Jaramillo V. County of Orange

In 1996, George Jaramillo met Mike Carona. They became friends, and Jaramillo served as Carona’s campaign manager in his run for Orange County sheriff. When Carona was elected, he appointed Jaramillo as one of four or five assistant sheriffs to serve immediately under Carona. Right before his appointment at the very end of 1998, Jaramillo was asked to and did sign what is described by the court as a “formal ‘waiver of rights’…” that told Jaramillo that he was agreeing to serve at will, i.e., “solely at the pleasure” of the sheriff. On February 28, 2000, Jaramillo signed another waiver that affirmed that he served solely at the “pleasure and discretion” of the sheriff. It was somewhat more specific about the rights that Jaramillo was waiving and contained a provision for a severance package of 90 calendar days of pay and health benefits, should he be terminated by the sheriff.

Both in these waivers were short, one-page documents that acknowledged that Jaramillo could be terminated without notice and implicitly referred to existing rights to notice, cause and appeal that was being waived. The documents were clearly a condition of Jaramillo’s appointment as assistant sheriff. Neither of them mentioned any specific statutory rights.

A serious breakdown in the relationship between Jaramillo and Carona ensued. Jaramillo objected to covering up the sheriff’s misconduct and undertaking “errands,” such as interceding with the district attorney on behalf of the teenage son of another assistant sheriff who was accused of serious sexual crimes. At a meeting with Carona in August 2003, Jaramillo told Carona that he wanted Carona’s endorsement for a run for a sheriff to succeed Carona. Carona refused on the basis that Jaramillo was no longer loyal, and an acrimonious exchange occurred during which Jaramillo listed all the things that Carona was doing that he believed were illegal and improper and warned Carona that he would no longer cover up for him. Jaramillo tried to make peace in March 2004 at a wedding, but Carona rebuffed the olive branch. About a week later, Carona called Jaramillo into a meeting with the human resources officer, four other sheriffs, and the county council and asked Jaramillo to resign. When he refused, Carona fired him on the spot and referred to the 2000 document that had classified Jaramillo as an “at-will” employee.

Jaramillo had been a city police officer for 14 years before becoming assistant sheriff and knew his rights under the Public Safety Officers Procedural Bill of Rights Act (California Government Code Section 3300, et seq., “POBRA”). He told Carona that he should have “some sort of hearing,” but he never received one of any kind. On March 17, 2005, on the first anniversary of his firing by Carona, Jaramillo filed suit seeking back pay from the date of his dismissal on March 17, 2004. (The court eventually limited his claim to only extend until the date in January 2007 when he pled no contest to two-state law felony counts, as the no-contest plea would make it impossible for him to continue to work in law enforcement pursuant to Government Code Section 1029.) Judgment was entered from the trial court’s ruling in Jaramillo’s favor and the County of Orange appealed.

The ensuing Appellate Court Opinion filed on November 8, 2011, by the Fourth Appellate District, Division Three (200 Cal.App.4th 811) made it clear that there was no dispute that Jaramillo’s termination was without notice or the opportunity for an administrative appeal and therefore violated POBRA. However, the county argued that the trial court should have disallowed Jaramillo’s claim for back pay for two reasons: First, he was convicted of a felony in 2007, and second, he had waived his rights under POBRA by signing the waivers described above in 1998 and again in 2000. The Court of Appeal did not agree and affirmed the judgment of the trial court below.

With respect to the alleged waivers of POBRA rights, the Court analyzed the decision of the California Supreme Court in County of Riverside v. Superior Court (County of Riverside) (2002) 27 Cal. 4th 793 (“the Riverside case”). It was the only case as of the date of the Jaramillo opinion that had addressed the issue of whether rights under POBRA could be waived at all and, if so, under what circumstances. The parties disagreed over the way in which it should be applied to Jaramillo’s case. The Riverside court held that there could be no “blanket” waivers of POBRA rights. However, it looked at the waiver before it narrowly. The majority of the justices ruled that there may be a possibility of a valid “limited waiver” of POBRA rights. However, that kind of a waiver would have to be very narrow, so as to serve the public purpose of POBRA and not undermine it.

The facts in Riverside were unusual. When a city’s police department was disbanded and the county took over responsibility for enforcing the law within the city, the county offered immediate but probationary employment to former city officers. The conditions of probation included a waiver of the right the city officers had under POBRA to review any background investigation. The Riverside court defined the issue before it as to whether “an ‘applicant’ can waive POBRA rights ‘with respect to a background investigation, while otherwise retaining’ other rights under POBRA.” While refusing to endorse a waiver of the city officers of all POBRA rights, the Riverside court distinguished between files relating to pre-hiring conduct and post-hiring conduct and approved enforcement of a waiver of POBRA rights only with respect to the investigation of matters that arose prior to employment with the county (and limited to one year). The Riverside court held that such waivers would both serve the public purpose of POBRA and not undermine it. After analyzing Riverside’s holding in detail, the Jaramillo court went on to hold that the waivers signed by Jaramillo did not fit within the type of “limited” waivers that were left as possibilities. The first reason was that the waivers were, in substance, blanket waivers of all-important rights under POBRA. The second was that the waivers were entirely prospective. Jaramillo had no reason to think that the sheriff was angry with him when he signed. Third, and most importantly, the waivers undermined POBRA as opposed to serving it.

Enforcing these kinds of waivers would allow an easy way around the protections applied to high-ranking peace officers by POBRA, which applies even to chiefs of police. “To make a high-ranking peace officer an at-will employee is, in effect and as happened here, to strip that officer of the rights to notice of discipline and an administrative hearing that are central to POBRA.”

The Jaramillo judgment contained only two awards of $50 each for the two violations of POBRA in addition to the back pay award. However, it did include an injunctive provision that requires the county to amend its waiver forms for executive management to expressly include language that no POBRA rights are included in the waiver. The court found this injunctive relief appropriate under Government Code Section 3309.5 (d)(1), which allows the court to render appropriate injunctive relief “to prevent future violations of a like or similar nature” when there has been a POBRA violation. The Jaramillo court held that the relief was appropriate even though Jaramillo himself will never be employed by the county again.

The court also decided that Jaramillo’s warning to Carona that he would stop covering up for him did fit within the protections of Labor Code Section 1102.5, the whistleblower statute, even though it was a report by an employee only to his superior who was actually committing the violations of a state or federal statute. In addition, it also refused to apply the equitable defense of “unclean hands” based upon Jaramillo’s legal troubles subsequent to his termination and also rejected the county’s arguments that the doctrine of “after-acquired evidence,” in this case Jaramillo’s subsequent indictment and plea to two-state law felonies, should bar his award of back pay. Finally, it held that an award of attorney fees to Jaramillo’s counsel was proper under the Code of Civil Procedure Section 1021.5 (the private attorney general statute).

A Petition for Review has been filed with the California Supreme Court. In addition, there is also a Pending Request for Depublication of the Court of Appeal’s Opinion. Stay tuned!