Careful and Effective Planning and Presentation at Skelly Hearing Results in Recision of Termination

Posted by Harry Stern

Howard Grant is a civilian employee of the Contra Costa County Sheriff’s Department, and a member of the Deputy Sheriff’s Association.

The lion’s share of articles appearing on these pages concern cases involving sworn peace officers. Certainly, the vast majority of our firm’s work is representing working police officers and deputy sheriffs. However, a number of peace officer labor organizations include non-sworn members. PORAC’s Legal Defense Fund provides these members coverage through their affiliations with local DSAs and POAs.

Grant has worked for the sheriff’s office for 13 years. For several of those years, Grant worked in the Sheriff’s Custody Alternative Program, monitoring inmates who were on electronic home detention. When he is not at the sheriff’s office, Grant has a second job as a licensed travel agent.

Grant’s troubles began when one of his supervisors suspected that he was conducting travel business while “on the clock” at the sheriff’s office.

A lengthy investigation ensued: Grant’s direct supervisors interrogated him a total of four times, and even tried to entrap him by sending over employees to inquire about travel arrangements during business hours. Fortunately, Grant did not take the bait. Yet, at the conclusion of the divisional investigation, they recommended that Grant be terminated.

The right of peace officers to address charges leading to recommended punitive action at a Skelly hearing should be familiar to all. However, this right to a hearing is not unique to peace officers. In fact, the Skelly case itself involved a medical doctor. The rights set forth in Skelly are premised on the idea that permanent public employees have a property interest in continued employment. Therefore, any attempt to deprive them of this property interest must be done in accordance with the concept of due process. Accordingly, although not a sworn peace officer, Grant requested the opportunity to address the charges against him at a Skelly hearing before the sheriff of Contra Costa County.

In preparing for the Skelly hearing, Grant and I started with the premise that Grant had indeed made some mistakes. However, after reviewing the investigation materials, it became equally clear that the allegations against Grant were partly the result of personal animus, rather than an even-handed application of reasonable workplace rules. To put it bluntly, the motivation for the investigation did not seem to be Grant’s minor breach of policy, it was that his direct supervisors did not like him.

Since Grant’s supervisors claimed that the genesis of the charges was the fact that Grant was allegedly receiving travel business related telephone calls at work, one important area of inquiry became whether or not his supervisors had attempted to monitor other employees’ telephone calls to see if they were all strictly sheriff’s work related. Not surprisingly, we uncovered evidence to suggest that other employees occasionally made calls about outside activities. Ironically, many of the witnesses against Grant had used his services as a travel agent. On March 8, 2001, Grant and I met with Sheriff Warren Rupf and Commander Tom Young, who supervises personnel matters for the sheriff’s office.

Grant was candid about his mis-steps. While conceding that Grant may have erred, we wanted to demonstrate to the sheriff and commander that the antagonistic environment that Grant worked in should be considered in understanding Grant’s case.

In support of our contention, we had a “smoking gun”: Grant’s yearly evaluation, prepared right around the time that the allegations surfaced, was literally a primer on poor management and lack of sensitivity. Almost the entire narrative portion of the evaluation focused on Grant’s appearance. The narrative went so far as to make extremely inappropriate (and inaccurate) comments about Grant’s hygiene and clothes. The evaluation concluded with a recommendation that Grant “buy clothes that fit, and shower, and shampoo daily.” This outrageous “evaluation” was clearly not an objective reflection of Grant’s work performance, but was rather a personal attack that bordered on “schoolyard bullying.”

To Sheriff Rupf’s great credit, he seemed genuinely concerned about the evaluation in particular and Grant in general. The evaluation, and some other information, put the investigation report into context. I believe that the sheriff’s fundamental sense of fair play was violated by some of the actions taken against Grant. Accordingly, the sheriff and commander rescinded the recommended termination and, instead, transferred Grant to another position and job category within the sheriff’s office without any loss of pay.

Since Grant had no desire to continue working under the hostile conditions at his prior assignment, he was more than happy to make the move. I am pleased to report that Grant has started in his new position and is confident that he will be able to continue his productive career with the sheriff’s office without future problems.

Grant’s case illustrates that the right approach at the Skelly level (assuming of course the decision maker, i.e. chief of police or sheriff, is open-minded) can save time, costs, and the heartache of protracted appeals and hearings.

About The Author

Harry Stern is an attorney with Rains, Lucia & Wilkinson who has been providing representation for LDF members throughout Northern California for six years. Stern is a former police officer with the city of Berkeley.