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Back Pay Awarded for Pre-Disciplinary Due Process Violations

Posted on Sunday, October 01, 2017 at 12:00AM

SARAH P. BURDICK
Senior Associate Attorney
Rains Lucia Stern St. Phalle & Silver, PC
 

A neutral arbitrator recently awarded full back pay and overturned a demotion after finding that the Santa Clara County Sheriff’s Department hid investigative evidence from an employee prior to the client’s Skelly conference. The arbitrator ordered full back pay at the client’s original sergeant’s rate of pay as a sanction for the County’s conduct, explaining that the investigator’s failure to supply the employee with critical video evidence, which was later viewed and relied upon by the undersheriff in making his disciplinary decision, constituted a Skelly violation.
Case Facts
In June 2012, the client, then a sergeant, was at his desk at work when he received a call from his wife, notifying him that her doctors had recently found a lump in her throat and that she needed to go to a series of emergency appointments to determine whether the lump was cancer. She asked him to take care of their two sons, who had appointments at the courthouse nearby; one son was appearing on a civil case and one was appearing in traffic court after a speeding citation. The civil court appearance was more important to her, so she asked her husband to be at the courthouse by 3 p.m. for that hearing.
The client routinely dressed for work, in his full uniform, at home. He did not have any civilian clothes at work or time to go home and change out of his uniform prior to court at 3 p.m. The client asked both his lieutenant and his captain if he could go to the County courthouse in his uniform to support his son. The client’s chain of command gave permission to go to the courthouse, but asked that he stay in the lobby, away from the courtroom and near other deputies.
Once at the courthouse, the client, true to his agreement with his supervisors, remained at the front checkpoint with other deputies while both of his sons were in their respective court hearings. At some point, the citing California Highway Patrol officer for his son’s speeding ticket walked up to the front checkpoint where the client was standing with the other deputies. The client, recognizing the CHP officer’s name from his son’s citation, struck up a conversation with him; a visual record of this conversation was captured on courthouse surveillance, but no audio was captured. Both the CHP officer and the client later recalled the conversation, and each testified that it was friendly and that the client never asked for any professional courtesies or dismissal of the ticket from the CHP officer. In fact, the client recalled that he mentioned that his son needed to learn an expensive lesson by paying full price for the citation. The CHP officer corroborated this, and further said that he had already made up his mind, before he had arrived at the courthouse that day, to dismiss the ticket due to lack of recollection of the stop. The CHP officer did in fact dismiss the ticket in the traffic court hearing.
Shortly after his conversation with the CHP officer, the supervising sergeant for the courthouse approached the client and asked him to leave the courthouse. The sergeant explained to the surprised client that a fellow deputy had complained about the client being at the courthouse and talking to the CHP officer. This deputy claimed that, although he was more than 30 feet away from the conversation, he overheard the client asking the CHP officer to “fix” his son’s ticket. This deputy further told multiple other deputies at the courthouse that he was sure that the client had requested professional courtesy regarding his son’s citation. Later investigation revealed that this complaining deputy had recently lost a hotly contested race for a union position to the client.
During this later investigation, both the client and the CHP officer continued to deny that any “fixing” of the ticket happened. The CHP officer confirmed that the client never asked for any special treatment, and that he dismissed the citation of his own accord for lack of independent recollection. In addition, a witness closer to the conversation between the CHP officer and the client than the complaining deputy (confirmed by the courthouse video surveillance) said that he couldn’t overhear any of the conversation. In fact, we later learned that the Internal Affairs investigator interviewed several other witnesses who confirmed that they could not overhear the conversation between the CHP officer and the client, despite being similarly positioned with the complaining deputy, and that they never suspected anything inappropriate between the two until hearing later gossip from the complaining deputy. The Internal Affairs investigator wrote multiple reports summarizing these witness statements. These reports were never turned over to the client or his lawyer, nor incorporated in the Internal Affairs record of investigation.
We learned only at arbitration that the investigator had interviewed three witnesses never mentioned in the Internal Affairs report and had re-interviewed the CHP officer. Each of these witnesses provided either corroborating or exculpatory information for the client. We also learned at arbitration that there was additional video footage of the client at the courthouse that had been provided to Sheriff’s administration and County counsel, but never mentioned or turned over to the client. All of the interviews and re-interviews were completed prior to the Skelly conference in the case, but were never incorporated into any report or analysis of the evidence because, according to the Internal Affairs investigator, “the paperwork was already done.”
Unfortunately, most of the evidence corroborating the client’s version of the events was either dismissed as irrelevant or completely withheld by the Internal Affairs investigator. The Department recommended termination of the client, finding that he had asked for professional courtesy, used his position as a sergeant inappropriately and lied to Internal Affairs investigators about his account of his interaction with the CHP officer.
Appeal of the Case
RLS attorneys immediately appealed the case by requesting a Skelly conference with the undersheriff. At the Skelly conference, we argued that the Department had not met its evidentiary burden for any of the allegations, most significantly the allegations related to the request for professional courtesy and untruthfulness, as the statements on the record largely corroborated the client’s version of events and discounted the complaining deputy’s recollection of the events. We additionally provided a witness statement from a deputy not previously identified or interviewed, who had been closer to the conversation and contradicted the complaining deputy’s version of the conversation between the client and the CHP officer. In response, the undersheriff overturned the truthfulness allegation and reduced the discipline to a demotion, continuing to sustain the remaining allegations on the theory that the client merely being in the lobby in his sergeant’s stripes and introducing himself to the CHP officer was enough to imply a demand for professional courtesy.
We presented the similar evidence at arbitration, with the addition of live testimony from the CHP officer confirming his previous statements that he had dismissed the ticket of his own accord for a legitimate reason. The arbitration was uneventful until the Internal Affairs investigator testified and we learned of the withheld evidence. The final tally of the withheld evidence was three witness statements and the courthouse surveillance video. The Internal Affairs investigator testified that he meant to turn over the video, but that he did not intend to turn over, mention or incorporate the witness statements in any way. The three witnesses he had interviewed had been previously unidentified, as the client had not remembered they were at the metal detector checkpoint during his conversation with the CHP officer. The County argued that these documents and videos were not material to the case, as they had not been incorporated into the investigation and, therefore, had not been used to determine the discipline in the case. However, the undersheriff testified that he had seen and partially relied upon the courthouse surveillance footage in making his final disciplinary decision. Although he had not seen the witness statements, we argued that they were corroborating and exculpatory.
In post-arbitration briefs, RLS lawyers argued that the County was required to provide the client with an opportunity to review the investigative file and be granted the right to respond to anything contained within prior to any imposition of discipline, per the language in Skelly v. State Personnel Board (1975) 15 Cal.3d 194. Furthermore, we argued that the County was required to provide the client with a “copy of all documents and materials upon which the [disciplinary] action [was] based” prior to any Skelly conference, per the holding in Parker v. City of Fountain Valley (1981) 127 Cal.App.3d 99, 103. RLS lawyers argued that the County’s failure to provide the witness statements and video evidence in the case was a pre-disciplinary due process violation of the Skelly case and that the only remedy was to grant a mandatory award of back pay provided by Barber v. State Personnel Board (1976) 18 Cal.3d 395.
The arbitrator made his final disciplinary decision relying in part on the arguments by the client’s attorney and in part on the Barber case. He did not overturn the sustained findings but reinstated the client to his prior sergeant rank, agreeing with the client’s attorney that demotion for a first-time offense such as this was excessive, and awarded him full back pay at his sergeant’s rate. The arbitrator found that the investigation was “inept in at least two regards: (1) [the investigator’s] failure to initially talk to and get statements from every single Sheriff’s employee at the metal detector on the day in question; and (2) [the investigator’s] failure to provide his follow up statements to the Undersheriff prior to the Skelly, even though he believed the statements added nothing to the bottom-line of his investigation.” However, the arbitrator did not find this to be a Skelly violation, as the reports were never seen or considered by the undersheriff before he arrived at his final disciplinary decision. The arbitrator did find that failing to turn over the video, seen and considered by the undersheriff during the Skelly process, did constitute a Skelly violation and that the only remedy for this violation was the Barber remedy — “namely not voiding the disciplinary action but, instead to award back pay for the period of wrongful discipline.”
This case sent a clear message to anyone appealing a case to Skelly and beyond to make an explicit discovery request for all materials relied upon in determining the sustained findings and discipline prior to the Skelly. If it is later found that the Department did not provide all materials, the Barber case mandates an award of back pay.

About the Author
Sarah Burdick is a senior associate attorney at Rains Lucia Stern St. Phalle & Silver, PC. She works in the firm’s Legal Defense of Peace Officers Practice Group and also works with the Litigation and Criminal Defense Practice Groups. Sarah represents peace officers in administrative investigations, disciplinary appeals, critical incident investigations and criminal investigations. She has earned a reputation as a tireless advocate for the firm’s clients and has put together an impressive string of victories. 
 

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