Doug Jones and the Temple of Doom
HARRY S. STERN
Rains Lucia Stern St. Phalle & Silver, PC
Doug Jones was elated. An arbitrator had ordered the San Francisco Sheriff’s Department to return him to duty. He had been vindicated and couldn’t wait to put on his uniform again. But unbeknownst to him, Doug’s fight was just beginning.
At 6 feet 8 inches tall, Doug was a big target. Even with a smile to match his outsized frame, he had made enemies at the Department. And these foes were relentless. Doug was also from a prominent local African American family, and perhaps that didn’t sit well with his detractors. Doug had been on the brink before, the victim of inmates who conspired to put a “case” on him with the assistance of an all-too-eager internal affairs unit.
Even when Doug won, he lost. When Doug beat that termination case concocted by the inmates at the Skelly hearing, someone leaked his entire personnel file to the television media. A reporter and camera crew showed up at his house, screeching questions. The reporter apparently wasn’t worried about the fact that Doug and his family lived in the same neighborhood as did some of his clientele at the county jail. Unsurprisingly, the Department refused to investigate the leak, despite it being a crime.
After he disproved the charges made by the inmates, it seemed like every other week brought a new petty allegation: Doug took an extra lunch box from the commissary; Doug was late for an assignment that he never received orders to attend; Doug supposedly popped a door open too slowly from his position in the control room. On and on.
Finally, his antagonists thought they had another shot. The Department combined three of the most picayune charges imaginable into another termination. Internal affairs claimed that he was rude to a public defender, practiced his putting (Doug is an avid golfer) in a closed courtroom and asked a court official that he was friendly with if she did “ab work” to help her ailing back.
Needless to say, after several days of testimony and evidence, an arbitrator ruled that the Department had no grounds to fire Doug. Doug also raised the criminal leak of his records at the hearing as part of the pattern of harassment to which he had been subjected. The Department countered that they had instituted new policies to prevent such breaches in the future. Unfortunately, the new policy took over a year to implement, and in the meantime, his file was leaked again.
The arbitrator ordered that Doug be reinstated with full back pay and benefits. Doug received a date to report back to his old assignment, and it was high-fives and thank-you gifts all around (with no small measure of irony, Doug presented me with a putter and automatic ball return for my office).
And then the letter arrived. It seems that the deep thinkers (who have all since departed) at the Department had come up with a scheme. To take a step back, Doug’s case was originally under the watch of an interim sheriff who was filling in for the elected sheriff, who was on leave due to domestic violence charges being filed against him. However, the criminally charged sheriff returned to work when the board of supervisors ruled that, despite pleading no contest to false imprisonment, the sheriff had not committed actionable misconduct. Then the interim sheriff won the permanent spot. The letter bore her signature.
The letter stated that the binding arbitration hearing that we had won was not actually binding. The sheriff asserted that she had the authority to reject the arbitrator’s decision and promptly did so.
The difference between binding and non-binding, or advisory arbitration, is significant. Permanent peace officers have a statutory and constitutional right to appeal discipline. This right is premised on the concept that once they have passed probation, they have a property interest in continued employment. In order to impinge on this property interest, the employer has to afford them due process — meaning an evidentiary hearing. The Peace Officers Bill of Rights codifies this requirement in Government Code Section 3304.
But neither the POBRA nor the Constitution spells out the exact format of such an appeal hearing. There are minimum elements, including the right to examine witnesses and to secure the appearance of witnesses with subpoenas. Several formats are common in California. Binding arbitration, in the view of many practitioners, is the gold standard because the hearing officer presiding over the case is a neutral party, typically selected from a list whose decision is final. There are scant grounds to challenge an arbitrator’s binding decision; among these are actual fraud and certain other very limited reasons.
On the other hand, a non-binding or advisory arbitration goes back to the original decision-maker for review. Other jurisdictions convene personnel or civil service boards to hear discipline appeals. In both of these formats, the action is reviewable by the Superior Court via a writ of administrative mandate. The benefits of a more expedient and final result should be obvious for both sides.
Although the format of the appeal hearing varies from place to place, the Department and the union are usually clear on which version is used in their agency. Unfortunately, this was far from the case at the SFSD. On paper, the union contract specified an appeals board with both sides choosing a member with a hearing officer presiding and having the ability to break the inevitable ties. However, the board’s decision was only binding if the deputy lost. If the deputy won, then the decision could be disregarded by the sheriff. This is known as a “heads I win, tails you lose” proposition. Since due process has been described as a sliding scale depending on the severity of the discipline, this format might pass muster for minor suspension cases. Termination has been described as the economic equivalent of the death penalty in the law enforcement profession. In other words, in this climate, if you are fired, you are unlikely to ever work in the field again.
Fortunately, for termination cases, the City of San Francisco had a charter provision that offered binding arbitration. For at least 20 years, the Sheriff’s Department and Deputy Sheriff’s Association had used this avenue for termination cases without exception.
In fact, the termination letter served on Doug specified that his appeal rights were through the City charter and City personnel rules, not the “heads I win, tails you lose” sham. At every stage of the proceedings, both sides made it clear that we were engaging in a binding arbitration, from the appeal letter to the language used in the arbitrator’s opinion, down to the fact that the Department paid the full cost of the hearing — a requirement under the charter.
In light of this clear violation of Doug’s rights, we sued in Superior Court to enforce the arbitration award. After some procedural wrangling, including the Department filing a motion for reconsideration, the matter landed in front of the Honorable Richard B. Ulmer.
We compiled 20 years of SFSD arbitration decisions and appeal board opinions in support of the lawsuit, creating an unassailable evidentiary record of the two-track path that had been scrupulously adhered to: termination cases went to binding arbitration under City rules; suspension cases were heard by an appeal board.
Judge Ulmer seemed to have no trouble piercing through the density of the Department’s arguments, which centered on the specious claim that submitting to binding arbitration had been a mistake and that “it was not immediately appreciated” that City rules did not apply. Ultimately, the Superior Court enforced the award, finding the following:
“[The case cited by the Department] is 68 years distant from our case and light-years away on the facts and law. Here … a sheriff’s deputy was notified that his termination appeal would be decided by an arbitrator under Civil Service Commission Rule 122, as such terminations had been for 20 years. The deputy underwent the full rigors of a Rule 122 arbitration, the sheriff’s department confirming Rule 122’s application at every step of the way — before, during and after. Only later did the Department contend that Rule 122 did not apply after all. A clearer violation of fundamental due process is hard to imagine.”
One would think that this was the end of the road, but the Department had other plans: they appealed. To say that this move lacked foundational merit may be the understatement of the year. I wrote the City attorney, in a tone that I usually try to avoid, expressing as much:
“I will be blunt. Your appeal is frivolous, and you have no chance of prevailing. Even if some cataclysmic movement of celestial bodies occurs and you secure a reversal (this won’t happen), the City gains nothing because the sheriff’s decision would still be subject to independent review … There is only one reason for the City filing this appeal, and that is to delay the inevitable and thereby attempt to inflict maximum damage to my client. In effect, you are trying to starve Doug Jones and his family out. This tactic will not work.”
The Department was undeterred. They continued with the appeal. Nearly a year and a half later, the California Court of Appeal issued its opinion. They affirmed the Superior Court’s ruling, confirming the arbitrator’s decision that the Department must give Doug his job back:
“Here, we agree with the trial court that the undisputed facts show that defendant confirmed the applicability of Rule 122 and its arbitration process ‘at every step of the way — before, during and after.’ The notice of termination stated Jones’ appeal was subject to Rule 122. Jones’ notice of appeal was accepted. A letter was sent to the State Mediation and Conciliation Service requesting a list of arbitrators. Defendant participated in the arbitration. Defendant entered into stipulations regarding applicability of Rule 122 and the jurisdiction of the arbitrator. It began processing Jones’ reinstatement. The 2014–2019 CBA appeals process issue was not raised until almost two months after defendant had lost the arbitration. Further, the issue was raised by the new Sheriff Hennessy in her letter purporting to reject the arbitrator’s decision. On this record, we conclude that injustice would result from a failure to apply estoppel here.”
The adage “justice delayed is justice denied,” happily, did not apply to Doug. I am very pleased to report that he is back in uniform and providing for his family — and I got to keep the putter, although I can’t say that it has noticeably improved my golf game.
About the Author
Harry S. Stern is the managing principal at Rains Lucia Stern St. Phalle & Silver, PC. His legal practice is focused on civil litigation and criminal defense, as well as complex administrative matters. Harry has successfully defended peace officers in a number of high-profile criminal trials. He also regularly represents peace officers in internal investigations, administrative hearings, coroner’s inquests, grand jury proceedings and related court actions.