Sentinel Case No. 21-02

Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer Chief Deputy INSPECTOR GENERAL Inspector General Independent Prison Oversight OIG № 21–02 SENTINE L CASE DECEMBER 2, 2021 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 The Office of the Inspector General (OIG) is The Department Determined That the responsible for, among other things, monitoring Sergeant Attempted to Solicit Sex From the California Department of Corrections and a Minor Rehabilitation’s (the department) staff complaint process, internal investigations, and employee The department dismissed the sergeant for disciplinary process. Pursuant to California misconduct that occurred between August Penal Code sections 6126 and 6133, the OIG and October of 2020. In August of 2020, the reports annually on the staff complaint process sergeant had a profile on a friendship and dating and semiannually on its monitoring of internal application. According to outside law enforcement, investigations and the employee disciplinary the application is used for sharing pornographic process. However, in some cases, where there are material and arranging meetings for sexual acts, compelling reasons, the OIG may issue a separate and it is commonly used by minors. The 39-year- public report regarding a case; we call these old sergeant used the application to solicit sex Sentinel Cases. The OIG may issue a Sentinel Case from an undercover detective posing as a 16-year- when it has determined the department’s handling old female. of a case was unusually poor and involved serious The sergeant requested to chat with a user whose errors, even after the department had a chance to profile indicated she was 18 years old. When repair the damage. he began communicating with her through the This Sentinel Case, No. 21-02, involves a sergeant application, the undercover detective told him who allegedly1 communicated with an undercover she was 16 years old. Nevertheless, the sergeant detective posing as a 16-year-old female with continued to send messages to the detective and the intent to commit sex acts with a minor. The the communications continued for two months. hiring authority dismissed the sergeant but later During this time, the sergeant sent sexually explicit allowed him to resign in lieu of the dismissal. and lewd messages describing sexual acts he As part of the settlement, the hiring authority wanted to engage in with a person he believed to and department attorney agreed to remove the be a minor. disciplinary action from the sergeant’s personnel In October 2020, the sergeant arranged to have sex file, and intentionally violated departmental policy with the person he believed to be 16 years old. On when they failed to include a mandated clause the day of the proposed meeting, he conducted an prohibiting the sergeant from applying for or internet search for hotels in the area and, while accepting employment with the department in the on his way to meet a minor, purchased condoms. future. As a result, the sergeant is free to apply When the sergeant arrived at the agreed upon for and accept employment with any State agency, location, outside law enforcement arrested him and including the department. a detective found a box of condoms in his pocket. Later, when a detective asked the sergeant if he 1. The department determined there was a preponderance knew why he was arrested, the sergeant nodded of evidence the sergeant engaged in the alleged conduct and dismissed the sergeant before the conclusion of the sergeant’s and said, “Yeah. A really stupid mistake.” criminal proceedings. At the time of the settlement, those criminal proceedings were still pending. The prosecutor in the criminal The department conducted its own investigation case is required to prove the charges in court beyond a reasonable doubt, and the sergeant is entitled to a presumption of innocence and the sergeant admitted in the investigative until proven guilty in those proceedings. Page 1 of 5 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OIG № 21–02 SENTINEL CASE DECEMBER 2, 2021 interview that he sent messages to a person the department allowed the sergeant to resign, he who said she was a minor. His defense was will not have to seek permission from the Board he believed it was a fake account. The hiring to take an examination or apply for a State job in authority reviewed the investigation and sustained the future. The OIG believes this sergeant, who allegations that the sergeant solicited sex from was found to have attempted to solicit sex from a a minor and lied during the Office of Internal 16-year-old, should be prohibited from working not Affairs investigation. The hiring authority served only as a peace officer, but also as a civil servant. a detailed 60-page dismissal on the sergeant, and the sergeant appealed the dismissal to the State The Department Violated Its Policy Personnel Board (the Board). When It Settled the Case Without a No-Rehire Clause The Department Should Not Have Departmental policy, found in Chapter 3, Article 22, Settled a Strong Dismissal Case Against and implemented as a part of the Madrid reforms, a Sergeant Accused of Soliciting a Minor dictates that when the department enters into for Sex a settlement agreement with an employee who At the prehearing settlement conference, the agrees to resign, the settlement agreement shall department entered into a settlement with include a clause stating the employee agrees the sergeant, allowing him to resign in lieu of never to apply for or accept employment with dismissal. The OIG disagreed with the settlement the department in the future.4 The required because the evidence of misconduct was strong and clause also indicates the department can dismiss the settlement would allow the sergeant to apply the employee again if it inadvertently offers the for a State job without seeking permission from dismissed employee a position, and the employee the Board.2 must waive any right to appeal that dismissal. This type of clause, commonly referred to as a Arguments in favor of dismissal were strong. The “no-rehire” clause, is an effective tool for ensuring department attorney acknowledged the department the department does not inadvertently rehire had no substantial evidence problems. The dismissed employees in the future. It also provides sergeant was unrepresented. The sergeant failed to the department with a mechanism for dismissing file a prehearing settlement conference statement an employee it inadvertently hires if the employee and, as a result, the Board could have excluded was previously dismissed and allowed to resign. evidence offered by the sergeant at the hearing.3 The department did not include the no-rehire If the case proceeded to hearing and the Board clause in the settlement agreement with the sustained the allegations, the dismissal would sergeant and, therefore, violated its policy. likely have been upheld, and the sergeant would not have been able to apply for a State job without The department’s decision to not include the permission from the Board. However, because no-rehire clause is based upon its interpretation of a recently enacted law. California Code of Civil Procedure, section 1002.5, which took effect on January 1, 2020, forbids the use of no-rehire clauses in an agreement to settle an employment 2. In cases where the Board sustains a dismissal action, the dismissed employee is no longer permitted to take any State dispute between an employer and an “aggrieved civil service examination or be certified from an eligible list to person” who has filed a claim against the employer. any position in the State civil service absent the approval of the Executive Officer pursuant to California Code of Regulations (CCR), Section 1002.5 defines an aggrieved person as section 211.2. In order to obtain approval, the dismissed employee “a person who, in good faith, has filed a claim must file a petition with the Board with notice to the dismissing agency that includes substantiation of corrected behavior. The executive officer of the Board makes the determination whether to grant permission to the petitioner to apply for a State job. 4. Department Operations Manual, Chapter 3, Article 22, 3. CCR, Title 2, section 57.1. Section 33030.26.2, “Essential Settlement Language.” Page 2 of 5 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OIG № 21–02 SENTINEL CASE DECEMBER 2, 2021 against the person’s employer in court, before an discrimination, harassment, or other labor law administrative agency, in an alternative dispute violations. Therefore, we do not believe the resolution forum, or through the employer’s sergeant qualifies as an “aggrieved person” within internal complaint process.”5 The department the intent of this law. interprets this language to mean that an “aggrieved person” includes an employee who is terminated The Department Failed to Apply an for misconduct, but appeals the dismissal Exception for When an Employer with the Board. The OIG disagrees with the Documents a Good Faith Determination department’s analysis. That the Aggrieved Person Engaged in The purpose of section 1002.5 is not to protect Criminal Conduct the perpetrators of wrongdoing, but the victims. In support of the bill enacting section 1002.5, the Even if the sergeant were considered an “aggrieved author stated: person” under section 1002.5, the statute does not forbid the use of no-rehire clauses when an AB 749 will bring greater fairness and employer makes a determination that the aggrieved clarity to existing law by voiding any person committed criminal conduct before the settlement provision arising from an person files the claim. Section 1002.5 states in employment dispute if the provision pertinent part: restricts the ability of an “aggrieved” employee to work for the employer. The (b) Nothing in subdivision (a) does any of bill defines an “aggrieved” employee the following: as one who has filed a claim against the (1) Preclude the employer and aggrieved employer, whether the employee filed person from making an agreement to do the claim in court, with an administrative either of the following: agency, in an alternative dispute resolution forum, or through an internal grievance … procedure. In short, it will only protect employees who are victims of alleged (B) Prohibit or otherwise restrict the discrimination, harassment, or other settling aggrieved person from obtaining labor law violations. It will not protect future employment with the settling the perpetrators of wrongful acts that employer, if the employer has made and give rise to an employment dispute. documented a good faith determination, An employer always retains the right to before the aggrieved person filed the discharge an employee or refuse to rehire claim that the aggrieved person engaged an employee if there are valid grounds for in sexual harassment, sexual assault, or doing so.6 (Emphasis added.) any criminal conduct. (Emphasis added.) Taking this necessary context into consideration, In this case, the department conducted an the sergeant is not an “aggrieved person.” The investigative and disciplinary findings conference, sergeant filed an appeal of his dismissal for cause, during which it found and documented that the not a claim against the department. He made no sergeant attempted to solicit sex from a minor. The allegations that he was the victim of department documented the penal code sections the sergeant violated and the allegations of criminal conduct in the formal disciplinary action 5. California Code of Civil Procedure, section 1002.5 (c) (1). it served on the sergeant. It was only after the 6. Chris Micheli, Will California Open the Floodgates to department made and documented its good faith Employment Litigation? (2019) 51 U. Pac. L. Rev. 285, 294; footnote 48 [Senate Judiciary Committee, Committee Analysis of determinations that the sergeant filed an appeal AB 749 at 8 (Jul. 9. 2019)]. Page 3 of 5 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OIG № 21–02 SENTINEL CASE DECEMBER 2, 2021 The Department’s Misinterpretation of Law in Its Settlement With the Sergeant California Code of Civil Procedure, section 1002.5, forbids Per departmental policy, the no-rehire clauses in settlements of claims between an department should have included employer and an “aggrieved person” unless prior to the a no-rehire clause in the settlement filing of the claim the employer made and documented with the sergeant. a good faith determination that the person engaged in sexual harassment, sexual assault, or any criminal conduct. DEPARTMENT OMITTED SERGEANT’S NO-REHIRE CLAUSE CIRCUMSTANCES POLICY REQUIRES CRITERIA FOR APPLYING NO-REHIRE CLAUSE THE STATUTE The sergeant in this case is not an “aggrieved person,” and the department The department omitted the no-rehire clause documented that he engaged in criminal from the settlement. conduct prior to the sergeant filing an appeal. Source: The Office of the Inspector General. with the Board. The department was not barred In a final effort to convince the department that from including the no-rehire clause because, even a no-rehire clause was permitted in this case and, if the sergeant were an “aggrieved person,” the in fact, mandated by policy, the OIG discussed department had already documented the sergeant’s the settlement with a high-ranking managerial criminal conduct prior to his appeal. attorney within the department’s Office of Legal Affairs. The OIG explained that because the Before the prehearing settlement conference, the disciplinary action was based on criminal conduct, OIG reminded the department attorney that a no- the settlement was exempt from section 1002.5. rehire clause was required by policy if a resignation In response, the manager represented that the was approved. In response, the department statute had been amended and the criminal attorney asserted that the law prohibited the conduct exception had been deleted. We later inclusion of a no-rehire clause in this case. confirmed that the manager was correct that the However, when asked to provide authority for statute had been amended; however, the criminal this position, the department attorney could not conduct exception had actually been added to identify the specific law that prohibited the use of the statute, not deleted from it. Therefore, based the no-rehire clause. The during the prehearing on an incomplete understanding of the law, the settlement conference, the department attorney department chose to omit the no-rehire clause advised the OIG attorney that the department from the settlement. Moreover, the department finalized its decision not to include the no-rehire allowed the sergeant to resign in lieu of dismissal clause in the settlement and directed the OIG to and agreed to remove the disciplinary action from contact their supervisor. Page 4 of 5 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OIG № 21–02 SENTINEL CASE DECEMBER 2, 2021 the sergeant’s official personnel file. As a result, where it has determined the employee engaged in the sergeant is free to apply for and accept any sexual harassment, sexual assault, or any criminal State job, including a job with the department. We conduct. The department also indicated it will take are deeply troubled by the outcome of this case. a similar approach in resignation cases that do not qualify under the exception to section 1002.5. We are also concerned with the level of legal analysis demonstrated by the department’s Without exposing the department’s litigation attorneys, even at the highest levels. The strategy, we are concerned that its approach department attorney assigned to this case may not adequately protect the department from demonstrated a lack of knowledge of the law and rehiring employees whose conduct warrants a an inability to substantiate their decision to omit dismissal from State service, but were allowed to a clause that is required by departmental policy. resign in lieu of dismissal. We will continue to The manager was unaware that the law provided monitor and report on the department’s approach a criminal conduct exception that permitted the to the settlement of these types of cases in future inclusion of a no-rehire clause in this case and discipline monitoring reports. allowed the settlement to proceed despite the The OIG recommends the department violation of departmental policy. include no-rehire clauses in all settlement This was not the first case in which the department agreements that permit an employee to resign failed to include a no-rehire clause since the in lieu of dismissal, but especially in cases where new law went into effect on January 1, 2020. The the department documented criminal misconduct department had repeatedly failed to include the prior to the employee filing the appeal. If the required language in settlements for more than a dismissed employee refuses to agree to the year and a half. no-rehire clause, the department should not enter into the settlement and should proceed to In mid-August, after settling this case and litigate the case on its merits. If the Board rejects reconsidering our recommendations, the a settlement agreement that contains a no-rehire Employment Advocacy and Prosecution Team clause, the department should seek judicial review. instructed its attorneys to seek inclusion of a It is imperative that the department support and no-rehire clause when entering into a settlement defend important policies implemented as part agreement that allows an employee to resign in of the Madrid reforms to ensure peace officers lieu of termination. The department has indicated are disciplined appropriately and policing reform it will take this approach in all resignation cases continues to be effectuated. OIG that qualify under the exception to section 1002.5 Page 5 of 5 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov