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Andre Berto re-licensing by CSAC is another stain for the Department of Consumer Affairs

By Zach Arnold | August 22, 2012

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On Tuesday, the Department of Consumer Affairs which oversees the California State Athletic Commission decided to re-license boxer Andre Berto approximately three months after he failed a VADA (Voluntary Anti-Doping Agency) drug test for nandrolone.

Since the drug test Berto failed was not a CSAC official drug test, the regulatory body has the discretion to license him. Legally, they can do so. In terms of public relations, however, it is yet another stink bomb in California thanks to Denise Brown, Awet Kidane, and Kathi Burns. You can thank the Department of Consumer Affairs for this taking place.

CSAC is re-licensing Berto three months after a failed VADA drug test. If Berto had failed a standard CSAC urine drug test for nandrolone, he would have been suspended by California for a year. The difference is that the VADA drug test failure cost him money, whereas a California suspension would have cost him time — but only after the fight with Victor Ortiz had (theoretically) taken place.

For those wondering why there was no public CSAC hearing to have the commission vote on whether or not Berto should be re-licensed… consider it a preview of coming attractions if/when the Department of Consumer Affairs attempts to sunset CSAC and make the decision making process entirely private with no level of transparency for the taxpayers.

Whenever politicians say or do stupid things, it’s best to get out of the way and let them continue to screw up. That’s exactly the case right now in California, which has become a punch line in all of combat sports. This is the same commission that is months behind in reporting event results & fighter suspensions to agencies such as Fight Fax & the ABC (Association of Boxing Commissions).

Through the incompetence & corruption of both DCA & CSAC, Scott Christ breaks through with the correct headline to take away from Tuesday’s events:

Do failed non-commission drug tests really matter?

The answer: they would matter if the commissions cared about cleaning up doping in combat sports. The truth is that they aren’t 100% committed to doing so. Unfortunately, as I’ve pointed out in the past thanks to Keith Kizer’s feud with Dr. Margaret Goodman, that commissions like Nevada & California have no incentive to cooperate with VADA. Failed drug tests cost states money. And, if drug test failures are going to happen, politicians like Kizer want to be able to take the political credit for coming across as tough on doping if it’s the state’s drug testing that catches the fighters. If someone like VADA comes in and busts fighters right under the nose of Nevada and exposes Nevada’s drug testing for what it is, it makes the bureaucrats look bad and they will be out for revenge.

Bureaucrats like Keith Kizer & Denise Brown are always bound to screw up and they count on the media giving them a pass. No more. They want all the political benefits of going to big fights and getting the financial perks of hosting events but never want any of the blame when their incompetence is exposed.

CSAC lost out on Berto headlining Staples Center against Victor Ortiz, which means they saw some dollar signs get flushed down the toilet. I’m not surprised they would try to re-license him — as long as he fights in California soon.

The timing of Berto getting re-licensed by CSAC is actually a blessing in disguise if you want to see more scrutiny get heaped upon DCA by California politicians. There are many state Assemblymembers and Senators right now paying close attention to what is going at Consumer Affairs and they are not happy. If Denise Brown and company want to sunset CSAC and try to take business matters private, they’ll be opening themselves up to scrutiny from the Senate Business & Professions Committee. As fans and media go, we would lose transparency. However, if the Department of Consumer Affairs wants to create a political civil war at the capitol, then they should continue to act the way they are by stepping on the wrong toes.

More incompetence & shady behavior at CSAC exposed

We have plenty of evidence to display publicly about the troubles at the California State Athletic Commission and how interference from the Department of Consumer Affairs has made conditions on the ground worse, not better, at live events.

We’ll have new content soon about box office/manifest incompetence and how it’s cost the state of California hundreds of thousands of dollars. We’ll also have plenty to say about how the new “3 inspector policy” is working out at shows so far. Hint: there’s been some near misses at events and fighters are already finding new ways to cheat.

One of the incredibly dumb moves that the Department of Consumer Affairs has used to try to make the CSAC budget look better is the implementation of coercive contracts of adhesion called Volunteer Service Agreements. If you work for CSAC as an inspector, by law you are considered an intermittent state employee. Many people who work as inspectors at CSAC work for the state of California full-time during the day, which means that their efforts at CSAC get them time-and-a-half for salary plus in-state travel benefits.

So, rather than addressing the core budget issues at CSAC, the Department of Consumer Affairs came up with a ridiculous band-aid approach to stop the bleeding. The Volunteer Service Agreements are contracts being given to inspectors to sign. We have called these deals coercive contracts of adhesion because that’s exactly what they are. You have the state of California, which has been paying inspectors to do their jobs, suddenly coming to inspectors and having them sign these contracts. In a court of law, the disparity of bargaining power between the two sides is so large that a judge would immediately void such a contract and award damages to the inspector(s) in question.

Furthermore, as we’ve stated in past articles, if you are a full-time state employee during the day and you sign one of these deals, all you have to do is keep tabs on the shows you’ve worked and file a claim with the state’s Labor board and more than likely your claim would be processed for back pay.

An example of this in action is California Labor Code 1720.4, which applies to volunteers for state public works projects:

1720.4. (a) This chapter shall not apply to any of the following work:

(1) Any work performed by a volunteer. For purposes of this section, “volunteer” means an individual who performs work for civic, charitable, or humanitarian reasons for a public agency or corporation qualified under Section 501(c)(3) of the Internal Revenue Code as a tax-exempt organization, without promise, expectation, or receipt of any compensation for work performed.

(A) An individual shall be considered a volunteer only when his or her services are offered freely and without pressure and coercion, direct or implied, from an employer.

(B) An individual may receive reasonable meals, lodging, transportation, and incidental expenses or nominal nonmonetary awards without losing volunteer status if, in the entire context of the situation, those benefits and payments are not a substitute form of compensation for work performed.

(C) An individual shall not be considered a volunteer if the person is otherwise employed for compensation at any time (i) in the construction, alteration, demolition, installation, repair, or maintenance work on the same project, or (ii) by a contractor, other than a corporation qualified under Section 501(c)(3) of the Internal Revenue Code as a tax-exempt organization, that receives payment to perform construction, alteration, demolition, installation, repair, or maintenance work on the same project.

The Volunteer Service Agreement deals that DCA is handing out to inspectors are one-page contracts that were created by their Human Resources department in September of 2007 and revised in February of 2008. In other words, deals used for other state agencies and not specifically tailored for CSAC.

Department of Consumer Affairs
VOLUNTEER SERVICE AGREEMENT

I agree to perform the volunteer services described below. By entering into this agreement, I understand that I am an agent of the Department of Consumer Affairs and will conduct myself in accordance with those standards set forth for regular department employees. I will comply with all policies, procedures, rules, regulations, directives and instructions provided by the Volunteer Coordinator. I understand and agree to the following:

1. I will earn no salaries or wages and will not be entitled to unemployment benefits upon termination of this agreement.

2. As a volunteer, I will not be replacing a regular department employee. I do not have civil service status and am not eligible for promotional state examinations.

3. I will be provided with necessary orientation and on-the-job training to prepare for the performance of my duties.

4. I will be covered under State Workers’ Compensation benefits.

5. I will be reimbursed for out-of-pocket expenses, which are authorized by the office Volunteer Coordinator.

6. I will be reimbursed for authorized travel at the rates prescribed by the Board of Control for regular state employees.

7. I may use a state vehicle, when directed, provided that I have a valid California Driver’s License and a good driving record.

8. I may be reimbursed for use of my private vehicle at the current authorized rate, provided it is specifically directed and I have filed an approved certification of insurance (STD. 261) with the Department.

9. I understand that my employment as a volunteer is not effective until I have signed the Oath of Allegiance Form (STD. 689)

10. Either party upon written notification may terminate this agreement.

You can tell that wherever this VSA was originally used, it was meant for people who aren’t full-time state employees. So, in this case, you’re talking about having non-full-time state employee inspectors signing these days and being discriminated against. But… the crazy part is if DCA (via CSAC) had actual full-time state employees sign this kind of agreement because that would open up a whole new can of worms in regards to labor code violations given that full-time state employees are considered civil servants by law.

What happens if a volunteer files a Workman’s comp claim due to an injury on the job? How much would they get paid in terms of salary for job duties and wouldn’t this open up other inspectors under such agreements to file a claim with the state Labor board or in a lawsuit for back pay?

Second, if you’re a state employee in California, you are required to take defensive driver courses frequently in order to operate state vehicles, rental vehicles, or even your own vehicle due to the state’s concerns over issues of liability. Having a ‘good driving record’ doesn’t cut it as a singular requirement.

Third, the VSA asks inspectors who sign the deal to sign an Oath of Allegiance Form. If you work for the state of California, you’ve already signed one. So, what this provision in the VSA is aimed towards are non-full-time state employees who work as inspectors. But, wait, aren’t the full-time state employees the ones who are getting the bigger paychecks as inspectors over the non-full-timers? Correct.

Now, a moment of armchair lawyerly quarterbacking…

If one wanted to consider the Equal Protection Clause in the 14th Amendment of the U.S. Constitution, there may be a reasonable case to make here for inspectors who feel that CSAC is targeting them with the VSAs.

As our tax records report on inspectors revealed, DCA favored certain individuals based on employment status. With the VSAs now being dished out, you have a unique situation where inspectors could demonstrate a case of discrimination when it comes to who gets what event assignments. It would be an unusual case in the sense that we’re not talking about gender or racial or sexual preference discrimination, but the discrimination of non-full-time state employees vs. full-time state employees and who gets work versus who doesn’t is a very real issue with CSAC & the Department of Consumer Affairs.

Don’t confuse this as a Right to Work issue. California is a strong state for labor rights and inspectors who work for the state full-time during the day are union employees. So, asking union employees who work as intermittent state employees (CSAC inspectors) to waive union-negotiated rights is a legitimate point to highlight.

We’ve seen several internal CSAC memos explicitly claiming that non-state employees will get preference for event bookings over full-time state employees. No one in the CSAC front office can deny this, especially if called upon to produce the memos in the deposition process of a lawsuit.

Like parts of this memo, dated June 7th (2012), by Che Guevara:

First off I would like to thank each and every one of you for your understanding and cooperation in these difficult times. We have all been through budgetary cuts in the past, but this one is truly an eye opener. The harsh reality of it is we may never get back to the days of eight to ten inspectors at events. I can honestly tell you it will get worse before it gets better.

As we all experience even more severe cutbacks and reductions we will need to come together more than ever to maintain a respectable level of regulation in the field. It is very important we do not fall into the old ways by being complacent  

Effective immediately, we are again cutting down the number of inspectors at all future events. Pro events will go down to three inspectors, including the lead. Amateur events will be staffed with only two inspectors, including the lead. Management will select inspectors who we consider capable of working with minimal support and supervision. Also, non-state workers will be utilized prior to state workers since their rate of pay is significantly higher than that of a non-state worker.

(later on…)

Athletic Inspectors that are not assigned to work may and are encouraged to work events and weigh-ins on a volunteer basis. We have received approval from DCA to allow inspectors to volunteer their time. If you would like to do this please send contact one of our office staff, Teryn Fleming at Teryn.Fleming@dca.ca.gov so she can provide you with the required paperwork..

Please note that volunteering will not be on a per show basis, you will be placed on a volunteer sheet, George or I will call to see if you are able to work that weekend. There will be no CHERRY PICKING of events. This of course does not mean that you are required to say yes every time you are called to volunteer. If you are selected to work as a volunteer you will be reimbursed for your travel expenses only. But of course please remember the budgetary crisis we are in and to carpool whenever possible. We will be maintaining a list of hours and locations of those who volunteer for special recognition in the future.

Why would CSAC & DCA be keeping a list of hours & locations for inspectors who work as volunteers? Perhaps because the record-keeping might prove useful for a Labor claim or for a lawsuit filed by an inspector for back pay…

You can easily make the case that the Volunteer Service Agreements are coercive contracts of adhesion. The next question, under the Equal Protection Clause, is if certain inspectors working for CSAC are being denied equal treatment based on their day time employment status (state vs. non-state workers).

Here you have a single memo from Che Guevara, the Chief Athletic Inspector, in which he openly says the commission will discriminate against certain inspectors based on their employment status with the state. A few paragraphs later, he’s touting contact information for inspectors to get a Volunteer Service Agreement — an agreement that is a contract of adhesion. How dumb do you have to be to issue a memo like this with such loaded terms & conditions? Furthermore, Che says in the memo that anyone who signs a VSA can’t “cherry pick” which shows they get to work and that they can’t participate on a per show basis. That doesn’t sound like very friendly terms to anyone who ‘volunteers’ now, does it? Juxtapose that with DCA making it clear that they will work and pay non-state employees, no matter their job skills & experience level, over state employees and you have a pretty clear sense of what message is being sent here.

In order for the state to justify the type of discrimination we are talking about here (full-time state workers vs. non-full-time state workers), there is a low legal hurdle called a Rational basis review for the state to jump over in order to try to justify why their actions are legitimate. The claim, as seen in the internal CSAC memo, is that there is a budget crisis and that inspector costs are the reason for CSAC’s financial problems. Of course, what isn’t said is that the mismanagement of budgetary issues in Sacramento and the booking assignments is on DCA. They’re the ones who rubber-stamped the budgetary process. It’s the power brokers from Sacramento who fly all over the state to go to shows.

With all of that said… it should be pointed out that CSAC is not broke. They weren’t broke without a DCA loan to start the 2012-2013 Fiscal Year and they’re certainly not broke now given that DCA got CSAC a loan from the Department of Finance. Plus, Kathi Burns (the current Executive Officer from DCA for CSAC) herself said that revenues were starting to pick up for CSAC. So, the idea that you can start treating intermittent state employees (inspectors) differently now because of budget issues and not pay them what you were in the past without changes to state law and/or State Personnel Board regulations is really asking for legal trouble.

What makes this spectacle such a mess is that California is a very strong, pro-union state where many of the state contracts are negotiated between Sacramento and the SEIU (Service Employees International Union). Now you have Sacramento going to inspectors and asking them to sign Volunteer Service Agreements. And what if the inspectors don’t sign the deals? It’s creating an atmosphere ripe for retaliation by the Department of Consumer Affairs. All one needs to do is take a look at Dwayne Woodard’s lawsuit against DCA to know that DCA has been accused in the past of creating a hostile & discriminatory work environment.

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