Duane Wiles, recently fired by the California Department of Transportation for fabricating bridge tests, has been allowed to resign instead.
This marks the second time Wiles has been "unfired" by Caltrans. The first was in 1998 for incompetence, insubordination, dishonesty and other problems, but the agency was overruled by the State Personnel Board.
This week's settlement agreement with Caltrans prevents a public airing of Wiles' admitted fraud and errors, and removes a public forum for examining whether agency higher-ups responsibly addressed the problem.
Wiles was fired last fall after a Bee investigation revealed that he had falsified data in tests of the safety and integrity of freeway structures.
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He will be allowed to resign, as of last November, and collect all retirement benefits he has earned, as would have been the case after a firing.
The agreement requires Wiles, 58, to immediately apply to the California Public Employees' Retirement System for his retirement benefits. The firing notice will be removed from his personnel file.
Wiles agreed not to take any legal or administrative actions against the state or its employees, or to seek future state employment. Neither Caltrans nor Wiles admitted liability for any issues in dispute.
Wiles was fired for fabricating test data, lying about his actions to a federal Department of Transportation investigator and falsely claiming credit for more than 400 hours of overtime and differential-time pay in 2008. He could not be reached for comment.
"This settlement bars Mr. Wiles from any future employment with Caltrans or with any other state agency," said Matt Rocco, a Caltrans spokesman, and "avoids a long trial, which could have cost taxpayers more than $100,000 in legal fees."
Paul Chan, an employment attorney who has represented many fired state employees before the State Personnel Board, said that no matter the circumstances – including Wiles' admission that he had fabricated data – trial outcomes can be unpredictable.
"It's not enough that you have misconduct. You also have to prove that the punishment is proportionate to the misconduct," Chan said. Caltrans "went in with only one goal – to remove this person as an employee," he added. "They got a sure win."
The settlement also might have spared Caltrans from a public airing of dirty laundry, because a hearing before a State Personnel Board judge would have been open to the public. Fired employees often mount a defense that involves implicating higher-ups in wrongdoing or as having failed to provide adequate supervision, Chan said.
Wiles' direct supervisor, Brian Liebich, also was fired by the agency and is appealing the action. His settlement conference is scheduled for next month.
"I would not be surprised that if over the next six months other superiors received a lesser form of discipline such as a letter of reprimand related to this incident," Chan said. "I'm sure it would have been highly embarrassing for Caltrans if (Wiles) had proceeded."
The Bee reported last year that Wiles had tested foundations for the main tower of the new Bay Bridge suspension span, still under construction. Caltrans has said repeatedly that all structures he tested are safe. But state lawmakers have challenged the agency's assertions, and an expert panel is reviewing the Bay Bridge and other structures.
Wiles might still face other legal proceedings, because local, state and federal prosecutors have launched criminal inquiries into events described in The Bee reports.
The firing was the third major employment problem for Wiles. In addition to his firing in 1998, he was sanctioned in 2000 by Caltrans for several transgressions, including "inexcusable neglect of duty," yet was kept on as a technician testing bridges, roadways and other freeway structures to ensure that they were safe and sound.
In November, Wiles pleaded no contest to unrelated charges of assault involving a young girl. The plea agreement reduced the original charge of communication with a minor for a sexual offense.