CORRECTIONAL CAPTAIN EXONERATED AT SPB HEARING
By Adam J. Krolikowski

A correctional captain who was disciplined with a five percent salary reduction for taking a day off in the aftermath of the 2002 Oakland Hills fire has been exonerated by the State Personnel Board (SPB) after a hearing.

My client, CSP-San Quentin Captain Shawn Donahue, called his warden the night of September 10, 2002, after a huge fire in the Oakland Hills area had come within a quarter-mile of the captain's home. He was given permission to take September 11^th off to deal with the potential for for flare- ups from hot spots and still-smoldering eucalyptus trees. Captain Donahue's concerns were based upon living through the 1991 Oakland Hills fire, which erupted into a firestorm due to such "hot spots" the day after the fire was believed under control.

Warden Proposes Pay Reduction After Lieutenant Complains

The entire disciplinary action began when a lieutenant under Captain Donahue's command heard he had stayed home because of the fire. He accused Captain Donahue of not being honest about the reasons he stayed home, alleging the captain had denied him the ability to take September 11^th off so he could take the day off himself. The warden, relying solely on the representations of the lieutenant, disciplined Captain Donahue by imposing a five percent (5%) reduction in salary for six months.

The key to the defense was to prove an affirmative defense - Captain Donahue's safety concerns were reasonable - rather than simply to argue CSP-San Quentin could not meet its burden of proof. CSP-San Quentin essentially believed Captain Donahue had used the fire as a pretext for taking the day off based on the disgruntled lieutenant's statements he had himself been denied the day off by Captain Donahue. Through cross-examination, we were able to establish the lieutenant had been upset about not getting his day off, giving him a motive to accuse his captain of misconduct. The lieutenant denied he had been upset, but his testimony was impeached by other CSP-San Quentin witnesses. His false denial was detrimental to his credibility at the hearing.

Battalion Chief Testifies to Fire Danger

We subpoenaed the Battalion Chief who was in command of the firefighting forces for the area of the Oakland Hills fire. He was able to reinforce the credibility of Captain Donahue's concerns over the fire, as he testified all that was necessary for a firestorm to erupt the next day was a shift in the wind and a couple of eucalyptus trees. There was no basis to discipline Captain Donahue because it was reasonable for him to request to take the day off to monitor the fire from his home.

Based upon the evidence presented at the appeal hearing, the Administrative Law Judge exonerated Captain Donahue of all allegations set forth by CSP-San Quentin. CSP-San Quentin petitioned for rehearing of the matter, but the State Personnel Board (SPB) denied the petition.