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, in 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 cancelled 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 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 counsel 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 counsel 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 hearing, 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.
PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.
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To whom it may concern: Let me start by saying how much I appreciate the opportunity to join the PORAC Legal Defense Fund. This is a great benefit for our membership. During the past twelve months I was fortunate to have access to the Legal Defense Fund through MPCA. Earlier this year I was both surprise, and disappointed, when realized that I needed to provide counsel to mediate pending litigation. In accessing the Legal Defense Fund I found your staff to be very professional and reassuring. The staff felt that [my representative]., would be the best ft for the situation. I would like to take the opportunity to express my appreciation for being represented by [Rick Barry]. Not only was he a good fit for the circumstances, at times it seemed as if he was the only attorney out of several involved that really had a grasp on the issues. Again, I would like to thank the PORAC staff, and know that I could not have been better served than by what was provided by [my representative].
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[My Representative] was great! Thank you.
- Stephen Woodward Palm Springs POA
Great job by my LDF lawyer. I have had to use them several times over my 20 year career and their service is invaluable.
- Erick Gaunt Palos Verdes POA
- Brad Young Oakland POA
[ My representative ] is an awesome attorney.
- John Dougherty National City POA
My LDF Representative was [Representative]. He did an outanding job with my case and I am overjoyed with the results.
- Robert Muelberg Denver PPA
I could not have had a better attorney. [My representative ] went way above and beyond his duties. I would not have had a better experience with my representative. I believe that the LDF is the single most important benefit a police officer could have!
- Rodney Kirkland Oakland POA
Being a police officer in the city of Oakland, I appreciate the services that are offered.
- Wendy Morrow Chico Public Safety Association
I had never been through an I.A. in my 21 years. I was scared and ashamed and humiliated. ( My attorney ) was excellent. He helped me through one of the worst times of my life. Had great outcome and I am grateful.
- Daniel Smock Ventura County PPOA
Everything went smooth. I think the current system works very well.
- Miguel Masso Oakland POA
[I'm very satisfied and grateful] for LDF representing me. My attorney was professional, honest, and very knowledgeable of his profession. During these tough times my attorney would contact me on a regular basis to see how I was doing. This was obviously not part of his job description, but it kept me at ease and not losing my mind. I'm thankful that I was represented by LDF.
- Dan McDow San Luis Obispo POA
[My representative] is the poster face representative of the greatest attorney (representative) that anyone could possibly ask for. She gets a 12 out of 10 star rating. Nobody works harder.
- Chad Sakamoto National City POA
Although this incident was unfounded, it's still stressful. My LDF rep kept me informed and kept "work" at work.
- Christopher Adams Modesto POA
Thank you for all your help!
- Scott Muir Tracy POA
Very satisfied with the service I was given.
- William Burdette Newport Beach PMA
26 years and I have never needed a LDF rep, but the one time you need one, it was worth the fee’s paid.”
- Paul Spencer Santa Paula POA
[My Representative] was great!
- Ron Ruddy Riverside POA
- Dan Lovelace Chandler LEA
Thank you for the funding and support. I would be in jail right now if it were not for LDF. I would not have had the funding to pay for the case. It was a tremendous help having [my representative] and his support team and the many experts supplied by LDF. I speak for myself, my family and other members of my association.
- Roy Iler San Benito CO LEM
[My representative] always returned phone calls and let me know if he was contacted with information.
- Katherine Comesana Mountain View POA
Hope to never in a situation again, however, glad to know that LDF is there to help.
- Jay Garacochea Culver City POA
[My representative] not only did he do a great job but he listened to my concerns. He did not force his views or game plan and we worked well w/ each other. We agreed on a goal and achieved it.
- Juan Espinoza Fresno DSA
[My representative] did a great job. He is both thorough and well educated. I would use him again.
- Michael Shephard Suisun City POA
LDF is a very valuable resource. I would not do this job without it.
- Nancy Page Aurora PA
I didn't end up needing his service but he was awesome in what conversations we had before the matter was resolved. Very valuable - LDF!
- Roman Fernandez Inglewood POA
My representatives were always well-prepared and organized for hearings and meetings. Their efforts, hard work and full support is truly appreciated.
- Gerhard Wallace Santa Clara Co DSA
I think that [my representative] did a great job in presenting my case. I would recommend her to any deputy (officer) facing disciplinary action. My case was minor compared to other cases but [she] still did a professional job.
- Katie Angermiller Tuolumne Co DSA
I was very satisfied with the work the LDF performed. The lawyers and clerical staff at [law firm] were all very kind, professional and they always assisted me when I called and never made me feel like I was a burden. Thank you LDF!
- Omar Daza-Quiroz Oakland POA
I have had (2) two cases in which LDF represented me. Both lawyers were exceptionally professional, intelligent and caring for me. They were friendly and very helpful.
- Craig Caches Fremont POA
I have only used LDF once for myself, which with the circumstance was great. I work with LDF in my assignment ( OIS investigator ) and after approximately 4-5 OIS's, I have great experiences with LDF.
- Larry Fitch Shasta Co DSA
My LDF rep was great, always returned my calls quickly and kept me up to date with what was going on with the case. Thank you.
- Jeff Griffin Downey POA
My experience with the LDF, and in particular my attorney, was extremely positive. [ My attorney ] worked very hard and kept me informed along the way.
- Rick Stephens Alpine CO DSA
My representative was very good. I highly recommend my lawyer to anyone.
- Stacey Bonilla San Mateo County DSA
[My Represenative] is an excellent attorney. He is very professional yet personable and I would definitely use him again. Thank you!
- Kelly K. Roe San Joaquin Co Corr Officers
[My representative] did a fantastic job at returning my phone calls and keeping me informed of any and all information pertaining to my case. I would recommend him to anyone.
- Evelyn Hooks Shasta CO PPOA
Thank God for the L.D.F.
- Adam Laird Eureka POA
Dear PORAC Legal Defense Fund, This email has been weighing on my heart and should have been sent a long time ago. However, time seems to move fast even though your life has been put on hold. I have been on administrative leave since December of 2012. In April of 2013, I was arrested for the performance of my duties. Since the administrative side this case has not been resolved, I won't be getting into specific details regarding my case. However, I will say that I never thought that my life would turned upside down by doing the job that I love, and doing it in a way that I had been trained. I have been in Law Enforcement for 10 years, and I have been paying my monthly dues all along. I never really understood how important paying dues might be for me, I just thought it was the "cost of business". After being arrested, I understood the real worth of that investment. Because of politics, my case was given the "full court press". On January 3rd of 2014, the case against me was dismissed. It took no less than 5 experts to convince the Humboldt County District Attorney's Office to request dismissal. The time, effort, and money that this case cost couldn't have been endured by me as the sole provider of a family of four. LDF was there, big time. The panel attorney's under LDF were the best in the business. In the uncertain time during the criminal process, I couldn't have imagined how much help they could be. What a relief to know that LDF had my back. I am used to defending those who can't defend themselves. That's my job. When I was defenseless, LDF and the attorneys assigned to my case were my advocates and defenders. I thank you. My criminal attorney said it best at the conclusion of my criminal case: "Adam and his family are thankful that they can now move forward. The evidence showing Sgt. Laird was innocent was overwhelming. The expert EPD hired said that the suspect was rising up when Sgt. Laird pushed him back to the ground. The two experts that the DA’s office hired said that the force was reasonable and appropriate. The defensive tactics instructor who trained Adam said he acted consistent with his training in apprehending a high risk suspect in a dangerous situation. In total, five separate police practices experts reviewed the case and unanimously said Sgt. Laird acted appropriately". "It is hard to imagine what it must be like to risk your life apprehending a known gang member only to be charged with using excessive force when the suspect stated that he did not even feel the contact at issue. It is simply bizarre that Sgt. Laird was ever charged with a crime". Thank you. My family and I will forever be grateful for your service, Sergeant Adam Laird
- Melvarene Hayes LA Airport POA
They were there when I needed them and my whole case was handled on the phone. I met my representative after my case closed and he was at our union meeting when I had the pleasure to meet him and thank him in person.
- Anthony Alonzo South Gate POA
Very pleased with the way the process was explained to me. Received updated info faster than I expected. Overall a good experience in a not so good situation. Thanks to LDF.
- Christopher Wirth A F G E Border Patrol
LDF referred me to [ representative ] in Spokane, WA. [ Representative ] did an outstanding job representing me. Thank you very much for the referral ! I would not be employed any longer had it not been for [ representative ] and his legal team.”
- Kip RIngen Lake Co DSA
My LDF rep kept me well informed concerning the progress of my case. I was extremely satisfied with the service I received. Thanks.
- Robert Curato Anderson POA
He did a great job for me!!! He always returned my phone calls within 24-hours. He showed an interest in my case and we were able to get the issue resolved in less than 45 minutes. Thank you for being there when I needed the legal assistance.
- Steven Moorehouse Redding POA
Thank you for your help.
- Gregory Carbett Ontario POA
The attorney assigned to my case was GREAT! It's sad, but it's impossible to be an officer in today's world without a defense fund like PORAC LDF. I am now retired and signed up for the retired officers CCW LDF. Thanks!
- Douglas Mansker Bakersfield POA
(My attorney) is a very good attorney, despite his young age. He kept me well informed throughout my legal matter and returned phone calls in a prompt manner. I was very satisfied with his performance and would not hesitate to be represented by him again.
- Ernest Marugg San Diego Deputy DA Association
The LDF responded immediately upon my request for counsel. LDF provided the best representative I could receive! When I called LDF for advice, I was given advice again immediately. Thank you LDF for your concern.
- Miguel Suarez Monterey Co DSA
[My representative] was very knowledgeable and courteous. He knew his stuff, and I couldn't have asked for a better guy to be on my side on this matter. Thanks.