Thursday, November 8, 2018

Manavian v. Dept. of Justice

A career executive assignment (CEA) is “an appointment to a high administrative and policy influencing position within the state civil service in which the incumbent’s primary responsibility is the managing of a major function or the rendering of management advice to top-level administrative authority.  Such a position can be established only in the top managerial levels of state service and is typified by broad responsibility for policy implementation and extensive participation in policy evolvement.  Assignment by appointment to such a position does not confer any rights or status in the position other than provided in Article 9 . . . of Chapter 2.5 of Part 2.6.”  (Gov. Code, § 18547.) The rights conferred by article 9 are the rights of all civil service employees relating to punitive actions, except that the termination of a CEA is not a punitive action.  (§ 19889.2.)

CEA positions are part of the general civil service system, but an employee enjoys no tenure in a CEA.  (Professional Engineers in Cal. Government v. State Personnel Bd. (2001) 90 Cal.App.4th 678, 689, 692 (Professional Engineers).)  The CEA legislation was created to encourage the use and development of well-qualified selected executives.  (Campbell v. State Personnel Bd. (1997) 57 Cal.App.4th 281, 293.)  As a result of the need for flexibility at this level, the appointing authority may terminate a CEA without cause.  (Professional Engineers, at p. 692.)

This case illustrates the need for flexibility in terminating a CEA position.  Plaintiff Edward Manavian held a CEA position as chief of the Criminal Intelligence Bureau (Bureau), part of the Department of Justice (DOJ).  Formed after the September 11 terrorist attacks, the Bureau is a partnership of local and state law enforcement agencies created pursuant to a memorandum of understanding (MOU) between the Governor and Attorney General.  The Bureau’s mission is to facilitate local, state, and federal law enforcement intelligence collection and sharing.  In particular, Manavian’s job description was to cooperate with local, state, and federal law enforcement agencies to prevent terrorism and related criminal activity. 

However, Manavian’s relationships with state and federal decisionmakers were not good.  The director and deputy director of the state Office of Homeland Security were ready to withdraw from the DOJ partnership and refused to work with Manavian.  Richard Oules, Manavian’s superior, decided to terminate Manavian’s CEA position because of his dysfunctional relationship with federal and state representatives and because of Manavian’s hostility toward Oules.

As a chief designated as a peace officer by the Attorney General, Manavian is also entitled to the protections of the Public Safety Officers Procedural Bill of Rights Act (POBRA), section 3300 et seq.  (Pen. Code, § 830.1, subd. (b); § 3301.)  POBRA provides certain protections pertaining to the investigation, interrogation, and administrative appeal of punitive actions.  (§§ 3303, 3304, subd. (b).)  This case is premised on the claim that the termination of Manavian’s CEA position was a punitive action protected by POBRA, despite clear language to the contrary in section 19889.2.
Manavian also claims that certain actions he took in liaising with other state and federal homeland security representatives, then reporting potentially illegal policy proposals, were protected by the California whistleblower statutes.            

We shall conclude that POBRA protections were not triggered by the termination of Manavian’s CEA position, and that he is not protected as a whistleblower.

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