[5:35] UNIDENTIFIED SPEAKER: All right, we are live.

[5:39] SUZANNE AMBROSE: Okay, we're going to call the August 3,

[5:41] 2026 State Personnel Board meeting to order.

[5:45] I'll take the roll. Baldree?

[5:49] KATHY BALDREE: Present. SUZANNE AMBROSE: Burton?

[5:54] KIMIKO BURTON: Here SUZANNE AMBROSE:

[5:57] Matosantos? ANA MATOSANTOS: Here. SUZANNE AMBROSE: Westly?

[6:01] SHAWNDA WESTLY: Here.

[6:04] SUZANNE AMBROSE: Willis? DR. GAIL WILLIS: Present.

[6:08] SUZANNE AMBROSE: Meetings of the State Personnel Board

[6:11] are open to the public except when specifically noticed

[6:13] otherwise. In accordance with the Meeting Act, Board

[6:15] may take action on any item listed on the agenda

[6:17] unless listed information only. Time is approximate,

[6:19] subject to change and agenda items

[6:21] may be taken out of order to accommodate

[6:23] speakers and maintained a quorum. SPBs modify

[6:26] this board meeting procedures in accordance with Senate Bill

[6:29] 544 regarding remote participation

[6:31] under Bagley Keen, a live broadcast

[6:34] only video conference stream of open sessions

[6:36] may be accessed on the SPB website and interactive Webex.

[6:39] Teleconference of open sessions

[6:42] may be accessed by audio and video or by audio phone.

[6:46] All that information is on the website.

[6:50] Public comments may be made by attending the San Francisco

[6:54] teleconference location, the Sacramento public

[6:56] viewing location for in person commenting. Actually, I think

[7:01] we have the teleconference location down in LA today,

[7:03] so you can attend by in person in LA or in Sacramento,

[7:07] or you can attend via interactive

[7:11] Webex teleconference or by emailing

[7:16] oardmeetingcomments@spb.ca.gov.

[7:21] During the public comment period, WebEx attendees

[7:24] may submit a comment by raising your hand to alert the host.

[7:28] All in listeners wishing to participate by phone

[7:30] may press *3 to raise or lower their hand.

[7:33] During the public comment period,

[7:35] commenter will be provided microphone and camera access

[7:38] so they may address the board and afterwards

[7:40] the commenter will be returned to observation only status.

[7:43] If there are any members of the public attending

[7:45] via Webex who wish to present comments to the board, please

[7:49] raise your hand now and we'll call on you during the public

[7:52] comment period. Emailed comments will be read

[7:54] aloud or summarized during the public comment

[7:56] period under information discussion items on the agenda.

[8:00] Copies of all emailed comments will be published

[8:02] after the minutes for the meeting are approved

[8:04] at the following board meeting and our meeting facilities

[8:06] are accessible to individuals with disabilities.

[8:09] All right, recorded the Executive Officer.

[8:13] I'm happy to report that we partnered

[8:15] with DevOps and CalHR and we have gone

[8:18] live with our new hiring guide for state hiring

[8:24] managers and we've gotten some good

[8:26] positive press on it thanks to Gava.

[8:32] Sally Lee is in our audience today.

[8:38] She did all the heavy lifting on it with,

[8:42] of course, you know, Nick Maduro's vision.

[8:46] So we really appreciate all of your efforts and I think

[8:50] it's going to go a long way in accelerating state hiring.

[8:53] So that's my report. Chief Counsel.

[8:57] ALVIN GITTISRIBOONGUL: Nothing to report.

[9:01] SUZANNE AMBROSE: CalPERS Report. DR.

[9:05] GAIL WILLIS: Yes, CalPERS update.

[9:07] July 2026 CalPERS Board of Administration off

[9:11] site was held on July

[9:13] 13th through the 15th in Monterey, California.

[9:16] The Board of Administration participated in the following

[9:18] educational sessions. Geopolitical Discussion,

[9:22] Global Public Equity Active Management Process, AI from

[9:27] the Asset Managers Perspective, The New Operating Environment

[9:30] Clinical Quality and

[9:32] Behavioral Health Contracting agency health regents.

[9:37] AI and primary care fiduciary and battling

[9:42] king trade 2027-2032

[9:46] strategic plan development session and also a best

[9:50] day at CalPERS.

[9:54] The upcoming board meetings.

[9:58] The CalPERS Board Administration's next

[10:00] meeting is scheduled for September

[10:02] 14th through the 16th in the Fechner Auditorium.

[10:04] That concludes my report. SUZANNE AMBROSE: Okay, great.

[10:08] Do any board members have any new business?

[10:10] And do we have any public comments? Did we receive

[10:18] anything? Okay. Brad, did we receive anything?

[10:21] UNIDENTIFIED SPEAKER: No public comment, no WebEx comments.

[10:25] SUZANNE AMBROSE: Okay. Consent items .

[10:30] Approval of the draft summary open and close

[10:33] minutes from the July 13, 2026 board meeting.

[10:35] Is there a motion?

[10:39] KATHY BALDREE: So move. DR. GAIL WILLIS:

[10:42] Second SUZANNE AMBROSE: Motion's been made seconded.

[10:45] Any discussion? Roll call vote. Baldree?

[10:47] KATHY BALDREE: Aye. SUZANNE AMBROSE: Burton?

[10:52] KIMIKO BURTON: Aye. SUZANNE AMBROSE: Matosantos?

[10:56] ANA MATOSANTOS: Aye. SUZANNE AMBROSE: Westly?

[11:00] SHAWNDA WESTLY: Aye. SUZANNE AMBROSE: Willis?

[11:04] DR. GAIL WILLIS: Aye.

[11:06] SUZANNE AMBROSE: Motion passes. Hearing items.

[11:14] We have two requests

[11:20] to consolidate. So we have first one

[11:22] is request to consolidate the Lottery Manager Sales

[11:25] classification into the Sales Operations Series class

[11:27] back and then the second one is to consolidate

[11:33] the Investment Officer CalPERS and Investment Officer CalSTRS

[11:36] series classifications back.

[11:38] Is there a motion to approve those?

[11:41] UNIDENTIFIED SPEAKER: So move. UNIDENTIFIED SPEAKER: Second.

[11:47] SUZANNE AMBROSE: Motion made and seconded.

[11:49] Any discussion? Roll call vote. Baldree?

[11:51] KATHY BALDREE: Aye. SUZANNE AMBROSE: Burton?

[11:55] KIMIKO BURTON: Aye. SUZANNE AMBROSE: Matosantos?

[11:59] ANA MATOSANTOS: Aye. SUZANNE AMBROSE: Westly?

[12:02] SHAWNDA WESTLY: Aye. SUZANNE AMBROSE: Willis?

[12:06] DR. GAIL WILLIS: Aye.

[12:08] SUZANNE AMBROSE: Motion passes. We have request to abolish

[12:11] list eligibility. We have 11 of those department of Forestry

[12:15] and Fire Protection's request to abolish the Cook Specialist

[12:20] 1 eligibility list and the Cook Specialist

[12:24] 2 eligibility list and the Fire Apparatus Engineer

[12:27] eligibility list and the Fire Captain

[12:29] eligibility list.

[12:31] And then Kelly Jarv's request to abolish the

[12:34] Assistant Industrial Hygienist, Associate Industrial Hygienist,

[12:39] Senior Industrial Hygienist eligibility list,

[12:43] their request to abolish the Legal Support Supervisor

[12:45] series eligibility list and then California Correctional

[12:49] Healthcare Services request to abolish

[12:52] the Clinical Psychology Intern eligibility list,

[12:56] the Licensed Vocational nurse,

[12:58] California Department of Corrections

[13:01] and Rehabilitation eligibility list,

[13:05] the Public Health Nurse 1 Correctional Facility

[13:09] eligibility list and then Department of Motor Vehicles

[13:15] request to abolish the Driver Safety Manager

[13:18] 1 eligibility list and State Hospitals

[13:19] request to abolish the Senior Psychologist

[13:22] Health Facility Supervisor eligibility list.

[13:24] Is there a motion? KIMIKO BURTON: So move.

[13:29] UNIDENTIFIED SPEAKER: Second.

[13:31] SUZANNE AMBROSE: Motion been made and seconded.

[13:33] Any discussion? Roll call vote. Baldree?

[13:37] KATHY BALDREE: Aye. SUZANNE AMBROSE: Burton?

[13:40] KIMIKO BURTON: Aye. SUZANNE AMBROSE: Matosantos?

[13:44] ANA MATOSANTOS: Aye. SUZANNE AMBROSE: Westly?

[13:48] SHAWNDA WESTLY: Aye. SUZANNE AMBROSE: Willis?

[13:53] DR. GAIL WILLIS: Aye.

[13:58] SUZANNE AMBROSE: Motion passes. Okay.

[14:11] ALVIN GITTISRIBOONGUL: All right. We have the oral

[14:13] argument.

[14:18] SUZANNE AMBROSE:

[14:25] Okay. Okay, great. So we're

[14:33] going to call the case of Brian Rodriguez

[14:37] versus California Department Corrections

[14:40] rehabilitation SPB case number 25-11 62A.

[14:44] We're going to have oral argument on this matter.

[14:49] Welcome. Before we begin with the oral argument,

[14:52] may have the parties and or the representatives

[14:54] introduce themselves to the record.

[14:57] UNIDENTIFIED SPEAKER:Okay. Thank you. My name

[15:01] is (Inaudible) representative with American Federation

[15:03] of State County Municipal Employees.

[15:06] UNIDENTIFIED SPEAKER: We're having a hard time here.

[15:09] Let's be moved up there.

[15:12] UNIDENTIFIED SPEAKER: Let's move this over.

[15:14] UNIDENTIFIED SPEAKER:

[15:18] Okay. We're gonna try to switch out the.

[15:21] Okay. Can you test what it sounds like?

[15:23] UNIDENTIFIED SPEAKER:

[15:32] Test. Is that better

[15:41] for the members in LA?

[15:43] UNIDENTIFIED SPEAKER: Yeah. Thank you.

[15:48] SUZANNE AMBROSE: Okay. Okay. Can you state

[15:52] your name for the record again? RAFA GARCIA: Yes.

[15:54] My name is Rafa Garcia and I am a union representative

[15:56] with the American Federation of State County Municipal Police.

[16:00] SUZANNE AMBROSE: Did everybody hear that clearly? Thank you.

[16:05] Okay. BRIAN RODRIGUEZ: My name is Brian Rodriguez.

[16:09] BRETT BARCELLOS: Brett Barcelos, B A, R, C, E,

[16:11] L, L, O S for the department. SUZANNE AMBROSE: All right.

[16:16] The board invited the parties to present arguments on material

[16:25] issues in this appeal. All the parties may raise

[16:27] arguments framed by the issues in the case. The parties

[16:30] are requested particularly address the following issue.

[16:33] What is the proper penalty for the proven misconduct?

[16:35] Each side is allotted 10 minutes to present

[16:37] its argument with an additional five minutes. All right.

[16:56] BRETT BARCELLOS: So me.

[16:58] SUZANNE AMBROSE: Yes. BRETT BARCELLOS: Okay.

[17:01] Are we ready to go? SUZANNE AMBROSE: Yes.

[17:05] BRETT BARCELLOS: Very good. Good morning.

[17:07] Brett Barcellos, appearing on behalf of CDCR.

[17:10] The board requested argument this morning

[17:13] regarding the propriety of the penalty if proven.

[17:18] If the proof of misconduct

[17:21] is accepted respectfully, the department submits

[17:24] the dismissal remains the only and proper penalty.

[17:27] The issue before the board today is not whether appellant

[17:30] engaged in misconduct. The ALJ sustained multiple

[17:33] causes for discipline, including inexcusable,

[17:36] neglected duty, discourteous treatment,

[17:38] willful disobedience and other failure of good behavior.

[17:41] The issues whether six months suspension adequately,

[17:44] adequately protects the public service.

[17:47] The department argues that it does not.

[17:52] Under Skelly, the board considers three factors

[17:54] in determining appropriate the harm or potential

[17:57] harm to the public service, the circumstances surrounding

[18:01] the offense and likelihood of reoccurrence. But most

[18:05] importantly, Skelly instructs that the harm to public service

[18:09] is overriding consideration. Applying those factors compels

[18:13] one conclusion. Dismissal is the appropriate penalty.

[18:16] The harm here extended far beyond the inappropriate

[18:20] workplace relationship. The case involved a licensed

[18:28] clinical social worker who knowingly violated

[18:31] CDCR's nepotism policy by concealing

[18:34] a romantic relationship with an intern.

[18:37] Assigned to work under his professional

[18:39] guidance. The policy exists for one reason.

[18:41] To prevent exactly what occurred here.

[18:44] It protects both the employee and the integrity

[18:47] of the department by ensuring that personal relationships

[18:50] do not compromise professional

[18:52] judgment or create conflicts of interest.

[18:56] Rather than disclose a relationship and allow

[18:58] management to address the conflict

[19:00] appropriate appropriately, Appellant concealed it.

[19:05] When the relationship deteriorated.

[19:07] He attempted to solve the problem by pressuring

[19:10] Ms. Nelson, not himself,

[19:12] to bear the consequences of the misconduct.

[19:14] He repeatedly pressured her to leave the RHU unit.

[19:19] He suggested that she use Low Census as the explanation

[19:23] for leaving, despite knowing that was not the true reason.

[19:28] When Ms. Nelson repeatedly explained that leaving Rhu

[19:33] could jeopardize her internship, delay

[19:35] her graduate graduation, and significantly impact

[19:38] her career, the appellant continued to pressure her.

[19:43] The result was not simple potential harm.

[19:46] It was actual harm. Ms. Nelson ultimately left

[19:48] the RHU because she feared appellant would jeopardize

[19:52] her internship and professional future.

[19:54] That is precisely the type of harm

[19:56] the CDCR's nepotism policy is designed to prevent.

[19:58] The department's internship program

[20:01] depends upon interns believing they will be fairly evaluated

[20:04] professionally and free from personal influence.

[20:07] When a licensed clinician abuses

[20:10] this relationship for personal reason, public confidence,

[20:15] the department's professionalism and integrity is undermined.

[20:20] The harm here is substantial.

[20:21] The circumstances of the offense demonstrated

[20:27] a continuing course of intentional misconduct.

[20:30] This was not an isolated lapse in judgment.

[20:32] It was a continuing course of intentional misconduct.

[20:36] The appellant knowingly entered into a prohibited relationship.

[20:40] He intentionally concealed that relationship.

[20:43] When the relationship began affecting the workplace,

[20:46] he did not report the conflict. Instead,

[20:47] he attempted to manipulate the situation.

[20:50] By convincing Ms. Nelson to leave the unit.

[20:53] He suggested a false explanation for her transfer.

[20:56] He threatened to go to her supervisor

[20:58] if she refused. Even after repeated

[21:01] leave, she explained that doing so could threaten

[21:04] her internship, future career.

[21:06] He still persisted despite their agreement that there

[21:11] would be no physical displays of affection in the workplace.

[21:15] Appellant intentionally kiss Ms. Nelson while at work,

[21:17] violating a clearly established workplace

[21:19] boundary in the Department's EEO

[21:21] policy prohibiting unwanted physical contact.

[21:26] Each of these actions required a deliberate choice.

[21:28] Each represented another decision to place appellant's

[21:32] personal interest ahead of the department

[21:35] policy and his own professional obligations.

[21:37] Viewed collectively, this conduct demonstrates

[21:42] not mere poor judgment, but an intentional

[21:46] disregard for the standards expected of a licensed mental

[21:49] health professional entrusted with supervising others.

[21:52] The proposed decision concludes that there is little

[21:54] likelihood of recurrence because of impelling

[21:57] expressed remorse and had no prior discipline.

[22:02] Members of the Board. Respectfully, the Department

[22:06] submits this analysis gives too much weight to post

[22:08] invasion investigation mitigation and too little

[22:11] weight to what appellant's actual conduct demonstrates.

[22:14] The likelihood of reoccurrence is not measured by whether

[22:18] an employee later expresses regret.

[22:20] It is measured by the employee's con what the employee's conduct

[22:25] reveals about his judgment when confronted with competing

[22:28] personal and professional obligations. Throughout

[22:31] this relationship, every significant

[22:33] decision appellant made favored protecting

[22:34] himself over complying with the Department policy.

[22:40] He concealed the relationship.

[22:42] He concealed his violation of the nepotism policy.

[22:47] He attempted to persuade another employee to provide

[22:50] false explanations for leaving the unit.

[22:54] He continually pleasure pressured that employee

[22:56] after learning that his demands threatened her career.

[22:59] The Pattern the pattern here demonstrates

[23:01] something important. When the appellant's

[23:04] personal interests conflict with the department policy,

[23:08] he repeatedly chose his personal interest.

[23:10] That pattern, not his later expressions of remorse,

[23:16] is the best predictor of future conduct.

[23:18] The concern is not whether appellant

[23:21] will engage in another workplace relationship.

[23:23] The conduct is whether, when faced with another conflict

[23:26] between the department's policy and the pen's own

[23:28] interest, the department can reasonably rely upon him

[23:32] cannot reasonably rely upon him to make the correct

[23:36] professional decision based upon the proven misconduct.

[23:43] Department reasonably concludes that it could not trust

[23:45] the appellant to put

[23:47] the department in front of his own interests.

[23:52] Here, the department of the appellant

[23:58] occupied a position requiring extraordinary

[24:00] professional judgment.

[24:02] As a licensed clinical social worker,

[24:05] he was expected to recognize professional boundaries,

[24:09] appreciate power and balances, exercise sound ethical judgment,

[24:13] and serve as a mentor to developing clinicians.

[24:16] Instead, he exploited the very relationship

[24:17] he was entrusted to manage professionally.

[24:19] This case is ultimately about trust. The issue

[24:23] before the board is not whether appellant possesses technical

[24:26] skills necessary to perform the duties of a social worker.

[24:31] The issue is whether department can reasonably,

[24:35] reasonably rely upon him to exercise sound judgments

[24:37] when his personal interests conflict with his professional

[24:41] responsibilities based on those fine.

[24:43] Based on those findings, the answer is no.

[24:48] The Department is not required to continue employing

[24:50] a licensed professional after it has reasonably

[24:53] lost confidence in that professional's judgment.

[24:56] Nor is it required to risk future

[24:58] harm to employees, internship programs,

[25:01] or public service in the hope that similar

[25:04] misconduct will not occur again.

[25:06] The department acknowledges that the appellant

[25:09] had no prior formal discipline and later explained remorse.

[25:13] Those are important mitigating considerations.

[25:15] However, they do not outweigh the seriousness of the proven

[25:19] misconduct. A previously clean disciplinary record

[25:23] does not excuse intentional violations of multiple

[25:26] department policies. Nor does remorse expect

[25:29] after the discovery restore the department's

[25:33] confidence in appellant's professional judgment.

[25:37] The fact that several allegations were not sustained

[25:41] does not diminish the seriousness

[25:43] of the ones that were. The sustained findings alone

[25:46] establish intentional violations involving

[25:49] Inexcusable and neglected duty, willful disobedience,

[25:53] discourteous treatment and conduct discrediting

[25:55] the department standing alone.

[25:58] Those findings fully support the dismissal.

[26:01] And I'll close with the department

[26:03] dismissed appellant.

[26:04] Not because he engaged in a workplace relationship.

[26:10] Because what he chose to do after that relationship

[26:12] created a conflict with his professional

[26:15] obligations. He knowingly violated department policy.

[26:19] He concealed those violations. He attempted to protect

[26:21] himself by pressuring another employee to sacrifice her own

[26:25] professional future. He repeatedly placed his own

[26:28] interest above the interest of the department and above

[26:32] the career of an employee he was entrusted to mentor.

[26:35] Under Skelly, the overriding considerations

[26:37] is the protection of public service.

[26:40] The circumstances here demonstrate

[26:42] a continuing course of intentional misconduct.

[26:45] The pattern of appellant's

[26:47] decision making established a significant likelihood.

[26:50] When confronted with another conflict

[26:53] between his personal interests and the department policy.

[26:57] He will again place his own first.

[27:00] Under those circumstances, the department reasonably lost

[27:03] confidence in appellant's professional judgment.

[27:06] Yeah, one quick. A six month suspension

[27:12] may recognize the serious of the misconduct.

[27:15] But it does not restore the judgment,

[27:19] trust and confidence necessary for continued

[27:21] employment in his position. Thanks. SUZANNE AMBROSE:

[27:26] Do any board members have any questions?

[27:30] DR. GAIL WILLIS: I have a question.

[27:32] How long did the appellant continue the misconduct?

[27:37] BRETT BARCELLOS:

[27:42] Looks like it was over two to three month period.

[27:45] I believe it was August, September, October,

[27:50] ending and beginning of November. DR.

[27:55] GAIL WILLIS: Okay, thank you. UNIDENTIFIED SPEAKER: Council,

[28:00] can you address the issue raised by appellant.

[28:03] That the policy was more advisory than required.

[28:06] And the role of appellants.

[28:14] Appellant's role in decisions around employment?

[28:16] BRETT BARCELLOS: Well,

[28:18] you know, the department concedes that appellant's

[28:21] role was not strictly supervisory in that he,

[28:25] you know, he wasn't there to hire or fire her.

[28:33] But he was there as a person to mentor Ms. Nelson.

[28:38] And that relationship created a power

[28:46] imbalance because Ms. Nelson's internship supervisors

[28:49] are going to come to the appellant and ask

[28:52] him, how is Ms. Nelson doing?

[28:54] He was going to have a say in her performance.

[28:58] He is going to have a say in the effectiveness

[29:02] of her abilities in the position.

[29:05] So even though

[29:07] he may not have been her, you know, quote boss.

[29:11] He was definitely in a position of authority

[29:15] in that his interpretations of her performance

[29:17] were going to be weighed in her evaluations.

[29:20] SUZANNE AMBROSE:

[29:27] Any other questions? Okay.

[29:34] Whenever you are ready. UNIDENTIFIED SPEAKER: Thank you.

[29:37] Members of the board, if for whatever reason

[29:39] you can't hear me. Well, if you could let me know.

[29:42] We had some technical issues earlier on.

[29:44] So we are here for state Personnel Board to specifically

[29:47] look at the variety of six month.

[29:52] The modification to a six month suspension.

[29:55] And the ALJ did address this issue when ALJ

[29:58] referred to Department of Parks and Recreation

[30:01] versus State Personnel Board,

[30:04] where it gave three factors that could cause

[30:07] the State Personnel Board to modify a penalty.

[30:09] And very importantly,

[30:12] number three is the cause of discipline is proven,

[30:14] but is insufficient to support the level of punitive action

[30:17] taken. And with that, the appellant

[30:20] request that the SPB continue to revoke

[30:22] the dismissal and it should be overturned

[30:24] because the respondent failed to meet

[30:27] his burden of proving that the appellant committed

[30:31] all of the alleged misconduct that made

[30:33] the dismissal an appropriate level of discipline.

[30:36] The appellant, Mr. Rodriguez, should also be provided

[30:40] with a just and proper outcome because there was.

[30:43] There were many charges, but not all of the charges

[30:45] were the reasons that ultimately came to the modification.

[30:48] And of the six charges, the ALJ dismissed two.

[30:52] And those are, as the LJ also noted,

[30:54] they are two of the most

[30:56] serious charges, dishonesty and unlawful discrimination,

[31:00] including harassment. So today we're not asking

[31:02] the board to excuse any of the conduct.

[31:04] Rather, we're asking the board to exercise its authority under

[31:07] the California Constitution and the government

[31:10] code to determine whether dispute dismissal

[31:12] is the appropriate penalty. And ultimately, we ask

[31:16] the board to consider whether permanent

[31:18] separation from the state services necessary or whether

[31:21] a lesser penalty adequately protects

[31:24] the interest of the state. While recognizing

[31:26] the circumstances in this case. Here, we believe that dismissal

[31:30] is disproportionate with the things that occurred

[31:33] within this case. One

[31:38] of the things that does have to be considered

[31:41] is the harm to public service,

[31:43] which we believe is limited in this case.

[31:46] One of the biggest things is the nepotism policy.

[31:49] And it was already discussed that the, the appellant

[31:52] was not in a supervisory capacity, and the nepotism

[31:55] policy specifically addressed that portion of it.

[31:59] And then it talks about employment

[32:01] decisions, decisions which is.

[32:04] Which was referred to as providing feedback,

[32:07] providing input. So one of the things

[32:10] regarding that is that the types of questions that were being

[32:13] asked were no different than you would ask any other

[32:15] co worker something that like a correctional

[32:17] officer would be asked. How is somebody doing?

[32:20] You know, they're doing good. It's no different in this case.

[32:23] And that is what's on record as well,

[32:26] that the type of feedback that was actually solicited

[32:28] was provided was regarding nothing more than what a co

[32:32] worker would be asked and a co worker would provide.

[32:37] This is also a place where an internship program

[32:41] had not been active in several years.

[32:44] And so essentially,

[32:45] it would be the equivalent of a new internship program

[32:49] beginning from scratch, which means that people

[32:53] weren't trained up to the way that they should have been.

[32:55] This is especially Important because in The SPB

[32:58] decision MM95.01 they specifically speak

[33:02] about there's no proof that appellant received

[33:05] notice of the current sop. The record does not support

[33:09] the charge of failing to follow operational procedures.

[33:11] Similarly here, while there is a policy here,

[33:14] there was no specific training on how this potential training

[33:17] could impact the appellant when they're around

[33:19] how they should be interacting with them. And this is largely

[33:26] because this was a new program within the area

[33:29] because of the long time that there had been no program.

[33:33] Further, Mr.

[33:38] Rodriguez has been a state

[33:40] employee for eight years with no disciplinary action.

[33:43] This is a huge mitigating factor here.

[33:46] So then based on this the fact that Mr. Rodriguez violated

[33:49] many of the allegations of the dishonesty.

[33:52] The ALJ addressed that in the matter

[33:54] when discussing dishonesty and then

[33:57] the unlawful discrimination.

[34:00] And he through the eight years he's demonstrated

[34:05] a good commitment to public service.

[34:08] So that should not be overlooked that the mitigating factors

[34:11] are something that should be weighed

[34:13] because this is a lapse in judgment.

[34:15] The relationship still was not considered

[34:17] was not specifically considered as a way that we believe

[34:20] the policy was intended to be because of what I

[34:23] had just mentioned that he was not a direct

[34:26] supervisor. The type of feedback that he did provide was no more

[34:30] than any coworker. And then the next

[34:32] factor that's looked at is also the likelihood

[34:35] of recurrence which we also believe

[34:38] is minimal. Mr. Rodriguez had mentioned that he took

[34:41] responsibility for his actions and the ALJ also correctly

[34:44] had the opportunity to look at the witnesses determined

[34:48] the credibility and the judge also determined that there

[34:52] was a low likelihood of recurrence

[34:55] under the circumstances. In one of the other cases the

[35:05] SPB decided. 0305JH the SPB decided that an incident

[35:08] involving appellant and his wife

[35:11] was of a highly personal and emotionally charged

[35:13] nature and is unlikely to recurrent similar

[35:15] here the moments where they were having

[35:17] discussions towards the end of their relationship

[35:20] they were one of a highly emotionally charged

[35:23] nature and therefore should SPV should also be ruling

[35:26] similarly that it's unlikely to recur.

[35:28] Also many of the conversations that are being spoken

[35:34] of occurred during a private time.

[35:37] And also many other mitigating factors

[35:44] which the employee has accepted the responsibility, expressed

[35:48] remorse and also cooperated with the investigation.

[35:51] Mr. Rodriguez also did provide information about his personal

[35:58] history during that final week where he was still on site

[36:03] where he spoke about having a sleep

[36:06] disorder that caused anxiety.

[36:08] And this is something that was really affecting

[36:13] him that week where he wasn't sleeping very well.

[36:15] And so this medical condition

[36:17] should also be weighed in in the final decision

[36:20] whether modification

[36:23] is necessary and to show that the likelihood

[36:26] of recurrence is low since he also spoke

[36:30] about some of his the things that he's done to change

[36:32] so that he doesn't have the same issue of not having sufficient

[36:36] sleep. And then

[36:38] also the penalty of dismissal is too severe given the conduct.

[36:43] SPB has looked at and has decided on many

[36:46] cases where when unlawful discrimination

[36:49] is not present and dishonesty is not present that the SPB

[36:52] has ruled that termination may be too severe.

[36:55] There's several examples such as Cable Moore 9612cc 9421TW

[37:04] 9420 Robert Jenkins 9318.

[37:06] So

[37:12] those are all cases where state for snowboard

[37:15] has looked at them.

[37:17] And under that framework we think

[37:19] that it would be appropriate to look at that similar

[37:21] framework where when the two of the most severe matters

[37:23] are dismissed, that SPB also decides that dismissal

[37:27] is too severe under those circumstances.

[37:33] We

[37:37] also requested the state personnel board give

[37:41] consideration to the ALJ because they had the opportunity

[37:44] to look at the facts as they're coming in.

[37:47] They had the opportunity to see people in real time

[37:51] as opposed to having to make any other determination.

[37:54] We believe that ALJ had the best

[37:56] opportunity to take a look and ALJ ultimately

[38:00] determined that six months was an appropriate

[38:03] penalty for this situation and that dismissal

[38:06] would be way too severe. And then ultimately

[38:09] the pointing authority did not establish

[38:15] that employee can no longer be trusted. It was it's even

[38:17] been said that six months does show that severity here.

[38:21] And like we said, we're not asking

[38:23] the state personnel board to excuse Mr. Rodriguez.

[38:26] We're simply asking for a just improper

[38:28] outcome here. And six months is equivalent of

[38:35] approximately 50% pay which does go to show

[38:38] the conduct there was not something

[38:40] that the department will tolerate. And that

[38:44] is some that is a lesson that Mr. Rodriguez has learned

[38:47] through this that it can come at such a cost.

[38:51] And we do hope that the personnel

[38:53] board gives great consideration to the ALJ.

[38:57] And there's also no evidence that progressive discipline

[39:02] would not have been effective here. And so we thank

[39:07] you for your time and we hope that you can give great

[39:10] way to the ALJ's determination and

[39:16] modify revoke the dismissal and modify it.

[39:18] SUZANNE AMBROSE: Thank you. Thank you.

[39:20] Do any board members have any question?

[39:22] UNIDENTIFIED SPEAKER:

[39:36] I just want to make sure they can hear you.

[39:38] Yes, we change the speakers. SUZANNE AMBROSE:

[39:41] Do any board members have any question?

[39:43] UNIDENTIFIED SPEAKER: We heard him. No questions.

[39:45] No questions. SUZANNE AMBROSE: Okay.

[39:50] Okay. Mr. Barcellos, I guess you have five

[39:52] minutes for rebuttal. BRETT BARCELLOS:

[39:59] I would just reiterate this. This case

[40:05] is not about the relationship.

[40:07] It's

[40:11] about how the relationship was handled.

[40:14] It's about what occurred when the relationship

[40:20] deteriorated. The appellant

[40:26] essentially wanted Ms. Nelson to go away.

[40:29] He wanted to get rid of her. To use his own words.

[40:32] If he can't have her, he doesn't want to see her.

[40:35] It put her in a significantly,

[40:37] to

[40:41] a significant disadvantage professionally.

[40:44] There absolutely was an imbalance of power

[40:48] in the relationship with the appellant

[40:51] acting as a mentor. The appellant

[40:53] absolutely was going to have feedback to give

[40:57] Ms. Nelson's supervisors. The appellant absolutely

[41:00] violated CDCR policy and he absolutely put

[41:02] his own interest in front of that of the department.

[41:07] The department feels that

[41:15] in any other kind of situation or incident where the appellant

[41:21] is faced with putting his personal interest

[41:27] before that of department policy, he will absolutely

[41:30] choose to be self serving in his decisions.

[41:33] That's why the department is asking to uphold

[41:39] a dismissal as just improper.

[41:41] That concludes my rebuttal. SUZANNE AMBROSE: Board members

[41:47] have any questions for Mr. Barcellos?

[41:49] UNIDENTIFIED SPEAKER:

[41:54] Thank you. And one of the things that the ALJ

[41:59] did address was the comment of can't have her.

[42:02] And the ALJ also, we believe rightfully

[42:04] concluded that it was taken out of context of note as well.

[42:08] At one point, prior to needing to be separately

[42:11] and with an institution, it was talked

[42:14] about in the proceedings that there was a moment

[42:21] where Dr. Nelson did

[42:26] yell at Mr. Rodriguez, which then

[42:31] led to the following circumstances of not being

[42:34] able to work within the same environment.

[42:36] So it wasn't something that occurred out of nowhere.

[42:39] There's also the continued

[42:41] push about the nepotism policy. But even

[42:44] the managers didn't know what needed to be done.

[42:47] There was an email exchange that was discussed

[42:49] in the hearing as well between Dr. Alexander,

[42:53] which is one of the chiefs on site

[42:57] where they were requesting advice and where the advice

[43:00] was simply to have one of them go to a different unit.

[43:04] And they didn't really know how to deal with the situation.

[43:07] And ultimately that didn't occur

[43:10] because it wasn't disclosed by either party at that point.

[43:15] And then we go back down to the point

[43:18] as well that with the nepotism policy being vague,

[43:21] it was also confusing to the appellate

[43:23] whether that was something that needed to be brought

[43:26] up at that point. And so we ultimately

[43:32] believe that the goal of the discipline here

[43:35] is to ensure that the appellant is not doing anything of similar

[43:42] nature in the future. And we did say that we're

[43:46] not asking to excuse the conduct,

[43:48] but we are asking for a just improper

[43:51] outcome to come into play. Here. And so we appreciate

[43:54] your consideration on this matter.

[43:56] SUZANNE AMBROSE: Any questions from any board members.

[44:00] Okay.

[44:04] Well, we want to thank you both matters being submitted.

[44:07] (Inaudible) UNIDENTIFIED SPEAKER:

[44:12] Thank you. Is there a maximum amount of time

[44:15] where it takes (Inaudible). Okay, thank you.

[44:25] SUZANNE AMBROSE: We're going to move into close

[44:28] sessions, and we'll come back in the open

[44:31] session at the completion of the close session.

[44:34] [ CLOSED SESSION ]

[1:15:16] UNIDENTIFIED SPEAKER: All right. We are live.

[1:15:18] SUZANNE AMBROSE: Okay, so we're back in open session.

[1:15:20] I'll take us through the rest of the agenda. My understanding

[1:15:25] the board was just to approve the Draft Regulation,

[1:15:28] Section 548.5, 548.40, 548.41, 548.43, 548.52

[1:15:43] and 548.120.01. Is there a motion?

[1:15:45] UNIDENTIFIED SPEAKER: So move. UNIDENTIFIED SPEAKER: Second.

[1:15:50] SUZANNE AMBROSE: Move made and seconded.

[1:15:51] Is there any discussion? Roll call vote. Baldree?

[1:15:55] KATHY BALDREE: Aye.

[1:16:00] SUZANNE AMBROSE: Burton?

[1:16:08] ALVIN GITTISRIBOONGUL: (Inaudible) SUZANNE AMBROSE:

[1:16:12] Well, she's there, but...

[1:16:15] UNIDENTIFIED SPEAKER: She's frozen on my end as well.

[1:16:18] SUZANNE AMBROSE:

[1:16:23] Okay. Hello? Yeah. Okay. Okay. Yeah, just go ahead and

[1:16:35] call. Okay. Okay. Can you hear

[1:16:49] us? Yeah. Okay, no problem.

[1:16:54] Okay, so we're voting on the regulations.

[1:16:57] UNIDENTIFIED SPEAKER: Now we're back.

[1:17:00] Okay, SUZANNE AMBROSE:

[1:17:05] Okay, we're voting

[1:17:10] on the regulation. Sorry.

[1:17:12] ALVIN GITTISRIBOONGUL: She came back on.

[1:17:16] SUZANNE AMBROSE: She's on, she's on my phone here.

[1:17:19] KIMIKO BURTON: Well, I appeared back, so I'm muted.

[1:17:23] But I'll keep the call open just in case

[1:17:25] the computer glitches again. Sorry.

[1:17:27] SUZANNE AMBROSE: Sounds good. Okay.

[1:17:29] All right, so let's start then again, we're

[1:17:31] voting on the regulations. Your turn. You're up.

[1:17:34] KIMIKO BURTON: So I heard everything.

[1:17:36] We're about to do the roll call vote, and that's when I...

[1:17:40] SUZANNE AMBROSE: Okay. So roll call vote.

[1:17:42] So Baldree voted, aye. SUZANNE AMBROSE: Burton?

[1:17:46] KIMIKO BURTON: Aye. SUZANNE AMBROSE: Matosantos?

[1:17:50] ANA MATOSANTOS: Aye. SUZANNE AMBROSE: Westly?

[1:17:54] SHAWNDA WESTLY: Aye.

[1:17:56] SUZANNE AMBROSE: Willis? DR. GAIL WILLIS: Aye.

[1:17:59] SUZANNE AMBROSE: Okay. Motion passes.

[1:18:00] The A cases, A1 through A10. It's my understanding

[1:18:02] the board wishes to adopt all proposed decisions.

[1:18:05] Is there a motion? KIMIKO BURTON: So move.

[1:18:08] UNIDENTIFIED SPEAKER:

[1:18:10] Second SUZANNE AMBROSE: Motion has been made and seconded.

[1:18:12] Any discussion? Roll call vote. Baldree?

[1:18:14] KATHY BALDREE: Aye. SUZANNE AMBROSE: Burton?

[1:18:18] KIMIKO BURTON: Aye. SUZANNE AMBROSE: Matosantos?

[1:18:22] ANA MATOSANTOS: Aye. SUZANNE AMBROSE: Westly?

[1:18:25] SHAWNDA WESTLY: Aye. SUZANNE AMBROSE: Willis?

[1:18:29] DR. GAIL WILLIS: Aye.

[1:18:31] SUZANNE AMBROSE: Okay. Motion passes.

[1:18:32] It's my understanding the board wishes to deny

[1:18:34] all three petitions for rehearing B1 through B3.

[1:18:37] Is there a motion?

[1:18:39] UNIDENTIFIED SPEAKER: So move. UNIDENTIFIED SPEAKER: Second.

[1:18:44] SUZANNE AMBROSE: Motion has been made and seconded.

[1:18:47] Any discussion? Roll call vote. Baldree?

[1:18:49] KATHY BALDREE: Aye.

[1:18:51] SUZANNE AMBROSE: Burton? Burton? Hello?

[1:18:53] Can you

[1:19:13] hear me? KIMIKO BURTON: I can. SUZANNE AMBROSE: Okay,

[1:19:16] so we're voting on the denial of the petitions for rehearing.

[1:19:19] Okay, Burton? KIMIKO BURTON: Aye.

[1:19:23] SUZANNE AMBROSE: Matosantos? ANA MATOSANTOS: Aye.

[1:19:27] SUZANNE AMBROSE: Westly? SHAWNDA WESTLY: Aye.

[1:19:31] SUZANNE AMBROSE: Willis? DR. GAIL WILLIS: Aye.

[1:19:34] SUZANNE AMBROSE: Okay. Motion passes.

[1:19:35] It's my understanding. The board's ready to issue

[1:19:37] the decision in E1. Is there a motion?

[1:19:39] UNIDENTIFIED SPEAKER: So moved. UNIDENTIFIED SPEAKER:

[1:19:43] Second SUZANNE AMBROSE: Motion then made and seconded.

[1:19:46] Any discussion? Roll call vote. Baldree?

[1:19:48] KATHY BALDREE: Aye. SUZANNE AMBROSE: Burton?

[1:19:52] KIMIKO BURTON: Aye. SUZANNE AMBROSE: Matosantos?

[1:19:55] ANA MATOSANTOS: Aye. SUZANNE AMBROSE: Westly?

[1:20:00] SHAWNDA WESTLY: Aye.

[1:20:02] SUZANNE AMBROSE: Willis? DR. GAIL WILLIS: Aye.

[1:20:05] SUZANNE AMBROSE: Okay. Motion passes.

[1:20:07] It's my understanding the board wishes to approve

[1:20:09] all of the G's. G1 through G7, J1 and K1.

[1:20:11] Is there a motion?

[1:20:14] UNIDENTIFIED SPEAKER: So move. UNIDENTIFIED SPEAKER: Second.

[1:20:19] SUZANNE AMBROSE: Motion made and seconded. Any discussion?

[1:20:20] Roll call vote. Baldree? KATHY BALDREE: Aye.

[1:20:24] SUZANNE AMBROSE: Burton? KIMIKO BURTON: Aye.

[1:20:28] SUZANNE AMBROSE: Matosantos? ANA MATOSANTOS: Aye.

[1:20:32] SUZANNE AMBROSE: Westly? SHAWNDA WESTLY: Aye.

[1:20:36] SUZANNE AMBROSE: Willis? DR. GAIL WILLIS: Aye.

[1:20:39] SUZANNE AMBROSE: Okay. Motion passes.

[1:20:40] That concludes our business for today. Anything else?

[1:20:43] Anyone? Meetings adjourned. Thank bye.

[1:20:45] ALVIN GITTISRIBOONGUL: Thank you.

[1:20:47] KATHY BALDREE: Bye, everyone.

State Personnel Board Meeting

Transcript