Court Rules in Favor of Yolo Deputy

Posted on Thursday, June 01, 2006 at 12:00PM

On Friday, January 7, 2005, Janon Mirabella, a Yolo County deputy sheriff, received a Notice of Proposed Termination via certified mail. Although Mirabella was off work with a doctor’s note, the Notice proposed to terminate Mirabella for unauthorized absences from work. The Notice instructed Mirabella that her only opportunity to respond to the proposed discipline would be in person or in writing on Tuesday, January 11, 2005, at 8:30 a.m.

On January 7, the very same day Mirabella received the Notice, she prepared a written response, and sent it via certified mail, indicating that she was unable to work due to a work related disability, for which she had medical verification. Mirabella’s response was not actually signed for by the department until January 11th, the same day the sheriff had set for the response meeting. Because the sheriff had not seen Mirabella’s response prior to the time scheduled for the meeting, he terminated Mirabella, stating: “In light of the fact that you did not choose to respond, either verbally or in writing, to the charges contained in the Notice … it is my decision to uphold the proposed termination.” The order also claimed that by failing to respond, Mirabella waived her right to arbitrate.

LDF retained the law firm of Carroll, Burdick & McDonough (CB&M) to represent Mirabella. Sacramento CB&M labor partner Gary Messing demanded that the department agree to submit this matter to arbitration, but the department continued to stubbornly cling to the notion that Mirabella waived her right to arbitrate. Due to the department’s recalcitrance, Messing and CB&M associate Jason Jasmine filed a petition to compel arbitration in the Yolo County Superior Court.

Although the department made several substantive and procedural errors with respect to its action against Mirabella, the most blatant was the department’s attempts to manipulate the timelines in the MOU both for giving notice of a proposed disciplinary action and the timelines for an employee to respond to notice of a proposed disciplinary action.

The MOU requires that the employee be given written notice of a proposed disciplinary action seven days in advance of the date the action is to be taken. Incredibly, the department argued that it was only required to give notice seven days in advance of the effective date of the proposed discipline and that it was not required to give notice any particular length of time prior to the hearing on the discipline. In other words, according to the department, it could have given notice of the proposed discipline after the date scheduled for the hearing, as long as the effective date of the proposed discipline was seven days or more after the notice.

The MOU also provides that a written response be “given by the employee by the time scheduled for the response meeting…” The MOU does not provide a time by which a written response must be received by the department. Furthermore, the response can be given by any reasonable method of delivery.

Although the department argued that Mirabella’s response was not received until after the time scheduled for the hearing on January 11th, United States Postal Service records proved that Mirabella mailed her response via certified mail (a method the department acknowledged was appropriate) on January 7, 2005; and that the USPS attempted to deliver Mirabella’s response to the department on January 8, 2005 (three days before the hearing). Written notice was left by USPS documenting the attempted delivery; the response was actually received by the department on the day of the hearing (January 11th), no later than 2:00 p.m.

Given these facts, on July 21, 2005, the court ordered the department to submit the matter to arbitration pursuant to the terms of the MOU. The court held, among other things, that the department’s assertion that Mirabella waived her right to arbitrate is itself arbitrable.

Subsequently, Mirabella and the department were able to resolve this matter in a manner satisfactory to Mirabella. Mirabella is grateful to Carroll, Burdick & McDonough and the Legal Defense Fund for their assistance and hard work in resolving this issue.

PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.