Lake County Correctional Officer’s Termination Reversed

A second career for Lake County Correctional Officer Melissa Wallahan is safe after the Lake County Board of Supervisors adopted a proposed decision, reversing her termination. Wallahan was reinstated by the Lake County Board of Supervisors on March 6, 2012, with back pay and an order that Sheriff Frank Rivero expunge any record of the dismissal from the officer’s personnel file.

County Fails to Offer Exhibits or Key Testimony

Melissa Wallahan’s hearing before arbitrator Jonathan Monat, Ph.D., in January 2012 was remarkable for the lack of evidence adduced against her by the employer. The County presented only two witnesses to prove its case. The first witness was a sergeant who purported to stand in the place of both the Internal Affairs investigator and Sheriff Rivero. However, this sergeant testified he had not reviewed Wallahan’s file until less than a month before the hearing. He had no involvement in the investigation or the decision to terminate Wallahan. The hearing officer summarily excused him, allowing no substantive testimony on the investigation or the disciplinary action.

The only other witness called by the County was a California Department of Insurance investigator who had interviewed Wallahan. In his proposed decision, the hearing officer said he found the investigator to be “less than credible.” He said he “did not seem to be forthright” and “appeared to be telling the story he wanted to tell rather than providing testimony of what actually occurred in the interview” with Wallahan. He even said the investigator, the only witness who testified for the County, showed signs of “selective recall of only those details favoring his opinion.”

In any disciplinary appeal, the operative document from which the employee appeals is called the Final Notice of Discipline. This document is entered into evidence by the employer to explain the reasons for the final decision of the Department head — in this case, Sheriff Frank Rivero. Likewise, the Notice of Proposed Discipline is typically entered into evidence to show the reasons the disciplinary action was taken and to affirm the employee was afforded due process and the opportunity for a pre-disciplinary hearing.

But Lake County’s deputy County counsel failed to produce either the Notice of Proposed Discipline or the Final Notice of Discipline in Melissa Wallahan’s hearing. The hearing officer was left to guess at the reasons for the termination. He concluded, “The Internal Affairs Investigation Report is not in and of itself sufficient proof.”

Not to be outdone by the County’s lack of evidence, Sheriff Rivero did not testify at the hearing. Instead, he sent the sergeant, who was eventually dismissed by the arbitrator, to testify in his place. His hubristic, dismissive attitude was not missed by the hearing officer. As Mr. Monat put it, “The Appellant is entitled to face and cross-examine the Sheriff whose decision it was to terminate her employment.” Without Sheriff Rivero’s testimony as to the reasons for the termination, the hearing officer simply did not have enough to sustain the disciplinary action.

Hearing Officer Finds “Scant Evidence” to Support Dismissal

While the hearing officer found the only witness the County presented to be less than credible, he found Wallahan to be “truthful” and said she “gave very credible testimony about her actions in this incident.” Wallahan testified about an agreement we had worked out with the sheriff, converting the proposed termination to a suspension without pay. In an e-mail, Rivero tried to deny making such an agreement, but Wallahan’s testimony and an e-mail contradicting the sheriff’s statements were enough to cause the hearing officer to revoke the disciplinary action.

On March 6, we appeared before the Lake County Board of Supervisors to encourage them to adopt the hearing officer’s proposed decision. After hearing summaries and excerpts from the hearing officer’s decision, as well as a heartfelt plea from Melissa Wallahan, the Board returned a unanimous decision to reverse Wallahan’s termination.

Melissa Wallahan is delighted to be back at work with the Lake County Sheriff’s Office as a correctional officer. She is grateful to the Lake County Correctional Peace Officers’ Association and the PORAC Legal Defense Fund for supporting her through this difficult process.

About the Author

Sean D. Howell is an associate attorney with Mastagni, Holstedt, Amick, Miller & Johnsen. He represented Melissa Wallahan in her administrative appeal before hearing Officer Jonathan Monat and the Lake County Board of Supervisors.