Fired Caltrans worker had been terminated before

12/16/2011 12:00 AM

04/11/2012 8:47 PM

The Caltrans worker fired last month after admitting that he falsified structural integrity test reports was booted from state service before, but a state board overturned that firing after determining it resulted from "a one-time lapse in judgment."

Now Duane Wiles is appealing his latest firing to the same State Personnel Board that reinstated him nearly 12 years ago after he was accused of misusing his state credit card and making personal calls on a state cellphone.

In the 1998 case, the board concluded Wiles was wrongly charged on all but a single violation that the panel considered an aberration.

"(T)he board is willing to view the appellant's misconduct as a one-time lapse in judgment, and expect that he will learn from the error and never again take such liberties with the public trust reposed in him," the five-member State Personnel Board said in its unanimous January 2000 decision.

It's rare for the board to reverse a department's decision to fire an employee, said agency spokeswoman Lynelle Jolley, noting that about 98 percent of dismissals have been upheld in the last five years.

"The board that decided Wiles' case could not have known what he would do a decade later," Jolley said.

None of the board members who rendered that 2000 ruling serve on the panel now.

Wiles' work at the state Department of Transportation came under renewed scrutiny last month after The Bee reported he had violated key procedures while testing support structures for the new Bay Bridge span in 2006 and 2007 and had falsified records on other transportation projects in 2008.

In addition, the U.S. Department of Transportation's Office of Inspector General found that Wiles participated in the theft of federal and state building supplies on behalf of his boss, Brian Liebich.

After the Bay Bridge news broke, Caltrans said it had fired Wiles, who had worked for the department since 1981 and had been an engineering technician since 1992.

His appeal prompted the Personnel Board to schedule a Jan. 20 meeting with a judge so that Wiles and Caltrans can go over the evidence that led to his latest dismissal.

The two sides could settle the matter there. If not, the case will go to a full hearing and the judge will decide whether Wiles deserved to be fired. That decision would then go to the Personnel Board for approval, rejection, modification or rehearing.

According to the board's website, Service Employees International Union Local 1000 is representing Wiles. The union declined to comment on either the 1998 dismissal or the current case.

Wiles could not be reached for comment.

According to the 11-year-old Personnel Board decision, Caltrans fired Wiles in October 1998 for "incompetency, inexcusable neglect of duty, insubordination, dishonesty, discourteous treatment of the public or other employees, misuse of state property and other failure of good behavior."

The department claimed that Wiles abused a state credit card to pay for a car wash and polish and several gasoline purchases. Caltrans also said Wiles used a state cellphone to make 98 personal calls at a total cost of $141.75 in a four-month period.

Caltrans' officials said the agency had stricter guidelines than outlined in the state manual, which at the time said the number and length of personal calls should be "kept to a minimum." But the department's policy wasn't in writing, a department manager admitted.

Wiles said he didn't know about the unwritten rules.

"That's always a killer" for the employer's case, said Paul Chan, a Sacramento attorney who specializes in employee misconduct defense.

The board dismissed the cellphone charge and all but one allegation of inappropriate fuel purchases, concluding that Caltrans couldn't prove most of the gas bought was for Wiles' personal use.

The board did agree that he bought the car detailing service and one fuel purchase worth a total $52.47, but that didn't justify firing him, the panel said. The Personnel Board judge who heard Wiles' case decided that Caltrans had treated him too harshly and reduced his punishment to a 30 calendar-day suspension without pay.

The board "always asks, 'Is the punishment proportionate to the offense?' " Chan said. "Termination is the harshest form of punishment. It's like the death penalty."

The board affirmed the judge's decision at its April 1999 meeting. Still, Caltrans asked the board to reconsider. It did, sticking with its earlier ruling.

"The Department of Transportation shall pay Duane Wiles all back pay and benefits, if any, that would have accrued to him had he been suspended for 30 calendar days instead of dismissed," the panel said in its unanimous affirmation on Jan. 19, 2000.

Caltrans spokesman Matt Rocco said Thursday that the department couldn't immediately determine what it paid Wiles to make him whole.

"We took the action we thought was appropriate, and we appealed the (Personnel Board) decision," Rocco said, declining to comment further.

Chan said that Wiles will have a much harder time saving his job this time. Until 1998, the only blemish on his work record was a memo criticizing him for allegedly using two work vans to move furniture.

But now Wiles has the 30-day suspension on his record and is the focus of a high-profile case that put Caltrans executives on the defensive and sparked a legislative hearing, Chan said.

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