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By PORAC | November 1, 2009 | Posted in PORAC LDF News

Officer Reinstated

Posted by Barry Bennett

It took a threat of sanctions against the Merced County sheriff and his management team to complete the task, but Merced County Correctional Officer John Watters reported back to work on September 8, 2009, after a two-year ordeal.

Thanks to the assistance of the Legal Defense Fund, and his counsel, this author, Watters was welcomed back to his position by the Merced County Sheriff’s Employees Association and its members.

Watters had been employed by the county for approximately nine years when, on September 2007, he was placed on paid administrative leave. The allegation against Watters was that he had made certain derogatory comments at work after he learned that he had been denied a promotion.

In the investigation conducted by the department, most of the “witnesses” agreed that they did not recall, or did not hear, what Watters had allegedly said, but that it was just “John talking.” Nonetheless, the department proposed to terminate Watters, and he went to his Skelly hearing.

At the Skelly hearing, the county’s Skelly officer made a number of odd comments about Watters, most of which were unrelated to the allegations against him, then announced that he was upholding the proposed discipline and would be terminating Watters. Counsel orally advised the Skelly officer that Watters would be appealing.

Remarkably, the Notice of Termination that was issued to Watters, following the Skelly hearing, stated the following, in its entirety:

“Mr. Watters, you are hereby notified that pursuant to Section 8 of the Merced County Human Resources Rules and Regulations that you are terminated from your employment with the Merced County Sheriff’s Department effective today, October 29, 2007 at 9:00 p.m.

“In order to receive our [sic] final paycheck all departmental issued equipment must be turned in. Any questions regarding your termination please contact Commander Thoreson.”

No grounds for termination were stated, nor did the “Notice” even refer to the Skelly letter which Watters had received.

At the time the termination occurred, the county’s Human Resources Rules provided that hearings on disciplinary matters would be conducted by a judge appointed by the State Personnel Board.

Unfortunately, when Watters filed his written appeal immediately after receiving notice of the final decision, the appeal was “misplaced,” and it took several months for the county to even acknowledge that an appeal had been filed. The matter was then sent to the State Personnel Board for assignment to a judge.

Once Watters’ counsel (this author) was notified that the State Personnel Board had in fact been contacted, a Motion to Dismiss all charges was filed, based on the lack of notice. The matter was set for hearing on July 1, 2008, but that hearing was then canceled by the State Personnel Board due to budgetary considerations.

Watters’ counsel then arranged to have a Special Motion hearing on July 18, 2008, to hear the Motion to Dismiss. At the hearing, even though the county had not filed any opposition to the motion, county counsel appeared and objected to the board’s jurisdiction to hear the motion, claiming that there was no provision for a judge to hear such motions.

After county counsel finally acknowledged that any judge appointed by the State Personnel Board (SPB) had the right to hear motions to dismiss, she requested seven days to file additional argument. Over appellant’s objection, the seven-day extension was granted, but no written argument was ever filed.

Another judge was then appointed by the SPB to hear the matter, and she questioned whether or not the county intended to file a written brief as requested. After some additional delay, a Brief was filed, then our opposition was filed, and a ruling was issued on November 5, 2008, granting Watters’ motion to dismiss and ordering him fully reinstated.

In part, the ruling was based upon the erroneous conclusion that Watters was a peace officer, and was therefore immunized from further disciplinary action by application of Government Code Section 3304(d) (the one-year Peace Officers’ Bill of Rights statute of limitations).

The county immediately filed a Petition for Writ of Mandate, naming Watters as the respondent. When it was pointed out to the county that Watters was improperly named as the respondent, because he could not be a respondent in the mandate, the county amended its action to name the administrative law judge (ALJ ) as the respondent but failed to properly serve the ALJ or the SPB.

Realizing that the court was likely to allow the county to amend its Petition, Watters nonetheless moved to dismiss the Amended Petition for Writ of Mandate on the grounds of improper parties and improper service. That motion was granted.

As anticipated, the county then refiled its Petition, naming the State Personnel Board as the respondent in the case, and the matter was then set for hearing.

Watters and his counsel appeared at the hearing on August 3, 2009, only to learn that all judges in Merced County had disqualified themselves for unstated reasons and that an out-of-county judge would have to be appointed.

After some additional delay, the matter was set before the Honorable John DeGroot, Madera County Superior Court judge, on August 24, 2009.

The county argued that Watters had been given all of his Skelly rights, an assertion which, the court noted, Watters did not dispute. The county then argued that Watters was not a peace officer covered by POBOR, a fact that Watters also did not dispute.

The court repeatedly advised county counsel that the issue in question was one of notice since the Notice of Termination did not state why Watters was being fired. Furthermore, Watters argued that, under Brown v. State Personnel Board, the county’s ordinance did not permit the county to amend its action against Watters, so he was therefore entitled to immediate reinstatement. The court so ruled.

Just when Watters thought it was over, he received notice to report back to work, but instead of being reinstated, he was served with a new Notice of Proposed Termination, which was identical to the one that he had previously received. Bennett & Sharpe notified county counsel that such an action was expressly contrary to the court’s verbal order, but county council refused to accept that premise until a transcript of the hearing had been obtained. A transcript was obtained and sent to county counsel, who claimed that she did not read the order that way.

At that point, Watters’ attorneys provided the court with an amended proposed judgment, explicitly stating that the county was not permitted to bring another disciplinary action based on the prior events, which the court immediately signed.

County council was notified that Watters’ counsel had obtained copies of the order and provided them to process servers, for the purpose of serving the sheriff, the undersheriff, and the two commanders who had sat in the courtroom while the court’s order was pronounced, with the express intent of seeking contempt citations if the department continued to disobey the court’s order. At that time, Watters was finally reinstated.

Coming as it did, when finding alternative work was extremely difficult, Watters’ termination was very unfortunate. While he and his counsel firmly believe that, were the matter to have gone to hear, he would have prevailed, there was no reason to do that until the actual charges against him had been specified.

On numerous occasions, the county had the opportunity to reinstate Watters, pay him his back pay, and refile a proper action, but the Sheriff’s Department stubbornly refused to admit that it might have been wrong. Watters has expressed great gratitude toward the Legal Defense Fund for supporting him in this matter, and to Bennett & Sharpe for their persistence, accessibility, and constant monitoring of the department’s attempts to maneuver around its legal obligations.