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JAMES MICHELS, JUSTIN CHAPLIN AND FRANK

SCHONIG
v.
CALIFORNIA DEPARTMENT OF FORESTRY
AND FIRE PROTECTION

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


and 15-0927K
BOARD RESOLUTION
AND ORDER

Appeals from Demotions


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 Boards 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

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Case Nos. 15-0919K, 15-0921K, and 15-0927K
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JAMES MICHELS, JUSTIN CHAPLIN,
and FRANK SCHONIG
v.
CALIFORNIA DEPARTMENT OF
FORESTRY AND FIRE PROTECTION

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


and 15-0927K
Proposed Decision

Appeals from Demotions


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.

At hearing, Respondent clarified that it was not contending that Appellant Michelss and Appellant
Chaplins 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.

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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. Im 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.

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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.
Academy employees

also

surfaced,

Alleged misconduct by other

including

allegations

of

sexual

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


on Cadet examinations.
Appellant Schonigs 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 (NOAAs) for cheating on the April 2014 Fire Captain examination.
The NOAAs 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

Respondent terminated Appellant Michelss permanent Fire Captain appointment by rejecting him during
his probationary period.

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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 Chaplins and Appellant Schonigs adverse actions, and their
subsequent rapid re-promotions to Fire Captain.
28. In early May 2015, CalFire withdrew the NOAAs against all three Appellants.
On May 15, 2015, CalFire issued Appellants new NOAAs, demoting them
two steps to Fire Fighter II, with an effective date of June 1, 2015.3
29. In conjunction with the new NOAAs, 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.

Prior to the hearing, Appellants moved to dismiss the newly-issued adverse actions, contending that
those NOAAs 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. CalFires 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. CalFires 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

Respondent also charged Appellants with violating the State Civil Service Acts 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.

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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 abovedescribed 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.

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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. 0104, 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

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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 naivet 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 CalFires
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 CalFires 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 Appellants were

specifically put on notice of these duties, their failure to report that they were recipients
of Chief Flemings favoritism was inexcusable. (Steven Perez (1996) SPB Case No. 9609, 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.

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Appellants point out that they did not solicit the examination information, and that
Chief Flemings 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 Flemings scheme. Instead, they chose to stay silent in order to protect
their careers and to secure promotions.
In deciding to join Chief Flemings 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. 9515, 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 Schonigs 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.
///
///

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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 appellants employment where the misconduct bears a
rational relationship to the appellants 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 publics 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.
///

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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
publics confidence that CalFire promotes its employees based on merit. Regarding
fraudulent subversions of Californias 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

Flemings 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.

James Michels, Justin Chaplin, and Frank Schonig


Case Nos. 15-0919K, 15-0921K, and 15-0927K
Page 19 of 20
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.

James Michels, Justin Chaplin, and Frank Schonig


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