by Lonnie Burton

On November 16, 2016, the Court of Appeal, Fourth Appellate District, Division One, in California reversed a trial court's decision to order the reinstatement of employment of a state prison guard who was fired after he was caught falsifying reports regarding a use-of-force incident. The appellate court found that the former guard's failure to appear at his employment reinstatement hearing was sufficient grounds to dismiss his appeal of his termination.

Kevyn Thaxton was employed as a guard at the Richard J. Donovan Correctional Facility, a state prison in California. Sometime in 2012, Thaxton and three other guards -- Charles Hamilton, Laverne Steele, and Sgt. Steven Vasquez -- were fired for dishonesty after they conspired to submit false reports on a use-of-force incident, and then lying about the incident when questioned by investigators.

Thaxton, however, when served with his notice of termination, retracted his statements and accused Sgt. Vasquez of coercing him into filing the false reports. All three guards appealed their dismissals to the State Personnel Board (SPB), where all but Thaxton was represented by the same attorney.

The Administrative Law Judge (ALJ) presiding at the hearing noted Thaxton's absence at the hearing, and on the second day ordered him to appear. The ALJ said that because Thaxton himself had initiated the proceedings and listed himself as a witness, he needed to be present. Thaxton, however, refused to attend, claiming there was no legal requirement for him to do so, and ordered his attorney to refuse service of a subpoena on his behalf.

Attorneys for the California Department of Corrections and Rehabilitation (CDCR) moved to dismiss Thaxton's appeal on the ground that he failed to appear and that he was avoiding service. The ALJ then ordered Thaxton's attorney to direct Thaxton to appear after the lunch break or his appeal would be dismissed. When Thaxton did not appear, the ALJ dismissed his appeal.

Thaxton then filed a petition for a writ of mandate in superior court, asking the ALJ's order be reversed because there was no requirement in law that he personally be present at and SPB hearing. The trial court granted Thaxton's petition on June 5, 2015, and ordered the CDCR to reinstate him with back pay, interest, and to restore all other employee benefits and rights. The court also ordered the CDCR to pay all Thaxton's attorney's fees and costs. The CDCR appealed, and California Court of Appeal reversed.

In doing so, the appeals court held that the parties were focused on the wrong thing. The court found that it was irrelevant whether any rule or statute required Thaxton's presence at his SPB hearing; the proper inquiry was whether under the circumstances of the case the ALJ properly dismissed Thaxton's appeal when he "failed to proceed" at his hearing, which is required by rule and statute.

The appellate court ruled that Government Code section 19579, while not explicitly requiring an appellant's presence at an SPB hearing, does permit the dismissal of an appeal if the employee fails to "proceed at the hearing." That section deems such a failure a "withdrawal of the appeal or action."

The court of appeal further found that Government Code section 19580 gives an employer the right to examine the employee, and as Thaxton placed his own name on the witness list, "his personal presence at the hearing would be crucial to the resolution" of his appeal. "Thaxton neither sought nor obtained on order permitting him not to be personally present on the first day of the hearing, the court wrote.

"On the record, it is clear that Thaxton was unwilling to make himself available to be examined by CDCR at the evidentiary hearing, despite the fact that CDCR was statutorily entitled to call him as a witness," ruled the court. "Thaxton's conduct in this regard amounted to a failure to proceed with the hearing," and the ALJ properly dismissed his appeal.

The trial court's order overturning the ALJ's order was thus erroneous and was reversed, the court of appeal ordered, and it also awarded the CDCR all costs of the appeal. See: Thaxton v. State Personnel Board, No. D06853 (C.A. 4 Ca. 2016).

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