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Termination Overturned at Civil Service Hearing

Posted on Sunday, February 01, 2015 at 12:00AM

BRENDON P. PARENTI
Associate Attorney
Mastagni Holstedt, APC

When the Sonoma Civil Service Commission reinstated Juvenile Correctional Counselor II John Palmini on September 4, 2014, it was the end of a nearly year-long ordeal for Palmini, caused by a careless investigation based on wild theories and accusations by the Sonoma County Probation Department.
Instead of recognizing Palmini for his quick actions following a juvenile’s attempted suicide on the evening of September 27, 2013, the Department terminated him. The Department alleged that during the incident, Palmini committed several policy violations, including possession of a cellphone inside the facility, failure to wear proper uniform, dishonesty and falsification of a report. Based on these allegations, the Department terminated Palmini.
On the night of the incident, Palmini did his usual rounds at approximately 11 p.m. At the time, Palmini was not wearing his jacket or duty belt, but he was carrying his radio and keys. The security video shows that Palmini passed the juvenile’s cell approximately three times. When Palmini passed by the juvenile’s cell for the second time, he did a double take and looked back into the cell. Palmini testified that he noticed the juvenile was awake and reading the Bible. Palmini did a double take because it was unusual to see a juvenile up late reading the Bible, and he considered talking with him. Ultimately, Palmini decided he would speak to him another time and continued with his rounds. It wasn’t until Palmini was completing his rounds on the upper level that he heard a disturbance in the juvenile’s cell, called for backup and found the juvenile hanging. Palmini immediately entered the cell and cut the juvenile loose. Several witnesses testified that when they entered the cell, Palmini was seated on the ground with the juvenile, compassionately counseling him.
However, Chief Probation Officer Robert Ochs and Sonoma County Juvenile Hall Director Marty Mitchell concluded that when Palmini did a double take, he had actually seen something “disturbing” in the cell. The Department alleged that Palmini concocted the entire story of the Bible and hearing a disturbance to avoid being disciplined for being out of uniform when he first walked by the juvenile’s cell. Based on this unsubstantiated theory, the Department sustained allegations of dishonesty and falsification of an incident report against Palmini.
Throughout the investigation, Palmini admitted to being out of uniform prior to the incident, but stated that he had his keys and radio with him the entire time had he needed to respond to an incident. Palmini maintained that he was not using his cellphone during this event, and no evidence was ever produced to show that he was in possession of a cellphone. At the hearing, the Department admitted that the video that allegedly showed Palmini using his cellphone inside the facility was never turned over to Palmini or his attorney, nor was it provided to the Commission during the hearing. Based on the Department’s withholding of this evidence, the Commission overturned the Department’s sustained allegation of a policy violation for possessing a cellphone within the juvenile correctional facility.
The Department also failed to demonstrate that Palmini had been dishonest in his interview, or that he falsified his report. The Department’s witnesses had no direct evidence of when the juvenile started to hang, and “admitted they had absolutely no idea what had occurred inside the cell.” The Department did not interview the other probation officers on duty, the three security officers who responded to Palmini’s Code 2 or any juveniles in the adjoining cells, and failed to interview the doctor who treated the juvenile to determine how long he had been hanging.
The Commission found that the Department’s position was built upon nothing more than inferences drawn from a few facts it had discovered, and deductions drawn from these inferences. The Commission further determined not only that the Department had no direct evidence of what occurred inside the cell, but also that the Department failed to even posit a likely theory as to what Palmini may have observed when he did a double take by the cell. The Department’s two witnesses only testified that they believed Palmini did not see the juvenile reading a Bible, but they provided no evidence for that belief. The Commission concluded that “the Department’s suspicions, hunches or inferences that were drawn surrounding this incident were based upon Chief Ochs’ and Mr. Mitchell’s powers of divination.”
During the hearing, the Department revealed that during their investigation, investigators had spoken with the juvenile who attempted suicide. However, the Department admitted that it had never shared this fact with Palmini or his counsel, and failed to produce the juvenile at the hearing or any transcript or record of the interview with the juvenile. Chief Probation Officer Ochs testified that the juvenile’s status as a juvenile offender “compromised his credibility and any testimony he would have given would be incredible and discounted by the Commission.” Noting that the juvenile was the only other witness, aside from Palmini, who had knowledge of the dispositive facts of the case, and withholding this evidence and witness was extremely troubling, the Commission found that the Department intentionally withheld a witness that had potentially material information.
The Commission concluded that the Department’s apparent powers of divination were insufficient to meet its burden of proof that Palmini had been dishonest or falsified a report. The Commission found that the remaining sustained allegations did not warrant termination, and ordered Palmini reinstated with back pay.

The Sonoma County Law Enforcement Association and John Palmini were represented by Mastagni Holstedt, APC, attorney Brendon P. Parenti in the matter. 
 

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