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NU
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Jun-28-2016 3:47 pm
Case Number: CPF-16-515145
Filing Date: Jun-28-2016 3:42
Filed by: ARLENE RAMOS
Image: 05454547
PETITION FOR WRIT OF MANDATE/ PROHIBITION/
CERTIFICATION
JUSTIN CHAPLIN VS. CALIFORNIA STATE PERSONNEL BOARD
001005454547
Instructions:
Please place this sheet on top of the document to be scanned.t
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CM-01
ATTORNEY OR PARTY WITHOUT ATTORNEY.
[~ Gary M. Messing, SBN 07536:
MESSING ADAM & JASMINE LLP
235 Montgomery Street, Suite 828
San Francisco, CA 94104
rexernove no. (415) 266-1800
2, State Bar number, and address):
ATTORNEY FoR (ame). Petitioners CHAPLIN, MICHELS AND SCHONIG
FOR COURT USE ONLY
FI LE
cassette
eaxno: (415) 266-1128
strezraporess: 400 McAllister Street
wane aooress: 400 McAllister Street
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO.
oiryanoz cove: San Francisco, CA 94104
oranonnane, Civic Center Courthouse
JUN 28 2016
CLERK,OF THE COURT
BY.
CASE NAME: Deputy Clerk
JUSTIN CHAPLIN, ET AL. v. STATE PERSONNEL BOARD, ET AL.
CIVIL CASE COVER SHEET Complex Case Designation CASE NUMBER
limit Limited
ono (amount [J counter [7] Joinder \CPF=416=515145
demanded demanded is Filed with first appearance by defendant “
exceeds $25,000) _ $25,000 or less) (Cal. Rules of Court, rule 3.402) DEPT:
items 1-6 beiow must be completed (see instructions on page 2).
Auto Tort
Auto (22)
Uninsured motorist (46)
Other PUPDIWD (Personal Injury/Property
Damage/Wrongful Death) Tort
Asbestos (04)
Product liability (24)
[] Medica! matpractice (45)
Other PUPDAWD (23)
Non-P/PDIWD (Other) Tort
Business torv/unfair business practice (07)
Civil rights (08)
Defamation (13)
Fraud (16)
Intellectual property (19)
Professional negligence (25)
Other non-PUPDAWD tort (35)
Employment
Wrongful termination (36)
[J other employment (15)
0
QUO0000
1. Check one box below for the case type that best describes this case:
Contract Provisionally Complex Civil Litigation
LJ Breach of contractwarranty (06) (Cal. Rules of Court, rules 3.400-3.403)
Rule 3.740 collections (09) [2 Antitrustytrade regulation (03)
Other collections (09) [J construction detect (10)
Insurance coverage (18) CJ Mass tort (40)
Other contract (37) {] securities titigation (28)
Real Property [2 EnvironmentaiToxic tort (30)
Eminent domain/Iinverse 1 insurance coverage ciaims arising from the
condemnation (14)
[21 wrongtut eviction (33)
[1 otter reat property (26)
Unlawful Detainer
Commercial (31)
Residential (32)
Drugs (38)
above listed provisionally complex case
types (41)
Enforcement of Judgment
Enforcement of judgment (20)
Miscellaneous Civil Complaint
RICO (27)
Other complaint (not specified above) (42)
pudigial Review Miscellaneous Civil Petition
Asset forfeiture (05) Partnership and corporate govemance (21)
TJ Petition re: arbitration award (11) [J other petition (not specified above) (43)
Writ of mandate (02)
[J other judicial review (39)
2. This case [_] is
isnot complex under rule 3.400 of the California Rules of Court. If the case is complex, mark the
factors requiring exceptional judicial management:
a. _] Large number of separately represented parties
b.£_] Extensive motion practice raising difficult or novel
issues that wil! be time-consuming to resolve
. oo Substantial amount of documentary evidence
This case [_Jis
Or aw
vas £/28/2016
GARY M. MESSING
Remedies sought (check ail that apply): a.[__] monetary
Number of causes of action (specify): One - Writ of Administrative Mandamus
isnot a class action suit. -
If there are any known related cases, file and serve a notice of related case. (You gfay use form CM-015.)
d. Oo Large number of witnesses
e. C3 Coordination with related actions pending in one or more courts
in other counties, states, or countries, or in a federal court
£ [_] Substantial postjudgment judicial supervision
¢. [Tpunitive
nonmonetary; declaratory or injunctive relief
TYPE OR PRINT NAME]
NOTICE
« Plaintiff must file this cover sheet with the first paper filed in the action or proceeding (except smali claims cases or cases filed
under the Probate Code, Family Code, or Welfare and Institutions Code). (Cal. Rules of Court, rule 3.220.) Failure to file may result
in sanctions.
* File this cover sheet in addition to any cover sheet required by local court rule.
© If this case is complex under rule 3.400 et seq. of the California Rules of Court, you must serve a copy of this cover sheet on alt
other parties to the action or proceeding.
* Unless this is a collections case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes only.
age 1 of 2
Form Adopted for Mandatory Use
Judicial Council of California
“OM-010 (Rev. duly 1, 2007)
Cal, Rules af Cour, rules 2.30, 3.220, 3.400-3.403, 3 740,
Cal, Standards of Judicial Administration, sid. 310,
‘eww courtinfo.ca.gov
CIVIL CASE COVER SHEEToe YW DW BY we &
BN Ye Y NY NN NY De He ew ewe ee Be ee
oy A YM FF YP NF SKHwe A DFA RPEBH LS
Gary M. Messing, Bar No. 075363
Jason H Jasmine, Bar No. 215757
Lina Balciunas Cockrell, Bar No. 238166
MESSING ADAM & JASMINE LLP
Attorneys at Law F I
235 Montgomery Street, Suite 828 Superior Court of Calfornia
San Francisco, California 94104 County of San Francisco
Telephone: (415) 266-1800 6
Facsimile: (415) 266-1128 JUN 28 2016
lina@majlabor.com CLERK,OF THE COURT
ta BY: Se Lowes
Attorneys for Petitioners
JUSTIN CHAPLIN, JAMES MICHELS and Deputy Clerk
FRANK SCHONIG
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
JUSTIN CHAPLIN, JAMES MICHELS and | Case No. CPF-16-
FRANK SCHONIG, 4 6 5 15 4 4 5
VERIFIED PETITION FOR WRIT OF
Petitioner, MANDATE AND WRIT OF
ADMINISTRATIVE MANDAMUS
v. [CopE Crv. PROC., §§ 1085 AND 1094.5}
CALIFORNIA STATE PERSONNEL
BOARD,
Respondent.
CALIFORNIA DEPARTMENT OF
FORESTRY AND FIRE PROTECTION,
Real Party in Interest.
Petitioners JUSTIN CHAPLIN, JAMES MICHELS and FRANK SCHONIG (collectively
the “Fire Captains”) petition this Court for a writ of mandate pursuant to Code of Civil Procedure
section 1085 and a writ of administrative mandamus pursuant to Code of Civil Procedure section
1094.5 directed to Respondent CALIFORNIA STATE PERSONNEL BOARD ("SPB"), and by
this verified petition alleges as follows:
VERIFIED PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS
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1. At all times herein pertinent, Respondent California State Personnel Board
(“SPB”) was and is a duly constituted body created and existing under the authority of the
California State Constitution and statutes of the State of California. The SPB is entrusted with
and is responsible for the State of California’s civil service system.
2, Atall times herein pertinent, Real Party in Interest California Department of
Forestry and Fire Protection (“CAL FIRE” or the “Department”) was and is a duly organized
State entity, existing under the California State Constitution and applicable statutes of the State of
California
3. Atall times herein pertinent, CAL FIRE was and is an agency of the State of
California and the hiring authority for the Fire Captains in this action.
4. The Attorney General has an office in San Francisco County, making that county
an appropriate venue, (Code Civ. Proc., § 401(1).)
5. Petitioner Justin Chaplin (“Chaplin”) first became employed by CAL FIRE in
June 2002 in the classification of Firefighter I. He promoted to the classification of Fire
Apparatus Engineer (“FAE”), Limited Term in 2008. He became a permanent employee as an
FAE in 2012, assigned to CAL FIRE’s Tuolumne-Calaveras Unit.
6. Petitioner James Michels (“Michels”) first became employed by CAL FIRE in
June 2004 in the classification of Firefighter I. He promoted to the classification of FAE, Limited
Term in 2008. He became a permanent employee as an FAE in 2012, assigned to CAL FIRE’s
Siskiyou Unit.
7. Petitioner Frank Schonig (“Schonig”) first became employed by CAL FIRE in July
2006 in the classification of Firefighter 1. He promoted to the classification of FAE, Limited
Term in 2011. He became a permanent employee as an FAE in 2013, assigned to CAL FIRE’s
San Mateo-Santa Cruz Unit.
8. In early 2014, the Fire Captains each accepted limited-term positions in the Fire
Captain classification as instructors at the CAL FIRE Academy in Ione, California and began
their new positions on or about April 28, 2014.
00021645.DOCX -2-
VERIFIED PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS9. On May 1, 2014, the Battalion Chief who hired the Fire Captains to the Academy,
Orville “Moe” Fleming, murdered his girlfriend and evaded law enforcement, which ultimately
led to significant media attention toward operations and personnel at the Academy.
10. In July 2014, Michels was promoted to a permanent Fire Captain classification at
the Academy. Chaplin and Schonig remained at limited term status.
11. The Fire Captains have no prior record of discipline.
12. On or about January 21, 2015, CAL FIRE served each of the Fire Captains with
Notices of Adverse Action (“NAA”), alleging various causes for discipline under Government
Code section 19572, arising out of allegations they improperly obtained their positions at the
Academy based on receiving (unsolicited) text messages from Fleming containing interview
questions and answers, failing to report having received the text messages, and then using the
information contained in the text messages to secure their promotions.
13. In the NAAs, CAL FIRE imposed discipline of demotion from Fire Captain to
FAE and a 5% salary reduction for 12 months for each Chaplin, Michels and Schonig. The Fire
Captains were also reassigned out of the Academy, back to the Tuolumne-Calaveras Unit for
Chaplin and San Mateo-Santa Cruz Unit for Schonig, while Michels was assigned to the Amador-
El Dorado Unit.
14. Each of the NAAs were amended on January 26, 2015, to change the effective
date of the discipline from January 31, 2015, to February 5, 2015.
15, Each of the NAAs expressly provided that “{r]ecognizing your honesty during
this investigation, the Department feels you can serve in a lower level position immediately and
will remain eligible to fairly compete for promotional positions.”
16. All three Fire Captains acknowledged receiving the text messages from Fleming
and failing to report having received them. However, the Fire Captains denied that the text
messages gave them any advantage in the promotional process and they maintained that they
rightfully earned and were qualified for their positions at the Academy.
17. Nevertheless, none of the Fire Captains originally appealed their discipline to
Respondent SPB. After the 30-day deadline, prescribed by SPB rules, to file an appeal had
00021645.DOCX 3.
VERIFIED PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUSYD Ww BR WwW LD
passed, Schonig learned that the Sacramento Bee newspaper had published a story which named
him and contained details of CAL FIRE’s adverse action against him (which he had been
informed would not happen if he did not appeal the discipline). Schonig sought and received a
good cause exception to the statute of limitations from the SPB in order to file his appeal.
18. Shortly after he left the Academy and returned to the San Mateo-Santa Cruz Unit,
Schonig was offered a permanent Fire Captain position in that unit. Schonig officially promoted
to permanent Fire Captain on February 23, 2015. San Mateo-Santa Cruz Unit officials promoted
Schonig with full knowledge of his discipline and the circumstances behind it.
19. Shortly after he left the Academy and returned to the Tuolumne-Calaveras Unit,
Chaplin was offered a limited term Fire Captain position in that unit. Chaplin officially promoted
to Fire Captain, Limited Term on March 3, 2015. Tuolumne-Calaveras Unit officials promoted
Chaplin with full knowledge of his discipline and the circumstances behind it.
20. On May 6, 2016, the Sacramento Bee published an interview with CAL FIRE
Director Ken Pimlott. The article referenced the adverse actions against — and subsequent
promotions of — Chaplin and Schonig and also raised the issue of why the discipline did not
“stick.”
21. In letters dated that same day, May 6, 2015, CAL FIRE withdrew the previously
imposed discipline against Chaplin and Michels, returning them to the limited term and
permanent Fire Captain classifications, respectively, and issuing back pay for the 5% salary
reductions already taken.
22. In filings with the SPB dated that same day, May 6, 2015, CAL FIRE withdrew
the previously imposed discipline against Schonig, also returning him to the limited term Fire
Captain classification and issuing back pay for the 5% salary reductions already taken.
23. Concurrently with withdrawing the adverse actions, CAL FIRE placed all three
Fire Captains on administrative time off.
24, On May 15, 2015, CAL FIRE served all three Fire Captains with new NAAs,
demoting them indefinitely two ranks to the classification of Firefighter II, effective June 1, 2015.
00021645.DOCX 4.
VERIFIED PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUSThe new NAAs were based on the same general factual allegations from the first NAAs and
included the same supporting materials.
25. The Fire Captains timely appealed the new discipline to the SPB on June 3, 2015.
26. On July 1, 2015, all three Fire Captains filed motions to dismiss the new NAAS
with the SPB on the grounds that CAL FIRE had improperly disciplined them twice for the same
incidents of misconduct (“double jeopardy”).
27. After holding a hearing on the matter and entertaining oral argument, SPB
Administrative Law Judge (“ALJ”) Douglas Purdy issued an order, dated August 11, 2015,
denying all three Fire Captains’ motions. The three appeals were subsequently consolidated.
28. An evidentiary hearing was conducted on the merits of the new NAAs before
ALJ Gregory Brown of the SPB on January 25-26, 2016.
29. On February 26, 2016, ALJ Brown issued a Proposed Decision to sustain the
double demotions of all three Fire Captains, without any clarification on the duration of the
discipline. On or about April 12, 2016, the SPB issued a Board Resolution and Order (the “SPB
Order”), adopting the findings of fact, determination of issues and Proposed Decision of ALI
Brown and sustaining the Fire Captains’ double demotions.
30. The Fire Captains submitted a joint Petition for Rehearing to the SPB on or
about May 13, 2016, which is, as of the date of this filing, pending.
31. ALJ Purdy had a clear and present duty, as an officer of the SPB, to dismiss the
new NAAs as improper “double jeopardy” under the law and he breached that duty by denying
the Fire Captains’ motions to dismiss.
32, ALJ Purdy’s order denying the Fire Captains’ motions to dismiss is invalid under
Code of Civil Procedure section 1094.5 because the SPB committed errors of law and prejudicial
abuses of discretion.
33. The SPB Order is invalid under Code of Civil Procedure section 1094.5 because
the SPB committed errors of law and prejudicial abuses of discretion.
00021645. DOCX 5.
VERIFIED PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUSi
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14
34, The Fire Captains are beneficially interested in this action and do not have a
plain, speedy and adequate remedy in the ordinary course of law, in that no means are available
for them to obtain judicial review of the SPB’s decision, other than by way of this Petition.
35. The evidence does not support the findings in the Proposed Decision, and the
findings do not support the discipline. A failure by the SPB to make sufficient findings can and
should lead to reversal of the decision.
36. ALJ Purdy’s order denying the Fire Captains’ motions to dismiss made a
number of legal errors and findings unsupported by any evidence.
37, ALJ Brown’s Proposed Decision made a number of legal errors and findings
unsupported by any evidence.
38. No substantial evidence supports the finding(s) that the workplace violations
alleged to be committed by the Fire Captains were proven.
39. No substantial evidence supports the conclusion(s) that the indefinite double
demotions of the Fire Captains are reasonable and/or appropriate.
40. The penalty of indefinite double demotion to Firefighter I of the Fire Captains
is excessive under the circumstances.
41. The Fire Captains were not afforded due process of the law.
42. The Fire Captains seek the enforcement of an important public right in receiving
due process of the law and findings supported by substantial evidence by the SPB and therefore,
the Fire Captains are entitled to recover reasonable attorney fees incurred by them in this action
pursuant to Code of Civil Procedure section 1021.5.
43. The full administrative record in this matter has been requested and will be
lodged concurrent with the filing of opening briefs in this matter.
WHEREFORE, Petitioners Chaplin, Michels and Schonig pray that this Court:
1. Issue a peremptory writ of mandate, pursuant to Code of Civil Procedure section
1085 and a peremptory writ of administrative mandamus, pursuant to Code of Civil Procedure
00021645.DOCX -6-
VERIFIED PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUSoC OWN DH B® YD wD me
BR PY YPN NR NY ee Be ee ee Re WL
Soo AD eM FY NF So we HA AAR GBH AS
section 1094.5, directed to Respondent SPB, its employees, agents, officers and all persons acting
on its behalf compelling them to:
a. Order rescission of the Notices of Adverse Action dated May 15, 2015, as
improper double jeopardy and order reinstatement of the amended Notices
of Adverse Action dated January 26, 2015, as to all three Fire Captains;
b, Order rescission or reduction of the discipline imposed on the Fire
Captains in the Notices of Adverse Action dated May 15, 2015;
c. Order the reinstatement of Schonig to his former position of permanent
Fire Captain with CAL FIRE;
d. Order the reinstatement of Chaplin to his former position of Fire Captain,
Limited Term with CAL FIRE;
e. Order back pay in an amount sufficient to compensate the Fire Captains
for the loss of pay, benefits, seniority, service credits, and all other
emoluments of employment that the Fire Captains would have received
but for their double demotions since June 1, 2015; and
f. Order removal from the Fire Captains’ Official Personnel Files, or any
other files used for personnel purposes, documentation relating to the
Notices of Adverse Action dated May 15, 2015, adjudicated herein and to
refrain from using or referring to the Notices adjudicated herein in any
way adverse to the Fire Captains.
2. Inthe alternative, issue a peremptory writ of mandate, pursuant to Code of Civil
Procedure section 1094.5, directed to Respondent SPB, its employees, agents, officers and all
persons acting on its behalf compelling them to provide the Fire Captains with a new hearing, \ with
instructions to the SPB to avoid the same mistakes and violations made in its previous decision.
3. Order Respondent SPB to pay the Fire Captains’ reasonable attorney’s fees
pursuant to Code of Civil Procedure section 1021.5 and/or as otherwise permitted by law.
4. Order Respondent SPB to pay the Fire Captains’ costs of suit herein incurred, in
addition to any other relief granted or other costs awarded.
00021645. DOCX -7-
VERIFIED PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUSCm nd aA
10
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12
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15
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Dated: June XS, 2016
00021645.DOCX,
5.
Order such other and further relief as the Court deems proper.
Respectfully submitted,
MESSING ADAM & JASMINE LLP
By
Gary Mf. Messing
Jason H Jasmine
Lina Balciunas Cockrell
Attorneys for Petitioners JUSTIN CHAPLIN,
JAMES MICHELS and FRANK SCHONIG
-8-
VERIFIED PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS0 Oe NY DH BR BW HB me
PR we NY NY N NY KY NY Be we me ee
eo AAA FY DHF SEH RAAaRE OHS
VERIFICATION
Tam one of the attorneys for JUSTIN CHAPLIN, JAMES MICHELS and FRANK
SCHONIG, parties to this action. Such parties are absent from the county where we attorneys have
our office, and where this Petition is filed, and I make this verification for and on behalf of these
parties for that reason. I am informed and believe and on that ground allege that the matters stated
in the foregoing document are true.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed on G | 238/: 2b IG in Sacraments California
Lp
00021645.DOCK 9
YEary M. Messing
VERIFIED PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS
Preview
NU SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Jun-28-2016 3:47 pm Case Number: CPF-16-515145 Filing Date: Jun-28-2016 3:42 Filed by: ARLENE RAMOS Image: 05454547 PETITION FOR WRIT OF MANDATE/ PROHIBITION/ CERTIFICATION JUSTIN CHAPLIN VS. CALIFORNIA STATE PERSONNEL BOARD 001005454547 Instructions: Please place this sheet on top of the document to be scanned.t t } ; ; CM-01 ATTORNEY OR PARTY WITHOUT ATTORNEY. [~ Gary M. Messing, SBN 07536: MESSING ADAM & JASMINE LLP 235 Montgomery Street, Suite 828 San Francisco, CA 94104 rexernove no. (415) 266-1800 2, State Bar number, and address): ATTORNEY FoR (ame). Petitioners CHAPLIN, MICHELS AND SCHONIG FOR COURT USE ONLY FI LE cassette eaxno: (415) 266-1128 strezraporess: 400 McAllister Street wane aooress: 400 McAllister Street SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO. oiryanoz cove: San Francisco, CA 94104 oranonnane, Civic Center Courthouse JUN 28 2016 CLERK,OF THE COURT BY. CASE NAME: Deputy Clerk JUSTIN CHAPLIN, ET AL. v. STATE PERSONNEL BOARD, ET AL. CIVIL CASE COVER SHEET Complex Case Designation CASE NUMBER limit Limited ono (amount [J counter [7] Joinder \CPF=416=515145 demanded demanded is Filed with first appearance by defendant “ exceeds $25,000) _ $25,000 or less) (Cal. Rules of Court, rule 3.402) DEPT: items 1-6 beiow must be completed (see instructions on page 2). Auto Tort Auto (22) Uninsured motorist (46) Other PUPDIWD (Personal Injury/Property Damage/Wrongful Death) Tort Asbestos (04) Product liability (24) [] Medica! matpractice (45) Other PUPDAWD (23) Non-P/PDIWD (Other) Tort Business torv/unfair business practice (07) Civil rights (08) Defamation (13) Fraud (16) Intellectual property (19) Professional negligence (25) Other non-PUPDAWD tort (35) Employment Wrongful termination (36) [J other employment (15) 0 QUO0000 1. Check one box below for the case type that best describes this case: Contract Provisionally Complex Civil Litigation LJ Breach of contractwarranty (06) (Cal. Rules of Court, rules 3.400-3.403) Rule 3.740 collections (09) [2 Antitrustytrade regulation (03) Other collections (09) [J construction detect (10) Insurance coverage (18) CJ Mass tort (40) Other contract (37) {] securities titigation (28) Real Property [2 EnvironmentaiToxic tort (30) Eminent domain/Iinverse 1 insurance coverage ciaims arising from the condemnation (14) [21 wrongtut eviction (33) [1 otter reat property (26) Unlawful Detainer Commercial (31) Residential (32) Drugs (38) above listed provisionally complex case types (41) Enforcement of Judgment Enforcement of judgment (20) Miscellaneous Civil Complaint RICO (27) Other complaint (not specified above) (42) pudigial Review Miscellaneous Civil Petition Asset forfeiture (05) Partnership and corporate govemance (21) TJ Petition re: arbitration award (11) [J other petition (not specified above) (43) Writ of mandate (02) [J other judicial review (39) 2. This case [_] is isnot complex under rule 3.400 of the California Rules of Court. If the case is complex, mark the factors requiring exceptional judicial management: a. _] Large number of separately represented parties b.£_] Extensive motion practice raising difficult or novel issues that wil! be time-consuming to resolve . oo Substantial amount of documentary evidence This case [_Jis Or aw vas £/28/2016 GARY M. MESSING Remedies sought (check ail that apply): a.[__] monetary Number of causes of action (specify): One - Writ of Administrative Mandamus isnot a class action suit. - If there are any known related cases, file and serve a notice of related case. (You gfay use form CM-015.) d. Oo Large number of witnesses e. C3 Coordination with related actions pending in one or more courts in other counties, states, or countries, or in a federal court £ [_] Substantial postjudgment judicial supervision ¢. [Tpunitive nonmonetary; declaratory or injunctive relief TYPE OR PRINT NAME] NOTICE « Plaintiff must file this cover sheet with the first paper filed in the action or proceeding (except smali claims cases or cases filed under the Probate Code, Family Code, or Welfare and Institutions Code). (Cal. Rules of Court, rule 3.220.) Failure to file may result in sanctions. * File this cover sheet in addition to any cover sheet required by local court rule. © If this case is complex under rule 3.400 et seq. of the California Rules of Court, you must serve a copy of this cover sheet on alt other parties to the action or proceeding. * Unless this is a collections case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes only. age 1 of 2 Form Adopted for Mandatory Use Judicial Council of California “OM-010 (Rev. duly 1, 2007) Cal, Rules af Cour, rules 2.30, 3.220, 3.400-3.403, 3 740, Cal, Standards of Judicial Administration, sid. 310, ‘eww courtinfo.ca.gov CIVIL CASE COVER SHEEToe YW DW BY we & BN Ye Y NY NN NY De He ew ewe ee Be ee oy A YM FF YP NF SKHwe A DFA RPEBH LS Gary M. Messing, Bar No. 075363 Jason H Jasmine, Bar No. 215757 Lina Balciunas Cockrell, Bar No. 238166 MESSING ADAM & JASMINE LLP Attorneys at Law F I 235 Montgomery Street, Suite 828 Superior Court of Calfornia San Francisco, California 94104 County of San Francisco Telephone: (415) 266-1800 6 Facsimile: (415) 266-1128 JUN 28 2016 lina@majlabor.com CLERK,OF THE COURT ta BY: Se Lowes Attorneys for Petitioners JUSTIN CHAPLIN, JAMES MICHELS and Deputy Clerk FRANK SCHONIG SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO JUSTIN CHAPLIN, JAMES MICHELS and | Case No. CPF-16- FRANK SCHONIG, 4 6 5 15 4 4 5 VERIFIED PETITION FOR WRIT OF Petitioner, MANDATE AND WRIT OF ADMINISTRATIVE MANDAMUS v. [CopE Crv. PROC., §§ 1085 AND 1094.5} CALIFORNIA STATE PERSONNEL BOARD, Respondent. CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION, Real Party in Interest. Petitioners JUSTIN CHAPLIN, JAMES MICHELS and FRANK SCHONIG (collectively the “Fire Captains”) petition this Court for a writ of mandate pursuant to Code of Civil Procedure section 1085 and a writ of administrative mandamus pursuant to Code of Civil Procedure section 1094.5 directed to Respondent CALIFORNIA STATE PERSONNEL BOARD ("SPB"), and by this verified petition alleges as follows: VERIFIED PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS ASEi : } } oD 0 eC NY DH Bw NY Ye we NY Bw MY Ye NY NR KR NY Be Be ee ee ee ee ornynF BN F SO ew AAA RBH = 1. At all times herein pertinent, Respondent California State Personnel Board (“SPB”) was and is a duly constituted body created and existing under the authority of the California State Constitution and statutes of the State of California. The SPB is entrusted with and is responsible for the State of California’s civil service system. 2, Atall times herein pertinent, Real Party in Interest California Department of Forestry and Fire Protection (“CAL FIRE” or the “Department”) was and is a duly organized State entity, existing under the California State Constitution and applicable statutes of the State of California 3. Atall times herein pertinent, CAL FIRE was and is an agency of the State of California and the hiring authority for the Fire Captains in this action. 4. The Attorney General has an office in San Francisco County, making that county an appropriate venue, (Code Civ. Proc., § 401(1).) 5. Petitioner Justin Chaplin (“Chaplin”) first became employed by CAL FIRE in June 2002 in the classification of Firefighter I. He promoted to the classification of Fire Apparatus Engineer (“FAE”), Limited Term in 2008. He became a permanent employee as an FAE in 2012, assigned to CAL FIRE’s Tuolumne-Calaveras Unit. 6. Petitioner James Michels (“Michels”) first became employed by CAL FIRE in June 2004 in the classification of Firefighter I. He promoted to the classification of FAE, Limited Term in 2008. He became a permanent employee as an FAE in 2012, assigned to CAL FIRE’s Siskiyou Unit. 7. Petitioner Frank Schonig (“Schonig”) first became employed by CAL FIRE in July 2006 in the classification of Firefighter 1. He promoted to the classification of FAE, Limited Term in 2011. He became a permanent employee as an FAE in 2013, assigned to CAL FIRE’s San Mateo-Santa Cruz Unit. 8. In early 2014, the Fire Captains each accepted limited-term positions in the Fire Captain classification as instructors at the CAL FIRE Academy in Ione, California and began their new positions on or about April 28, 2014. 00021645.DOCX -2- VERIFIED PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS9. On May 1, 2014, the Battalion Chief who hired the Fire Captains to the Academy, Orville “Moe” Fleming, murdered his girlfriend and evaded law enforcement, which ultimately led to significant media attention toward operations and personnel at the Academy. 10. In July 2014, Michels was promoted to a permanent Fire Captain classification at the Academy. Chaplin and Schonig remained at limited term status. 11. The Fire Captains have no prior record of discipline. 12. On or about January 21, 2015, CAL FIRE served each of the Fire Captains with Notices of Adverse Action (“NAA”), alleging various causes for discipline under Government Code section 19572, arising out of allegations they improperly obtained their positions at the Academy based on receiving (unsolicited) text messages from Fleming containing interview questions and answers, failing to report having received the text messages, and then using the information contained in the text messages to secure their promotions. 13. In the NAAs, CAL FIRE imposed discipline of demotion from Fire Captain to FAE and a 5% salary reduction for 12 months for each Chaplin, Michels and Schonig. The Fire Captains were also reassigned out of the Academy, back to the Tuolumne-Calaveras Unit for Chaplin and San Mateo-Santa Cruz Unit for Schonig, while Michels was assigned to the Amador- El Dorado Unit. 14. Each of the NAAs were amended on January 26, 2015, to change the effective date of the discipline from January 31, 2015, to February 5, 2015. 15, Each of the NAAs expressly provided that “{r]ecognizing your honesty during this investigation, the Department feels you can serve in a lower level position immediately and will remain eligible to fairly compete for promotional positions.” 16. All three Fire Captains acknowledged receiving the text messages from Fleming and failing to report having received them. However, the Fire Captains denied that the text messages gave them any advantage in the promotional process and they maintained that they rightfully earned and were qualified for their positions at the Academy. 17. Nevertheless, none of the Fire Captains originally appealed their discipline to Respondent SPB. After the 30-day deadline, prescribed by SPB rules, to file an appeal had 00021645.DOCX 3. VERIFIED PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUSYD Ww BR WwW LD passed, Schonig learned that the Sacramento Bee newspaper had published a story which named him and contained details of CAL FIRE’s adverse action against him (which he had been informed would not happen if he did not appeal the discipline). Schonig sought and received a good cause exception to the statute of limitations from the SPB in order to file his appeal. 18. Shortly after he left the Academy and returned to the San Mateo-Santa Cruz Unit, Schonig was offered a permanent Fire Captain position in that unit. Schonig officially promoted to permanent Fire Captain on February 23, 2015. San Mateo-Santa Cruz Unit officials promoted Schonig with full knowledge of his discipline and the circumstances behind it. 19. Shortly after he left the Academy and returned to the Tuolumne-Calaveras Unit, Chaplin was offered a limited term Fire Captain position in that unit. Chaplin officially promoted to Fire Captain, Limited Term on March 3, 2015. Tuolumne-Calaveras Unit officials promoted Chaplin with full knowledge of his discipline and the circumstances behind it. 20. On May 6, 2016, the Sacramento Bee published an interview with CAL FIRE Director Ken Pimlott. The article referenced the adverse actions against — and subsequent promotions of — Chaplin and Schonig and also raised the issue of why the discipline did not “stick.” 21. In letters dated that same day, May 6, 2015, CAL FIRE withdrew the previously imposed discipline against Chaplin and Michels, returning them to the limited term and permanent Fire Captain classifications, respectively, and issuing back pay for the 5% salary reductions already taken. 22. In filings with the SPB dated that same day, May 6, 2015, CAL FIRE withdrew the previously imposed discipline against Schonig, also returning him to the limited term Fire Captain classification and issuing back pay for the 5% salary reductions already taken. 23. Concurrently with withdrawing the adverse actions, CAL FIRE placed all three Fire Captains on administrative time off. 24, On May 15, 2015, CAL FIRE served all three Fire Captains with new NAAs, demoting them indefinitely two ranks to the classification of Firefighter II, effective June 1, 2015. 00021645.DOCX 4. VERIFIED PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUSThe new NAAs were based on the same general factual allegations from the first NAAs and included the same supporting materials. 25. The Fire Captains timely appealed the new discipline to the SPB on June 3, 2015. 26. On July 1, 2015, all three Fire Captains filed motions to dismiss the new NAAS with the SPB on the grounds that CAL FIRE had improperly disciplined them twice for the same incidents of misconduct (“double jeopardy”). 27. After holding a hearing on the matter and entertaining oral argument, SPB Administrative Law Judge (“ALJ”) Douglas Purdy issued an order, dated August 11, 2015, denying all three Fire Captains’ motions. The three appeals were subsequently consolidated. 28. An evidentiary hearing was conducted on the merits of the new NAAs before ALJ Gregory Brown of the SPB on January 25-26, 2016. 29. On February 26, 2016, ALJ Brown issued a Proposed Decision to sustain the double demotions of all three Fire Captains, without any clarification on the duration of the discipline. On or about April 12, 2016, the SPB issued a Board Resolution and Order (the “SPB Order”), adopting the findings of fact, determination of issues and Proposed Decision of ALI Brown and sustaining the Fire Captains’ double demotions. 30. The Fire Captains submitted a joint Petition for Rehearing to the SPB on or about May 13, 2016, which is, as of the date of this filing, pending. 31. ALJ Purdy had a clear and present duty, as an officer of the SPB, to dismiss the new NAAs as improper “double jeopardy” under the law and he breached that duty by denying the Fire Captains’ motions to dismiss. 32, ALJ Purdy’s order denying the Fire Captains’ motions to dismiss is invalid under Code of Civil Procedure section 1094.5 because the SPB committed errors of law and prejudicial abuses of discretion. 33. The SPB Order is invalid under Code of Civil Procedure section 1094.5 because the SPB committed errors of law and prejudicial abuses of discretion. 00021645. DOCX 5. VERIFIED PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUSi : © 2 AY DW Bw HY we wow NY & oS 14 34, The Fire Captains are beneficially interested in this action and do not have a plain, speedy and adequate remedy in the ordinary course of law, in that no means are available for them to obtain judicial review of the SPB’s decision, other than by way of this Petition. 35. The evidence does not support the findings in the Proposed Decision, and the findings do not support the discipline. A failure by the SPB to make sufficient findings can and should lead to reversal of the decision. 36. ALJ Purdy’s order denying the Fire Captains’ motions to dismiss made a number of legal errors and findings unsupported by any evidence. 37, ALJ Brown’s Proposed Decision made a number of legal errors and findings unsupported by any evidence. 38. No substantial evidence supports the finding(s) that the workplace violations alleged to be committed by the Fire Captains were proven. 39. No substantial evidence supports the conclusion(s) that the indefinite double demotions of the Fire Captains are reasonable and/or appropriate. 40. The penalty of indefinite double demotion to Firefighter I of the Fire Captains is excessive under the circumstances. 41. The Fire Captains were not afforded due process of the law. 42. The Fire Captains seek the enforcement of an important public right in receiving due process of the law and findings supported by substantial evidence by the SPB and therefore, the Fire Captains are entitled to recover reasonable attorney fees incurred by them in this action pursuant to Code of Civil Procedure section 1021.5. 43. The full administrative record in this matter has been requested and will be lodged concurrent with the filing of opening briefs in this matter. WHEREFORE, Petitioners Chaplin, Michels and Schonig pray that this Court: 1. Issue a peremptory writ of mandate, pursuant to Code of Civil Procedure section 1085 and a peremptory writ of administrative mandamus, pursuant to Code of Civil Procedure 00021645.DOCX -6- VERIFIED PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUSoC OWN DH B® YD wD me BR PY YPN NR NY ee Be ee ee Re WL Soo AD eM FY NF So we HA AAR GBH AS section 1094.5, directed to Respondent SPB, its employees, agents, officers and all persons acting on its behalf compelling them to: a. Order rescission of the Notices of Adverse Action dated May 15, 2015, as improper double jeopardy and order reinstatement of the amended Notices of Adverse Action dated January 26, 2015, as to all three Fire Captains; b, Order rescission or reduction of the discipline imposed on the Fire Captains in the Notices of Adverse Action dated May 15, 2015; c. Order the reinstatement of Schonig to his former position of permanent Fire Captain with CAL FIRE; d. Order the reinstatement of Chaplin to his former position of Fire Captain, Limited Term with CAL FIRE; e. Order back pay in an amount sufficient to compensate the Fire Captains for the loss of pay, benefits, seniority, service credits, and all other emoluments of employment that the Fire Captains would have received but for their double demotions since June 1, 2015; and f. Order removal from the Fire Captains’ Official Personnel Files, or any other files used for personnel purposes, documentation relating to the Notices of Adverse Action dated May 15, 2015, adjudicated herein and to refrain from using or referring to the Notices adjudicated herein in any way adverse to the Fire Captains. 2. Inthe alternative, issue a peremptory writ of mandate, pursuant to Code of Civil Procedure section 1094.5, directed to Respondent SPB, its employees, agents, officers and all persons acting on its behalf compelling them to provide the Fire Captains with a new hearing, \ with instructions to the SPB to avoid the same mistakes and violations made in its previous decision. 3. Order Respondent SPB to pay the Fire Captains’ reasonable attorney’s fees pursuant to Code of Civil Procedure section 1021.5 and/or as otherwise permitted by law. 4. Order Respondent SPB to pay the Fire Captains’ costs of suit herein incurred, in addition to any other relief granted or other costs awarded. 00021645. DOCX -7- VERIFIED PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUSCm nd aA 10 i 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: June XS, 2016 00021645.DOCX, 5. Order such other and further relief as the Court deems proper. Respectfully submitted, MESSING ADAM & JASMINE LLP By Gary Mf. Messing Jason H Jasmine Lina Balciunas Cockrell Attorneys for Petitioners JUSTIN CHAPLIN, JAMES MICHELS and FRANK SCHONIG -8- VERIFIED PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS0 Oe NY DH BR BW HB me PR we NY NY N NY KY NY Be we me ee eo AAA FY DHF SEH RAAaRE OHS VERIFICATION Tam one of the attorneys for JUSTIN CHAPLIN, JAMES MICHELS and FRANK SCHONIG, parties to this action. Such parties are absent from the county where we attorneys have our office, and where this Petition is filed, and I make this verification for and on behalf of these parties for that reason. I am informed and believe and on that ground allege that the matters stated in the foregoing document are true. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on G | 238/: 2b IG in Sacraments California Lp 00021645.DOCK 9 YEary M. Messing VERIFIED PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS