State Decision On Cal Fire Firefighter Demotion

ils STATE PERSONNEL 3 | BOARD 801 Capitol Mall Sacramento, CAS5814 | 866-844-9671 | www.spb.ca.gov Governor Edmund G. Brown Jt PATRICK O'DONOGHUE v. Case No. 11-2030 CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION RESOLUTION Appeal from Demotion The State Personnel Board (the Board) on June 5, 2012, carefully considered the Proposed Decision filed by the Administrative Law Judge (ALJ) in the appeal by Appellant, Patrick Donoghue, Case No. 11-2030 from a Demotion by the California Department of Forestry and Fire Protection (Respondent) IT IS RESOLVED AND ORDERED THAT the findings of fact, determination of issues, and Proposed Decision of the ALJ are adopted by the Board as its Decision in the case on the date set forth below. A true copy of the Proposed Decision shall be attached to this Resolution for delivery to the parties in accordance with the law, and that adoption of the Resolution shall be reflected in the record of the meeting and the Board's minutes. The foregoing Resolution was made and adopted by the Board in Case No, 11- 2030 during its meeting on June 5, 2012, as reflected in the record of the meeting and Board minutes. Dated: June 5, 2012 Js] SUZANNE M. AMBROSE SUZANNE M. AMBROSE Executive OfficerPatrick O'Donoghue Case No. 11-2030 Page 2 of 16 The issues to be resolved are’ 4. Did Respondent prove the charges by a preponderance of the evidence? 2, If Respondent proved the charges by a preponderance of the evidence, does Appellant’s conduct constitute a violation of Government Code section 19572, subdivisions (d) inexcusable neglect of duty, (0) willful disobedience, and/or (b other failure of good behavior either during or outside of duty hours which is of such a nature that it causes discredit to the appointing authority or the person's employment? 3. If Appellant's conduct violates Government Code section 19572, what is the appropriate penalty? PROCEDURAL HISTORY The Prehearing Settlement Conference (PHSC) was conducted in this matter on January 19, 2012. Attorney Govit appeared with Appellant at the PHSC,’ but did not submit a PHSC Statement as required by California Code of Regulations, title 2, section 57.1, subdivision (f) (Rule 57.1, subdivision (f).) Following issuance of a Minute Order by the PHSC ALJ, Appellant filed a PHSC Statement dated January 27, 2012, and declaration requesting leave to file the subject Statement. Presiding ALJ Linda McAtee granted Appellant's request. Appellant's PHSC Statement includes the following disclosure, in pertinent part, regarding witnesses that he would call: " Attorney Givot was formally retained by Appellant on January 16, 2012.Patrick O'Donoghue Case No. 11-2030 Page 4 of 16 PHSC Statement did not list the names or expected testimony of any anticipated witnesses, did not list Gayner’s name or include his curriculum vitae, did not include a brief statement of Gayner’s opinion, and did not list any documents or expert reports that Appeliant intended to produce at the hearing. In his opposition, Appellant stated that he had no intention of calling any witnesses other than himself and Gayner. Appellant also argued that he was unable to identify Gayner or provide a summary of his testimony at the time of his PHSC Statement because he did not retain Gayner until March 6, 2012. Finally, Appellant asserted that Respondent was not prejudiced because he put Respondent on notice that he was considering using an expert and the issues to be addressed by the expert in his PHSC Statement, and Respondent had ample opportunity and resources to locate, retain, and commission an expert to addressed the issues listed in Appellant's PHSC Statement. Rule 57.1, subdivision (f), states in pertinent part: () Each party shall file a written prehearing/settlement conference statement with the Appeals Division 10 calendar days prior to the hearing that contains the following information: (8) The identity of witnesses each party may calll at the hearing, together with a brief statement of the content of each witness's expected testimony. Parties are not required to disclose any witness that will be called for rebuttal or impeachment purposes. (7) The name and address of each expert witness each party intends to call at the hearing, together with a brief statement of the opinion each expert is expected to give, and a copy of the current resume or curriculum vitae of each expert witness.

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