: • The primary charge against the employee • The number of days remaining before the deadline to serve the adverse action • The recommended action • The final disciplinary action Type of offense not a factor in likelihood of settlement. The examination showed no relationship between the frequency of settlement and the types of charges or severity of the offense. Primary charges in the 16 cases included eight different offenses ranging from willful disobedience, dishonesty, and misuse of state property to over-familiarity, mistreatment of employees or the public, inexcusable neglect of duty, sexual misconduct, and domestic violence. Time remaining to serve final notice also not a factor. The number of days remaining before the deadline to serve the adverse action also did not appear to be significant in determining which cases were likely to result in settlement. Only 25% of the cases settled were in danger of being lost because the statute of limitations was running out. Table 2 shows the time remaining to serve final notice in the 16 cases examined. Table 2. Time Remaining to Serve Final Notice Time Remaining to Serve Number Final Notice of Cases Under 180 Days 2 180 to 269 Days 6 270 to 365 Days 4 Over 365 Days 4 A recommendation for dismissal may increase likelihood of settlement. The review showed that in 15 of the 16 cases, the recommended disciplinary action was either a pay reduction or dismissal. Some form of pay reduction was also the most common recommended action in the cases reviewed that did not lead to settlement and therefore may not be an accurate predictor of settlement likelihood. But cases in which dismissal is recommended may be more apt to result in settlement because the burden of proof to sustain STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 17 the dismissal is rigorous and employees may be inclined to accept a settlement with a lesser penalty in lieu of termination. The settlements examined appeared to be appropriate. The Office of the Inspector General noted that all six of the cases in which a pay reduction was recommended resulted in a pay reduction settlement. Of the nine cases in which dismissal was recommended, five were settled as voluntary resignations, and four were reduced to suspensions. Given that a settlement, by its nature, requires compromise on the part of the department, final action in these cases appeared to be consistent with the goal of taking appropriate measures against employees found to have engaged in misconduct. Table 3 shows the recommended and final disciplinary actions in the 16 cases examined that resulted in settlement. Table 3. Recommended and Final Disciplinary Actions Number of Cases Number of Cases and Changes and Recommended Disciplinary Actions Resulting Disciplinary Action Disciplinary Imposed by Settlement from Action Settlement Letter of Reprimand 0 1 +1 Pay Reduction 6 6 +0 Suspension 0 4 +4 Demotion 1 0 -1 Dismissal 9 5 -4 Total Cases/Net Changes 16 16 +0 Wide disparity among institutions in percentage of cases settled. The Office of the Inspector General found vast differences in the percentage of cases settled at the six correctional facilities reviewed. The percentage of settled cases ranged from 13 percent at one facility to 57 percent at another, reflecting the absence of consistent standards governing the settlement process. Table 4 shows the differences in settlement percentages at the six institutions. STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 18 Table 4. Percentage of Settled Cases by Institution Number of Cases Number of Cases Percentage of Reviewed Settled Cases Settled Facility Facility A 9 2 22% Facility B 9 2 22% Facility C 7 4 57% Facility D 6 2 33% Facility E 13 5 38% Facility F 8 1 13% Total 52 16 31% RECOMMENDATION The Office of the Inspector General recommends that the Department of Corrections establish policies and procedures governing employee disciplinary action settlements and require that the necessary documentation be maintained for monitoring and evaluating the settlement process. STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 19 ATTACHMENT A CALIFORNIA DEPARTMENT OF CORRECTIONS EMPLOYEE DISCIPLINARY PROCESS DIAGRAM STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 20 ATTACHMENT B RESPONSE FROM THE CALIFORNIA DEPARTMENT OF CORRECTIONS STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 21 t'1AR-13-2002 17:12 LEGAL AFFAIRS DIVISION 91632? 5306 P.13/38 r"'1 ~-1:J-~ 17:1:2 LEGA... AFFAIRS DIUISI~ 916 327 53e6 P.14/38 S'~r. 0( Calltornia O.p.l1mtnt 01 Con8diOl\S .LEGAL ~FAIRS CJVISION .P.O. Box ~2883 Sacrwmento, CA ~28J (;1&) "~gs (918) 327-S~FM '.. July 17, 2001 D8te: Wardens ., To: Institutions Regional Administrators Health Care ServicesD ivision Mministrators Employee Relations Officers CONFmEN11AL ,An oRNEY IClJENt PRIVn.I:GE f'1AR-13-2~ 1'?:13 LEGA- PFFA I RS D IV I S I ON 916 3:2? ~ P.l?/38 StAtl ar California O.plrtm&nl gf COfT~ LEGAL AFFAIRS OIVISION P.O. Bax ~2883 Saaam8\to. CA ~283 (018) ..5-04g5 (818) 327-530S F~ Dale: 1uly 312001 To: PJc hard 1. Ehle Via: R.o"bertG aultney Assistant Deputy Director AssiStant Chief Counsel Internal Affairs Legal Affairs Division CONFmENTIAL A rrORN:I:Y ICLIENT PRIVn.EGE .. . MAR-13-2002 17:14 LEGAL AFFAIRS DIVISION 9163275306 P.22/38 ~-l.j-~~ 1".: 14 LEGAL AFFAIRS DIVISION 916 327 53a6 P.23/38 DEPAJ.~ Of COAJ!CTIQNS Sf" YEO F CALIFORNI,\ CDC 989 (Rcv 1/02) INTERNAL AFF AIRS INVESTIGATION REQUEST O CATEGOR.YI a Approvcd D Disappravcd D CAncORY1I D Approvl4 O Dislpproved 1'0: 10: (Hirin&Audtority) CASE NUMBER: CAS! NUf.tBEJ.: , , , , :..~,!i;:, N I. I DIVISION SlONArou };,A ~ ,TrfJ:i: ADDI.ISS NAME ITm.I SOCIAl. SECURIT'YN UMBD .ax:HruDATI r1 'ELIl'HoNE~ a TWr~£ '.UMBU - WOU ADDRESS DATE . i'n).G LOCATJOH NARRATIVE (U.. ~~ .~.) il.-W)') ,.':' ' ..:' t-~.-,, ~,..\ .." ..1, l' ~ ADDWS MAR-13-2002 1?:15 LEGAL AFFAIRS DIVISION 9163275306 P.24/38 rt~-l.J-~ee2 11:1~ LEGAL AFFAIRS DIUISION 916 32? S3e6 P.25/38 Stlte of Calitomia Department af Carrlctions LeGAL AFFAIRS aJVJSION P.o. Box 942883 S.cram.n~o. CA 94283 (9t61445-0495 Cat.: July 23, 2001 (916) 327~5306 FAX To: All Attomeys Employment Law Unit Subject: Unit Policle.s Reeardine Disciplinary Actions ELUPMl CO,NFIDENTIAL ATTORNEY/CLIENT COMMUNICATION r1HK-l~-2~ 1?:1? LEGAL AFFAIRS DIVISION 916 327 5386 P;31/3S State of California Department of Correction$ LEGAL AFFAIRS DIVISION P.O. Box 942883 Satrlm.llta, CA 94283 (91 &1445-0495 (9161 327.5306 FAX CIte: .August 6, 200 1 'To: All Attorneys Employment La~ Unit Subject: Settlement of St2.te PersoWlel Board Cases ELUPMJ CO~ENT1AL A TrORNEY/CLIENT COMMUNICA noN r1AR-13-2002 17:17 LEGAL AFFAIRS DIVISION 9163275306 P.32/38 MAR-13-2002 1?:1? LEGAL AFFAIRS DIVISION 9163275306 P.33/38 Catherine p .BcrnStein, Liability Respome U nit Robert K. Gaultney. Employment Law Unit Judith A. H.trper. Correctional Law Unit Kenneth L. Huez, Govtrnmcnt Law Unit ~thleen M. Keeshen, M;.jor Litlgltion Unit Prepared by: The Employment Law Unit This rcport encompassesth e Sate PersonnelB oard casest ritd to COnclusionb y-either the Employee Rclations Officcrs or Staff Counsel in tht Employment Law Unit. For confidentiality reasons, any subsequent distribution or this report should be made to only those individuals with an absolute Deed to know.