Appellate Court Affirms Mandatory Reinstatement of DHS Fraud Investigator
Court Rules Reinstatement Cannot Be Conditioned Upon Completion of Background and Psyche Exam
The Third District Court of Appeal dealt a sharp blow to the Department of Health Services’ attempt to require a background investigation of returning investigator Alberto Hulings. Hulings, an eleven year veteran of the Department, underwent backgrounds when he was hired and when he lateraled to the Department of Consumer Affairs in 2005. Nonetheless, in June 2006, three months after he returned to Health Services, DHS ordered another background investigation.
Government Code section 19140.5 provides for mandatory reinstatement to a former permanent position in specific situations, including a rejection on probation. Hulings’ circumstances fell within the statute. In the precedential decision of In re Poggione (1995) SPB Precedential Dec. No. 95-12, the State Personnel Board explained the purpose of the mandatory reinstatement provision:
“ ...the right to mandatory reinstatement is to protect the employee who has already achieved permanent status in the civil service from being terminated from state service based on the employee’s inability to perform adequately in a new job after transfer or promotion. The fact that the new position is not a good match for an employee who has had success in a prior position does not justify separation from all of state service...”
CSLEA previously obtained a Superior Court decision that validated our reading of section 19140.5. Sacramento Superior Court Judge Jack Sapunor held:
“The Department has no discretion to condition Petitioner’s mandatory reinstatement to his former position upon the satisfaction of requirements not otherwise imposed upon an incumbent of the position.”
Not satisfied, the Department then tried out a series of arguments with the Court of Appeal. First they contended that Hulings was fully reinstated and “(t)here is simply no nexus between Hulings’ status as an employee and DHS’s order that he complete the background investigation.” Both the trial court and and the appellate court agreed this argument was specious, in light of the fact DHS never expressed any other basis for the order.
DHS next cited Government Code section 1031 for the proposition that it has the authority to order a background for a longstanding peace officer like Hulings in the absence of any reason. The problem, as the courts noted, is that Section 1031 doesn’t specify when it applies. After examining the administrative regulations and some Supreme Court cases, the Court of Appeal concluded that mandatory reinstatement cannot trigger the requirement of a background investigation.
This case is important to CSLEA members because it sends a clear message to state agencies that our laws are meant to be followed. The public does not expect its tax dollars spent on litigation based upon fanciful interpretations of the law. Although this case deals with mandatory reinstatement, we have all seen departments pursue actions penalizing employees simply because they think they can. Here the court said clearly; no you can’t.
A copy of the decision is attached at the link below.
Court Rules Reinstatement Cannot Be Conditioned Upon Completion of Background and Psyche Exam
Source: Larry Friedman, Sr. Legal Counsel
Date: 2/6/2008
Government Code section 19140.5 provides for mandatory reinstatement to a former permanent position in specific situations, including a rejection on probation. Hulings’ circumstances fell within the statute. In the precedential decision of In re Poggione (1995) SPB Precedential Dec. No. 95-12, the State Personnel Board explained the purpose of the mandatory reinstatement provision:
“ ...the right to mandatory reinstatement is to protect the employee who has already achieved permanent status in the civil service from being terminated from state service based on the employee’s inability to perform adequately in a new job after transfer or promotion. The fact that the new position is not a good match for an employee who has had success in a prior position does not justify separation from all of state service...”
CSLEA previously obtained a Superior Court decision that validated our reading of section 19140.5. Sacramento Superior Court Judge Jack Sapunor held:
“The Department has no discretion to condition Petitioner’s mandatory reinstatement to his former position upon the satisfaction of requirements not otherwise imposed upon an incumbent of the position.”
Not satisfied, the Department then tried out a series of arguments with the Court of Appeal. First they contended that Hulings was fully reinstated and “(t)here is simply no nexus between Hulings’ status as an employee and DHS’s order that he complete the background investigation.” Both the trial court and and the appellate court agreed this argument was specious, in light of the fact DHS never expressed any other basis for the order.
DHS next cited Government Code section 1031 for the proposition that it has the authority to order a background for a longstanding peace officer like Hulings in the absence of any reason. The problem, as the courts noted, is that Section 1031 doesn’t specify when it applies. After examining the administrative regulations and some Supreme Court cases, the Court of Appeal concluded that mandatory reinstatement cannot trigger the requirement of a background investigation.
This case is important to CSLEA members because it sends a clear message to state agencies that our laws are meant to be followed. The public does not expect its tax dollars spent on litigation based upon fanciful interpretations of the law. Although this case deals with mandatory reinstatement, we have all seen departments pursue actions penalizing employees simply because they think they can. Here the court said clearly; no you can’t.
A copy of the decision is attached at the link below.
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