[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.