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By PORAC | March 1, 2013 | Posted in PORAC LDF News

Arbitrator Determines that Monterey County Probation Unjustly Issued a Double-Demotion

Senior Associate
Rains Lucia Stern, PC

After a long battle, a Monterey County Probation Department Supervisor learned that Arbitrator David Gaba recommended that the County’s issuance of a double-demotion for his alleged misconduct be reduced to a written reprimand, at most, for minor breaches in the policy.

The Supervisor’s Outstanding History

Prior to the incident that led to an excessive and unjust punishment of a double-demotion, the Supervisor had a long history of working in juvenile corrections settings. Before his employment with Monterey County, he worked for nearly four years at Kern County Probation Juvenile Hall and earned a reputation as a hard-working and fair officer.

In 2000, our client began his employment with Monterey County Juvenile Probation. Due to his exemplary work ethic, enthusiasm for the job and dedication to the juveniles in the institution, he was quickly promoted to Senior Juvenile Institutions Officer. After a highly successful and brief run as a Senior Officer, the Department again promoted him to Juvenile Institutions Supervisor.

During his next 10 years as a Supervisor, our client proved to be a near exemplary employee and manager. At the time of his double-demotion, his performance evaluations consistently noted his excellent work ethic, productivity, integrity, and enthusiasm for the job. In addition, the Department entrusted our client with various specialty assignments, including supervising the Juvenile Honor Guard, expanding necessary education programs for the juveniles and teaching various juvenile justice programs. Further, due to his diligence and dedication, our client never previously received any form of discipline in his nearly 12-year career with the Department, 10 of which were as a Supervisor. Likewise, the Department never before questioned or investigated his work ethic, ability to follow orders or his veracity.

In summary, prior to the discipline at issue, the Supervisor’s behavior, conduct, and abilities were beyond reproach.

Incident that Led to Unwarranted Discipline

For the majority of his career, our client worked at a Departmental facility called the “Youth Center,” which is currently intended to be a maximum-security detention facility. However, this facility was originally a hospital that was later remodeled to a semi-medium security facility. To say that the facility in its current state was not designated for its current use would be an understatement. The facility’s security features are wholly inadequate to meet the needs of the juvenile population, and management has utterly failed to respond to the facility’s evolving security needs. For instance, management failed to install security bars on many of the facility’s windows, did not secure the perimeter of the institution and allowed a front gate to remain unsecure after numerous escapes. As a result, escapes by juveniles at the Youth Center occurred at an alarming rate, both before and after this incident. In fact, the facility was previously closed by state officials, and numerous County and Departmental officials have publicly noted the security deficiencies.

Compounding the severe security deficiencies was the lack of clear direction and oversight. For example, the Youth Center Policy Manual was wildly outdated, as it had not been updated since May 2003 when the facility was serving a very different population with a very different security profile.

As a result of the security deficiencies and mismanagement, Departmental employees, including our client, we’re constantly adapting to the structures and population of the facility. Officers frequently created practices that fit the ever-changing needs of the facility — practices that often deviated from and superseded written policies and directives. Most often, such necessary practices were accepted by management.

On Aug. 28, 2011, our client followed the existing protocol of supervising religious services provided to the juveniles — a practice that replaced the outdated written regulations. On that date, a pastor for the Youth Center arrived to conduct religious services and counsel the juveniles. At the pastor’s request, and as he was trained, our client provided the pastor a confidential room to instruct and counsel the juveniles. Though the room did not have security bars on the windows, it was regularly used for such confidential services. While our client did not remain directly inside of the room to supervise the activities, he had a direct line of sight on the room, positioned himself near it and frequently looked inside the room to ensure the safety of the occupants. This practice allowed for a confidential environment for the juveniles at an institution lacking any confidentiality.

Roughly 30 minutes after our client placed the pastor and juveniles in the room, two chairs were thrown through an unsecured window and six residents escaped. our client responded immediately by ordering another officer to stay with the pastor and remaining juveniles for security purposes and then ran after the fleeing juveniles. Unfortunately, our client was unable to catch the juveniles, who easily squeezed through the insecure front gate. Clearly, had the windows been secured with bars or had the front gate been securely locked, the juveniles would not have escaped.

Following this incident, our client prepared various reports about the incident, while also engaging in a multitude of other tasks. In writing these reports, he made one minor and inadvertent mistake regarding his location immediately preceding the escape. Although his superiors directed other employees to amend their reports to accurately reflect the details of the incident, they denied our client the same opportunity.

Like so many of the other escapes from the Youth Center, this incident garnered a considerable amount of negative publicity. Instead of recognizing that this incident was a product of deficient security features and lack of management oversight, the Department succumbed to public pressures and began a formal investigation into our client’s actions preceding the escape.

Investigation and Advisory Arbitration Award

After a rather cursory internal investigation into this incident, the Internal Affairs investigators determined that our client violated numerous Youth Center Manual policies regarding failing to adequately supervise the religious services. In doing so, the investigators completely ignored that their report indicated that our client conducted himself like any other officer and according to his training. Nearly all of the other witness officers interviewed followed the same practice as our client when supervising religious services. The investigators also glaringly overlooked the fact that management admittedly condoned this routine practice.

In addition, the Internal Affairs investigators held the opinion that our client’s unintentional mistake in a report about this incident indicated an intent to deceive the Department about his location before the escape. As such, and ignoring all of the evidence to the contrary, the investigators sustained our client for making false or misleading statements in an official report.

Overlooking the glaring errors in the Internal Affairs report, the fact that outdated and vague policies were replaced by the known and accepted practice of supervising religious services, that lax management played a key role in the escape and our client’s positive history as a supervisor and dedication to the Department, the Department issued a double-demotion. This discipline resulted in a 14-step salary reduction that was roughly equivalent to a $10,000 per year reduction in pay. With no prior discipline, the Department determined that it was appropriate and fair to demote our client to the rank he held at the time he was hired 12 years earlier.

Unwilling to accept this unjust and excessive punishment, we elected to proceed to an advisory arbitration, the results of which were referred to the Monterey County Board of Supervisors.

After four days of testimony and submission of written briefs, the arbitrator determined that the County not only failed to provide sufficient evidence to sustain many of the findings but also determined that the extreme penalty of a double-demotion, in the absence of any prior discipline, had no legal basis.

With regard to the findings that our client intentionally falsified a report about his location before the escape, the arbitrator stated that everyone makes mistakes; that is simply what our client did. He found that our client had absolutely no incentive to be untruthful, and he had nothing to gain by misrepresenting his location prior to this incident. In short, our client merely made a mistake in a report due to inattention and haste in writing his report. Accordingly, the arbitrator recommended that our client receive nothing more than a written reprimand for this mistake.

The arbitrator similarly concluded that the County lacked any evidence to support the contention that our client failed to adequately supervise the juveniles during religious services. Due to the obsolete policies and archaic facility, officers reasonably and justifiably created necessary practices to supervise the juveniles. Our client simply followed the routine protocol of other officers and supervisors at the Youth Center. Furthermore, the arbitrator concluded that management must bear some responsibility for this incident — the Youth Center in its current state was not designed to hold juveniles that did not want to be there, as evident not only in this escape but also the shocking number of other escapes. Our client should not shoulder the burden of this escape alone.

In the end, the arbitrator did the right thing by finding that a double-demotion was wholly unreasonable in this case, and implored that the County issue, at most, a written reprimand for a minor violation.


As of the date of this article, our client has yet to be made whole and returned to his former rank as a Juvenile Institutions Supervisor. However, our client is confident that, with the continued help and support from the Legal Defense Fund, he will prevail in front of the Board of Supervisors in his fight to regain his supervisory ranks. Our client, along with this author, is grateful for the unwavering support shown by the Legal Defense Fund.

About the Author

Terry Leoni is a senior associate who works in the firm’s Legal Defense of Peace Officers Practice Group and in the Criminal Defense Practice Group. Terry represents public safety officers in administrative, disciplinary, and criminal defense matters.