Hearing Officer Recommends Reinstatement of Colusa County Probation Officer

Posted by Tim Talbot

Hearing officer Gary Axon from Ashland, OR recently recommended to the Colusa County Board of Supervisors that the termination of Colusa County Deputy Probation Officer (DPO) Harold “Bucky” Burner be revoked. In a 78—page decision, the hearing officer found that the county violated Burner’s rights as a California peace officer and did not have just and proper cause to terminate his employment. The hearing officer recommended that Burner be reinstated to his former position with back pay, less a two-week suspension. Burner was represented by this author, a PORAC Legal Defense Fund attorney and a partner in the Sacramento office of Carroll, Burdick & McDonough LLP.

Burner was a 12—year veteran of the Colusa County Probation Department before his termination on April 12, 2002. Burner’s main assignment was as the county’s truancy officer. As the truancy officer, Burner regularly worked with local school administrators and the county’s Student Attendance Review Board (SARB). He was known as the SARB officer. Burner’s employment record was relatively uneventful, with the exception of some minor write-ups and a two-day suspension several years earlier. Everything was going well for Burner until the last three months of his employment. At that point, there was a changing of the guard that affected Burner’s employment.

From 1990 up to six months prior to his termination, Burner’s supervisor was Chief Probation Officer Carl Womack. Womack’s last evaluation of Burner was “satisfactory” approaching “well-qualified”. When Womack retired, Eldon “Jack” Johnston was his supervisor for three months, and then Steve Bordin became the chief probation officer over Burner. Bordin had not previously worked for the department and was completely unfamiliar with the employees, policies, procedures, and practices.

After Bordin took over as Burner’s supervisor, Burner requested two days off, December 20 and 21, 2001, to attend his daughter’s out-of-state wedding. Unfortunately, Burner fell ill prior to his scheduled time off and called in sick on December 18. Burner decided to go ahead and drive to Utah for the wedding since he was only going to be sitting in the car as opposed to sitting in his house. Burner left for Utah on December 18, 2001. The following day Burner was still ill and on the road. He called in sick for December 19, 2001. During the four days Burner was absent, no one from the department called him to report any problems or request any further information regarding his absence.

While in Utah, Burner dropped off the car he was driving for his daughter and caught a bus back to California. He made it as far as Williams, CA at which point he required some assistance in order to get home. After attempts to get a ride from public transportation and family failed, Burner contacted the Colusa County Sheriff’s Department dispatch center for a shuttle to his home. There were police officers in Williams and Colusa who were not busy at the time and were able to assist Burner by providing a shuttle for him. The officers had a clear understanding of whom Burner was and that they were providing him with a courtesy ride for personal reasons.

Upon his return to work, Burner was faced with a barrage of accusations by his supervisor Bordin. Bordin requested explanations for Burner’s absence on December 18 and 19, failing to reschedule an appointment on December 21, and for allegedly not handling SARB cases in a timely manner. Burner provided a memorandum explaining his absences and the appointments he had missed.

On December 27, 2001, the SARB assistant, who informed him she would be taking a day off, confronted Burner. Since the assistant provided support to Burner as the SARB officer, Burner inquired about many recent absences she had taken from work, which she noticed he had noted in his calendar.

The assistant flew off the handle at this inquiry and accused Burner of harassing her about her work schedule. On that same date, Bordin called Burner to his office and questioned and lectured Burner about his trip to Utah and the courtesy rides he received from the Williams and Colusa officers. Bordin interrogated Burner without giving proper notice or advising him of his POBR rights. Bordin subsequently placed Burner on paid administrative leave in response to the complaint.

Bordin then requested a senior DPO review all Burner’s case files for any compliance problems. The senior DPO alleged that he uncovered case files that showed Burner misrepresented probationers’ compliance with reporting obligations. The burner was never questioned about the files or given an opportunity to explain any perceived irregularities.

During February 2002, while Burner remained on administrative leave, Bordin issued a written performance evaluation for the period February 1, 2001, through January 31, 2002. Bordin had only supervised Burner for less than three months at the time of his evaluation. Bordin rated Burner’s performance as substandard. Bordin subsequently prepared a written addendum where he cited alleged prior deficiencies from prior performance evaluations outside the applicable rating period. In neither Bordin’s performance evaluation of Burner nor the addendum, did Bordin cite any facts or examples within the rating period to support the substandard rating?

On March 5, 2002, Bordin notified Burner that he was proposing to terminate Burner’s employment effective March 15, 2002. Burner responded to the proposed punitive action and a Skelly hearing was conducted. The county upheld the proposed termination. Burner appealed the termination and a hearing was held before hearing officer Axon on August 20—22, 2002. The hearing officer’s proposed decision reinstating Burner was issued on January 27, 2003.

The evidence presented to the hearing officer demonstrated the lengths the county went to in order to support its contrived case for terminating Burner’s employment. The county repeatedly disregarded Burner’s rights under the POBR in devising a case against Burner. For example, the hearing officer was presented with evidence that showed the county placed numerous documents containing adverse comments in Burner’s personnel file without Burner being afforded an opportunity to read and sign the documents or file written responses. The county actually tried to use such documents as a basis for its decision to dismiss Burner in violation of the POBR.

Bordin performed an investigatory interview of Burner without proper notice or advising Burner of his rights. The county actually tried to argue that there was no investigation prior to discipline. This argument worked against the county as well, because the county was required to investigate the facts in determining if there was cause to terminate Burner’s employment. The fact is, although an interview was conducted in violation of Burner’s rights, Burner was not questioned or confronted about many of the charges by the county in order to determine whether he acted improperly.

The hearing officer, in this case, was not fooled for a minute by the obvious piling on of charges to justify the county’s actions. The county unconscionably attempted to rely on prior corrective action as a basis for new charges against Burner. Bordin included matters dating back to 1991 in the termination notice.

The hearing officer found that the county improperly relied on acts or omissions that were time-barred under the POBR, subjected Burner to double jeopardy by charging him with misconduct based on incidents that were subject of prior corrective action and wrongfully used prior events that had never resulted in the discipline as a basis for termination. Accordingly, the hearing officer granted the Burner’s motion to strike all these superfluous charges.

The performance evaluation by Bordin was also fraught with inconsistency and lack of support. Bordin rated Burner’s performance as substandard after working with Burner for less than three months. Bordin completely ignored the previous evaluation by Womack, where he marked 31 categories as satisfactory or above. Womack also concluded Burner’s overall performance was satisfactory and found no deficiencies. Womack’s evaluation came from a man who supervised Burner from 1990 to 2001. Bordin made his evaluation after less than three months and without any reference to specific examples of conduct to support the drop from satisfactory to unsatisfactory.

With regard to the remaining charges, the hearing officer only found evidence to support two of the alleged charges, neither of which supported dismissal. Burner’s absences during the time he went to Utah were approved by Bordin as paid vacation time off. The county’s own actions in approving the time refuted its assertion that Burner made false statements with regard to requesting time off. The charge regarding Burner’s absences was not sustained.

Burner admitted that he had not made arrangements to have a meeting with a probationer covered by another DPO in his absence. The punishment of dismissal was found to be excessive for such a violation and a written reprimand was recommended.

The evidence did not support the county’s allegation that Burner abused his position to secure personal transportation. The officers who assisted Burner were fully aware of who he was and the reason he needed a ride home. There was no abuse of position or misrepresentation to the officers who assisted Burner as suggested by the county. Both officers stated that it was not uncommon to provide courtesy rides and that providing such rides did not violate policy. Therefore, this charge was not sustained.

The county alleged Burner made misrepresentations to the court regarding probationers’ meetings. The senior DPO believed he found evidence in three cases that showed probationers allegedly were not in compliance with reporting requirements. The senior DPO conveniently jumped to a conclusion that would justify terminating Burner’s employment instead of investigating the matter further by questioning Burner or contacting the probationers. The hearing officer only found evidence that Burner had been sloppy and careless in maintaining his files and such inefficiency only merited a two-week suspension, not termination.

Finally, the hearing officer found the county’s harassment charge was an inappropriate attempt to bolster its case by citing unverified complaints from citizens and co-workers dating back to 1992. Burner was never disciplined for the old complaints. The county actually tainted this charge by trying to use such evidence. The county failed to show by a preponderance of the evidence that Burner harassed anyone, including the SARB assistant, during the relevant time period.

In light of his findings that all but two charges should be dismissed, the hearing officer recommended that Burner’s termination be reversed and he is reinstated with all lost wages and benefits, less a two-week suspension. This case was ultimately concluded when the county entered into a settlement agreement with Burner, and Burner decided to retire from his position. As a result of the case, the probation department has changed its practices with respect to disciplinary investigations to conform to the requirements of the POBR.

About the Author

Tim Talbot is a labor law attorney and PORAC LDF panel attorney who represents public safety employees. He is a partner in the Sacramento office of Carroll, Burdick & McDonough.