City of Santa Monica (PERB 2635MA)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CHRISTOPHER HALVORSON,
Charging Party, 	Case No. LA-CE-925-M
Request for Reconsideration
PERB Decision No. 2635-M
v. 	PERB Decision No. 2635a-M
January 22, 2020	CITY OF SANTA MONICA,
Respondent.
Appearances: Halvorson Losie Willner by Larry E. Halvorson, Attorney, for
Christopher Halvorson; Liebert Cassidy Whitmore by Adrianna E. Guzman, Attorney,
and Meishya Yang, Deputy City Attorney, for City of Santa Monica.
Before Banks, Krantz, and Paulson, Members.
DECISION
KRANTZ: This case involves an unfair practice charge filed with the Public
Employment Relations Board (PERB or Board). Among other allegations in the
charge, Christopher Halvorson (Halvorson) alleged that his employer, the City of
Santa Monica (City), declined to promote him in retaliation for exercising rights
protected by the Meyer-Milias-Brown-Act (MMBA).1 A PERB Administrative Law
Judge (ALJ) issued a proposed decision dismissing Halvorson’s claims. The ALJ
________________________
1 The MMBA is codified at Government Code section 3500 et seq. Unless
otherwise specified, all statutory references herein are to the Government Code.

2
found that Halvorson failed to demonstrate a prima facie retaliation case, and, even if
he had, the City had met its burden to show that it would have taken the same action
even in the absence of his protected activity.
Halvorson filed exceptions with the Board, challenging many of the ALJ’s
factual findings and legal conclusions. The City filed no exceptions and urged the
Board to affirm the proposed decision. On March 27, 2019, the Board issued a
decision affirming the proposed decision, City of Santa Monica (2019) PERB Decision
No. 2635-M. Thereafter, Halvorson moved for reconsideration, contending that one of
the assigned Board Members should have been recused.
In an abundance of caution, the Board has assigned a new panel to consider
Halvorson’s exceptions afresh. We express no opinion on any procedural or
substantive aspects of Halvorson’s arguments regarding recusal. We deny the motion
for reconsideration as moot, vacate Decision No. 2635-M, and replace it with this
decision. Having reviewed the record in this matter and considered it in light of
applicable law, we affirm the ALJ’s conclusion that the City did not violate the MMBA,
for the following reasons.
FINDINGS OF FACT2
The City is a public agency within the meaning of MMBA section 3501,
subdivision (c), and PERB Regulation 32016, subdivision (a).3 Halvorson is a public
________________________
2 For the most part, we find no basis to disturb the ALJ’s factual findings,
including but not limited to those based upon credibility determinations. Our factual
findings do reflect small adjustments to the proposed decision, to the extent warranted
based on our review of the record.
3 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

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employee within the meaning of MMBA section 3501, subdivision (d). Halvorson and
other civilian employees of the Santa Monica Police Department (Department) are
included in a “general” bargaining unit of City employees. The Santa Monica
Municipal Employees Association (SMMEA) exclusively represents the general
bargaining unit. At all relevant times, SMMEA and the City were parties to a
memorandum of understanding (MOU) setting forth terms and conditions of
employment for the general bargaining unit.
Halvorson’s Employment History
Halvorson holds a bachelor’s degree in writing and professional history from the
University of North Alabama and a master’s degree in film and writing from Columbia
University. He began working for the Department in August 2002, as a Park Ranger
(Ranger). Rangers were primarily assigned to patrol the City’s parks on foot, by car,
and by bicycle; to enforce park rules and regulations and other City ordinances; to
issue citations for rule violations; and to assist the public. Halvorson described the
Rangers as “the eyes and ears of the Department,” and noted that a former Deputy
Chief had described the Rangers as “ambassadors” of the Department. As discussed
more fully below, Halvorson continued working as a Ranger until 2014, when the
Department merged three different classifications together.
In October 2006, Halvorson filed his first unfair practice charge against the City
(Case No. LA-CE-324-M), alleging discipline in retaliation for protected activity.
Halvorson alleged that his protected activity had been submitting a grievance
complaining about his supervisor—Lieutenant Alfonso Venegas (Venegas), who later
was promoted to Deputy Chief. After submitting the grievance, Halvorson received

4
discipline alleging that he was insubordinate. The parties resolved Case No. LA-CE-
324-M through a settlement agreement negotiated in January 2007.
In April 2008, Halvorson filed a second unfair practice charge against the
Department (Case No. LA-CE-454-M). The allegations in that charge again involved
an action by Venegas against Halvorson. The parties resolved Case No. LA-CE-454-
M through a settlement agreement negotiated in April 2009.
The Department’s Reorganization Plan
In late 2012, the Department began to explore a broad reorganization plan
under the direction of Chief of Police Jacqueline Seabrooks (Seabrooks). Seabrooks
began her tenure in the Department in May 2012. By that time, Venegas had been
appointed as Deputy Chief, the Department’s second highest-ranking officer. All of
the witnesses who worked within the Department acknowledged that the
reorganization was “a big deal” to the City and Department management. The portion
of the proposed reorganization plan that is relevant to this case was a proposal to
merge the civilian classifications of Airport Services Officer (ASO), Downtown
Services Officer (DSO), and Ranger into a single new classification, which the City
ultimately titled Pubic Services Officer (PSO). According to Venegas, these
classifications had similar job duties and compensation, with the only real difference
being the material “underneath the boots” of the respective employees, i.e., grass for
Rangers, cement for DSOs, and tarmac for ASOs. From the Department’s
perspective, since the only variance was in work location, merging these
classifications into a single classification would provide the Department with greater
staffing flexibility. Management also sought to provide employees with career

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advancement opportunities, and to that end the reorganization created civilian Police
Administrator positions with a rank at the functional equivalent of a Police Lieutenant.
The Police Administrators were to oversee the various civilian departments, including
Animal Control, City Jail, Forensics, Police Records, and Public Services, which would
include oversight of employees at the airport, parks, and downtown.
By early July 2013, the Rangers had heard rumors that the Department wanted
to merge their classification with ASOs and DSOs. A Ranger, Robert Mapes
(Mapes),4 contacted City Employees Associates (CEA), a firm that provides labor
representation services to SMMEA, to request assistance in the matter. Shortly
thereafter, an SMMEA board member sent an e-mail to several Rangers, including
Halvorson, stating that the merger issue had arisen during negotiations between
SMMEA and the City. The union was awaiting a proposed job description from the
City and expected further discussions over the issue.
Rangers had ongoing complaints about their pay being insufficient given what
they perceived as increasing dangers in the performance of their job duties.
Furthermore, some Rangers contended they had worked out-of-class on a Crime
Reduction Team. That assignment was supposed to have lasted only 30 days, but the
Department thereafter extended it. In Halvorson’s view, the assignment also involved
training that touched on Police Officer duties. Halvorson also contended that Rangers
were the lowest paid out of the civilian classifications. The Rangers’ primary concern
about the merger was that their duties would increase and become more dangerous,
________________________
4 Mapes was initially a charging party in this matter. However, he did not
appear at the administrative hearing, and the ALJ dismissed his allegations for failure
to prosecute. Mapes did not except to the dismissal.

6
especially due to assignments downtown, where more crimes are committed, and their
duties would involve enforcement more than public outreach. The Rangers believed
that their pay was inadequate for such assignments.
Michael Gaskins (Gaskins), an employee of CEA, contacted City Human
Resources (HR) Manager Michael Earl (Earl) via e-mail on July 19, 2013, requesting
to discuss the Rangers’ duties and a possible new job title. Gaskins had previously
met with Halvorson and seven or eight other Rangers to discuss concerns over the
possible merger. Halvorson and Mapes volunteered to assist Gaskins in merger
discussions with the City.
2013 Merger Negotiations and the Rangers’ Out-of-Class Grievance
On September 10, 2013, the City and SMMEA held an initial meeting regarding
the proposed merger. Gaskins, Halvorson, and Ranger Emma Alvarez (Alvarez) met
with Venegas and HR Director Donna Peter (Peter). Venegas noted that the three
classifications were paid roughly the same wages, with DSOs making around eight or
nine cents more per hour than the other classifications. He offered that the Ranger
and ASO classifications should receive increases to match the DSO wage level.
Venegas also stated that employees in the existing classifications would all need to be
cross-trained, but since their duties were so similar, extra pay for the training was not
warranted.
At some point—possibly in this initial meeting—Venegas stated that another
option for the new PSO classification was to make it promotional. This meant that
employees could elect to stay in their current ASO, DSO, or Ranger positions, or apply
for the new PSO positions. Under this alternative, the City would retain the former

7
classifications but not replace employees in those positions as they retired from
employment or otherwise vacated the positions.
After the meeting, Gaskins and Halvorson discussed filing a grievance alleging
that the Rangers were performing duties outside of their job description. On
September 20, 2013, Gaskins submitted a grievance, on behalf of all Rangers, to
Ranger Supervisor Don Williams (Williams). Halvorson was part of the grievance, but
he did not sign the grievance and his name was not mentioned in it. The grievance
alleged that Rangers were currently performing the duties of DSOs, ASOs, Police
Officers, Animal Control Officers, and Traffic Services Officers, and it raised safety
concerns. The remedy sought was “appropriate compensation” for “higher level”
duties, or removal of those duties. Halvorson testified that shortly after this grievance
was submitted, he passed Venegas while walking in a hallway, and Venegas
commented, “Chris, you really turned up the heat.” Halvorson understood him to be
referring to the grievance. Halvorson asked Venegas if he wanted to talk about it, but
Venegas replied, “I better not.” Venegas did not testify about this exchange.
On October 1, 2013, Halvorson, Mapes, and Gaskins attended a meeting with
Department management to discuss the Rangers’ out-of-class grievance. Williams
and Lieutenant Pasquale Guido (Guido) represented the Department. Either in this
grievance meeting or at some contemporaneous time, Guido bragged that he “loved
confrontation.” Also around this same time, Guido stated in a meeting that some of
the Rangers were “organizational terrorists.” A few days after the grievance meeting,
Williams and Lead Ranger Gregory Marsh (Marsh)5 criticized Mapes and Halvorson
________________________
5 Lead employees are included in the SMMEA bargaining unit.

8
for failing to be at a park for the full 20 minutes of their assignment, despite Marsh
acknowledging that Halvorson and Mapes had left the park due to a radio call out.
Also a few days following the grievance meeting, Halvorson received a
telephone call at home from Alvarez. Alvarez said that Marsh was telling the Rangers
that Halvorson and Mapes were only acting in their own interests, as they had filed a
grievance without informing the entire unit. Alvarez also said that Marsh was
encouraging Rangers to e-mail Venegas directly if they disagreed with the grievance.
Halvorson testified that it would ordinarily be considered going outside of the chain of
command to e-mail Venegas directly about an issue; thus, Halvorson concluded that if
Rangers were being told to send e-mails to Venegas, management must have
approved this encouragement. Marsh testified that Guido had told him “something like
that,” regarding allowing Rangers to e-mail Venegas about their thoughts on the
grievance or merger issues. Venegas testified that he did not believe that he ever
received any e-mails from Rangers about those issues.
On October 5, 2013, Guido provided a written response to the Rangers’ out-of-
class grievance, concluding that the issue of compensation could not be resolved
through the grievance process since it was a negotiable issue, and noting that the City
and SMMEA were addressing the matter in their MOU negotiations. On October 9,
2013, Gaskins sent a letter to Seabrooks requesting that she review the grievance.
Gaskins wrote that Mapes and Halvorson were the Rangers’ representatives for the
issue. Halvorson testified that he asked Gaskins to identify them as representatives
for several reasons: some of the Rangers did not support the grievance, management
already knew that he and Mapes were active with the grievance and had labeled them

9
as troublemakers, and taking a more open leadership position would allow other
Rangers a chance to distance themselves from the grievance.
On October 15, 2013, Halvorson sent an e-mail to all the Rangers with the
subject line “Grievance—Rumor Control.” Halvorson noted that some of the Rangers
were working against the grievance, which would only hasten the merger process.
Halvorson stated that he had put his own name on the grievance appeal to Seabrooks
because he did not believe that he was speaking on everyone’s behalf. Halvorson
denied that he was working only for his own interests, because whatever wage
increases were achieved would be applicable to all of them. He also wrote, “[s]ome of
you are weak individuals and I accept that.”
On October 23, 2013, Seabrooks and Captain Kenneth Semko (Semko) met
with Gaskins and Ranger John Michalski (Michalski) regarding the Rangers’ out-of-
class grievance. Earl and SMMEA board member Suzie Kim-Lockwood (Kim-
Lockwood) may also have been present, but they did not testify about it. Halvorson
and Mapes chose not to attend the meeting. Gaskins had no clear recall of this
meeting during his testimony, even after looking at related documents in an attempt to
refresh his recollection. Michalski testified that Seabrooks made reference to an
employee’s e-mail while holding a document in her hand and stating that she
considered it to be “bullying” Rangers into supporting the employee’s point of view
over the merger. Seabrooks did not testify at the hearing. Michalski did not recall that
Seabrooks ever referred to Halvorson by name, but having received Halvorson’s
e-mail himself, Michalski believed her to be referring to Halvorson as the author of the
one in question.

10
Sometime within the next two weeks, Seabrooks addressed the merger during
a regular staff meeting. Halvorson did not attend this meeting, as Seabrooks
scheduled it for a time prior to when Halvorson and Mapes were scheduled to be
working.6 Halvorson admitted that he knew about the meeting in advance and could
have attended it if he had desired to do so. Rangers Lemont Davis (Davis) and Roger
Gray (Gray) testified about Seabrooks’ statements in the meeting. Seabrooks referred
to “someone” who had tried to bully employees in an e-mail and said that the person
would be “dealt with.” Seabrooks never identified the author of the e-mail in question.
No one from Department management ever discussed Halvorson’s “Grievance—
Rumor Control” e-mail with him, and he was never reprimanded over it.
On October 30, 2013, Seabrooks provided a written grievance denial to
Gaskins. On November 11, 2013, Gaskins submitted an appeal of the denial to Earl
and requested review at the City Manager level of the grievance procedure. In
December 2013, SMMEA agreed to table the Rangers’ out-of-class grievance, as the
City agreed to resume negotiations with SMMEA over the proposed merger. This
occurred after Halvorson learned from Williams that the City was planning to order
new uniform patches to designate Rangers as PSOs, which caused Halvorson to
complain to Gaskins that the City was moving ahead with the merger without
completing negotiations. Gaskins then sent an e-mail to HR threatening an unfair
practice charge in response to unilateral action by the City. This e-mail did not
mention Halvorson. Halvorson also testified that Williams told him that Seabrooks had
________________________
6 We need not determine whether this scheduling was intentional, as it would
not impact the outcome of the case.

11
consulted with SMMEA board members over the plan to move forward with the
merger, and they had told her they had no objection to the plan.
2014 Merger Negotiations
On January 15 and 28, and February 5, 2014, SMMEA and the City met to
negotiate the proposed merger of the ASO, DSO, and Ranger classifications.
Halvorson attended each of these sessions. Also present on behalf of SMMEA, at
most or all of these meetings, were Kim-Lockwood, Gaskins, Mapes, and DSO Carlton
Palmer (Palmer). Earl and Venegas represented the City at each of the meetings. All
proposals were made verbally. Before the negotiations began, the Rangers had met
and determined that they would ask for a $4.00 per hour wage increase. Safety and
training were also primary concerns for Rangers, as well as having to apply for the
new positions, and pass a new probationary period, if the PSO classification was
made promotional.
At the session on January 15, 2014, the City offered a 2.5 percent wage
increase for the PSO positions. According to Earl, SMMEA countered with a 16
percent increase. It is not clear whether the 16 percent equated with the $4.00 per
hour increase discussed internally by the Rangers. Halvorson testified that at one of
the January sessions, Mapes presented Venegas with a petition signed by 18 out of
19 Rangers stating their support for “increased wages” for the PSO classification and
no application or probationary period being required. According to Halvorson,
Venegas was “miffed” and “flustered” when he received it. Venegas testified that he
did not remember ever seeing a petition that pertained only to Rangers.

12
At the bargaining session on January 28, 2014, SMMEA dropped its wage
increase proposal to 6 percent. The record does not reflect that the City made any
counterproposal that day.
The final bargaining session was on February 5, 2014. Earl informed SMMEA
that the City’s final offer was a 4 percent increase for the new PSO positions. SMMEA
rejected the City’s 4 percent offer. The parties caucused. After the caucus, Earl and
Venegas briefly reentered the meeting. Venegas said that the merger was off the
table and the PSO positions would therefore be promotional. According to Halvorson,
Venegas was quite angry and stormed out of the room at this time. Halvorson also
stated that everyone was surprised that negotiations had ended so abruptly. None of
the other witnesses who testified about this session described Venegas’s demeanor
the way Halvorson did.
Events Leading Up to an Employee Vote Over the Merger
The next day, Halvorson and Mapes discussed the final bargaining session with
Lieutenant Mike Beautz (Beautz). According to Halvorson, Beautz asked them what
they had done to make Venegas so angry and stated that Venegas had called the
employees “greedy.” Beautz testified that he did not recall making those statements
about Venegas. He testified that he and Seabrooks had had a conversation about the
merger issue at some point, and she had stated that she thought the employees’
resistance to the merger was “greed-related.” Beautz responded that the employees
were not greedy, but simply seeking parity among the civilian classifications.
Beautz helped Halvorson and Mapes craft a new proposal that sought to
expand the merger to include Animal Control Officers, Traffic Services Officers, and

13
Jailers in addition to the other three classifications already under consideration.
Beautz testified that he had been thinking about the merger for a long time and
thought his plan would be beneficial to both civilian employees and the Department.
Halvorson sent the new proposal to Venegas, Gaskins, and Kim-Lockwood, by e-mail,
on or about February 6, 2014. The e-mail did not mention Beautz’s participation in
drafting this proposal. Venegas responded that the Department had made its position
clear at the previous bargaining meeting. Venegas testified that the new proposal
encompassed things that had not been discussed in negotiations and that those other
positions had different training requirements and duties than the three classifications
the Department had suggested for merger. Thus, the proposal was not acceptable to
the Department.
Shortly thereafter, Kim-Lockwood informed ASOs, DSOs, and Rangers that
there would be a staff meeting held on February 12, 2014, with management and
union representatives present, to discuss the issues raised in the merger negotiations.
Halvorson attended the staff meeting on February 12, 2014. Gaskins and Kim-
Lockwood were there for SMMEA. Seabrooks spoke briefly about the reorganization
plan in broad strokes and then left the room as Police Officers also exited. Venegas
remained in the meeting with ASOs, DSOs, and Rangers to address the particular
issues facing those employees.
Halvorson provided the following account of the February 12 staff meeting.
Venegas stated that the PSO position would be promotional, meaning that employees
would have to apply for it, pass a background check, and then pass a probationary
period. As a promotional position, per the MOU, the pay increase would be 5 percent.

14
Venegas said that PSO seniority would be based on employees’ scores in their
interviews.7 Venegas also stated that he was not there to discuss money and that he
was tired of discussing money. His tone and demeanor were angry and threatening
according to Halvorson. A Ranger asked if they would lose their jobs if they did not
apply for the PSO positions, and Venegas said they would not. The Department,
however, would not backfill positions lost through attrition. Ranger Gray may have
asked about whether PSOs would be required to ride a bicycle. According to
Halvorson, Venegas then held up a document in one hand while angrily hitting it with
his other hand and stating that the Department would hold employees to their job
descriptions, they were not working out-of-class, and “these” were already their duties.
Halvorson also testified that once another Ranger raised the issue that “Rob [Mapes]
and Chris [Halvorson]” were supposed to bring an offer for the employees to vote on,
Venegas replied, “you mean those two guys weren’t speaking for everyone in this
room after all?” At some point, Gaskins left the meeting. Halvorson described
Venegas’s anger as going “from one level of anger to, I’d say it was almost unleashed
completely at that point.” Venegas said, referring to Gaskins, “we’re done dealing with
that sidewalk lawyer guy or whatever he is, he’s not a lawyer[,]” and the Department
was “done with that[,]” meaning negotiations. He also disparaged union negotiations
generally.
Venegas testified differently, though with certain overlaps. He said that he
probably had a Ranger job description in his hand during the staff meeting. He
________________________
7 Halvorson said this had employees very worried, because it might have been
the case that employees could lose seniority if they attained the promotional position.

15
recalled saying that PSO duties would not be anything more than employees were
currently doing, and the Department would hold all employees responsible for their
current duties. He admitted that he might have been exhibiting a certain level of
frustration in the meeting, but he denied that he ever yelled.
Other attendees testified about the same meeting. Kim-Lockwood was only
asked whether Seabrooks spoke first and whether Venegas stayed behind to address
ASOs, DSOs, and Rangers, which she affirmed. Rangers Gray and Davis
corroborated Halvorson’s account that Venegas said the PSO position would be
promotional with a probation period and background check, that seniority would be
tied to the interview or ranking process, and that he held what appeared to be a
Ranger job description while stating employees would be accountable for performing
the duties in their job descriptions. Gray testified that he “didn’t think [Venegas] was
real happy” with the Rangers’ position in negotiations and it seemed that they were
going to be under increased scrutiny regarding performance of duties, which made
Gray uncomfortable. Davis said that Venegas appeared to be “a little irritated” during
the meeting based on the way he was holding the job description. Neither Gray nor
Davis corroborated Halvorson’s other descriptions of Venegas’s comments regarding
Gaskins, union negotiations, money, and “those guys” (Halvorson and Mapes) not
representing everyone in the room. They also did not describe Venegas’s demeanor
during the meeting as being angry or threatening.
Sometime in the following week, Kim-Lockwood and Venegas spoke about
determining whether employees in the ASO, DSO, and Ranger classifications would
still consider a merger of the positions into the PSO classification. The City and

16
SMMEA ultimately agreed to let employees decide the issue. According to Kim-
Lockwood, Gaskins suggested that the affected employees vote over whether they
favored merger and elimination of the current classifications or having the PSO
positions be promotional and the current positions maintained. Department and City
management were not involved in the decision to put the issue to a vote and did not
provide input on the wording on the ballots.
Kim-Lockwood oversaw the voting process. At first, employees left ballots in an
envelope near her workstation. Some employees raised concerns over privacy, and it
was then decided to have the vote take place in person on February 26, 2014.8
Managers were not present during the voting. Employees did not sign their names to
the ballots, but separate ballots were created for each affected position, making it
possible to determine how the employees in each position voted as a whole. All ASOs
(approximately four employees) and DSOs (approximately five employees) voted to
approve the merger. Out of the approximately 19 Rangers, 11 or 12 voted in favor of
the merger. Thus, a majority of affected employees voted to proceed with the merger
and eliminate their current classifications in favor of a single PSO classification.
Venegas testified that he was aware of these voting statistics, but he was not aware of
how any specific employees voted, including Halvorson. Kim-Lockwood, who was
responsible for tallying ballots, said that she did not know how individual employees
voted, since no one wrote their names on the ballots. The ballots were destroyed after
________________________
8 Kim-Lockwood testified that the initial ballots were destroyed when it was
determined that an in-person vote would take place.

17
they were counted. The City approved the new PSO, Lead PSO, and Police
Administrator positions between February 27 and March 3, 2014.
Halvorson was one of the Rangers who voted against the merger. According to
Halvorson and Rangers Jeanne Roccapriore (Roccapriore) and Jasmin Brown
(Brown), who also voted “no” regarding the merger, it was “common knowledge” which
Rangers had voted “no.”
PSO Compensation Grievance
The City granted former ASOs, DSOs, and Rangers in the new PSO positions a
4 percent wage increase. On April 2, 2014, Gaskins filed a grievance on behalf of
newly-appointed PSO employees. The grievance alleged that the City violated the
MOU by failing to provide a 5 percent salary adjustment for promotions. Relying on
Venegas’ statement at the February 12 staff meeting, employees believed that voting
“yes” on the merger meant they would receive a 5 percent pay increase. Halvorson
was not specifically named as filing or being associated with this grievance.
The City provided a written response on April 15, 2014, contending SMMEA
was acting in bad faith by filing the grievance and that the City Manager had
authorized filing an unfair practice charge against SMMEA. The City noted that its last
wage offer for the PSO classification was a 4 percent increase. The City further
asserted that the MOU provision regarding promotional pay was not applicable since
employees had voted to approve the merger; thus, employees did not have to apply
for or pass probation and a background check to attain a PSO position, and so it was
not considered “promotional.” On April 23, 2014, SMMEA sent a letter to Peter

18
requesting review of the grievance denial. There is no other information in the record
regarding this grievance.
Cross-Training Issues, and Hazing and Harassment Complaints
The Department wanted former ASOs, DSOs, and Rangers to be cross-trained
in each other’s former assignments because, as PSOs, they could be assigned to any
of those work locations and corresponding duties. According to Halvorson, cross-
training should have occurred first on a volunteer basis and then starting with the
lowest seniority employees. He was surprised, therefore, given his higher seniority
than other former Rangers, that he was scheduled third for cross-training. Lead PSO
Stanley Paez (Paez), who was partially responsible for developing the cross-training
schedule, testified that there was no rule linking seniority to cross-training. Paez also
testified that he and his PSO Supervisor, Art Lopez (Lopez), never discussed
Halvorson’s position on the cross-training schedule. Lopez, who had the final say
over the cross-training schedule, stated that management asked for volunteers first
and took seniority into account, while also considering the trainers’ schedules.
After the merger vote, there was some tension between former ASOs, DSOs,
and Rangers regarding the negotiations that had occurred. During negotiations,
Palmer had shared with Halvorson that the DSOs were afraid that if employees
pushed too hard for pay increases that the City would simply eliminate their positions
and they would be laid off. Brown testified that, during the negotiations period, she
overheard DSO Maria Cervantes (Cervantes) speaking loudly in the locker room that

19
Rangers were “sticking their nose[s] in everybody’s business.”9 Cervantes was later
assigned as one of the cross-trainers.
Former Rangers, including Roccapriore, had issues with Cervantes allegedly
mistreating them during cross-training. Roccapriore testified that Cervantes tried to
force her to have a car towed, which Roccapriore did not agree needed to be done,
and a supervisor had to be summoned to diffuse the situation. Later, in a meeting
over the incident with Lieutenant Darrick Jacob (Jacob) and Lopez, Roccapriore was
asked whether she was one of the “no” votes and if she was trying to “start a revolt.”
Halvorson raised the issue of hazing of former Rangers in the initial unfair practice
charge filed in this case, which was served on Peter on or about May 29, 2014. On
that same day, Halvorson sent an e-mail to Peter saying that the City needed to
address the hazing of former Rangers by a former DSO. In light of these allegations,
he asked the City to pause and delay the cross-training for those who had not yet
completed it. Peter responded the same day confirming her receipt of the unfair
practice charge and stating that she would discuss his request with the City Attorney’s
office.
The following week, another employee wrote to Peter complaining of hazing by
a former DSO. Peter wrote to Halvorson and the others, saying that she needed
additional information from them regarding the hazing complaint and that Department
management needed to be informed immediately of what was happening. Halvorson
responded to Peter, identifying Cervantes as the former DSO who was hazing former
Rangers and alleging that the instruction for it was coming from “the top”—i.e.,
________________________
9 Neither Palmer nor Cervantes testified.

20
Venegas—because Venegas was still angry with Mapes and him for their part in the
negotiations. Halvorson also said that he feared further retaliation by Venegas
because of their history. Halvorson requested that the City investigate and that he not
be cross-trained by Cervantes.
On June 10, 2014, Peter informed Halvorson and the other complainants that,
in consultation with the City Attorney’s office and Seabrooks, the City had decided to
hire an outside investigator to investigate the hazing claims. However, the cross-
training would continue and, if scheduling permitted, a different trainer (someone other
than Cervantes) would be assigned. Halvorson then took medical stress leave for four
weeks. He was not trained by Cervantes when he returned to work.
Peter testified that it took time to secure the services of an outside investigator.
Halvorson was interviewed by the investigator in October 2014. Around that time,
Halvorson reported, to HR and the investigator, incidents of harassment against him
by fellow employees. For instance, he noted that someone had put cheese in his
locker, an apparent reference to him being a “rat,” and had taped to his locker a gay
pornographic advertisement with Halvorson’s radio call sign written on it. Two PSOs
had also given Halvorson a “gay nickname.”
On May 15, 2015, Halvorson was informed in a memorandum from Peter that
the investigator had concluded that none of the hazing complaints were substantiated
and therefore the matter was considered closed. There is no information in the record
regarding the resolution of the other harassment complaints raised by Halvorson in
October 2014.

21
Overtime Assignments
Paez admitted that overtime was not assigned in an equitable manner at first.
Paez acknowledged that overtime is supposed to be more or less equally distributed
to employees under the MOU. However, former DSOs, rather than former Rangers,
were receiving the bulk of overtime opportunities as PSOs. Paez said this was done
at the direction of Lopez, though Lopez denied that former DSOs received more
overtime and stated that not everyone wants it. Halvorson testified that the manner in
which overtime was approved for PSOs also differed between the former DSOs and
the former Rangers. Former DSOs could simply slip their time cards with overtime
hours under Lopez’s door, while former Rangers needed a watch commander’s sign
off on overtime hours before the time card was submitted to Lopez.
PSO Out-of-Class Grievance
On September 10, 2014, CEA representative Oshea Orchid (Orchid) submitted
a grievance alleging that PSOs were working outside of their job description.
According to Halvorson, a few days later Paez told him that Seabrooks was tired of
grievances regarding PSOs and any grievances would simply be denied from that
point. Paez also told Halvorson that Lopez wanted to know the names of employees
who were involved in the submission of this grievance.10 Paez did not testify about
either conversation with Halvorson. On September 18, 2014, Lopez, Paez, and Jacob
represented the Department at a grievance meeting. Orchid, Halvorson, Mapes, and
________________________
10 At this point in time, Lopez was acting as Police Administrator over PSOs and
Paez was the acting PSO Supervisor.

22
another PSO represented the grievants. On October 1, 2014, Lopez sent a letter to
Orchid denying the grievance.
On October 8, 2014, Halvorson and other former Rangers received an e-mail
from Marsh attaching a newspaper article about City of Glendale employees being laid
off due to a reorganization. Marsh had originally received the e-mail from Lopez.
Halvorson believed that this e-mail was sent only to the former Rangers, and not to
the former DSOs and ASOs, because of the former Rangers’ most recent grievance
alleging out-of-class work. After the grievance was filed, rumors began swirling
among PSOs that if they kept complaining about things, they would all lose their jobs.
Lopez and Marsh denied that Lopez had instructed Marsh to send the e-mail to the
former Rangers. Marsh explained that, at this time, the PSOs were not really a fully
integrated group, and he still was using an e-mail list for former Rangers that would
automatically populate in an e-mail by pressing the letter “r.” Marsh said that he
forwarded the e-mail to them because he had direct responsibility over them, and he
routinely forwarded such information that he had received from his supervisors
regarding police work in other cities and employment issues in other jurisdictions.
On February 3, 2015, Halvorson, Mapes, and Orchid participated in a level
three meeting regarding the PSO out-of-class grievance. On April 9, 2015, acting City
Manager Elaine Polachek ordered some modifications to the PSO job specification,
additional training for PSOs in certain areas, and increased compensation for PSOs in
certain specified circumstances in which they cover for a higher classification. This
response from the City resolved the grievance.

23
Halvorson Applies for the Position of Crime Prevention Coordinator
1. 	Initial Steps for the Crime Prevention Coordinator Recruitment
On October 7, 2014, due to the impending retirement of a Crime Prevention
Coordinator (CPC), Seabrooks asked HR to recruit for the position. HR Analyst Merle
Wynn (Wynn) approved the Chief’s request. Wynn testified regarding the City’s
recruitment practices. As part of those practices, the appointing department reviews
an open position’s job specification to determine if changes are needed. Wynn sent
the CPC job specification to Semko for review. Semko was commanding the Strategic
Services Division of the Department, which included the CPC position, and Semko
was primarily responsible for the recruitment.
The City has adopted Civil Service Rules and Administrative Instructions (AI)
that govern recruitment and selection procedures. AI III-1-2, dated July 26, 1999,
contains a “Guide to Effective Selection Interviews” (Selection Guide) that notes it
should be reviewed by “all employees who interview and select employees for any City
job[.]” Wynn testified that she did not send the Selection Guide to Semko for the CPC
recruitment and that she does not normally issue this document to hiring departments.
The recruitment for the CPC position was promotional, meaning the position
would be open only to current City employees. Semko testified that the Department
decided to open the position to all current City employees, rather than limit it to only
current Department employees, because there is very little turnover in the CPC
positions, the Department considers the positions to be very important, and therefore it
wanted the widest pool of qualified candidates. Semko worked with Wynn on changes
to the CPC job specification. The only change was in the required experience section

24
from “one year of recent, paid, related work experience” to “one year of recent, paid,
public contact work experience.” (Emphasis added.) SMMEA approved the proposed
revised job specification. The City’s Personnel Board approved the revision on
December 7, 2014, and the City opened the CPC recruitment the following day.
2. 	The Job Announcement
The CPC job announcement, under “Minimum Qualifications,” included the
following in relevant part:
“Knowledge of:
“Crime prevention principles and practices; crime-related
terminology; contemporary issues affecting law
enforcement and the community; emerging technologies;
effective training and coordinating techniques; public
relations principles and practices, including mass media,
publicity, community relations and governmental relations
to law enforcement; methods and/or techniques used to
develop brochures, posters, slides and other informational
material; effective customer service techniques; media
utilization to include social media.
“Ability to:
“Develop and coordinate comprehensive and effective
crime prevention programs; organize and present crime
prevention educational programs to the public; interpret
crime data; train and develop volunteer leaders; write clear
and concise reports and presentations; maintain accurate
records; identify areas to utilize outreach resources; create,
maintain, and access database files; communicate
effectively both orally and in writing; provide effective
customer service; establish and maintain effective and
cooperative working relationships with the community,
members of the media, City employees and the general
public; conduct effective training programs; speak at public
forums.”

25
Under the heading “Education, Training and Experience,” the job
announcement stated:
“Graduation from an accredited college or university with a
Bachelor’s degree in Public Administration, Administration
of Justice, Communication, or a closely related field. One
year of recent, paid public contact work experience
compiling and disseminating information, providing
instruction, public speaking, or similar public contact with
groups. Experience presenting educational or law
enforcement programs is desirable. Bilingual experience is
desirable. Additional relevant work experience may be
substituted for the required degree on a year for year basis.
(One year of the additional required work experience is
equal to the completion of 30 semester units.)”
(Emphasis added.)
The job announcement included a supplemental application. According to the
City’s Handbook on Human Resources Policies and Procedures (Handbook),
“[s]upplemental applications may be used to more specifically identify key skills,
knowledge or abilities.” The CPC supplemental application asked applicants to
describe their public contact work experience, their work experience presenting
community based educational programs, and how they have used software systems or
other tools for promotional purposes. It also included a question prefaced with a
statement that the CPC position “requires graduation from an accredited college or
university,” followed by a request to indicate whether candidates met this
“requirement.” Wynn and Peters testified that the City intended that candidates would
be minimally qualified if they either had attained a bachelor’s degree or sufficient work
experience.

26
On December 16, 2014, Halvorson submitted a cover letter, resume,
application, and supplemental application. Halvorson answered the first supplemental
question by focusing on his daily work interacting with the public in his PSO position
and his work during special events such as the Los Angeles Marathon. Halvorson
also noted his previous assignment on the Crime Reduction Team required him to
attend daily briefings and review data regarding crime statistics. For questions two
and three, Halvorson described his position as a Youth Worker in Seattle before
college in 1990-1991, and his work designing press materials and creating short
publicity films at the National Liberty Museum in 2000-2001.
3. 	HR’s Screening of Applications and the Initial (Outside) Interview
Wynn screened the CPC applications to determine which applicants met the
minimum qualifications. Nineteen applicants, including Halvorson, were deemed to
have done so. On January 2, 2015, Wynn notified Halvorson by letter that he had
successfully passed the “application review process” and was therefore invited to an
oral interview on January 15, 2015. An external panel of volunteer interviewers from
other jurisdictions, consisting of three police officers at the ranks of sergeant and
lieutenant and one crime prevention officer, conducted the initial interviews. Because
there were 19 candidates to interview in a single day, these external interviewers were
separated into two panels, each consisting of two persons. Before the interviews
commenced, Wynn and Semko briefed the external interviewers on the requirements
of the CPC position and the qualities that the Department was looking for in an ideal
candidate, emphasizing the need for a “vibrant, energetic, and articulate” individual.

27
Wynn and Semko also reviewed the interview questions and rating instructions with
the panelists and provided them with the candidates’ application materials.
After the interviews concluded, the external panelists turned over to Wynn their
candidate rating forms and notes. Semko did not receive any of these materials, nor
did he communicate with the external interviewers regarding their scores of the
candidates. Wynn tallied the panelists’ scores from the rating sheets and adjusted
them with a seniority credit to arrive at a final score and rank for each candidate.
Halvorson and another candidate, Benjamin Steers (Steers), tied with a score
of 100 and rank of number 1 after the external interview, and they took the first two
spots on the promotional eligibility list.11 The final candidate on the promotional
eligibility list was Myesha Morrison (Morrison), with a score of 98.8. Halvorson was
informed of his score and rank and that he would be contacted by the Department for
another interview. The letter informing Halvorson of his score noted that there were
three top candidates, one of whom would be selected for the position. Once Wynn
had determined the promotional eligibility list, she contacted the Department’s
Administrative Services staff with the names of the final three candidates. Consistent
with City policy, the Department received the promotional eligibility list with the
candidates’ names in alphabetical order and did not receive the scores or rank of the
persons on the list.
________________________
11 The highest possible score is 100. For a promotional position, the top three
candidates are included on a “promotional eligibility list,” and move on in the selection
process to a second interview with the hiring department.

28
4. 	The Second (Inside) Interview
After receiving the above information from Wynn, Department Administrative
staff prepared a packet containing each candidate’s application materials. At this
stage of recruitment, the hiring department takes over the selection process. Semko
received the application materials but was not provided the candidates’ scores and
rankings after the external interviews. Semko wrote a set of questions for the internal
interviews.
Semko asked Captain Daniel Salerno (Salerno), who testified that he had
previously served on over one hundred interview panels, to sit in with him for the
second round of interviews for the CPC position. Salerno agreed. Salerno was also
not aware of the candidates’ scores or rankings after the external interviews. Salerno
did not clearly recall whether he reviewed the candidates’ application packets before
the interview but said he would have done so in his ordinary practice if they were
available. At the time of the internal interviews, Semko had never had supervisory
authority over Halvorson. Salerno had been included in Halvorson’s chain of
command about five years before the interview took place, when Salerno had been a
lieutenant. The candidates’ annual performance reviews were not reviewed or
considered during the selection process.
The interviews took place on February 3, 2015. They opened by Semko and
Salerno asking the candidates to give a mock introductory statement to a community
group. After that, the candidates were asked the following questions:
 	“What experience do you have in the planning of large
events? Give us an example of something you have
learned during this experience.

29
 	“What has your experience been working in a team
environment? How do you feel about taking direction
from your peers while working on a team project?
 	“Describe a problem brought to your attention by a
member of the community (or other city employee) and
what you did to address the issue. What was the
outcome?
 	“What role does the CPC play in the Department’s
mission to fight/reduce crime?
 	“Describe your experience working with social media.
How would you boost the effectiveness of the
Department’s use of social media?
 	“Why are you the right person for this position?”
Both Semko and Salerno stated that they did not remember taking many notes during
the interviews and if they did take some, they did not keep them.12
A. Halvorson’s Interview
Semko and Salerno both described Halvorson’s appearance at the interview as
a bit “disheveled.” Semko elaborated that Halvorson’s tie and jacket were crooked
and that it looked as if he had “jumped out of a car or something and ran to the
________________________
12 Neither Semko nor Salerno reviewed the Selection Guide before the
interviews. The Selection Guide states that taking notes during or after interviews is a
“matter of preference” for the interviewers. The Guide also includes a form where
interviewers are to “record [the interviewer’s] final evaluation and decision.” The form
states that the interviewer’s comments “should completely summarize [the
interviewer’s] evaluation of each candidate, based on all predetermined job factors,
and should record [the interviewer’s] reasons for . . . the final decision.” The Guide
states “if [the interviewer] decide[s] to use this form, a copy should be returned to the
personnel department.” (Emphasis added.) Neither Semko nor Salerno recorded a
written evaluation of the candidates.

30
interview.” Halvorson disputed those accounts, saying his appearance that day was
“impeccable,” and that he was looking his best with a freshly pressed suit and new tie.
Halvorson did testify that immediately before the job interview, he had come from the
PSO grievance meeting with HR Director Peter, with “not much time” in between.
Semko testified that Halvorson’s mock introduction statement failed to show
enthusiasm and energy for the CPC position and was not what Semko was looking for
in a successful candidate. Halvorson said he felt that Semko and Salerno were trying
to rush him into making the statement and that Salerno jammed a pen in his direction
as if to say just “go.” Halvorson was trying to ask follow-up questions about the
specific type of community audience that he was to address, for example, a group of
children or adults, because his style would have differed based on his target audience.
Halvorson said the interviewers seemed annoyed by his requests for clarification and
finally Halvorson said he would just assume an adult audience.
Regarding the question about recent, large event planning experience, Semko
and Salerno both recalled that none of Halvorson’s experience was recent, and that
he was not able to speak to anything he had done along those lines during his
employment with the Department. Halvorson admitted that his event planning
experience in his previous jobs was “years ago,” but disputed that he not been able to
cite similar experience during his Department tenure, testifying as follows:
“I also referred to specific events with Santa Monica Police
Department, including Relay for Life, which I worked with
Captain Semko and Captain Salerno on, which they were
obviously aware of. That was, I even volunteered to do
that. That’s an event to raise money for cancer.

31
“And I also talked about just things in the PSO job that,
where we dealt with large public events, as we talked
about, like, Glow and the marathon and things where we
were really PR people, and I can’t -- You know, this
interview is almost a year ago. I can’t remember everything
specific, but I know I touched on past and present for sure
and gave some very good examples, which I did have
prepared, as I was ready for this interview.”
In response, Semko testified that he was the chairperson of the Relay for Life
event for two years, and although Halvorson was one of the approximately 50
volunteer team captains on the day of the event, Halvorson had no role in its
organizing and did not serve on the 20-person planning committee or attend planning
committee meetings. During Halvorson’s testimony in his case in chief, he admitted
that he had never been tasked with organizing a special event during his Department
employment.
Regarding the question about a problem being brought to the attention of the
candidate by a member of the community, Semko could not remember exactly the
answer that Halvorson gave, but Semko did remember being surprised that it was not
better, describing it as “uneventful.” Semko testified that he thought, given
Halvorson’s experience as a Ranger and PSO, that it would have been a question that
Halvorson should have “hit out of the park,” however, Halvorson “just didn’t.”
Halvorson disagreed, noting that he had described a situation where a City store
owner had stopped him one day to complain about refuse the homeless were leaving
in front of his property. Halvorson explained during the interview that he took the
owner’s information and followed up with an e-mail to one of the Department’s
Homeless Liaison Officers, who addressed the owner’s issues. According to

32
Halvorson, Salerno had responded positively to that example. Salerno did not recall
Halvorson’s answer to that question during the hearing.
Halvorson’s answer to the question regarding the CPC’s role in crime
prevention was memorable to Semko because it was allegedly off topic. Semko
explained that the CPC position was created to engage the community in the
Department’s crime fighting efforts and to instill in the community a sense of shared
responsibility with the Department. He said that Halvorson’s answer to the question
focused on Halvorson’s knowledge of the inner workings of the Department and how
Halvorson could improve morale within it, but did not mention the community, and
“really went off on a tangent about personnel issues within the . . . Department.”
Salerno also noted that, in general, Halvorson’s answers to the questions did not
relate to the position for which the Department was hiring. Halvorson responded to
this testimony as follows:
“I felt like I needed to address the fact that I was involved in
negotiation and it seemed to upset some people, you know,
like, the Deputy Chief and Chief, and so I felt like I should
offer an olive branch without spelling out what the issue
was. So what I said was something to the effect of, I know
you guys are, I know you guys know that I've been involved
in some things that might have upset some people here,
and, you know, personally, I'm ready to move forward and
that, you know, I'm willing to set aside my ego, and I hope
that others can as well and that not only do I want to bridge
relations between PD and the community, I would also like
to bridge relations within the Department, because
obviously the merger created some animosity.
“But I didn't use the word merger. I think I said, I just
referred to it as, it was more vague, because I didn't want
to, I didn't want to spell that out. Knowing that I had a

33
pending PERB charge, I thought that would be in poor
taste.”
(Emphasis added.)
Semko described Halvorson’s overall interview performance as “very poor,”
which surprised him, given Halvorson’s long tenure in the Department. Salerno
agreed, saying that Halvorson’s performance in the interview was “way in the
background,” as compared to the others, but he stopped short of saying that
Halvorson failed the interview. In his testimony, when Halvorson was asked to explain
why he believed that he was a better candidate than the person who was ultimately
selected for the CPC position, he mentioned being tasked as the Department’s point
person on dealing with the media during a bomb threat at the City, and another time
when he had been asked to give a presentation on crime prevention to the public at
the opening of a new park because he was known as the Department’s “go-to guy” for
public relations. Halvorson acknowledged that he had failed to include either of those
experiences in his application materials or discuss them during his interview with
Semko and Salerno, and Halvorson said that he was “kicking [him]self” about that
after the interview.
B. Morrison’s Qualifications and Interview
At the time of the CPC recruitment, Morrison held the position of Zero Waste
Assistant in the City’s Resource, Recovery, and Recycling (RRR) division, and she
had worked for the City since 2008. The “major duties” of the Zero Waste Assistant
included the following, according to the job specification:
“Collaborates, develops and disseminates community
outreach, public participation, and special event materials
to inform residents, businesses and schools about

34
recycling, composting and zero waste programs and
initiatives. Conducts meetings and makes public
presentations.”
Morrison testified about her experience in RRR, stating that while in her previous
position she developed the division’s community outreach and education programs;
planned and organized 90 percent of its special events, including a large City-wide
yard sale to encourage reuse and recycling of materials; created and managed all of
the division’s social media accounts; and worked with the Department regarding
alleged Municipal Code violations. Morrison explained that she had completed
approximately 230 units of college work at UC Santa Barbara and UC Irvine, that her
degree status was “in dispute,” and she had not yet been awarded her bachelor’s
degree. Morrison also testified that after learning about the open CPC position, she
researched some of the City’s crime prevention programs and techniques before
ultimately submitting her application to the City.
Semko testified at length about Morrison’s performance in the interview.
Regarding her opening statement and her answers to the initial questions, Semko
stated:
“[F]rom the onset, she provided a phenomenal opening
statement, stood up, used the board, moved around the
room a little bit, spoke directly to Captain Salerno and I as
we would be community members and providing her
introduction, was very engaging, made us really want to
hear what else she was going to say, immediately got our
attention.
“And when she moved into the second question regarding
experience and planning and large events, she started
talking about a vast amount of experience she'd had over
the past several years in planning the events for RRR, and

35
those events which I was aware of, I did not know that she
was the person behind those events and that she had really
created those from the loincloth. You know, she developed
them. She advertised them. She put them on. She got the
personnel. She did the logistics. She did everything
regarding those events, and I know that several of those
events were very successful.
“Experience working in a team environment, she really, you
know, hit that one out of the park, as she emphasized all
the different departments, the other 13 departments in the
City that she worked with in order to make those events
successful on occasions and how she saw not only the
City's departments working together but also a team
environment of incorporating the community into those
successful events and into the recycling effort as a whole.”
Semko was also impressed that Morrison had created the social media
presence for her division. She answered the question regarding the CPC’s role in the
Department’s mission of crime prevention by highlighting the importance of community
engagement. Of the hundreds of job interviews that Semko had participated in as a
Department manager, he ranked Morrison’s interview as being in his “top five.”13
5. 	The Selection of Morrison for the CPC Position
Immediately after the inside interviews concluded, Semko and Salerno had a
brief conversation about their impressions. They agreed that Morrison, by far, had the
best performance in the interview and was the most suitable candidate for the position
given her community outreach experience in RRR, with Steers a distant second from
Morrison, and Halvorson being their least favorite candidate.
________________________
13 The record reveals scant information about Steers’s interview.

36
Salerno’s participation in the selection process ended at that point. He testified
that he never had any conversations with Guido, Venegas, or Seabrooks about the
CPC candidates or the interview process. At the time of the interviews, Salerno did
not know that Halvorson had been involved with SMMEA. Salerno was aware of some
grievances that had been filed related to the merger of the DSO and Ranger positions,
but he did not, at that time, know that Halvorson was involved in those grievances and
he did not participate in them himself, as they did not involve his division. Nor was
Salerno aware of Halvorson’s then-pending unfair practice charge. None of the
allegations in the charge pertained to him. Salerno testified that he had never heard
either Venegas or Seabrooks say anything negative about Halvorson during weekly
executive staff meetings—which included the Chief, Deputy Chief, captains, and
executive officer—or at any other time.14 Salerno also confirmed that, although the
Chief is the ultimate decision-maker for hiring decisions, management employees at
the captain’s level are tasked with managing the candidate selection process and
making a hiring recommendation to the Chief after the internal interview is completed.
Salerno stated that, in his experience, the Deputy Chief did not sit in on interviews for
civilian employees of the Department, leaving that task to the captains. The Deputy
Chief did, however, participate in interviews for police officers.
Semko testified that, sometime in the next week after the interviews were
completed, he had a conversation with Seabrooks in her office. Semko told
Seabrooks that Steers’s interview was “okay,” and that Halvorson had not done a very
________________________
14 Venegas acknowledged that it was probable that Halvorson’s name “may
have come up” in the weekly executive staff meetings as the Ranger kind of “leading
the charge” and speaking for employees regarding merger issues.

37
good job. Semko told Seabrooks that he thought Morrison was “fantastic,” talked a bit
about Morrison’s background, and said he was recommending that Morrison be hired
for the CPC position. Seabrooks agreed and told Semko to proceed with Morrison’s
selection. Neither during that discussion nor at any other time did Seabrooks tell
Semko that Halvorson should not be selected for the CPC position.
On February 11, 2015, Semko sent an e-mail to Venegas, requesting to move
Morrison into the background check process. Semko did not remember having any
specific conversation with Venegas regarding Semko’s recommendation to hire
Morrison, but Semko acknowledged that such a communication would have been
typical. Venegas remembered having a conversation with Semko, recalling that
Semko told him he was pleased by Morrison, because she was energetic and was
already performing many of the duties the CPC would be tasked with performing.
Also on February 11, 2015, Semko placed a telephone call to each of the CPC
candidates to inform them of the Department’s decision. Halvorson testified that he
appreciated that Semko made a personal phone call instead of sending an e-mail.
Halvorson asked whether he failed to receive the position because of the second
interview, and Semko said it was “a factor of many things that had been discussed
and reviewed.” Semko said if the results of Morrison’s background check disqualified
her, then Halvorson would be interviewed again as he was still on the eligibility list.
Halvorson sent an e-mail to Semko, asking for clarification about the potential for
another interview. Semko responded, informing Halvorson that if Morrison failed to
pass her background check, management would hold another round of internal
interviews.

38
Venegas confirmed Salerno’s testimony that in the civilian hiring process, unlike
that for police officers, the Deputy Chief does not sit in on the interviews. For civilian
recruitments, the Deputy Chief’s role is to receive the hiring recommendation from the
captain overseeing the recruitment, forward that recommendation to the Chief, and
move the recommended candidate into the background investigation phase, which
Venegas did in the case of the CPC recruitment for Morrison. The only other
discussion that Venegas recalled having with Semko regarding the CPC recruitment
was at the beginning of the process, and involved the procedural steps that HR would
take in compiling a promotional eligibility list. Venegas learned, through the regular
“rumor mill” in the Department, the names of the final candidates who were heading
into the internal interviews for the CPC, but he did not discuss the candidates with
Semko before the interviews or tell him that Halvorson should not be hired for the
position. Venegas testified that he had no role in making a hiring recommendation for
the position.15
Halvorson testified about running into a Neighborhood Resources Police
Officer, Steven Erik Milosevich (Milosevich), shortly after he had received word from
________________________
15 Morrison passed her background check, but still faced one more standard
step before starting in the new position. When Seabrooks became Department Chief,
she instituted a policy of holding an executive-level interview, after a candidate had
passed the background check. This final interview is a getting-to-know-you type of
meeting, with no standard questions, and provides an opportunity to address any
issues that might have come up in a candidate’s background investigation before the
candidate starts work. In this case, Venegas and Lieutenant Calisse Lindsey
performed the final executive-level interview of Morrison after the background
investigation was finished. Venegas did not have any specific memory of doing that
but said that he regularly performs the majority of those interviews for the Chief.
Semko confirmed that the formal offer of employment is not made to the candidate
until after that final interview. Morrison assumed the CPC position in April 2015.

39
Semko about not being selected for the CPC position. According to Halvorson,
Milosevich said that he and the other police officers in his division had been pulling for
Halvorson, but they did not think Halvorson would get the CPC position because of
Halvorson’s role in the merger negotiations. Milosevich was called as a witness by the
City and provided a different version of the conversation. According to Milosevich,
Halvorson was upset at the Department’s decision during their exchange. Halvorson
said to Milosevich that “it was kind of BS” that he had not been chosen as the new
CPC. Milosevich said that he was trying to offer support to Halvorson and told
Halvorson that he was sorry that Halvorson did not get the job. Milosevich was shown
a statement in the second amended unfair practice charge, the same as Halvorson
testified about, stating that Milosevich had told Halvorson that Halvorson’s role in
negotiations hindered Halvorson’s chances at being selected for CPC. Milosevich
testified that he had not made such a statement to Halvorson, but it was possible that
Halvorson himself made that statement during their conversation. When asked
whether it was common knowledge in the Department that Halvorson had been
involved in the merger negotiations, Milosevich said that he “had heard about it.”
Milosevich testified that he suggested to his own supervisor that Halvorson would be a
good fit for the CPC position.
Semko testified that he had not been involved in the merger negotiations and
when he led the CPC recruitment process, he was not aware of Halvorson’s
participation in those negotiations. He knew that some of the Rangers had not been
happy with the proposed merger, but he did not know specifically who they were.
When questioned about whether the topic of the merger came up during the weekly

40
executive staff meetings, Semko noted that the merger was a small part of the
Department’s larger reorganization plan. He stated:
“I'm sure there were discussions. It was not in my division
at the time, and I was juggling six sections and about 150
employees. So it was mildly interesting, but it had nothing
to do with my division. So I don't remember any facts
regarding that.”
Semko also denied that, at the time of the CPC selection, he was aware of
Halvorson’s grievance activity or that Halvorson had filed any unfair practice charges
against the Department. Neither the grievances nor the allegations of unfair practices,
at the time of Halvorson’s CPC interviews, involved any conduct by Semko.
DISCUSSION
To establish a prima facie case of retaliation, the charging party has the burden
to prove, by a preponderance of the evidence, that (1) one or more employees
engaged in activity protected by a labor relations statute that PERB enforces; (2) the
respondent had knowledge of such protected activity; (3) the respondent took adverse
action against one or more employees; and (4) the respondent took the adverse action
“because of” the protected activity, which has been interpreted to mean that the
protected activity was a substantial or motivating cause of the adverse action. If the
charging party meets its burden to establish each of these factors, certain fact patterns
nonetheless allow a respondent the opportunity to prove, by a preponderance of the
evidence, that it would have taken the same action even absent protected activity.
This affirmative defense is most typically available when, even though the charging
party has established that protected activity was a substantial or motivating cause of
the adverse action, the evidence also reveals a non-discriminatory motivation for the

41
same decision. In such “mixed motive” or “dual motive” cases, the question becomes
whether the adverse action would not have occurred ‘but for’ the protected activity.
(NLRB v. Transportation Management Corp. (1983) 462 U.S. 393, 395-402;
McPherson v. PERB (1987) 189 Cal.App.3d 293, 304; Martori Brothers Distributors v.
Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 729-730; San Diego Unified
School District (2019) PERB Decision No. 2634, pp. 12-13; Omnitrans (2010) PERB
Decision No. 2121-M, pp. 9-10; Los Angeles County Superior Court (2008) PERB
Decision No. 1979-C, p. 22; Palo Verde Unified School District (1988) PERB Decision
No. 689, pp. 7-8; Novato Unified School District (1982) PERB Decision No. 210,
pp. 56; Wright Line (1980) 251 NLRB 1083, 1086-1089.)
In this case, no dispute remains regarding the first three elements of
Halvorson’s prima facie case, as the City did not file exceptions to the ALJ’s findings
that Halvorson engaged in protected activity, the City knew of that activity, and the
City took adverse action against him when it chose another candidate for the
promotion he sought. The questions before us mainly relate to the fourth element of
Halvorson’s prima facie case (commonly referred to as the “nexus” factor) and the
City’s affirmative defense. In the below discussion, we agree with much of the ALJ’s
analysis on these issues, though we depart from the ALJ’s analysis in several
respects.
I. 	Nexus Analysis
“To establish the final element of the prima facie case, the charging party must
show that the employee’s protected activity was a motivating factor in the employer’s
decision to impose the adverse action.” (Omnitrans, supra, PERB Decision No. 2121-

42
M, p. 9.) PERB considers direct evidence, circumstantial evidence, or a combination.
(Id. at p. 10.) Direct evidence is rarely attainable, and in any event, there is no
hierarchy between direct and circumstantial evidence, as we consider all evidence for
its persuasive value. (Id. at pp. 9-10; Los Angeles County Superior Court (2018)
PERB Decision No. 2566-C, p. 20, fn. 13.)
While PERB considers all relevant facts and circumstances in assessing an
employer’s motivation, we have identified the following factors as being the most
common means of establishing a discriminatory motive through circumstantial
evidence: (1) timing of the employer’s adverse action in relation to the employee’s
protected conduct; (2) disparate treatment; (3) departure from established procedures
and standards; (4) an inadequate investigation; (5) a punishment that is
disproportionate based on the relevant circumstances; (6) failure to offer a
contemporaneous justification, or offering exaggerated, questionable, inconsistent,
contradictory, vague, or ambiguous reasons; (7) employer animosity towards union
activists; and (8) any other facts that might demonstrate the employer’s unlawful
motive. (See, e.g., City of Sacramento (2019) PERB Decision No. 2642-M, p. 21;
San Joaquin Delta Community College District (1982) PERB Decision No. 261,
pp. 5-9.)
We join the ALJ in finding that Semko did not offer an inconsistent reason for
Halvorson’s non-selection when he told Halvorson over the phone that the City did not
base its decision solely on the second interview and instead discussed and reviewed
many factors. The record does not persuade us that the City neglected to consider
the departmental interview when it decided between the candidates, nor does the

43
record reveal that Semko mischaracterized the relevant factors. Semko’s explanation
to Halvorson matches the fundamental justification the City has consistently offered for
not promoting Halvorson: its belief that Morrison was a better overall candidate.
Halvorson has not pointed to, and we cannot find, any indication that the City has
presented a reason for its decision substantively different than that which Semko
expressed during his call with Halvorson.
Similarly, we agree with the ALJ in finding that the City did not contravene
established procedures when Semko and Salerno failed to review the City’s Selection
Guide before interviewing the final three CPC candidates and failed to take notes
about the interviews. The City does not normally distribute the Selection Guide to
hiring departments when they are recruiting for new positions, and there is no
evidence that the City departed from its actual note-taking practices in this case.
Salerno had never heard of the Selection Guide, despite participating in over 100
interviews. Even if the City departed from its written policies, as expressed in its
Selection Guide, the record shows that such divergence was frequent and ongoing
well before the events of this charge. Such a pre-existing inconsistency does not
necessarily supply evidence of unlawful motive, and here we find that it does not.
(See City of Yuba City (2018) PERB Decision No. 2603-M, p. 16.)
Halvorson challenges the ALJ’s conclusion that the City did not have a practice
of promoting the highest ranked candidate from the initial interview, and the resulting
conclusion that there was no departure when the City chose Morrison even though
she ranked third after the initial interviews. In support of his argument, Halvorson cites
to a 2011 declaration from Wynn stating that in “the Police Department, the person

44
who receives the highest score on a Eligibility List is typically selected for the
vacancy.” Even were this statement credited, it would not establish that it was the
Department’s practice to fill open positions solely on account of applicants’ ranking at
the close of the initial interview, before the departmental interview. Moreover, Wynn
clarified at hearing that it was now her belief that the highest ranked initial candidates
are not necessarily selected in the end, and Peters explained that the City follows a
“rule of three,” in which the hiring department must consider each of the top three
initial candidates. Semko testified that the City had passed him over for a promotion
in an instance where he was the top ranked initial candidate. This evidence undercuts
the argument that the Department’s practice was always to choose the candidate who
had been ranked highest after the initial interview. Halvorson also ignores that he tied
with Steers for rank one at the initial stage, and that Steers, who apparently had not
engaged in similar protected activity, also failed to get the promotional position.
Furthermore, the record reflects that the City had a policy of not disclosing the
final three candidates’ initial rankings to the hiring department. Such a policy would
make it essentially impossible for the City to have had the practice Halvorson alleges.
Halvorson challenged whether the City’s practice was in fact to provide a list of the
final three candidates in alphabetical order rather than by their initial rankings.
However, Halvorson has marshalled insufficient evidence to support his challenge.
Halvorson points to an exemplar in the Selection Guide, which lists the final three
candidates for a position in non-alphabetical order. As noted already, however, the
record does not reveal that the Department normally refers to the Selection Guide
when filling vacant positions. Moreover, the Selection Guide does not suggest that the

45
names of the final three candidates should be sent to the hiring department in ranked
order. An exemplar in the Selection Guide, while helpful to Halvorson, does not
overcome credible testimony regarding the City’s actual practices.
Halvorson also relies on a portion of the City’s Handbook stating that “[f]or a
promotional examination, and after the scores have been adjusted to include the
appropriate credit for seniority, the employees will be listed in the rank order of their
scores.” This excerpt is not persuasive evidence that the City’s policy was to report
candidates for departmental interviews by their initial rankings. Notably, this portion of
the Handbook does not state that this list must be conveyed to the hiring department,
and there was no testimony to support such an interpretation. In light of the consistent
testimony from Semko and Salerno that the hiring department does not learn the rank
of the final three candidates for an opening, we find Halvorson has not shown that the
City departed from established procedures when it delivered the list of the final CPC
candidates in alphabetical order.
There are two nexus factors that we assess differently from the ALJ. We turn
now to those factors.
A. Timing
One important circumstantial factor when assessing the presence or absence of
an unlawful motive is the relative timing of a charging party’s protected activities and a
respondent’s adverse action. (Adelanto Elementary School District (2019) PERB
Decision No. 2630, p. 13.) We have repeatedly noted that adverse action taken shortly
after an employee’s protected activities tends to suggest more strongly that the two are
linked, and this inference weakens as the gap in time grows. (Ibid.) However,

46
irrespective of whether the timing evidence is strong or weak, timing alone is typically
not determinative (ibid), and when assessing the relative strength of timing as a factor,
there is no “‘bright line’ rule for determining how close in time the protected activity
must be to the retaliatory conduct.” (Regents of the University of California (UC Davis
Medical Center) (2013) PERB Decision No. 2314-H, p. 12.) Thus, while a charging
party typically needs more than just timing evidence to prevail, if the timing evidence is
weak then a charging party will normally need to marshal a stronger array of other,
non-timing evidence. (See, e.g., id., pp. 12-13 [“[P]roximity in time between the
protected activity and the adverse action goes to the strength of the inference of
unlawful motive, but is not determinative by itself.”]; Metropolitan Water District of
Southern California (2009) PERB Decision No. 2066-M, p. 12 [“[C]loseness in time (or
lack thereof)” is “not determinative in itself”]; Regents of the University of California
(1998) PERB Decision No. 1263-H, adopting proposed decision at p. 68 [one year gap
between protected activity and later adverse action is “some evidence” supporting a
retaliatory motive, “but it is weak.”].)
We therefore continue to reject any bright line finding that certain time lags are
so remote that timing alone could defeat a retaliation claim, irrespective of the other
evidence. Indeed, even where an employee engages in protected activity for “a long
period of time without incident,” such timing does not necessarily undercut the
employee’s claim. (Chula Vista Elementary School District (2011) PERB Decision
No. 2221, p. 17.) This may be true, for instance, because there may not be “a single
triggering event” (ibid.), and animus may instead build over time. (See also Alisal
Union Elementary School District (2000) PERB Decision No. 1412 [significant gap in

47
time did not aid employer given lengthy history of PERB litigation between parties].)
More to the point in these circumstances, management had no opportunity to choose
between Halvorson and other promotional candidates until well after he began
engaging in protected activity. Where a realistic possibility of discrimination does not
arise soon after protected activity, the timing factor has less relevance. (American
Thread Co, v. NLRB (4th Cir. 1080) 631 F.2d 316, 322 [timing of discharge years after
protected activity did not provide the employer with a meritorious defense, because
employee had a flawless record for those years, and employer was therefore “lacking
a pretext to discharge him” until much later].) In this case, then, we do not find timing
to be a particularly probative factor one way or the other.16
B. 	Manager Statements as Evidence of Animus
Halvorson relies heavily upon alleged management statements suggesting that
unlawful animus could have been present at a sufficient level for such animus to
________________________
16 Although PERB precedent protects representational rights to a greater extent
than corresponding precedent under federal law governing private sector labor
relations, we consider relevant federal precedent for its persuasive value when it is
consistent with California authority. (Contra Costa Community College District (2019)
PERB Decision No. 2652, p. 27, fn. 17.) Here, we decline Halvorson’s request that we
follow the reasoning in Marcus Mgmt. (1989) 292 NLRB 251, primarily because the
facts there are distinguishable. In that case, the employer initially resolved to
terminate an employee a few days after he exercised protected activities but was then
advised that it should wait six months before taking action, in order to mitigate
litigation risks. Subsequently, the employer implemented a “game plan” to remove this
employee for superficially non-retaliatory reasons, which it did around six months later.
(Id. at pp. 260 & 262.) On those facts, the National Labor Relations Board held that
the “considerable amount of time [that] passed between union activity on [the
employee’s] part and the discharge” did not detract from a showing of unlawful motive
because “the only thing that prevented his discharge from taking place immediately
was fear of a lawsuit.” (Id. at. p. 262.) Here, there are no facts suggesting that the
City sought to delay or obscure an earlier decision to retaliate against Halvorson.

48
qualify as a motivating or substantial factor behind the City’s promotion decision. In
discussing this issue, the proposed decision cited City of Oakland (2014) PERB
Decision No. 2387-M (City of Oakland) for the proposition that PERB cannot consider
manager statements as evidence of animus unless such statements are themselves a
threat or reprisal. Specifically, the ALJ cited City of Oakland’s recitation of statutory
provisions declaring that an employer’s expression of views, arguments, or opinions
“shall not constitute, or be evidence of an unfair labor practice . . . unless ‘such
expression contains a threat of reprisal, force, or promise of benefit.’” (City of
Oakland, supra, PERB Decision No. 2387-M, p. 26, citing the National Labor Relations
Act (NLRA)17, 29 U.S.C. § 158, subd. (c), and the Higher Education Employer-
Employee Relations Act (HEERA)18, Gov Code § 3571.3, emphasis in original.)
However, we do not believe that City of Oakland categorically prohibits us from
considering employer statements in context, as part of a nuanced evaluation of an
employer’s motive. For instance, City of Oakland explicitly noted that “expressions of
anti-union sentiment by an employer or one of its agents may support an inference of
unlawful motive in a discrimination or retaliation case,” citing PERB precedent for that
proposition. (City of Oakland, supra, PERB Decision No. 2387-M, p. 32.) Moreover,
while City of Oakland repeatedly found decisions interpreting the NLRA to be
persuasive (see, e.g., id. at p. 26), such NLRA precedent supports the interpretation
we clarify in today’s holding: “[A]n employer’s expression of views or opinions against
a union, which cannot be deemed a violation in and of itself, can nonetheless be used
________________________
17 The NLRA is codified at 29 U.S.C. section 151 et seq.
18 HEERA is codified at Government Code section 3560 et seq.

49
as background evidence of antiunion animus on the part of the employer.” (CSC
Holdings, LLC (2017) 365 NLRB No. 68, p. 17.)
Furthermore, we note that the ALJ wrote without the benefit of the Board’s more
recent decisions applying City of Oakland and explaining that an employer’s
statements may or may not be evidence of an unlawful motivation, depending on the
circumstances, irrespective of whether they qualify as threats or promises. In City of
Arcadia (2019) PERB Decision No. 2648-M, p. 30, for instance, we applied City of
Oakland and noted that “a manager’s remarks may or may not constitute persuasive
evidence of animus in a discrimination case, depending on all the relevant
circumstances.” Likewise, in State of California (Department of Correctional Health
Care Services) (2019) PERB Decision No. 2637-S, pp. 15-16, we noted that City of
Oakland did not exclude an employer’s “embittered response” to protected activity
from constituting evidence of nexus.19
________________________
19 While we consider all management statements, among many other factors, in
assessing nexus (and in assessing the employer’s affirmative defense in mixed motive
cases), the persuasive value of particular management statements will vary depending
on differing contexts. In City of Oakland, for instance, a manager was responding to a
personal attack against him, and we noted that mitigating factor as part of our finding
that his statements were not particularly persuasive proof of the charging party’s
allegations. (See City of Arcadia, supra, PERB Decision No. 2648-M, p. 30
[discussing City of Oakland, supra, PERB Decision No. 2387-M, pp. 22-26]; State of
California (Department of Correctional Health Care Services), supra, PERB Decision
No. 2637-S, pp. 15-16, [discussing City of Oakland, supra, PERB Decision No. 2387-
M, pp. 22-26, and distinguishing circumstances where manager’s “embittered
response” to protected activity was not in the context of a personal attack against the
manager].) In the instant case, the alleged manager statements showing animus were
not in response to personal attacks. This constitutes a further basis for departing from
the ALJ’s reliance on City of Oakland.

50
The Board’s fullest explanation of this interpretation arose in another case that
post-dated the proposed decision in this matter, California Virtual Academies (2018)
PERB Decision No. 2584. There, the Board explained:
“We have recognized that an “employer may freely express
or disseminate its views, arguments or opinions on
employment matters, unless such expression contains a
threat of reprisal or force or promise of benefit.” (Hartnell
Community College District (2015) PERB Decision No.
2452, p. 25 (Hartnell).) But we have typically applied this
standard to determine whether the employer’s speech
interfered with employee rights. (See, e.g., ibid.; Chula
Vista City School District (1990) PERB Decision No. 834,
pp. 10-13.) We have never applied it to determine that an
employer’s hostility toward collective bargaining or other
protected activity is off limits for purposes of evaluating
unlawful motive. (Cf. Sonoma County Junior College
District (1991) PERB Decision No. 895, adopting proposed
decision at p. 21 [finding animus based on administrator’s
statements at hearing that he was “not pleased” that
employees were organizing because collective bargaining
would “endanger” relationship between management and
employees].) Nor has the National Labor Relations Board
(NLRB). (See CSC Holdings, LLC (2017) 365 NLRB No. 68,
*17 [“[A]n employer’s expression of views or opinions
against a union, which cannot be deemed a violation in and
of itself, can nonetheless be used as background evidence
of antiunion animus on the part of the employer”].)”
(Id. at p. 29.)20
________________________
20 California Virtual Academies, supra, PERB Decision No. 2584, is currently
subject to review in the California Court of Appeal, pursuant to a writ of extraordinary
relief under Government Code, section 3509.5. A pending writ, however, does not
prohibit PERB from rearticulating the principles from the challenged decision while
appellate litigation is ongoing. (San Diego Housing Com. v. Public Employment
Relations Bd. (2016) 246 Cal.App.4th 1, 12; South Bay Union School Dist. v. Public
Employment Relations Bd. (1991) 228 Cal.App.3d 502, 507.) Moreover, the writ in

51
It is logical to treat employer statements differently in the interference and
discrimination contexts. In assessing a prima facie interference case, motive is
normally not at issue, and we must determine whether an employer statement is itself
a violation, irrespective of motive. In such cases, a manager’s statement “causes no
cognizable harm to employee rights unless it contains threats of reprisal or force or
promise of a benefit . . . Thus, the charging party must show that the employer’s
communications would tend to coerce or interfere with a reasonable employee in the
exercise of protected rights.” (County of Riverside (2010) PERB Decision No. 2119-
M, p. 17, citations and internal quotation marks omitted.) In contrast, in a
discrimination case, we must determine motivation, often from circumstantial
evidence. Therefore, “context is always relevant,” and we look at “any other” fact or
circumstance that may help us resolve the fundamentally difficult task of determining
intent. (County of Santa Clara (2019) PERB Decision No. 2629-M, p. 11 and adopting
proposed decision at p. 30].)
Although we depart from the proposed decision to the extent it suggested we
are confined to viewing a management statement through the narrow lens of whether
it involved a threat or promise, we find no need to make credibility determinations
regarding any of the disputed management statements. Even assuming for the sake
of argument that we were to credit most or all of the testimony about various alleged
statements showing management held unlawful animus against Halvorson due to his
protected activities, and that such evidence established a prima facie case of
________________________
California Virtual Academies does not challenge our finding that statements of anti-
union animus may serve as circumstantial evidence of retaliatory nexus.

52
retaliation, the City still ultimately proved by a preponderance of the evidence that
protected activity was not a but-for cause of the City’s decision. We explain below
why we are persuaded that the City proved its affirmative defense.
II. 	Affirmative Defense Analysis
Halvorson first asserts that the ALJ relied on arguments that the City never
offered. In particular, Halvorson claims that while the City tendered Morrison’s
purported superior qualifications to the ALJ, it did not follow through with the second
aspect of its affirmative defense and show that this assessment of the candidates’
relative merit was the actual reason the City chose Morrison over Halvorson. We
disagree.
Once a party pleads a general theory of violation (or, as here, a defense),
PERB employs a flexible approach to determining whether the evidence presented at
hearing supports the parties’ claims. (See e.g. San Diego Community College District
(2019) PERB Decision No. 2625, adopting proposed decision at p. 19; Bellflower
Unified School District (2017) PERB Decision No. 2544, pp 5-6.)21 This is not to say
that a party cannot waive arguments by failing to raise them with the ALJ. (Colusa
Unified School District (1983) PERB Decision No. 296, p. 4.) We rather merely hold
that when ALJs are analyzing unfair practice charges through well-established legal
tests such as the Novato framework, they need not ignore legally salient facts even if
a party has not specifically urged that they be considered or has failed to offer
________________________
21 These principles certainly hold true in discrimination and retaliation cases,
where “the trier of fact may consider the totality of evidence and draw inferences
reasonably justified therefrom.” (California State University, Hayward (1991) PERB
Decision No. 869-H, adopting proposed decision at p. 23, fn. 13 (CSU); see also Los
Angeles Unified School District (2016) PERB Decision No. 2479, pp. 29-30.)

53
arguments as to their relevance. This practical, fact-based approach to deciding
unfair practice charges mirrors the recognition in California law that parties make
arguments “largely for the convenience of the reviewing courts [as they are]
empowered to decide a case on any proper points or theories, whether urged by
counsel or not . . . and will exercise that authority under fair procedure in an
appropriate case.” (McManis v. San Diego Postal Credit Union (1998) 61 Cal.App.4th
547, 559.) As we recently noted, when ALJs compose proposed decisions they are
“expected to base their factual findings and legal conclusions on the record before
them and on current PERB precedent.” (County of Riverside (2018) PERB Order
No. Ad-469-M, p. 7.) We do not hold that an ALJ is in error for doing so.22
But even if we agreed with the theoretical underpinnings of this exception, we
would still conclude that in this case the ALJ did not improperly look beyond the City’s
arguments when deciding whether it had established its affirmative defense. The
record is clear that the City sought to convince the ALJ that it chose Morrison based
on its legitimate belief that she was the best candidate. In both its Answer and
Amended Answer, the City pleaded as an Affirmative Defense that its actions “were
taken for legitimate, business-related reasons, and were not taken for a retaliatory
reason or because of the Charging Parties’ protected activities.” The City then
included a subsection in its Post-Hearing Brief entitled: “The City Had Legitimate
Business Reasons for Selecting Someone Other Than Halvorson for the CPC
________________________
22 Nothing in this decision alters PERB’s unalleged violation doctrine. Nor do
we alter precedent noting that a charging party may rely on indicia in a bad faith
bargaining case without pleading such indicia. (See, e.g., City of Davis (2018) PERB
Decision No. 2582-M, pp. 10-17.

54
Position, Which Were Not Pretext.” There, the City argued that it “has met its burden
of proof in this case” because the evidence purportedly showed that Morrison was a
stronger candidate than Halvorson, this distinction became evident to the City when
Salerno and Semko assessed the candidates, and Halvorson could not show that the
City’s decision to select Morrison was pretextual. It is evident that the City wished to
persuade the ALJ that it actually selected Morrison because it believed that she would
make a better CPC than Halvorson.
Halvorson also raises a series of exceptions related to the substance of the
ALJ’s decision to accept the City’s affirmative defense. These contentions fail to
provide persuasive grounds for overturning the proposed decision.
Halvorson challenges the ALJ’s finding that CPC candidates could qualify for
the promotion if they either had attained a bachelor’s degree, or, alternatively, had
enough relevant work experience. Halvorson, who holds a bachelor’s degree in
writing and professional history plus a master’s degree in film and writing, claims that
a bachelor’s degree was an absolute requirement for the CPC position. He therefore
asserts that the City contravened its own specifications, and/or hired a less qualified
candidate. Halvorson bases this position entirely on the text of the first question of the
Supplemental Application, which states that the CPC position “requires graduation
from an accredited college or university with a [b]achelor’s degree.” Halvorson
contends that this statement from the Supplemental Application should be interpreted
to override the Job Announcement’s allowance of substitute work experience, because
the City’s Handbook states that “[s]upplemental applications may be used to more
specifically identify key skills, knowledge or abilities.” Halvorson reads too much into

55
these documents. We do not agree that contradictory information in a supplemental
application necessarily supersedes specifications in an original Job Announcement.
Moreover, the fact that the Handbook cursorily describes supplemental
applications as specifying key requirements does not mean that information in this sort
of document necessarily must predominate over specifications stated elsewhere.
Indeed, the testimony received at hearing points to a different conclusion. When
Wynn and Peter testified about the discrepancies between the Job Announcement and
the Supplemental Application, they explained that the City intended that candidates
could qualify for the CPC position if they had a relevant bachelor’s degree or
comparable substitute work experience. There was no contrary testimony. We thus
agree with the ALJ that the CPC position did not require candidates to hold a
bachelor’s degree.
Halvorson asserts a related argument, claiming that his educational background
made him a superior candidate. But educational background is only one relevant
factor. When Semko and Salerno were conducting the second interview, they were
not focused on the candidates’ educational backgrounds, and the weight of the
evidence does not tend to support an argument that they would have had a different
focus but for Halvorson’s protected activity. The fact that Halvorson had earned both
a bachelor and master’s degree thus does not persuade us that he was the best fit or,
most importantly, that his protected activity was the but-for cause of the City’s
decision.
Halvorson also claims that the City could not have legitimately found Morrison
to be a more qualified applicant for the CPC position, because she did not have a

56
background in law enforcement akin to his own background. This argument, however,
ignores the qualities the City was seeking for the new CPC. In elevating law
enforcement experience over other factors, Halvorson emphasizes that the Job
Announcement includes various references to crime prevention when specifying the
CPC’s many minimum qualifications and anticipated duties, and he further argues that
the placement of those references highlights their importance. However, the record
does not reflect that qualities listed earlier in the job announcement are necessarily
more important than qualities listed later.
We have considered the record carefully and determined it is more likely than
not that law enforcement experience, even in combination with educational
background, legitimately did not outweigh other qualities the City sought, such as
knowledge of “emerging technologies,” “effective customer service techniques,” and
“effective public speaking and education techniques.” We specifically credit Semko’s
testimony that he desired a candidate who would be a “self-starter,” as well as
“comfortable representing their department out in front of the community, speaking to
the department’s mission in crime fighting, [and] leading community events.” The bulk
of the questions Semko composed for the departmental interview reflect a similar
preference for an applicant who, above all, could deliver information to and engage
with the wider community. Tellingly, none of the witnesses at hearing testified that
candidates’ law enforcement experience was a principal consideration for the City.
Contrary to Halvorson’s suggestions, the record shows that the City ultimately was
more concerned with the candidates’ communication skills and ability to organize
large-scale public events than their law enforcement experience and educational

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background. We do not find that unlawful animus caused the City to prioritize these
qualities.
Of the final three candidates, Morrison best matched the qualities the City
sought. At the departmental interview, Morrison informed Semko and Salerno of her
recent experience as a Zero Waste Assistant planning large-scale events for the City’s
RRR division. Morrison further indicated that she herself had developed plans,
arranged logistics, and procured personnel for these events—all of which were
experiences that fit with Semko’s desire for the CPC to be a self-starter. Morrison also
conveyed her facility with using social media in a professional capacity, which,
according to Semko, also “was very important as we were at the time and still engaged
in a very proactive social media campaign within the Police Department, and we need
somebody very, very strong in those skills, among other things.” The job description for
Morrison’s former Zero Waste Assistant position supported her testimony about that
role. Together, this evidence shows that before Morrison applied, she had extensive
recent experience organizing and promoting community-wide educational events.
Semko and Salerno credibly testified that Halvorson’s interview was less
impressive. Halvorson counters that his testimony successfully rebutted these accounts
of his poor interview performance. We agree with the ALJ that it did not. Indeed,
Halvorson admitted to “kicking” himself after the interview for not raising prior
experiences with community relations while serving as a Ranger. He also admitted that
most of his event planning experience occurred well before he applied to be a CPC.
Halvorson also did not aid his case by claiming that he “worked with” Semko at the
City’s Relay for Life. This is because Semko knew, and credibly testified, that

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Halvorson’s participation in the Relay for Life was confined to serving as one of the
approximately 50 team captains who worked off pre-prepared informational packets
when assisting with this event. The record is clear that Halvorson did not have any role
in planning or organizing this event. On redirect examination, Halvorson confirmed
Semko’s understanding of his relatively limited role with the City’s Relay for Life.
Halvorson’s initial attempt to inflate his experience did not help him. Like the testimony
of Semko and Salerno, Halvorson’s depiction of his departmental interview
demonstrates that he did not present himself to be more qualified than Morrison.
Semko and Salerno consistently and credibly testified they each concluded,
independently, that Morrison was by far the best of the final three candidates, and they
each therefore recommended that she be selected. We weigh this evidence against the
above-noted evidence of animus. Having assessed all relevant facts, we find by a
preponderance of the evidence that the only but-for cause of the City’s decision was
Morrison’s qualifications, including but not limited to her vastly superior performance at
the interview. We thus conclude the City has met its burden to show that it would have
chosen Morrison over Halvorson even had he not engaged in protected activity.
ORDER
The complaint and underlying unfair practice charge in Case No. LA-CE-925-M
are DISMISSED.
Members Banks and Paulson joined in this Decision.