VICTOR GUERRERO v.

CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION Appeal from Withhold Certification

Case No. 12-0254N RESOLUTION

The State Personnel Board (the Board) on August 21, 2012, carefully considered the Proposed Decision filed by Merit Appeals Staff in the appeal by Appellant, Victor Gurerrero Case No. 12-0254N from Withhold Certification by the California Department of Corrections and Rehabilitation (Respondent). IT IS RESOLVED AND ORDERED THAT the findings of fact, determination of issues, and the Proposed Decision of the Merit Appeals Staff are adopted by the Board as its Decision in the case on the date set forth below. A true copy of the Proposed Decision shall be attached to this Resolution for delivery to the parties in accordance with the law, and the adoption of the Resolution shall be reflected in the record of the meeting and the Board’s minutes. The foregoing Resolution was made and adopted by the Board in Case No. 120254N during its meeting on August 21, 2012, as reflected in the record of the meeting and Board minutes. Dated: August 21, 2012
/s/ SUZANNE M. AMBROSE SUZANNE M. AMBROSE Executive Officer

Victor Guerrero Case No. 12-0254N Page 1 of 5 VICTOR GUERRERO v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION Appeal from Withhold Certification STATEMENT OF CASE Victor Guerrero (Appellant) submitted an application for employment with Respondent, the California Department of Corrections and Rehabilitation (CDCR) for appointment to the Correctional Officer (CO) classification. CDCR withheld Appellant from certification on January 27, 2012. Appellant appealed his withhold action to the State Personnel Board on February 23, 2012. DEPARTMENT’S POSITION CDCR asserts that the position of a CO is a sworn peace officer position, which bestows upon the incumbent significant authority over others, as well as a great deal of trust and responsibility to protect society through the enforcement of laws. CDCR is legally mandated to apply a high standard in determining the suitability of individuals aspiring to attain such positions. Key attributes in peace officer work are integrity, Case No. 12-0254N Amended Proposed Decision

honesty, thoroughness, accuracy, good judgment, and the ability to conform to the conditions of work characteristic of the employment. Thus, CDCR maintains Appellant’s failure to comply with his legal obligations calls into question his general qualifications of dependability, thoroughness, accuracy, good judgment, and his ability to assume the responsibilities and to conform to the work conditions of employment as a peace officer. Specifically, the following was revealed:

Victor Guerrero Case No. 12-0254N Page 2 of 5 Appellant completed his Background Investigation Questionnaire (BIQ) on August 14, 2011, and in response to question 75, “Have you ever had or used a social security number other than the one you used on this questionnaire?” He answered “YES”. Appellant disclosed that he came to America illegally at eleven years old and was not able to receive a social security card to obtain legal employment. Appellant stated he “invented a number” to obtain work. On October 31, 2011, a Pre-Investigatory Interview (PII) was conducted where Appellant confirmed again that he had used this same social security number from 1997 to 2005. Appellant provided documentation of an Individual Taxpayer Identification Number (ITIN) issued by the Internal Revenue Services (IRS) in 1997. Appellant disclosed that in 2005, he obtained his own social security number and filed federal and state income tax returns under that number. Additional documentation indicated that he did not apply for citizenship until October 21, 2010. Additionally, Appellant disclosed that in 1999 or 2000, he injured his back lifting a desk while working at a furniture store in Colorado and filed a Workmen’s Compensation Claim under the false social security number. As a result, CDCR finds Appellant unsuitable for the position of CO. APPELLANT’S POSITION Appellant provided the following responses to CDCR’s assertions: Appellant states he was born in Mexico and in 1990, at age eleven, his parents brought him to United States (US), provided him with a false social security number and made arrangements so he could work at a restaurant. At age seventeen, Appellant states that he learned he was an undocumented worker and that his social security

Victor Guerrero Case No. 12-0254N Page 3 of 5 number was fictitious, but continued to work to support his wife and child. Appellant states, in 1997, he was granted temporary residency in the US and filed taxes under the ITIN issued to him by the IRS which is only available to non-resident aliens who cannot obtain a social security number. Appellant states, in 2006, after he paid a substantial monetary fine, he was granted permission to work legally and was issued a valid social security number. Appellant states, in 2007, he became a permanent legal resident and became a Naturalized US citizen in 2010. Appellant states CDCR has falsely alleged that he has committed identity theft and believes that his disqualification as a candidate for CO was based on subtle prejudice and discrimination because he is a Naturalized US citizen and not a US born citizen. LEGAL STANDARD Government Code section 18935, subdivision (n) authorizes the Board to withhold from certification for appointment any candidate who, in accordance with Board regulations, is found to be unsuited or not qualified for appointment to the state civil service. California Code of Regulations, title 2, section 172 mandates: All candidates for, appointees to, and employees in the state civil service shall possess the general qualifications of integrity, honesty, sobriety, dependability, industry, thoroughness, accuracy, good judgment, initiative, resourcefulness, courtesy, ability to work cooperatively with others, willingness and ability to assume the responsibilities and to conform to the conditions of work characteristic of the employment, and a state of health, consistent with the ability to perform the assigned duties of the class. Where the position requires the driving of an automobile, the employee must have a valid state driver’s license, a good driving record and is expected to drive the car safely. The foregoing general qualifications shall be deemed to be a part of the personal characteristics of the minimum qualifications of each class

Victor Guerrero Case No. 12-0254N Page 4 of 5 specification and need not be specifically set forth therein. The board may prescribe alternative or additional qualifications for individual classes and such shall be made a part of the class specifications. ANALYSIS AND CONCLUSION The Appeals Division (AD) finds Appellant has applied for appointment to a peace officer classification. Peace officers hold a special position of trust and authority within society and, as such, they are held to a higher standard of conduct than are other employees. (See, e.g., Monserrat Miranda (1993) SPB Dec. No. 93-11.) Thus,

Appellant’s personal characteristics need to exceed that of a typical civil servant, by displaying a very high degree of integrity, honesty, thoroughness, and good judgment. In the case at hand, Appellant admits to learning of his illegal alien status at age seventeen and “inventing” a social security number (SSN) to gain employment. Appellant further admits to using the same social security number for the purposes of filing income taxes and a worker’s compensation claim. While Appellant maintains that he did not steal another’s social security number, his conduct demonstrates a knowingly and willful disregard for the law, as he admits to continued use of the SSN even after obtaining Individual Taxpayer Identification Number (ITIN) in 1997, thus demonstrating a lack of honesty, integrity and good judgment. Appellant’s conduct further

demonstrates a lack of good judgment as it shows the Appellant’s choice to ignore the ramifications of his actions, as his actions could have caused harm to another. Thus, Appellant’s conduct establishes he is unsuitable under section 172, and should be Withheld from list certification. ///

Victor Guerrero Case No. 12-0254N Page 5 of 5 Additionally, during the review of this appeal, the issue, as to when Appellant obtained his SSN, came into question, as his disclosed date for obtaining the number was in 2005, some two years prior to his eligibility in 2007. Further, inquiry by the AD determined that Appellant’s SSN was issued on February 26, 2007. Subsequently, Appellant was telephonically interviewed, and related that he misstated the date, without further elaboration. While, this conduct does not clearly demonstrate an issue of

honesty, it does show a lack of thoroughness and accuracy, which are also issues of unsuitability under section 172. In sum, Appellant’s willful and knowing conduct to disregard the law in this matter shows a lack of thoroughness, accuracy, integrity, honesty, and good judgment. As such, the AD staff concurs with the withhold action taken and agrees with CDCR that Appellant does not meet the standards required of a prospective peace officer. RECOMMENDATION Based upon the foregoing, it is recommended that the Appeal from Withhold Certification filed by Victor Guerrero, in SPB Case No. 12-0254N, be DENIED.

Barbara Leashore Appeals Division

PROOF OF SERVICE
Re: In the Matter of Appeal by Victor Guerrero From the penalty of SPB Case No. 12-0254N Mailing address: Victor Guerrero

Document(s) attached:

BOARD DECISION
I, Tamara Lacey, declare: I am over the age of 18 years and not a party to the above-reference matter. I declare that I am employed in the County of Sacramento at the California State Personnel Board, 801 Capitol Mall, Sacramento, California 95814. On the date show below, I served true and correct copies of the above-entitled document(s) on each of the parties noted below. By Electronic Mail: I caused such document(s), in electronic format, to be sent to the following e-mail address(es): By US Mail: I caused such document(s), in sealed envelope(s), to be placed in the United States mail at Sacramento, California. I am readily familiar with the ordinary practice of the business of collecting, processing, and depositing correspondence with the United State Postal Service and that the correspondence was deposited the same day, with postage thereon fully prepaid, to be sent to the following address(es):
Victor Guerrero, Corrections Office of Peace Officer Selection, 9838 Old Placerville Rd., Ste B, Sacramento, CA, 95827 Corrections/EAPT, 10111 Old Placerville Rd #100, Sacramento, CA, 95827, Attn:

I declare under penalty of perjury that the forgoing is true and correct, and that this declaration was executed by me on: Date: August 22, 2012 Signed:
_________________________________________________________________________________________

Tamara Lacey

Created 07/06/2012 Rev. 08/08/2012

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