APPELLATE COURT VINDICATES DEPUTY’S DUE PROCESS
RIGHTS:
Ventura County Sheriff’s Department called
"penny-wise and pound-foolish", actions described as
"inexplicable"
The California Court of Appeal, Second District,
called Ventura County "penny-wise and pound-foolish" and
described its devious behavior as "inexplicable" in connection
with its handling of Deputy Sheriff Mark Jurisic’s proposed
disciplinary action. In so doing, the Court affirmed peace officers’
rights to procedural due process.
Prior to his termination, Jurisic worked for the
county as a deputy sheriff for approximately 14 years. In 1997, the
sheriff’s department conducted a two-month investigation into
allegations, among others, that Jurisic, while assigned to patrol the
Silver Strand Beach beat, drove a marked sheriff’s unit to Tommy’s
Hamburgers, located in Canoga Park (known as a "Tommy’s
run"), and slept on duty. The sergeants assigned to the
investigation authored a report of approximately 100 pages, in which
they detailed their findings and conclusions. They determined the
evidence was insufficient to support the charge that Jurisic slept on
duty. Their report was forwarded to their supervisor, Captain Bill
Edwards, who used the report as the basis of his own 25-page memorandum,
in which he recommended Jurisic’s termination. Edwards concluded that
Jurisic had, in fact, slept on duty.
On June 23, 1997, the county placed Jurisic on
administrative leave and served him with a notice of proposed dismissal.
The notice set forth Jurisic’s right to respond by July 3, 1997, at 5
p.m.. According to the notice, if Jurisic chose to respond verbally, he
or his representative was to contact Edwards and be "ready to
supply Edwards with multiple potential meeting dates and times."
The notice was also accompanied by a "Skelly package"
that was purported to be all of the material upon which the action was
based.
On July 1, 1997, Jurisic, through his attorney,
Robert M. Wexler, of Santa Monica based Silver, Hadden & Silver,
sent a letter to Edwards via facsimile and first-class mail, indicating
that Jurisic wished to respond to the charges. Wexler asked for
"copies of all notes, letters, documents, tape recordings,
photographs and other evidence to which Jurisic was entitled pursuant to
Skelly v. State Personnel Board." He also advised the county
that a copy of the anonymous letter that launched the investigation and
the tape recording of one witness’s interview were missing from the
materials provided to Jurisic as part of his Skelly package. He
suggested that the pre-disciplinary Skelly meeting be scheduled
in three weeks to permit him time to review the two-inch thick file and
the missing materials, which had yet to be furnished. Finally, he
advised the county that he would be out of town until July 8, 1997.
On July 3, 1997, a county employee hand-delivered the
county’s response (notwithstanding Wexler’s absence), indicating
they were proceeding with the termination effective midnight July 6,
1997. The letter stated that the county could find "simply no
legitimate reason for the citizens of Ventura County to continue to keep
[Jurisic] on paid leave" to accommodate the additional time
requested for the Skelly hearing. "Although the dismissal
will occur," the letter stated, Chief Deputy Richard Rodriguez was
willing to meet with Jurisic and listen to his response "and then
decide whether or not to undo the dismissal." Accompanying the
letter was the missing tape recording and the anonymous letter to the
sheriff. There were also two additional pieces of evidence to which
Jurisic was entitled and that the county had not provided to him.
On July 7, 1997, the department served Jurisic with a
notice of dismissal. On July 9, 1997, Wexler wrote the county, advising
that, upon reviewing the material provided to Jurisic, the county
seemingly failed to turn over other evidence upon which the charges were
based. Accordingly, he indicated, "Until all materials upon
which the proposed discipline is based are delivered to [him], Jurisic
cannot be expected to attend a pre-disciplinary hearing or be terminated
without the opportunity for such hearing." Wexler demanded that the
county reinstate Jurisic until he was afforded a proper pre-disciplinary
hearing, following receipt of all materials upon which the charges were
based. The county responded by letter dated July 16, 1997, indicating
that it would neither provide the additional information, nor alter its
position with regard to his request for a pre-removal meeting. On July
21, Jurisic met with the Chief Deputy Rodriguez and presented his verbal
response to the charges. Rodriguez decided to maintain the termination
action.
On August 15, 1997, Jurisic timely appealed his
termination to the Civil Service Commission. Through cross-examination
of the county’s investigators and administrators, Jurisic learned for
the first time the county was surreptitiously concealing numerous
documents, reports and witness interviews. The true extent of the
missing materials was staggering. Among the materials the county
withheld from Jurisic as part of the Skelly package were: (1) the
100 page report compiled by the Internal Affairs investigators, in which
they determined that the evidence did not support that Jurisic slept on
duty; (2) numerous transcripts that contained information about other
deputies and supervisors making "Tommy runs" and/or sleeping
on duty with impunity; (3) the 25-page memorandum by Edwards in which he
overruled the investigators’ determination that the evidence did not
support that Jurisic slept on duty; and (4) various memoranda between
county officials regarding the investigation. The commission eventually
directed its law officer to conduct an in camera review of the
evidence. He ordered the department to turn over approximately 200 pages
of never-before-produced evidence directly related to the charges,
including pertinent aspects of each of the above-mentioned evidentiary
items. After a total of 11 days of hearing, the commission issued its
decision upholding Jurisic’s termination for engaging in the
"Tommy’s run" and for sleeping on duty.
Jurisic, with the full support of the Legal Defense
Fund, petitioned the Superior Court for an administrative writ of
mandamus, arguing among other claims that the pre-termination process
followed by the county violated his due process right under Skelly v.
State Personnel Board. Following a hearing, the trial court
determined that the county’s refusal to grant Jurisic a Skelly
hearing was a violation of his right to due process. The Court also held
that the county violated Jurisic’s right to due process by
purposefully concealing 200 pages of evidence uncovered during its
investigation and upon which it based the charges against Jurisic, but
which it did not produce until ordered to do so by the commission’s
law officer during the waning days of the evidentiary hearing, long
after the discipline was imposed and Jurisic’s opportunity for a
pre-disciplinary response elapsed. The Superior Court awarded Jurisic
full back pay from the date of his termination until the commission’s
decision. That sum is expecting to approach $100,000.
The county appealed. The Court of Appeal, Second
District, in an unpublished decision filed September 17, 2001, affirmed
the Superior Court’s judgment. The Court rejected the county’s
argument that Skelly only requires 10-days notice of an employee’s
opportunity to be heard. The Court, confirming that due process is a
flexible concept that requires a balancing of interests, determined that
Jurisic had a substantial interest in his job as a deputy sheriff. The
Court found that the length of the Skelly package, the fact that
certain items appeared missing from the Skelly package, and
Wexler’s indicated absence were ample justification for Jurisic’s
inability to meet with the county by its self-imposed July 3 deadline.
The suggested meeting dates, within three weeks of the county’s
deadline, were reasonable under the circumstances, according to the
justices. Ultimately, the Court affirmed the Superior Court’s holding
that "the financial burden of keeping [Jurisic] on the payroll for
a few additional weeks until the required pre-termination hearing could
be held was outweighed by the substantial loss of income and benefits he
faced due to a potentially wrongful termination."
The Court dismissed the county’s claim that Jurisic
was not entitled to the sergeants’ investigative report, as it
reflected the department’s deliberative process. The justices also
rebuked the department’s argument that Jurisic’s July 21 meeting
with Rodriguez, following his termination, was sufficient to satisfy due
process requirements. The Court agreed with Jurisic that there can be no
meaningful opportunity to respond until such time as the employee is
provided all materials upon which the proposed discipline is based.
In what seemed to be an obvious reference to the
arrogance with which the county handled the matter, the Court wrote that
the county acted "penny-wise and pound-foolish" in refusing to
allow Jurisic an additional few weeks to respond to the initial notice
of proposed dismissal and in withholding material upon which that action
was based. "Denying this 14-year employee of these items," the
Court wrote, "when settled principles of due process mandate a
pre-termination hearing and a complete Skelly package was
inexplicable."
Jurisic, who expressed his gratitude to the entire
staff at Silver, Hadden & Silver for its tremendous support and
quality work, was awarded costs and fees by the courts.
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