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. 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 discipline as a basis for termination. Accordingly, the hearing officer granted 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 be 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.
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[My representative] did a good job representing me. Kept me informed.
- John Tinder Chino POA
Having an LDF attorney who is experienced, knowledgeable and professional is an outstanding quality. [My representative ]exhibit all of these qualities and more. They are outstanding and I would not entrust my career to anyone else!
- Clyde Williams San Diego Harbor POA
Thank you for all of the work related to my officer involved shooting case.
- Eric Olson Escondido POA
You guys did an amazing job! Thank you L.D.F. !
- Michael Sexton Manteca POA
[My representative] was awesome.
- Kristen Patterson Contra Costa Co Prob. Assn.
[My representative] was helpful and made me feel supported. I got the results I desired. Very pleased with the process.
- Emery Eccle Culver City POA
LDF is THE most important asset / resource that police officers have. "Thank you" to all involved and keep up the good work!
- Andrew J. Brice Santa Maria POA
As always... an excellent result.
- Kim Jasper Alhambra POA
Excellent service, prompt and courteous.
- Jason Walters Claremont POA
LDF was very informative and provided me with the direction on how to handle my case. I was very happy with LDF and their staff.
- Joe Charvez Santa Clara Co DSA
I could not be happier with the interest, work put into my case, and assistance from [my representative]. Thanks !!
- Tamboura Nettingham Claremont Custody Center EA
My representative was an outstanding rep. I was very fortunate to be represented by her and the firm should be very proud to have her in it. She's courteous, smart and aggressive when needed. I would not ask for anyone else, if any other situation evolved, she's the best. Thanks.
- Brad Young Oakland POA
[My representative] is an excellent attorney and I am very happy he picks up the phone and answers my questions whenever possible.
- Erik Kusmerz Lyon Co SEA
Amazing job, Thank you.
- Christopher Delaney Upland POA
Your rep was very personal. Even though my case involved something minor, your rep made me [feel] my case was his most important. I am very satisfied with my LDF team.
- Shaun Luciano LA School PA
LDF assisted by taking a stressful situation and calmed it down by thoroughly explaining the entire process. It was nice to know that I had an ally when I was sure that I was alone.
- Christopher Wells Hollister POA
My rep was great.
- Steven Curtiss Shasta Co DSA
This was my first need for LDF support and I was very happy with the level of service. Thank you.
- Oliver Sansen Concord POA
In 14 years I have never had to deal with an "IA." [My representative] was wonderful & put my mind at ease throughout the entire process. Thank you!
- 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.
- Doug Plumhoff Ridgecrest PEA
Great job by all! Always great to know LDF is there when needed.
- Rodney Kirkland Oakland POA
Being a police officer in the city of Oakland, I appreciate the services that are offered.
- David Baker Placerville POA
My experience through dealing with this matter was horrific. Without the efforts of the LDF and more specifically [my representative], I would most certainly have fallen victim to a corrupt and unethical administration. The LDF has saved my career and brought me justice.
- Brendan Dolan Milwaukee PA
Everything went very smooth and they handled everything! Thank you.
- William Jackson Santa Maria POA
Keep up the great work.
- Chris Lyon Tulare Co DSA
Very thorough group of sharp/smart government concerned [attorneys]. They understood what was happening and briefed me on everything. I was very impressed.
- Katherine Comesana Mountain View POA
Hope to never in a situation again, however, glad to know that LDF is there to help.
- Robert Glock Oakland POA
I am always satisfied with LDF and all their representatives.
- Michael Shephard Suisun City POA
LDF is a very valuable resource. I would not do this job without it.
- Jonathan Smith San Diego D.A. Investigators
I couldn't be happier or more satisfied with my LDF Representative, the process and the outcome of my case.
- 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.
- Steven Moorehouse Redding POA
You guys are Great! Very professional and well informed. THANK YOU!
- 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.
- 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.
- Keith Stiver Hayward POA
[My representative] brings a superlative reputation, a comforting and confidence building demeanor and a clear expertise to the table. In particular I appreciate her philosophy that she gives her total undivided attention to her clients during their appointments.
- 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.
- David Heller Yolo County DSA
The charges against me, if sustained, would have likely ended my LE career. I was rightfully exonerated on all charges. I was well represented by [My Representative] and thank him for a job well done!!
- Rick Stephens Alpine CO DSA
My representative was very good. I highly recommend my lawyer to anyone.
- Gilbert Garcia Oceanside POA
My attorney provided outstanding representation.
- Christopher Adams Modesto POA
Thank you for all your help!
- Paul Figueroa Oakland POA
LDF was there when I needed them!! In this litigious world, it's nice to know LDF has GREAT lawyers on our side who look out for us!! [My Representative] is a great attorney and a person I would trust in any circumstance!!!
- Alfredo Hernandez El Centro POA
[My representative] was very attentive, [informative] and knowledgeable. He spoke very clearly and explained things in ways easy to understand. [He] made me feel like he truly cared about what was going on with this case and me. Not to mention [he] was funny and witty, traits which made him trustworthy and someone who would stand by me and other police officers.
- Caitlin Collins Tiburon POA
[My representative] made himself available 7 days a week understanding that those were my needs. He was very well informed and kept me on the right track and in the right frame of mind.
- Christopher Walters Antioch POA
My LDF rep was very attentive, and courteous. She made every effort to keep me informed, and kept my best interests at the front of the process. I was very satisfied with my LDF rep, and the entire process.
- Korey Lankow Assn Highway Patrol of Arizona
Outstanding service from bottom-to-top.
- Alex Camarillo LASchool P A
[My Representative] did an excellent job with my case. He was very professional and kept me well informed throughout this case. Thank you for an awesome job.
- Steven E. Lopez Santa Maria POA
Keep up the Good Work! Your service was extremely helpful to me. Thank you.
- Thomas E. Lorente III Bart POA
[My representative] did an excellent job! I would highly recommend him to any officer in need of LDF services.
- Michelle Foerder Pinole PEA
I thank God for the support of LDF and my attorney. I had a letter of intent to be fired and he helped me turn it all around. I still have my job and I'm so grateful.
- Evelyn Hooks Shasta CO PPOA
Thank God for the L.D.F.
- 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.
- Stephanie Haas Lyon Co SEA
When I first contacted LDF re: my case I was unsure of how well/poor I'd actually be represented. I was impressed beyond belief. From the timely responses from my attorney, his knowledge in my case, advising me what my rights were and where I stood. I felt like I was genuinely being protected from unwarranted and unfounded accusations and believe, as long as I am in the right, I have someone fighting for me. Thank you, Thank you.
- 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!
- Nicholas Ward Antioch POA
[ Representative ] did a great job. My case was extremely complicated and difficult. She did a great job.
- Dennis Leach National City POA
[My Representative] is a knowledgeable attorney and I would highly recommend him to anyone needing representation.
- Kerry Carlson Midpeninsula Ranger POA
I have held leadership positions in our POA most of my career. Because of my role as President and Vice President I have been a target to management. I feel that if it were not for LDF I wouldn't have a job
- Shandon Murphy San Mateo POA
Great work! Thank you so much!
- Steven Moorehouse Redding POA
Thank you for your help.
- Melissa Geraci Oakland POA
This is my 1st time using LDF and was very pleased with the service I got. [My representative] was so friendly & always returned my calls & even called to update me without provocation.
- 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.
- Eric White Emeryville POA
Very satisfied with the LDF services provided. Thank you.
- William DeWitt CPPA
Everything was awesome...could not be happier!
- Patrick Davis Oakland POA
Very knowledgeable and thorough and would use the rep again.
- Toinie Lee Jackson Madera Co DSA
Unfortunately, I have been placed in the position to use LDF several times in my career. Without their valued services, I would not be here to write this. I and my family thank you.
- Martha Tschetter Carson City Sheriffs PA
The LDF process was painless and I was able to get immediate representation in an urgent time of need. Thank you LDF
- Tyler Robins Pasadena City College POA
At a time when no one cares about you it's nice to have someone on your side who does. (My attorney ) made a stressful six months a lot more tolerable.
- Jon Seabron Oceanside POA
[My Representative] was the best and if I ever need to call al lawyer again for anything, I'll be calling her.
- Nicholas Belliveau Sebastopol POA
High quality service, proficient, well informed. Overall, very happy with experience.
- 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.
- Grace Castro AFGE Local 2455 – Laredo, TX
My representative was very kind and showed he cared when explaining what my legal rights were when dealing with an internal investigation.
- Linda Mendez Imperial Co Prob and Corr
I'm very pleased with the services offered by the LDF. I feel so fortunate to enjoy the benefits of having the membership. The services provided by LDF to its members is simply 110% professional, supportive, great!! LDF care for its members is reflected by the quality of Best Law Firm offered, simply the best!
- Anthony Russo Clark Co School District
The members of my Association are very pleased with the level of representation that PORAC has given to us. As the President I can not thank you all enough.
- Raymond Fisher Colorado State Patrol Assn
I have known for sometime that PORAC would provide the services I needed at the time I needed them. This is a professional competent organization prepared to handle the appropriate legal matters our officers face in today's environment.
- James Beckman Miracosta College POA
Excellent service everytime.
- Malcolm Norrington LA School PA
I am very pleased with LDF and would use and recommend them again and again and again.
- James Hika Border Patrol Supervisors Association
They did a great job!
- Carlos Gonzalez Oakland POA
Very well informed group.
- 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.”
- Daniel Smock Ventura County PPOA
Everything went smooth. I think the current system works very well.
- Brendan Tinney UC Berkeley POA
[My representative] has represented me twice now and both times I have been very pleased with his thoroughness with handling my cases. I appreciate all what LDF and [my representative] have done for me.