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By PORAC | November 1, 2017 | Posted in PORAC LDF News

San Francisco Probation Officer Back on the Job, Termination Overturned

GREGG ADAM
Partner
Messing Adam & Jasmine

One of the historically key factors in any “just cause” disciplinary action is the employer’s obligation to establish that the employee had prior notice of the policy allegedly violated and the employer’s expectations about the employee’s compliance with that policy. That burden on the employer remains equally strong today.

Azar Alwahhab was a rising star in the San Francisco Adult Probation Department. His colleagues loved that he always lent them a hand, whether it was in completing their reports or covering the desk of a clerical worker so he could attend a holiday party. His easy demeanor played well with his clients, which wasn’t easy since his caseload included AB 109 probationers who, until recent criminal justice reforms, had been in state prison. He earned strong reviews from supervisors, who loved his “can do” approach and his commitment. One of them nominated him for an award for report writing, which he received in 2014.

Things were going great for Alwahhab until his unit supervisor changed in late 2015. Almost immediately, Alwahhab and his coworkers began to experience problems. They complained that the new first-time supervisor was “stalking” them and writing them up for minor indiscretions, while missing the larger picture of the complexities of tending to a probationer clientele that would miss appointments, not report changes in work and other problems. A group of them, including Alwahhab, asked to be transferred. The Department refused.

To his credit, the supervisor gave Alwahhab another strong review in March 2016. But out of the blue in May 2016, Alwahhab was given a 3303 notice and called in for an interview about alleged inaccuracies in his reports. He was put on administrative leave. A month later he was given a Notice of Intent to Terminate. He received it in total disbelief. The Department wanted to fire him for writing reports that constituted “falsification” and “dishonesty.”

Alwahhab met with his probationers two or three times per month. Department rules required that he document important developments in their conditions and compliance with their probation terms. To do this, he had developed an all-inclusive report-writing style in which each report entry would summarize all of the relevant information about the probationer. So if during an April visit probationer X imparted information A, B, and C, and in a May visit said C had changed to D, and E and F had happened, Alwahhab’s May entry would summarize A, B, D, E, and F. Generally, the reports were relied on by the same probation officer who wrote them (who would have a full understanding of the case) or a colleague filling in, who, Alwahhab reasoned, could get all the key information he or she needed simply by reviewing the more recent entry.

The Department’s grounds for termination were that because items A and B had occurred in April, it was “fraudulent” and “false” to continue to list them in May.

As employers are prone to do, especially in a weak or marginal case, the Department piled on “make weight” allegations against Alwahhab to try to justify its decision to seek the ultimate penalty. It accused Alwahhab of improperly meeting his clients in the lobby of his unit rather than in office space. It also accused him of failing to spend 20 minutes with his probationers, which it asserted was a clear Department rule. To support its case, the Department produced 19 videos from security cameras that showed Alwahhab variously meeting clients in the lobby and spending less than 20 minutes with probationers.

As can also happen in cases where the Department is committed to termination from the outset, it used an “outside” Skelly officer (a retiree, in this instance, with no understanding of the workings of the Department) who rubber-stamped the termination.

Alwahhab was fired in July 2016.
Arbitration was convened before Arbitrator Wendy Rouder between March and June 2017, over six days of hearings. The Department put on management witnesses asserting that the reports were misleading, that the “no lobby visits” rule was a steadfast one, and that officers had an obligation to meet with clients for at least 20 minutes.

But the witnesses Alwahhab presented told a different story. His former supervisors, to their credit, confirmed that they had trained Alwahhab to write his reports in a similar “get a summary of all the key information in the entry” manner.

The evidence at the arbitration also showed that the Department had conducted minimal training of its officers on report writing. It was generally left to line supervisors to train officers on how they wanted reports to be written. The officers correspondingly picked up the habits and recommendations of their supervisors. Other officers used the same style as Alwahhab. While Alwahhab’s entries could appear confusing to an outsider when read sequentially from beginning to end, the entries offered an officer who read the most recent entry a clear snapshot of the probationer’s progress.

Furthermore, the evidence established that a sampling of all officers’ reports were reviewed by both supervisors and division directors on a monthly basis. So Alwahhab’s reports had been reviewed for years without correction. And then there was that award for report writing he received.

Alwahhab’s former supervisors, along with his coworkers, also discredited the idea that there was a rule requiring 20-minute meetings. Everyone acknowledged that while academics suggest 20 minutes as a “best practice,” the realities of a fluid probationer clientele, where clients frequently don’t show up on time, if at all, often precludes scheduling like, say, a doctor would. To a witness, they also explained that in a routine appointment there just isn’t 20 minutes worth of material to discuss.

Alwahhab’s witnesses also acknowledged that the Department discouraged lobby visits, but pointed out that everyone still did it. Again, it was something that just happened in the ebb and flow of a probation department. The 19 videos the Department relied on also helped. They showed that multiple officers, not just Alwahhab, routinely conducted lobby visits.

Ruling on all of this evidence, Arbitrator Rouder concluded that a termination could not be upheld. She rejected the Department’s claim of falsification and dishonesty: “At the core of a finding of falsification is identifying a motive for or intention by the employee to deceive or mislead.” She found “no clear and convincing evidence to support a conclusion that Grievant had any intent or motive to falsify, deceive or even mislead when he entered duplicative case notes.” The arbitrator also ruled that the Department failed to adequately convey its expectations about report writing and failed to provide any prior warning.

Alwahhab was reinstated with a five-day suspension.
One cannot help but wonder whether this whole protracted fight could have been avoided, had the supervisor, upon
discovering Alwahhab’s report-writing style, simply discussed it with him; learned how Alwahhab’s habits had formed; and taken a more constructive approach to explaining what the Department wanted instead (common sense, really; but it didn’t carry the day in this instance).

About the Author

Gregg Adam is a partner at Messing Adam & Jasmine LLP. In April 2015, Adam and his partners, after practicing at Carroll, Burdick & McDonough for many decades, formed a new law firm predominately representing public safety unions and their members in their labor relations.