spb decision re michels chaplin schonig

JAMES MICHELS, JUSTIN CHAPLIN AND FRANK SCHONIG

v. CALIFORNIA DEPARTMENT OF FORESTRY

AND FIRE PROTECTION

Appeals from Demotions

Case Nos. 15-0919K, 15-0921K and 15-0927K

BOARD RESOLUTION

AND ORDER

The State Personnel Board (the Board) on April 12, 2016, carefully considered the

Proposed Decision filed by the Administrative Law Judge (ALJ) in the appeals by

Appellants, James Michels, Justin Chaplin, and Frank Schonig, Case Nos. 15-0919K,

15-0921K and 15-0927K, from Demotions issued 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 cases on the date set forth below. A true copy of the Proposed Decision shall be

attached to this Board Resolution and Order for delivery to the parties in accordance

with the law, and the adoption of the Board Resolution and Order shall be reflected in

the record of the meeting and the Board’s minutes.

The foregoing Board Resolution and Order was made and adopted by the Board

in Case Nos. 15-0919K, 15-0921K and 15-0927K during its meeting on April 12, 2016,

as reflected in the record of the meeting and Board minutes.

/s/ SUZANNE M. AMBROSE SUZANNE M. AMBROSE Executive Officer

James Michels, Justin Chaplin, and Frank Schonig Case Nos. 15-0919K, 15-0921K, and 15-0927K

Page 1 of 20

JAMES MICHELS, JUSTIN CHAPLIN, and FRANK SCHONIG

v. CALIFORNIA DEPARTMENT OF

FORESTRY AND FIRE PROTECTION

Appeals from Demotions

Case Nos. 15-0919K, 15-0921K, and 15-0927K

Proposed Decision

STATEMENT OF THE CASE

This matter came on regularly for hearing before Gregory W. Brown,

Administrative Law Judge (ALJ), State Personnel Board (SPB or Board), on January 25

and 26, 2016, in Sacramento, California. The case was submitted at the close of

hearing on January 26, 2016.

Appellants, James Michels (Appellant Michels), Justin Chaplin (Appellant

Chaplin), and Frank Schonig (Appellant Schonig), were present and were represented

by Lina B. Cockrell, Esquire, Messing Adam & Jasmine, LLP.

Respondent, California Department of Forestry and Fire Protection (Respondent

or CalFire), was present and was represented by David M. Villalba, Labor Relations

Counsel, California Department of Human Resources.

Respondent demoted Appellants two classification steps, from Fire Captain to

Fire Fighter II, effective on June 1, 2015. Respondent alleged that prior to participating

in a promotional Fire Captain examination, Appellants received examination questions

and answers from a Battalion Chief; failed to report the situation to their supervisors;

and as a result, knowingly gained an unfair competitive advantage over other

examination candidates. Respondent also alleged that Appellant Schonig made

dishonest statements to investigators regarding the examination.


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Appellants admit that they received examination questions and answers prior to

the examination and failed to report this fact. Appellants contend, however, that

because of their outstanding qualifications for Fire Captain, they did not gain an unfair

competitive advantage on the examination. Appellant Schonig denies that he

intentionally made dishonest statements to investigators. Appellants also contend that

the penalties they received were disproportionate to their conduct.

ISSUES

The issues to be resolved are:

1. Did Respondent prove the charges by a preponderance of the evidence?

2. If Respondent proved the charges by a preponderance of the evidence, does

the conduct of Appellants constitute legal cause for discipline under

Government Code section 19572, subdivisions (a) fraud in securing

appointment; (d) inexcusable neglect of duty; (f) dishonesty; (o) willful

disobedience; and/or (t) other failure of good behavior?

3. If the conduct of Appellants constitutes legal cause for discipline, what is the

appropriate penalty for each Appellant?

FINDINGS OF FACT

A preponderance of the evidence proves the following facts:

Appellants’ Work Histories

1. Appellant Michels commenced his state employment with Respondent in

June 2004 as a Fire Fighter I. In 2008, he promoted to the classification of

Fire Apparatus Engineer (Limited Term) in the Amador-El Dorado Unit. He

promoted to permanent Fire Apparatus Engineer in that same unit in 2012.


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2. Appellant Chaplin commenced his state employment with Respondent on

June 15, 2002, as a Fire Fighter I. He promoted to the classification of Fire

Apparatus Engineer (Limited Term) in 2008, and to permanent Fire Apparatus

Engineer in the Tuolumne-Calaveras Unit in 2012.

3. Appellant Schonig commenced his state employment with Respondent on

July 3, 2006, as a Fire Fighter I in the San Mateo-Santa Cruz Unit. He

promoted to the classification of Fire Apparatus Engineer (Limited Term) in

2011, and to permanent Fire Apparatus Engineer in the same unit in 2013.

4. Appellants have no prior record of discipline.

The Academy Fire Captain Examination and Subsequent Events

5. In early 2014, Appellants learned that the CalFire Academy (Academy) in

Ione, California would administer an oral Fire Captain promotional

examination for three limited-term Fire Captain positions at the Academy.

The examination was scheduled for April 9, 2014. Appellants, who were Fire

Apparatus Engineers at the time, applied for the examination.

6. Two Academy supervisors were slated to serve as examination panelists:

Battalion Chiefs Moe Fleming (Chief Fleming) and Bryant Camarena (Chief

Camarena). Appellants knew that Chief Fleming was a supervisor at the

Academy, and would be sitting on the examination panel.

7. The Academy Fire Captain oral examination was designed in two parts. In

the first part, candidates would be presented with five questions. The first

question asked the candidates to share their knowledge regarding the CalFire

Academy. The next two questions gave the candidates factual scenarios an


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Academy Fire Captain might encounter, and asked the candidates how they

would respond. The fourth question asked the candidates what skills and

qualifications a Fire Captain at the Academy should possess. The fifth

question asked the candidates the meaning of the “1/3 Rule” (a firefighting

term). In the second part of the examination, the candidates were asked to

give an oral presentation of their own choosing.

8. The candidates who had applied for the examination knew that they would be

answering questions as part of the examination process, but were not given

the questions ahead of time. The candidates were informed that they would

be giving an oral presentation on a topic of their own choosing.

9. Two days before the April 9, 2014 examination, Chief Fleming sent all three

Appellants cell phone texts. The texts contained the five above-described

examination questions, along with a checklist of model answer topics to

Questions 1, 2, 3, and 4. The texts did not contain model answer topics to

Question 5 regarding the 1/3 Rule. The texts Chief Fleming sent to Appellant

Michels and Appellant Chaplin also contained grading criteria for the oral

presentation portion of the examination.1

10. Four candidates other than Appellants were scheduled to participate in the

examination. Those four candidates did not receive examination questions or

model answer topics prior to the examination.

1 At hearing, Respondent clarified that it was not contending that Appellant Michels’s and Appellant

Chaplin’s receipt or use of the grading criteria for the oral presentation portion of the examination gave them a competitive advantage on the examination, or constituted misconduct.


Page 5 of 20

11. Appellants read the texts they had received from Chief Fleming. They knew

that the texts contained the questions and model answer topics for the

upcoming examination. They knew that it was improper to receive this

information from an examination panelist and potential supervisor.

12. Upon receipt of the texts, Appellant Schonig texted Chief Fleming asking what

the 1/3 Rule was. Appellant Michels texted Chief Fleming, “You are a god

send. I’m excited to come down and present.” On April 9, 2014, the day of

the examination, Appellant Michels texted Chief Fleming, “One third?” Chief

Fleming texted back, “It refers to … 1/3 of the air to get in one third of your air

to do work and one third of your air to get out.” Appellant Michels texted

back, “Thanks, I struggled hard looking for that.”

13. During the Academy Fire Captain examination on April 9, 2014, Appellants

were presented with the five examination questions they had already received

from Chief Fleming. At no time before or after the examination did they report

the fact that they had received examination information prior to taking the

examination.

14. On the question and answer portion of the examination, Appellant Michels

received scores of 90 points out of 100 possible points from both Chiefs

Fleming and Chief Camarena; Appellant Chaplin received scores of 90 from

each Chief; and Appellant Schonig received scores of 93 (Chief Fleming) and

95 (Chief Camarena). The four other candidates received scores of 49 and

49; 23 and 23; 19 and 19; and, 17 and 16.


Page 6 of 20

15. On the oral presentation portion of the examination, Appellant Michels

received scores of 50 points out of 50 possible points from both Chiefs;

Appellant Chaplin received 48 points from each Chief; and Appellant Schonig

received 50 points from each Chief. The four other candidates received

scores of 40 and 40; 10 and 10, 6 and 6; and 9 and 9.

16. After the examination, Appellants were offered the three limited-term Fire

Captain positions at the Academy, with a starting date of April 28, 2014. They

began work at the Academy in their new positions on that date.

17. In May 2014, Chief Fleming was arrested and charged with murdering his

girlfriend. A California Department of Highway Patrol (CHP) investigation of

the Academy ensued.

18. In July 2014, after a different civil service examination, Appellant Michels

promoted to permanent Fire Captain at the Academy.

19. During the CHP investigation of the Academy, the texts Appellants had

received from Chief Fleming came to light. Alleged misconduct by other

Academy employees also surfaced, including allegations of sexual

improprieties, the consumption of alcohol at Academy functions, and cheating

on Cadet examinations.

Appellant Schonig’s CHP Interview

20. CHP investigators interviewed Appellant Schonig on August 27, 2014. On

three separate occasions during the interview, Appellant Schonig stated that

when he received the text messages from Chief Fleming, he read through the

texts. When asked by an investigator whether he reviewed the questions


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sent to him by Chief Fleming prior to taking the test, he said, “I did not review

them. I saw them on an email. I sent him a text about the one third rule then

I deleted it.”

21. In that interview, Appellant Schonig stated that when he received the texts, he

knew what the 1/3 Rule was, but he nevertheless sent Chief Fleming a text

asking him about the rule because he did not want to offend Chief Fleming.

At other times in the interview, Appellant Schonig stated that when he

received the texts, he did not know what the 1/3 Rule was, and the texts

helped him because he had not studied that rule.

22. During the interview, Appellant Schonig twice stated he did not have a duty to

report that he had received the texts. He stated at other times during the

interview that he neglected his duty by not reporting the situation, and that it

would be considered failure of good behavior not to report it.

The Adverse Actions

23. On January 26, 2015, Respondents issued Appellants Notices of Adverse

Action (NOAA’s) for cheating on the April 2014 Fire Captain examination.

The NOAA’s terminated Appellants’ limited-term Fire Captain appointments;

returned them to their Fire Apparatus Engineer positions effective February 5,

2015; and reduced their salaries 5 percent for 12 months beginning on that

date.2

2 Respondent terminated Appellant Michels’s permanent Fire Captain appointment by rejecting him during

his probationary period.


Page 8 of 20

24. Respondent transferred Appellant Michels to the Siskiyou Unit as a Fire

Apparatus Engineer, then transferred him back to the Amador-El Dorado Unit

in the same classification.

25. Respondent transferred Appellant Schonig to the San Mateo-Santa Cruz Unit

as a Fire Apparatus Engineer. On February 23, 2015, that unit promoted him

to Fire Captain.

26. Respondent transferred Appellant Chaplin to the Tuolumne-Calaveras Unit as

a Fire Apparatus Engineer. On March 2, 2015, that unit promoted him to Fire

Captain (Limited Term).

27. In March and May of 2015, the Sacramento Bee published articles regarding

Appellant Chaplin’s and Appellant Schonig’s adverse actions, and their

subsequent rapid re-promotions to Fire Captain.

28. In early May 2015, CalFire withdrew the NOAA’s against all three Appellants.

On May 15, 2015, CalFire issued Appellants new NOAA’s, demoting them

two steps to Fire Fighter II, with an effective date of June 1, 2015.3

29. In conjunction with the new NOAA’s, Respondent transferred Appellant

Michels as a Fire Fighter II to the Nevada-Yuba-Placer Unit; transferred

Appellant Chaplin as a Fire Fighter II to the Mariposa-Merced Unit; and kept

Appellant Schonig in place in the San Mateo-Santa Cruz Unit as a Fire

Fighter II.

3 Prior to the hearing, Appellants moved to dismiss the newly-issued adverse actions, contending that

those NOAA’s constituted “double jeopardy,” i.e. double punishment for the same behavior, since the Appellants had already received adverse actions for the same conduct. Those motions to dismiss were denied by ALJ Douglas A. Purdy on August 11, 2015. At the hearing, Appellants’ requests for reconsideration of the motions to dismiss were denied.


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CalFire Policies

30. CalFire’s Appointments, Transfers and Separations Policy Number 1021.1.1

provides in part as follows:

All appointments … must comply with civil service laws and rules, and merit principles, unless an appointment is expressly exempt…. As such, appointments will be made on the basis of merit and fitness, defined exclusively by the State Personnel Board.… Candidate performance can be determined with fair and equitable selection procedures….

31. CalFire’s Departmental Incompatible Activities Policy Number 1082.1

provides in part as follows:

The business and affairs of the State must be conducted in such an impartial manner that all persons understand that no State officer or employee can be influenced by other than proper methods.… They must avoid circumstances suggesting that favoritism or personal gain is the motivating force in the conduct of State government.… The broad objectives are to maintain an impartial administration of the State government and to maintain public confidence in government.

32. Appellants knew about and understood these policies during the relevant time

period.4

CREDIBILITY DETERMINATION

Appellants testified at hearing that when they received the texts from Chief

Fleming, they did not know whether the texts contained actual examination questions or

answers, or were merely general study guides. They also testified at hearing that they:

1) had already fully prepared for the examination; 2) quickly read the texts to determine

4 Respondent also charged Appellants with violating the State Civil Service Act’s requirement that

appointments must be “based upon merit and fitness ascertained through practical and competitive examinations.” At hearing, Respondent did not introduce any such law into evidence or argue that Appellants failed to comply with such law. Therefore, those allegations are dismissed.


Page 10 of 20

what they contained; and, 3) immediately deleted the texts because they did not

welcome the materials.

Using the factors set forth in Evidence Code section 7805 to determine credibility,

that testimony is not credited. Appellants testified they were uncomfortable when they

received the texts, and thought they might be retaliated against if they reported the

situation. This level of discomfort and fear implies that Appellants knew they had

received actual examination questions and model answers rather than general study

guides. Furthermore, Appellants’ claims that they attempted to set aside the contents of

the texts were suspiciously similar, and Appellants had a clear motive to put a noble

gloss on a situation that was damning to them on its face. Moreover, Appellants’ above-

described testimony is undermined by the fact that once they received the texts,

Appellants Michels and Schonig asked Chief Fleming the meaning of the only question

to which they did not have a model answer. This shows direct and active participation

in the cheating scheme, at least on the part of Appellants Michels and Schonig. Finally,

the testimony of all three Appellants regarding these assertions seemed rehearsed,

somewhat rote, and overly dramatic regarding their supposedly noble intentions.

It is believed, therefore, that when Appellants received the texts from Chief

Fleming, they knew they had received questions and model answers for the upcoming

examination. It is also believed that they actively and intentionally used the information

in the texts to review for, and gain a competitive advantage on, the examination.

/ / /

5 Specifically, Evidence Code section 780, subdivisions (a) witness demeanor and the manner in which

they testify, (b) the character of their testimony, (f) the existence of bias or motive, and (h) inconsistent statements.


Page 11 of 20

PRINCIPLES OF LAW AND ANALYSIS

In a disciplinary appeal, the appointing power must prove the charges against the

employee by a preponderance of the evidence. (Evid. Code, § 115; Lyle Q. Guidry

(1995) SPB Dec. No. 95-09.) A preponderance of the evidence is “evidence that has

more convincing force than that opposed to it.” (Glage v. Hawes Firearms Co. (1990)

226 Cal.App.3d 314, 324.)

Fraud In Securing Appointment

Fraud in securing appointment under Government Code section 19572,

subdivision (a) is found where the employee intentionally misrepresents facts, or willfully

omits material facts, in securing a state job. (Richard C. Toby (2001) SPB Dec. No. 01-

04, pp. 7-8; Ming Liu (1997) SPB Dec. No 97-02, pp. 9-11.) Acts of cheating constitute

dishonesty under Government Code section 19572, subdivision (d), which is also

defined as the intentional misrepresentation of facts, or the willful omission of material

facts. (Eliette Sandoval (1995) SPB Dec. No. 95-15, pp. 4-5; M.S. (1994) SPB Dec. No.

94-19, p. 20.) When an employee cheats on a civil service examination in order to

secure a position, therefore, that employee commits fraud in securing appointment.

Here, Appellants received examination questions and answers prior to the

examination, and understood the full import of what they had received. Despite this

knowledge, they allowed the examination and their subsequent appointments to

proceed as if they had taken the examination on an equal competitive footing with other

examination candidates. Appellants’ knowing receipt of examination questions and

answers prior to the examination, and their deceitful use of that information to gain a


Page 12 of 20

competitive advantage over other candidates without notifying Respondent of the

situation, constitutes cheating, i.e., fraud in securing appointment.

Appellants assert that Respondent failed to prove at hearing that when

Appellants received the texts, they knew that other candidates were not receiving the

same information. To believe that Appellants were unaware they were receiving special

favors, however, presumes a level of naiveté on the part of Appellants not borne out by

the evidence. Appellants were savvy enough to realize that examination panelists do

not normally distribute general study guides to all candidates via individual cell phone

texts. Even if Appellants believed that all the candidates received the same information

prior to the examination, however, Appellants still cheated on the examination. Whether

they believed others did so or not is irrelevant to the question of whether Appellants

actively participated in a scheme of fraud and deceit to secure a position.

Appellants also contend that their scores on the examination prove that they

were the superior candidates, and thus, they received no competitive advantage on the

test. This contention is rejected. It is axiomatic that cheating on a test automatically

invalidates the test results of the cheaters. Because Appellants cheated on the

examination, it is impossible to determine whether they received high scores because of

their qualifications, or because they had received the examination questions and

answers ahead of time. Furthermore, the panelist who helped them cheat, Chief

Fleming, also graded their examinations, rendering their high scores inherently suspect.

Moreover, Appellants failed to show at hearing that they were in fact superior to the

other candidates; their unsupported assertions to that effect were less than persuasive.

Finally, even if Appellants were the superior candidates, this does not mean they did not


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profit from their cheating. Even superior candidates gain a competitive advantage on an

examination when they cheat on the examination.

As stated above, Appellants’ assertions that they did not know the texts

contained questions and answers for the upcoming examination until they took the

examination are not credited. For the purposes of argument, though, even if they did

not know the true nature of what they had received prior to the examination, Appellants

would still have committed fraud in securing their positions. Appellants all testified that

once they received the texts, they knew (at the very least) that they had improperly

received study aids from an examination panelist. Moreover, Appellants testified that

the moment the examination commenced, they realized the questions on the

examination were identical to the ones they had received in the texts. Even if their

claims that they did not initially realize the true import of the texts were credited,

Appellants knew when the examination commenced that they had gained an unfair

advantage. Yet they did nothing to point out that situation to CalFire or any other

authority. Thus, even if Appellants’ claims are believed, they still intentionally chose to

cheat on the examination.

In sum, the evidence established that Appellants cheated on the promotional

examination in order to secure their Fire Captain appointments. Such behavior

constitutes cause for discipline under Government Code section 19572, subdivision (a),

fraud in securing appointment. Those allegations are sustained.

Inexcusable Neglect of Duty

Inexcusable neglect of duty is the intentional or grossly negligent failure to

exercise due diligence in the performance of a known official duty. (E.W. (1999) SPB


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Dec. No. 99-09.) In order to establish inexcusable neglect of duty, Respondent must

prove that the Appellants had actual or constructive notice of expected standards of

conduct, unless the conduct is so clearly wrong that notice is not necessary. (E.D.

(1993) SPB Dec. No. 93-32, pp. 8-11; Merle E. Betz, Jr. (1996) SPB Dec. No. 96-10,

pp. 15-16.)

Respondent did not establish at hearing that Appellants had notice of CalFire’s

Appointments, Transfers and Separations Policy Number 1021.1.1, which provides that

all CalFire appointments must comply with civil service laws and merit principles, and

that candidate performance should be determined with fair and equitable selection

procedures. Yet every California civil servant knows that civil service examinations

should be fair and equitable, and the results should be based on merit. Cheating on a

civil service examination is so clearly wrong that Appellants need not have been notified

of that policy to understand that their fraudulent conduct violated merit principles and

CalFire policy.

Appellants received notice of CalFire’s Departmental Incompatible Activities

Policy, which provides that 1) CalFire employees must avoid circumstances suggesting

that they have been the recipients of favoritism or personal gain, and 2) they must notify

an immediate supervisor if they engage in such activity. Since Appellant’s were

specifically put on notice of these duties, their failure to report that they were recipients

of Chief Fleming’s favoritism was inexcusable. (Steven Perez (1996) SPB Case No. 96-

09, pp. 19-20.) Indeed, at hearing, Appellant Michels and Appellant Schonig

acknowledged that they had a duty to report the situation, and in his CHP interview,

Appellant Chaplin acknowledged that he should have reported the situation.


Page 15 of 20

Appellants point out that they did not solicit the examination information, and that

Chief Fleming’s actions placed them in an untenable position, to wit: if they reported the

situation, they might be subjected to retaliation, which could ruin their careers; if they did

not report the situation, they could be disciplined for cheating, which could also ruin their

careers. There is no doubt that Chief Fleming placed Appellants in a no-win situation.

Once that occurred, however, they had a duty to take the ethical course of action and

report Chief Fleming’s scheme. Instead, they chose to stay silent in order to protect

their careers and to secure promotions.

In deciding to join Chief Fleming’s scheme to fraudulently manipulate the

examination, Appellants knowingly violated CalFire policy. Their conduct, therefore,

constituted cause for discipline under Government Code section 19572, subdivision (d),

inexcusable neglect of duty. Those charges are sustained.

Dishonesty

As set forth above, dishonesty is the intentional misrepresentation of known

facts, or a willful omission of pertinent facts. (Eliette Sandoval (1995) SPB Dec. No. 95-

15, pp. 4-5; M.S. (1994) SPB Dec. No. 94-19, p. 20.) Here, Appellants knowingly

cheated on the Fire Captain examination. Cheating constitutes dishonesty. (Sandoval,

supra, SPB Dec. No. 95-15, pp. 4-5.) Appellants’ conduct, therefore, constituted cause

for discipline under Government Code section 19572, subdivision (f), dishonesty.

Those charges are sustained.

Appellant Schonig also intentionally misrepresented or omitted facts during his

CHP interview. As set forth above, the evidence established that Appellants used the

information in the texts sent by Chief Fleming as study aids. Appellant Schonig


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acknowledged to CHP investigators that he read the texts and knew what they were.

Furthermore, he asked Chief Fleming the meaning of the 1/3 Rule. Yet he evasively

claimed during the CHP interview that he did not review the texts, and immediately

deleted them. This evasive and misleading statement constitutes dishonesty.

Appellant Schonig also stated during the CHP interview that he knew what the

1/3 Rule was, but sent Chief Fleming a text asking him about the rule because he did

not want to offend Chief Fleming. By Appellant Schonig’s own admission, however, this

statement was false. Appellant Schonig admitted during the CHP interview that he did

not know what the 1/3 Rule was, and that the texts helped him because he had not

studied that rule. The evidence established that Appellant Schonig actively interacted

with Chief Fleming prior to the examination in order to cheat on the examination; his

suggestion to investigators that he primarily did so for another purpose was intentionally

evasive and deceptive.

Finally, Appellant Schonig stated during the CHP interview that he did not have a

duty to report that he had received the texts. But Appellant Schonig knew what his

duties were, and he admitted at other times during the interview that he neglected his

duty by not reporting the situation. His statement to the contrary, then, was knowingly

false.

All these statements by Appellant Schonig were intentionally evasive and

deceptive, and also constitute cause for discipline under Government Code section

19572, subdivision (f), dishonesty. Those charges are sustained.

/ / /

/ / /


Page 17 of 20

Willful Disobedience

Willful disobedience occurs where an employee knowingly and intentionally

violates a direct command, prohibition, or policy. (E.W. (1999) SPB Dec. No. 99-09;

R.H. (1993) SPB Dec. No. 93-22; Jose L. Flores, Jr. (1994) SPB Dec. No. 94-24.)

As set forth above, Appellants intentionally violated CalFire policies when they

cheated on the Fire Captain examination, and failed to report the situation to their

supervisors. Their conduct, therefore, constitutes legal cause for discipline under

Government Code section 19572, subdivision (o), willful disobedience. Those charges

are sustained.

Other Failure of Good Behavior

Other failure of good behavior is misconduct which causes discredit to the

appointing authority or the appellant’s employment where the misconduct bears a

rational relationship to the appellant’s job and may easily result in the disruption or

impairment of the public service. (Stanton v. State Personnel Board (1980) 105

Cal.App.3d 729, 739-740; D.M. (1995) SPB Dec. No. 95-10, pp. 8-9.)

Appellants’ misconduct, i.e., cheating on the promotional examination, was

directly related to their jobs. That misconduct came to light in news reports, and thus

publicly discredited CalFire. Their misconduct also impaired the public service by

undermining the public’s confidence that CalFire promotes its employees based on

merit rather than favoritism. The conduct of Appellants, therefore, constitutes legal

cause for discipline under Government Code section 19572, subdivision (t), other failure

of good behavior.

/ / /


Page 18 of 20

Penalty

The court in Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 217-218,

identified the factors to be considered by the SPB in determining penalty:

We note that the overriding consideration in these cases is the extent to which the employee's conduct resulted in, or if repeated is likely to result in [h]arm to the public service. (Citation.) Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence.

Appellants’ misconduct caused significant harm to the public service. As the

Board stated in Steven Perez (1996) SPB Case No. 96-09 on page 20, “Competitive

examination is the linchpin of the state civil service.” Appellants’ decision to cheat on

the examination subverted the competitive examination process, and undermined the

public’s confidence that CalFire promotes its employees based on merit. Regarding

fraudulent subversions of California’s civil service examination process, the Board has

stated, “It is difficult to imagine conduct more harmful to the public service….” (Perez,

supra, SPB Case No. 96-09, p. 21.)

In mitigation, all of the Appellants had spotless records prior to this incident, and

at the hearing, they appeared intelligent, dedicated and professional. In addition, there

is no doubt that Chief Fleming thrust them into an untenable situation by sending them

the examination materials. Appellants’ fears of retaliation should they report Chief

Fleming’s misconduct were not irrational. Yet this does not excuse their behavior. They

had the choice to follow CalFire policy and to ensure that the CalFire examination

process was fair and equitable. Instead, they chose to protect their careers and gain

promotions by joining a scheme to subvert the fair examination and selection process.


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Unfortunately, there is a chance that Appellants will commit similar misconduct in

the future. Dishonesty is considered more of a continuing character trait than an

isolated incident. (Kolender v. San Diego County Civil Service Commission (2005) 132

Cal.App.4th 716, 721.) Furthermore, at hearing, none of the Appellants took full

responsibility for their misconduct. Appellants were caught deliberately cheating on a

promotional examination, but at every turn during the hearing, they tried to minimize the

seriousness of their misconduct, and to deflect responsibility onto others. They

suggested that they attempted to set aside the information they received from Chief

Fleming, but as set forth above, those claims were not credible. They also claimed that

they did not gain a competitive advantage on the examination, when it is obvious that

they did. They also claimed at hearing (without providing any proof beyond their own

assertions) that CalFire employees regularly cheated on other civil service

examinations, as if that excused their behavior. In short, Appellants failed to fully

acknowledge their serious misconduct at hearing, increasing the odds that similar

misconduct will recur.

Despite the serious nature of their misconduct, Appellants were not dismissed

from state service. Instead, they were afforded the opportunity to resume their careers

with CalFire. Given the significant harm to the public service resulting from their

misconduct, and the chance for recurrence, the two-step demotions issued to

Appellants are appropriate.

CONCLUSIONS OF LAW

1. Respondent proved the charges against Appellants by a preponderance of the

evidence.


Page 20 of 20

2. Appellants’ conduct constitutes legal cause for discipline under Government

Code section 19572, subdivisions (a) fraud in securing appointment, (d)

inexcusable neglect of duty, (f) dishonesty, (o) willful disobedience, and (t) other

failure of good behavior.

3. The two-step demotions of Appellants from the classification of Fire Captain to

the classification of Fire Fighter II are warranted.

ORDERS

The two-step demotions of James Michels, Justin Chaplin, and Frank Schonig

from the classification of Fire Captain to the classification of Fire Fighter II, issued by the

California Department of Forestry and Fire Protection, are SUSTAINED.

DATED: February 26, 2015

__________________________ Gregory W. Brown Administrative Law Judge State Personnel Board

spb decision re michels chaplin schonig

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