The Klaver Trilogy

Deputy K. W. Klaver began his unblemished career with the Santa Clara County Sheriffs’ Department on July 4, 1983. He had experienced several run-ins with the present sheriff, Laurie Smith, on several occasions, dating back to 1990, when now Sheriff Smith was the assistant sheriff.

The first difficulty was when Klaver received an evening telephone call from his captain, telling him to report from his assignment in the Patrol Division to the Courts Division the next day without reason or explanation. There was, apparently, some investigation which had been launched, but Klaver’s captain advised Klaver that he could not talk to him about the investigation and that the orders had come from above.

This failure to follow procedure, and specifically the failure to advise Klaver of nature and/or extent of the investigation resulted in his going out on stress disability and filing an action with the Workers’ Compensation Appeals Board alleging a punitive transfer. The WCAB came down firmly on the side of Klaver, and in its opinion, specifically found that there was “[N]o explanation whatsoever for this investigation…offered by defendant” (Santa Clara County Sheriffs’ Office) and that the sheriffs’ office “…did not deny that it failed to follow established procedures” in this transfer.

Klaver was off from work on stress disability from November 1990 to April 3, 1991, and forced, by the department, to use up all of his vacation and sick leave, rather than being put on paid administrative leave.

Even before Klaver returned to work, he was allowed to bid his usual south county patrol beat for which his seniority made his transfer to that beat automatic. However, on the transfer date, he was denied transfer to that beat and assigned to a distant location. Klaver filed a grievance with then-Sheriff Gillingham since he understood that the refusal to allow him to return to his normal beat was based on direct actions by then-Assistant Sheriff Laurie Smith.

Based on Klaver’s grievance, Sheriff Gillingham overruled Smith and allowed Klaver to resume work at his normal south county beat.

Klaver, who is an expert in dispatching hazardous wild game, was called substantially off his beat in August 1995 to dispatch a mountain lion who had been terrorizing a local community. Klaver killed the mountain lion, and the investigation of the propriety of this shooting within the next 24 hours completely cleared him of any misconduct.

Approximately two weeks later, Klaver was advised that there was a “major investigation” regarding this incident and was told that it was started by “…somebody above the captain level.” At that time, there were only two people above that level, one of who was then Assistant Sheriff Smith. This investigation was held over Klaver’s head for five months before it was again deemed to be a justified action on his part.

Finally, in approximately August 1997, the Klaver Trilogy began. Having an unblemished record as a deputy sheriff and having informally been appointed lead deputy on many shifts in patrol, Klaver applied for a field training officer position. When called, off-duty, and told that the oral exam for the FTO position was scheduled for the next day, Klaver advised that he had commitments the next two days (both of which he was off-duty) and needed to reschedule his oral examination.

He was advised by the clerk to talk to the sergeant in charge of Personnel and Training, and after having left numerous messages with that sergeant, without response, Klaver became aware of the fact that the oral examination had taken place, and that he was never given an opportunity to participate.

He then began the process of complaining about his treatment, and the department’s failure to offer any accommodation to him for this examination. As soon as Klaver began complaining up the chain of command, he was advised that he was being transferred from the Patrol Division to the Courts Division, thereby making him ineligible to even take the FTO exam.

The stress of the department’s failure to acknowledge Klaver’s right and opportunity to take the FTO oral exam, coupled with its transfer of Klaver to the Courts Division, and refusal to allow him to transfer from the San Jose Courts Division to the South County Courts Division (where he lived), thus creating serious childcare issues for his family, caused Klaver to go off work due to cumulative stress on April 15, 1998. By November 1999, Klaver’s treating psychologist, Dr. Peter Van Oot, sent a report to Personnel and Training, advising that Klaver was capable of immediately returning to work.

Unlike every action in the past, the department refused to return Klaver to work based on the recommendation of his treating psychologist and insisted on having him examined by “their own” psychiatrist. They also refused to allow Klaver to return to paid administrative status and, in fact, he was advised by the sergeant in charge of Personnel and Training that he would remain “in limbo.” Thus began the three separate grievances filed by Klaver.

Grievance No. 1 related to the sheriff’s department’s (1) failure to grant Klaver an FTO oral interview, (2) his transfer to the Courts Division from Patrol Division, in violation of the department’s transfer policy, and (3) the department’s failure to transfer Klaver from the San Jose courts to south county courts as punitive action.

At the last minute, prior to the start of Klaver’s arbitration in this matter before Arbitrator Bonnie G. Bogue, the Santa Clara County Labor Relations Department objected, on the date of the arbitration, to the arbitrability of two of the three grievances filed by Klaver. This resulted in a substantial delay and an additional hearing on the issue of arbitrability alone.

On June 15, 2000, arbitrator Bogue ruled that these two matters were arbitrable, and scheduled a hearing on all three grievance issues. The arbitration, which was held on July 28, 2000, resulted in an order by Bogue on November 21, 2000, which read in pertinent part as follows:

“Deputy Klaver was denied the opportunity to reschedule an FTO oral examination in violation of the MOU. He is to be granted an oral examination immediately…”

After further disagreement between the Labor Relations Department and counsel for Klaver, LDF panel attorney William R. Rapoport, of San Mateo, California, arbitrator Bogue, at the request of Rapoport, and over the objections of the Labor Relations Department, modified her decision and ordered an FTO oral exam for Klaver within 60 days after the date on which he has returned to his duties as a patrol deputy, and has been in those duties for 90 days.

Grievance No. 2 began in mid-November 1999, when the sheriffs’ department refused to allow Klaver to come back to work and refused to put him back on paid status, thereby keeping him “in limbo.” Klaver’s grievance resulted in an initial refusal by the County of Santa Clara to even allow Klaver the opportunity for an administrative hearing, but eventually, after the threat of litigation over Klaver’s right to such a hearing, agreed to the proceeding regarding his fitness for duty.

This hearing took place over four days in April, May and July 2000, before administrative law judge, the Honorable Jonathan Lew. The department’s witnesses included Lieutenant Ernie Smedlund, Captain Roy Froom, Commander Bernal and Sheriff Laurie Smith, who, during the course of the proceedings, volunteered “…I don’t think in my career with the sheriffs’ office I have known who Deputy Klaver was…” despite their numerous prior negative interactions.

The sheriffs’ department took the position that Klaver was (1) not fit for duty, and (2) if he was fit for duty, that duty began as of the date of Judge Lew’s order and did not extend back to the period from November 5, 1999, when Klaver’s psychologist advised the department that Klaver was fit for duty. In addition to himself, Klaver presented Dr. Peter Van Oot and Dr. Robert Flint (Concord, California) as witnesses on his behalf. Klaver, through his counsel, argued that he was not only presently fit for duty, but also was fit for duty as of November 5, 1999, and should be entitled to complete back pay and benefits as of that time.

On October 10, 2000, Judge Lew ruled in favor of both Klaver’s positions, i.e., (1) he was presently fit for duty, and (2) that from the date of November 5, 1999, to the present, Klaver was also fit for duty. Without further argument on that point, the County of Santa Clara adopted the Proposed Decision of Judge Lew on November 27, 2000, and Klaver returned to work on December 26, 2000.

Klaver’s return to work did not, however, convince the county that he should be entitled to back pay and benefits for the time from November 5, 1999, to his return to work on December 26, 2000, thereby resulting in Grievance No. 3.

Grievance No. 3 was filed to (1) compel the department to pay Klaver from November 5, 1999, forward, and (2) to find that the refusal of the department to return him to work as of November 5, 1999, was arbitrary and capricious. That matter proceeded to the first of two days of arbitration before arbitrator Alexander Cohen.

The second session for the arbitration of this matter was scheduled to begin on March 21, 2001, but at the end of February 2001, the county agreed to reimburse Klaver for complete back pay and benefits in his position of a deputy sheriff, effective November 12, 1999. At the present time, Klaver has been reimbursed for all back pay and benefits with the exception of medical reimbursement and retirement benefits which are presently being negotiated.