Termination Squashed After Skelly

GARRETT PORTER
Associate Attorney
Mastagni, Holstedt, APC

Falling ill while traveling or vacationing may ruin a trip, but it should never ruin your career. Such was the situation faced by Santa Clara County Correctional Deputy Patrick Tempra, who turned to Mastagni Holstedt, APC to appeal a proposed termination and secure his administrative case win. Following a Skelly hearing and months of prolonged waiting, Santa Clara County Assistant Sheriff David Sepulveda ultimately recommended that Deputy Tempra be returned to work, reversing a proposed termination. The final disposition comes nearly four years after the alleged misconduct, which involved allegations of Family Medical and Leave Act (FMLA) abuse and related dishonesty allegations stemming from the deputy’s time off work during September and December of 2019.

During the internal affairs investigation, the County alleged that the deputy fraudulently called in sick in a guised attempt to extend his vacation. They referred to the fact that the deputy called in sick on the day immediately prior to his regularly scheduled days off and on the day immediately following his vacation leave. The department relied on social media posts, purportedly evidencing the deputy on vacation during the period in which he claimed to be unable to work and similarly dismissed the deputy’s claims that his leave was protected time off under the FMLA. The department argued that the deputy essentially called in sick to accommodate his pre-booked travel arrangements and to extend a vacation on two separate occasions.

The Office of Internal Affairs interviewed the deputy in September 2020 — almost a year after the alleged misconduct and nine months after the initiation of the administrative investigation, which commenced in January 2020. Mastagni Holstedt was retained as counsel shortly thereafter. Following the interview, the department issued its recommended disciplinary decision in March 2021, recommending that the deputy be terminated from his 14-year position as a correctional deputy with the sheriff’s office on the basis that he had made a series of false, misleading and dishonest statements during the investigation. The department maintained that the deputy abused his employer-provided sick leave benefits and that he violated agency and County policies by calling in sick when — as the department purports — neither he nor any member of his family were actually sick.

The deputy appealed the termination, and a pre-disciplinary Skelly hearing commenced in September 2022. The purpose of a Skelly hearing is to take ownership of allegations that the employee admits to and to rebut or deny responsibility for allegations that the employee feels should not be sustained. It is a form of due process designed to avoid any wrongful deprivation of an employee’s civil service right to his or her position and allows the employee the opportunity to offer mitigating evidence prior to the imposition of any recommended discipline.

At the Skelly hearing, Deputy Tempra admitted responsibility for the confusion caused by his conduct and clarified several facts that better explained the dates in question and highlighted the faulty assumptions underpinning the investigation. The deputy asserted that, contrary to what the investigation concluded, he did not leave for vacation until September 25, 2019, the day he was regularly scheduled to be off work. He would have been able to work his regularly-scheduled shift and catch his flight even if he had not utilized FMLA leave that day. He maintained that he did not “plan on” utilizing any sort of sick leave to extend his vacations beyond what had already been designated as pre-scheduled time off.

In addition, the social media posts underpinning the investigation only evidenced the date the photos were uploaded, not the actual dates the photos were taken. To assume that the photos evidenced the deputy “not sick” is mere speculation. And contrary to what the investigation speculated, the deputy had, in fact, visited the hospital while on vacation with his family. By introducing related medical evidence, we reiterated that medical explanations — unrelated to dishonesty — accounted for the deputy’s time off work.

We also argued that termination was too excessive and that a dishonesty allegation requires genuine proof. The purpose of discipline is to ensure that the conduct is not repeated. Such a result can be accomplished by discipline short of termination. Termination requires that the department sufficiently meet its burden of proof, which in Tempra’s case, rested on faulty assumptions and vague suspicions concerning the deputy’s protected time off, along with partial investigative work. Moreover, the department even acknowledged that there “was nothing documented on paper” concerning the deputy’s alleged history of attendance issues.

The best defense, however, concerned the investigation timeline. The timeline, as the sheriff properly recognized, well exceeded the one-year time limit as allowed pursuant to Government Code section 3304 (d)(1). Section 3304 (d)(1) requires that the notice of intended discipline (NOID) be given within one year of the discovery of the alleged misconduct. In Tempra’s case, the alleged violation was discovered on September 24, 2019, the investigation concluded in December 2020, and the NOID was issued on March 16, 2021.

Since the NOID was served on March 16, 2021, any alleged misconduct prior to March 16, 2020 — including the alleged misconduct that occurred in September and December of 2019 — could not be pursued. Even with the 60-day extension granted by the California governor’s proclamation associated with the COVID-19 State of Emergency, the pursuit of the 2019 allegations still well exceeded the prescribed timeline, thus barring any discipline arising from those allegations from being legitimately imposed. The department, however, could have still pursued the dishonesty allegations stemming from Tempra’s interview in September 2020 if the Skelly hearing had not fully addressed the issue. 

It’s no secret that administrative investigations in Santa Clara County take forever, and Tempra’s case is surely no exception. In this instance, the investigative lag surely worked in his favor. His case illustrates not only how investigative slowness can work to the employee’s benefit but also how hastily agencies can use social media posts to bolster their suspicions of employee misconduct, in turn leading to the imposition of significant discipline and potentially costing an employee’s decade-long career. His case also illustrates how departments can use alleged “dishonesty” in a subject officer’s involuntary statements to extend the disciplinary timelines to the department’s benefit.

Officer Tempra expresses his profound appreciation to PORAC Legal Defense Fund for supporting him throughout his ordeal.

About the Author

Garrett Porter is an associate attorney with Mastagni, Holstedt, APC. He represented Deputy Tempra in his administrative appeal.