One summer evening in 2017, Sergeant Steven Rodgers, a Department of Corrections and Rehabilitation (CDCR) employee, was working an evening “contraband surveillance watch” shift at the Pelican Bay Security Housing Unit (SHU). A contraband surveillance watch is a procedure for monitoring inmates suspected of hiding drugs or weapons inside their bodies. The inmate is physically restrained and placed in a cell under constant observation until they excrete the contraband, or 72 hours have elapsed. The restraints prevent the inmate from accessing and re-ingesting the contraband before staff can retrieve it. Each watch is divided into shifts that a sergeant supervises. At least twice during the shift, the supervising sergeant is required to help the officer ensure the restraints are secure and comfortable. Pelican Bay’s policy states a preference that these checks occur at the beginning and end of every shift, though it is not mandatory.
At approximately 10:00 pm that night, correctional officers Angulo and Palafox began their shift and requested Rodgers to conduct the first restraint check. The officers’ testimony differs as to what happened next.
Angulo and Palafox said Rodgers allegedly told them he was “too busy” at the time. At approximately 10:30 pm, Palafox again asked Rodgers to do the check, to which Rodgers told Palafox to “pencil whip” (a military term that means to forge or falsify) the form to show the check as completed. Rodgers also allegedly said if anything happened, he’d “take the hit”. The officers then contacted another Sergeant, who contacted Rodger’s supervisor Lieutenant Vanderhoofven. The officers said they asked Rodgers again at 11:15 pm to conduct the restraint check, at which point he “became irritated” for repeatedly asking him. Around midnight, approximately two hours into the shift, Rodgers conducted the restraint check and discovered one of the inmate’s leg cuffs was not double-locked.
At around 2:00 am, Lt. Vanderhoofven visited the facility to discuss proper procedures with Rodgers after hearing Rodgers was “refusing” to conduct the check. After the Lieutenant left, Rodgers allegedly returned to the watch area and angrily asked the officers, “Which one of you mother f…ers spoke to another sergeant about this?” The next morning, at approximately 5:30 am, Sergeant Reynoso arrived to take over as supervising sergeant and the officers asked him to do the check with them. When Rodgers arrived approximately 10 minutes later to do the final check and discovered it had already been completed, he became upset again and said, “What the hell, you trying to have another sergeant do my job?”
Rodger’s version of events is different. He states he never neglected his duty to perform the restraint checks, but that he simply was too busy to perform the checks at the times the officers repeatedly asked. Rodgers was angry the officers were falsely accusing him of neglecting the restraint checks when Rodgers was simply telling them that he would conduct the checks later.
In May 2018, CDCR served Rodgers with a Notice of Adverse Action (NOAA) stating that his salary would be reduced by 10 percent for two years, effective the end of that month. The NOAA alleged Rodgers: (i) neglected his duties by “refusing to perform” the inspection at the beginning of the shift; (ii) treated his subordinates in a “discourteous and disrespectful” manner when he angrily, and with profane language, “confronted and intimidated” them about reporting his neglect of duty to another sergeant; and (iii) “misused [his] authority” when he directed the officers to “pencil whip” their inspection documentation, thereby “instructing them to fill in inaccurate information regarding the restraint inspections on official records.”
Rodgers requested a hearing. The hearing officer largely credited Rodgers’ testimony over the officers’ testimony. The hearing officer found the allegation that Rodgers had refused to perform a timely restraint check at the beginning of the shift unsubstantiated. This is because Rodgers repeatedly said he would do the check later because he was tending to other duties. Palafox’s watch form corroborated Rodgers’ testimony that he performed the check approximately 45 minutes into the shift. The hearing officer concluded the document falsification allegation was unsubstantiated because he credited Rodgers’ testimony to “pencil in” the form, not “pencil whip” it.
The only specific allegation the hearing officer upheld was the discourteous confrontation charge. The hearing officer found that Rodgers had been angry and used profanity, but for a different reason than what was alleged in his NOAA. He found Rodgers was angry because Rodgers believed the officers had falsely accused him of neglect of duty he had not committed; Rodgers did not believe the officers had accurately reported any misconduct because Rodgers had indeed completed and/or was willing to complete the required restraint checks.
Despite upholding only the discourteous confrontation allegation, the hearing officer concluded the full-proposed salary reduction of -10% for the next two years was an appropriate penalty. The State Personnel Board (SPB) upheld the hearing officer’s findings, and Rodgers timely challenged the decision in the superior court. The superior court denied Rodgers’ challenge and Rodgers appealed.
The Court of Appeal agreed with Rodgers that the SPB decision violated his procedural due process right to notice of the basis for the disciplinary penalty. The Court found that Rodgers was not notified that he was to be disciplined with a 10% reduction in salary for two years based on a single allegation of misconduct. Because the hearing officer found Rogers engaged in only one of the several charges of misconduct listed in the NOAA, Rodgers lacked appropriate notice that only one charge could subject him to the full penalty proposed.
The Court rejected the SPB’s argument that the penalty should be upheld because the hearing officer found that Rodgers’ discourteous treatment of the officers was likely to recur and could chill the officers’ willingness to report any future misconduct. The Court said the problem is not with the charge of discourteous treatment; the problem was with the NOAA’s description of the basis for that charge. The NOAA advised that the discourteous treatment charge was premised on underlying neglect of duty; CDCR claimed Rodgers angrily confronted his subordinates for reporting a refusal to perform the beginning-of-shift inspection. But that is not what the hearing officer found. Instead, the hearing officer found that having properly discharged his duty to perform the restraint inspection, Rodgers angrily confronted his subordinates because they’d wrongly accused him of shirking his duty.
The Court reiterated that it was not condoning Rodgers’ behavior or saying it was not punishable. The hearing officer did find that Rodger’s decision to confront his subordinates with anger and profanity was unprofessional, discourteous, and violated CDCR’s policy on treating other employees with respect. But the issue before the Court was not whether Rodgers committed any misconduct, it was whether he was on notice that his alleged actions could subject him to the proposed penalty. To answer that question, due process requires the Court to compare the facts alleged, to those found true after an evidentiary hearing. In the NOAA version, Rodgers engaged in grave misconduct, contributing to a culture of silence that fosters corruption. The hearing officer rejected that theory, however, and found Rodgers simply failed to keep his temper in check and treat his subordinates with respect when confronting them over a misunderstanding. Given the significant difference between the two kinds of misconduct, the Court concluded Rodgers lacked notice that his actions could subject him to the imposed penalty.
The Court reversed the judgment and directed the trial court to order the SPB to set aside its decision sustaining the disciplinary action.
Rodgers v. State Personnel Board (Department of Corrections), 83 Cal.App.5th 1 (2022).
NOTE:
This case underscores the need to prepare a Skelly notice with great care. The public agency must not only accurately state the basis for each charge, but be able to prove the basis for each charge. In addition, if the proposed penalty would be appropriate based on any one of several charges, then the Skelly notice must specifically say so.