CAREFUL AND EFFECTIVE
PLANNING AND PRESENTATION AT SKELLY HEARING RESULTS IN RECISION OF
TERMINATION
By Harry Stern
Howard Grant is a
civilian employee of the Contra Costa County Sheriff's Department, and a
member of the Deputy Sheriff's Association.
The lion's share of
articles appearing on these pages concern cases involving sworn peace
officers. Certainly, the vast majority of our firm's work is
representing working police officers and deputy sheriffs. However, a
number of peace officer labor organizations include non-sworn members.
PORAC's Legal Defense Fund provides these members coverage through their
affiliations with local DSAs and POAs.
Grant has worked for the
sheriff's office for 13 years. For several of those years, Grant worked
in the Sheriff's Custody Alternative Program, monitoring inmates who
were on electronic home detention. When he is not at the sheriff's
office, Grant has a second job as a licensed travel agent.
Grant's troubles began
when one of his supervisors suspected that he was conducting travel
business while "on the clock" at the sheriff's office.
A lengthy investigation
ensued: Grant's direct supervisors interrogated him a total of four
times, and even tried to entrap him by sending over employees to inquire
about travel arrangements during business hours. Fortunately, Grant did
not take the bait. Yet, at the conclusion of the divisional
investigation, they recommended that Grant be terminated.
The right of peace
officers to address charges leading to recommended punitive action at a Skelly
hearing should be familiar to all. However, this right to a hearing is
not unique to peace officers. In fact, the Skelly case itself
involved a medical doctor. The rights set forth in Skelly are
premised on the idea that permanent public employees have a property
interest in continued employment. Therefore, any attempt to deprive them
of this property interest must be done in accordance with the concept of
due process. Accordingly, although not a sworn peace officer, Grant
requested the opportunity to address the charges against him at a Skelly
hearing before the sheriff of Contra Costa County.
In preparing for the Skelly
hearing, Grant and I started with the premise that Grant had indeed made
some mistakes. However, after reviewing the investigation materials, it
became equally clear that the allegations against Grant were partly the
result of personal animus, rather than an even-handed application of
reasonable workplace rules. To put it bluntly, the motivation for the
investigation did not seem to be Grant's minor breach of policy, it was
that his direct supervisors did not like him.
Since Grant's supervisors
claimed that the genesis of the charges was the fact that Grant was
allegedly receiving travel business related telephone calls at work, one
important area of inquiry became whether or not his supervisors had
attempted to monitor other employees' telephone calls to see if they
were all strictly sheriff's work related. Not surprisingly, we uncovered
evidence to suggest that other employees occasionally made calls about
outside activities. Ironically, many of the witnesses against Grant had
used his services as a travel agent. On March 8, 2001, Grant and I met
with Sheriff Warren Rupf and Commander Tom Young, who supervises
personnel matters for the sheriff's office.
Grant was candid about
his mis-steps. While conceding that Grant may have erred, we wanted to
demonstrate to the sheriff and commander that the antagonistic
environment that Grant worked in should be considered in understanding
Grant's case.
In support of our
contention, we had a "smoking gun": Grant's yearly evaluation,
prepared right around the time that the allegations surfaced, was
literally a primer on poor management and lack of sensitivity. Almost
the entire narrative portion of the evaluation focused on Grant's
appearance. The narrative went so far as to make extremely inappropriate
(and inaccurate) comments about Grant's hygiene and clothes. The
evaluation concluded with a recommendation that Grant "buy clothes
that fit, and shower, and shampoo daily." This outrageous
"evaluation" was clearly not an objective reflection of
Grant's work performance, but was rather a personal attack that bordered
on "schoolyard bullying."
To Sheriff Rupf's great
credit, he seemed genuinely concerned about the evaluation in particular
and Grant in general. The evaluation, and some other information, put
the investigation report into context. I believe that the sheriff's
fundamental sense of fair play was violated by some of the actions taken
against Grant. Accordingly, the sheriff and commander rescinded the
recommended termination and, instead, transferred Grant to another
position and job category within the sheriff's office without any loss
of pay.
Since Grant had no desire
to continue working under the hostile conditions at his prior
assignment, he was more than happy to make the move. I am pleased to
report that Grant has started in his new position and is confident that
he will be able to continue his productive career with the sheriff's
office without future problems.
Grant's case illustrates
that the right approach at the Skelly level (assuming of course
the decision maker, i.e. chief of police or sheriff, is open-minded) can
save time, costs, and the heartache of protracted appeals and hearings.
ABOUT THE AUTHOR:
Harry Stern is an attorney with Rains, Lucia & Wilkinson who has
been providing representation for LDF members throughout Northern
California for six years. Stern is a former police officer with the city
of Berkeley.
LDF Home Page | News
Article Index
