Vol. 24 No. 6- “A personnel commission’s reduction of a penalty must be justified”

February 17, 2009

While a personnel board, civil service commission, or hearing officer has discretion to alter the discipline imposed against a public sector employee, the exercise of that discretion has to be based on reason.  On February 10, 2009, in the case of County of Santa Cruz v. Civil Service Commission of Santa Cruz (Jack), the Sixth District Court of Appeal ruled that the Commission exceeded “the bounds of reason” when it set aside the Sheriff’s demotion of former Sergeant George Jack, and substituted a 30 day suspension in its place.

Facts of the Case

Sgt. Jack had been notified that a female subordinate, Correctional Officer “H”, had complained that he had harassed her and was discriminating against her because she was female.  The sergeant was told by Chief Deputy Don Bradley that there was to be an investigation and he “ordered Jack not to contact “H” or discuss the allegations with her.”  Immediately thereafter Jack contacted “H”, called her three times on her cell phone and ordered her to go with him “for a ride.”  In fact, he sat in a car with her, in a parking lot, for three hours where he, basically, harangued her about filing the complaint.  He then ordered her to not tell anyone of their discussion and to not talk to the Chief Deputy anymore.

After the meeting, Jack left a phone message for the Chief Deputy telling him that “H” “approached me and asked for a few minutes.” He went on to say that he agreed to meet with her, he listened to her, and “we’ve worked this all out.”  The next day, when the Chief Deputy contacted “H” to confirm that information, she stated that it was “a flat out lie.”

As a result, an internal affairs investigation was initiated and concluded that Jack had violated numerous policies including making false statements; insubordination; willful disobedience to orders; and conduct unbecoming an officer.

The Sheriff demoted Sgt. Jack, who had been with the department for many years, to deputy sheriff.  Jack appealed the demotion to the Civil Service Commission which, after a hearing, issued a statement that “the preponderance of the evidence does not establish just cause for Sergeant Jack’s demotion … but does justify a 30 day suspension with no back pay.”  Despite a request by the County, the Commission refused to issue findings supporting its decision.

The County then filed a writ with the Superior Court asking that the Commission be ordered to issue such findings.  Once again, despite the fact that now the Court ordered the Commission to issue findings, it still refused to make specific factual findings but it did state that the evidence showed that the sergeant violated each of the charges set forth above.  Nonetheless, it left the reinstatement unchanged.

The County then filed a Peremptory Writ of Mandate seeking reversal of the Commission’s decision to reinstate Jack as a sergeant.  The superior court denied the writ petition, ruling that the Commission did not abuse its discretion, and the County appealed to the Court of Appeal.

Amicus Support from CSSA and CPCA

When the County of Santa Cruz decided to petition the Court of Appeal for review, it asked for support from the California State Sheriffs Association (CSSA) and the California Police Chiefs Association (CPCA) in the form of an amicus curiae brief.  The County believed, as stated in a letter to the two associations, that it was important for the Court of Appeal to hear from other chief law enforcement executives why the modification of the discipline imposed by the Sheriff was improper and, potentially, harmful to other law enforcement agencies by setting a bad precedent.

Both CSSA and CPCA voted to authorize participation and Jones & Mayer, as general counsel to the associations, prepared and submitted such a brief.  The primary points raised in the amicus brief were that the discipline imposed was justified and should not be reduced without good cause shown by the Commission.

The brief pointed out that two of the sustained charges, which were ultimately upheld by the Commission, included two of the most serious offenses which could be committed by peace officers – dishonesty and insubordination.  In fact, the associations noted in the brief that, in their opinion, the Sheriff should have terminated the sergeant, not just demote him, since the dishonesty finding would be detrimental to his ability to function, even as a deputy sheriff.

Ironically, this issue was raised by counsel for the sergeant who argued that if dishonesty was so serious a violation to cause a long term sergeant to be demoted, why wasn’t he fired?  During oral argument before the Court of Appeal, this question was posed to me, as counsel for amici, by the Court.  I was able to point out that, although the Sheriff chose demotion rather than termination (because of the long tenure of Jack with the department), amici had noted in its brief that, had it been up to them, the recommendation would have been termination.  In any event, we argued that there was no justification for the Commission to reduce the penalty even further.

Insubordination and Dishonesty are Major Violations

The Court of Appeal held that “the public is entitled to protection from unprofessional employees whose conduct places people at risk of injury and the government at risk of incurring liability.”  The Court found that “Jack’s interference in the internal investigation of the gender bias claim placed the County at risk of liability, and exposed the governmental entity to the prospect of litigation. In particular, the California Fair Employment and Housing Act (FEHA) provides that employers take reasonable steps to prevent harassment from occurring.”

The County had argued to the Commission that the case of Kolender v. San Diego County Civil Service Commission, (2005) 132 Cal. App. 4th 716, supported its position.  In Kolender, the Court of Appeal held that the Commission abused its discretion by reinstating a deputy who lied to protect another deputy who had abused an inmate.  In the Santa Cruz case, the Commission disagreed stating that Jack’s behavior wasn’t as important, or as serious, as that in Kolender.

In addition to the absurdity of the Commission’s reasoning, the superior court judge held that Jack had only lied in an internal matter and, therefore, there was no harm to the public.

The Court of Appeal, however, held that “Jack’s dishonesty and disobedience of the order not to contact “H” during the internal investigation is no less serious or important than the deputy’s lies to protect his colleague in Kolender.  The honesty and integrity of a Sergeant in the Sheriff’s department is paramount to the public safety and trust, and breach of that trust is cause for great concern.  The fact that the dishonesty in this case related to an internal employment investigation rather than an investigation of inmate abuse does not make the misconduct any less troubling.”

Furthermore, the Court, in citing to prior decisions, held that law enforcement officers “are guardians of the peace and security of the community, and the efficiency of our whole system, designed for the purpose of maintaining law and order, depends upon
the extent to which such officers perform their duties and are faithful to the trust reposed in them.”

A Commission’s Obligation to Justify its Decision

The Court noted that the Commission refused to do its duty, and make specific findings, until the Santa Cruz Superior Court ordered it to do so.  After the court’s order, the Commission concluded that “Jack made false statements, was insubordinate and was willfully disobedient ….”  Even then, the Commission continued to refuse to justify its decision to reduce the penalty.  Those findings, state the Court of Appeal, “did not support a reduction of the penalty; rather, they provided a basis for the original demotion ordered by the Sheriff.”

The Court of Appeal acknowledged that “case law is clear that the standard of review of Commission decisions is abuse of discretion…” but, it continues, “in circumstances such as this, where the Commission made specific findings that are inconsistent with its action in reducing the penalty, … then error is shown. Here, the Commission’s findings do not support its action.  We find no reasonable mind could conclude, based on these findings, a reduction of Jack’s penalty was warranted.”


It is important to remember that, unless your city or county has agreed to final and binding arbitration, the employer has as much right to appeal an adverse decision of a personnel board, civil service commission or hearing officer, as does the employee.  The decision by this Commission was wrong – on many counts – and the Sheriff and County realized it was important to appeal.

If you lose at “step one” – in this case, the superior court ruling that the Commission did not abuse its discretion – that doesn’t mean you should give up.  If you believe in
your case, the process allows taking the decision of that one superior court judge to the court of appeal, for review by a panel of three judges.  That’s what Santa Cruz did – and they prevailed.

Obviously, disciplinary action should only be taken when it is necessary and appropriate.  However, once that process is started, it is imperative that the employer carry through in its efforts to support its action.  Not only is it important in that individual case, but it sets a precedent and sends a message that, when such action has been taken, the employer will do all it is legally permitted to do, in order to sustain its justifiable action.

As always, we urge that you confer with your agency’s legal counsel in matters such as this.  However, if you wish to discuss this case in greater detail, please feel free to contact me at (714) 446-1400 or via e-mail at mjm@jones-mayer.com.