Termination Reversed

Posted on Sunday, November 01, 2009 at 12:00PM
Posted by Sean D. Howell

Following two separate Skelly hearings, San Luis Obispo County Sheriff Pat Hedges recommended that Monterey County Deputy Sheriff Marie Evans be returned to work on July 21, 2009, reversing a proposed termination. The Monterey County Sheriff’s Department had initially proposed a10-day suspension for misconduct. Upon learning of this proposal, Deputy Evans immediately requested her pre-disciplinary Skelly hearing. During the first Skelly hearing before Monterey County Sheriff Mike Kanalakis, on June 12, 2009, Evans and her attorney presented facts and argument in mitigation of the allegations against her. Kanalakis advised he would take the matter under submission and provide Deputy Evans with his decision on the following Monday.

Contrary to his assurance, Kanalakis did not render his decision until July 2, 2009 – nearly three weeks after Evans’ Skelly hearing. In his decision, Kanalakis determined that the appropriate discipline was now termination. Deputy Evans was then placed on paid administrative leave. After rendering his decision, at Evans’ request, Kanalakis provided Deputy Evans with a second Skelly hearing, this time before the Sheriff of San Luis Obispo County, Pat Hedges. Sheriff Hedges heard the same facts and argument in mitigation as presented at the first Skelly hearing, and decided to set aside the decision of Sheriff Kanalakis and impose the original 10-day suspension. Sheriff Kanalakis Recommends Termination in Retaliation: At the first Skelly hearing, Deputy Evans and her attorney admitted to some of the conduct alleged and provided facts in mitigation of others. Still other allegations were outright denied and facts in rebuttal were given. Deputy Evans and her attorney were respectful and courteous to Sheriff Kanalakis and requested that the 10-day suspension be set aside and that a “Letter of Reprimand” for the admitted conduct be given as the appropriate discipline under the circumstances. In Sheriff Kanalakis’ July 2, 2009 decision to terminate Deputy Evans, he stated “You did not appear to take responsibility or ownership for the allegations against you of insubordination, rudeness and unprofessional behavior. “Your continued failure to recognize your ongoing inability to identify your inappropriate behavior is indicative of why prior attempts to discipline you and correct your unacceptable behavior mandate your termination at this time. It is obvious to me that the 10 working day’s suspension would fail to get you to correct your behavior.” Sheriff Kanalakis did not provide any additional information, evidence or argument to support his drastic change in decision from the 10-day suspension to termination. There were no admissions made during the Skelly hearing to indicate dishonesty; nor did the sheriff perform any additional investigation which could have revealed that the proposed discipline was no longer warranted and that termination was required. His entire reasoning for terminating Deputy Evans was that she did not come to the Skelly hearing prepared to admit responsibility for every allegation. Sheriff Kanalakis’ statement that Deputy Evans did not take ownership for the allegations serves to prove this point.

The entire purpose of a Skelly hearing is to take ownership of allegations that the employee has admitted and rebut or deny responsibility for allegations that the employee feels should not be sustained. Kanalakis purportedly reasoned that the purpose of discipline is to ensure that the conduct is not repeated and that such a result could not be accomplished by discipline short of termination because Evans failed to admit to each and every one of the allegations. The sheriff’s reasoning created a very precarious slippery slope. With his reasoning, a Letter of Reprimand given to an employee could become a termination if the employee does not agree with the findings and provides a rebuttal denying the allegations. The sheriff’s actions were clearly an attempt to punish Deputy Evans for rebutting any of the factual findings that the investigation noted. After the decision, many other employees were afraid that a proposed suspension would evolve into a termination after the Skelly hearing. Talk of avoiding the use of a representative or attorney ran rampant, for fear that if an officer retained counsel, they might be terminated. Further, in an attempt to remove the possibility of retaliation by the sheriff in the form of more severe discipline or even termination, the idea of appealing any discipline to the Skelly hearing was also discussed as something to avoid. San Luis Obispo Sheriff Pat Hedges Sets Aside the Decision of Sheriff Mike Kanalakis: On July 9, 2009, during her second Skelly hearing, Deputy Evans and her attorney met with Sheriff Pat Hedges of the San Luis Obispo County Sheriff’s Department. Information was again provided in mitigation and rebuttal of many of the allegations against Evans, and she took responsibility for the factual determination, admitting she did the alleged acts. Sheriff Hedges was respectful and very professional. He asked probative and relevant clarifying questions, which indicated a real concern for Deputy Evans and her situation.

After a few days of consideration, Sheriff Hedges issued his decision, on July 17, 2009 – that the decision to terminate Deputy Evans should be set aside as excessive and inappropriate. Sheriff Hedges indicated that a provision in the MOU, Section 10.3.2, stated in relevant part that “In order to implement either the proposed disciplinary action or a lesser disciplinary action based on the same cause(s), . . .” increased disciplinary action taken by Sheriff Kanalakis is precluded. At the time of this writing, the administrative case has not been concluded because Deputy Evans has appealed the10-day suspension, arguing that such discipline is also excessive, in light of which allegations can be sustained and which cannot. While that appeal is proceeding, Deputy Evans has been returned to work, placed back on full duty. Deputy Evans and the Monterey Deputy Sheriff’s Association extend their sincere appreciation to Sheriff Pat Hedges of San Luis Obispo, for his involvement, professionalism, and ultimate findings.

ABOUT THE AUTHOR: Sean D. Howell is a PORAC LDF panel attorney with Mastagni, Holstedt, Amick, Miller & Johnsen. He represented Deputy Marie Evans in her administrative appeal through the PORAC Legal Defense Fund.

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