AGENCY MAY DISCIPLINE OFFICER FOR MISCONDUCT EVEN WHEN OFFICER IS ON UNPAID “RELIEVED OF DUTY” STATUS
On September 29, 2015, the California Court of Appeal, 2d District held, in the case ofNegron v. Los Angeles County Civil Service Commission, that the LA County Sheriff could discharge a deputy sheriff for misconduct committed while the deputy was on unpaid, relieved-of-duty status.
Facts
“Thomas Negron (Negron) had been employed as a deputy with the Department for eight years when he became embroiled in a contentious divorce. As a result of the divorce proceedings, Negron began experiencing stress, anxiety attacks, and other physical symptoms that caused him to miss work. Negron’s continuing anxiety issues eventually caused him to take a paid medical leave of absence, during which he was required to report to Sergeant Doris Walker, his superior at the Pitchess Detention Center (PDC). The Department subsequently determined that Negron’s anxiety problems were not work-related and relieved him of duty in November 2010. After he was relieved of duty, Negron stopped receiving a salary and was no longer required to report to work.”
“On January 26, 2011, California Highway Patrol (CHP) Officer Escalera stopped Negron in San Bernardino County after observing him driving erratically at an excessive speed. Escalera ran a check on the vehicle Negron was driving and learned that it was registered to a sheriff’s deputy and that the registration had expired in 2009.”
Negron became very agitated, loud and uncooperative. The CHP officer called for backup and when they arrived, “Negron began yelling and cursing at them and complaining that they were ‘holding him up.’” Negron continued to be belligerent and after attempting to calm him down unsuccessfully, Escalera handcuffed Negron and told him that if he did not calm down, he would be taken to jail.
“Concerned that he might have to arrest a law enforcement officer, Escalera requested a supervisor to respond to the scene.” Sgt. Suarez detected the odor of alcohol and observed that Negron appeared intoxicated. Negron was uncooperative and refused to answer questions. As a result, he was transported to San Bernardino’s Central Detention Center to conduct field sobriety tests.
“At the detention center, Negron told Escalera that he had consumed no alcohol before he was stopped. Negron refused, however, to cooperate during the field sobriety tests, and the results of a chemical breath test indicated that he had a blood alcohol level of 0.20. Escalera placed Negron under arrest for driving under the influence . . . .”
He ultimately pled guilty to a violation of Vehicle Code Section 23152, subdivision (b) and was placed on probation for three years.
“On March 25, 2011, Negron drove from his residence in Santa Clarita to the Newhall CHP office to obtain a copy of his January 26, 2011 arrest report. The CHP officer in the office asked Negron if he had his driver’s license and whether he had driven to the CHP office. Negron responded that his license had been confiscated and that he had a temporary permit in his car. Negron then retrieved the temporary permit and presented it, along with a business card identifying him as a deputy sheriff, to the CHP officer. The officer told Negron the temporary permit had expired, that he did not have a valid license, and that he needed to contact someone to drive him home.”
“The CHP officer called Sheriff’s Deputy Keith Shaw, who was stationed at PDC, to request that someone from the Department transport Negron and his car to Negron’s home or to one of the Department’s stations. Shaw and Deputy Randolph Ortiz responded to the CHP Newhall station. Shaw then drove Negron to PDC in Negron’s car while Ortiz returned in a Department vehicle.”
“When Shaw dropped Negron and his car off at PDC, Shaw told Negron that he needed to have someone pick him up because he was not allowed to drive on a suspended license. Shaw also instructed Negron to report to his supervisor, Sergeant Walker, in person to explain his contact with the CHP at the Newhall station. Approximately 20 minutes later, Ortiz saw Negron drive out of the PDC parking lot.”
Negron did not report in person to Sergeant Walker but telephoned her later that day and told her about going to the CHP and that Deputy Shaw came to drive him back, but nothing else. Walker called Shaw and a Department lieutenant to confirm Negron’s story. Shaw said that he had instructed Negron to speak to Walker in person about the incident at the CHP Newhall station. The lieutenant told Walker that Ortiz had seen Negron drive his car out of the PDC parking lot.
Walker then called Negron back and asked him how he had gotten home from PDC and he said his girlfriend came for him. Walker confirmed that the girlfriend did not pick him up and, “concerned that Negron had lied to her about driving with a suspended license, Walker reported him to her supervisors.”
“Following a Skellymeeting[Skelly v. State Personnel Board (1975) 15 Cal.3d 194], the Department issued a Notice of Discharge, sustaining the allegations of misconduct and terminating Negron’s employment with the Department. Negron appealed, and a three-day hearing was conducted before a hearing officer in September and October 2012. At the hearing, Negron argued [among other things] that the Department lacked authority to discipline him for the conduct alleged in the Notice of Discharge because that conduct occurred while Negron was on relieved-of-duty status and not receiving pay from the Department.”
Ultimately, a hearing officer recommended upholding all of the charges. “The hearing officer further found that Negron’s telephone conversation with Sergeant Walker violated Section 3303 of POBRA because it constituted an interrogation and Walker failed to provide Negron with the proper procedural safeguards. The hearing officer refused, however, to exclude Negron’s statements made during that phone call, concluding that an administrative hearing officer lacks authority to exclude statements made in violation of POBRA because such a remedy is available only in a trial court.”
The matter was then submitted to the Civil Service Commission, which overruled Negron’s objections and adopted the hearing officer’s findings and recommendations. He was terminated from employment.
“Negron filed a petition for administrative mandamus challenging the final order of the Commission. He argued that Garvin v. Chambers (1924) 195 Cal. 212, prohibited the Department from disciplining him for misconduct committed while he was not receiving any salary or benefits from the Department, that the Commission should have excluded statements made [to Sgt Walker] in violation of his rights under POBRA, and that substantial evidence did not support the termination of his employment.”
“The trial court granted the petition for writ of mandate and ordered the Commission’s final order to be set aside on the ground that the Department lacked authority, under Garvin, to discipline Negron for misconduct committed while he was on unpaid relieved-of-duty status.
The trial court concluded that Negron was not entitled to the protections of POBRA because he was not employed as a sheriff’s deputy and that accordingly ‘he was not a peace officer within POBRA’s scope at the time those statements were made and he is not entitled to have those statements excluded from future proceedings on POBRA grounds.’”
Court of Appeal’s Analysis
“In Garvin, a city of Oakland police officer named Garvin was accused of violating the National Prohibition Act and was suspended without pay pending investigation of the alleged violation. While Garvin’s appeal was pending and his suspension order was still in effect, the chief of police asked to meet with him. Garvin, accompanied by his attorney, appeared at the chief’s office for the meeting. The chief asked Garvin to meet with him alone, and Garvin responded that he wanted his attorney to be present. When the chief ordered Garvin to meet with him alone, Garvin refused and left with his attorney. Immediately after the aborted meeting, the chief filed a report recommending Garvin’s discharge for insubordination. . . .”
“Garvin sought a writ review of the civil service board’s approval of his discharge, and the trial court set aside the discharge order. The Supreme Court affirmed the order setting aside Garvin’s discharge, concluding that the civil service board lacked jurisdiction to adjudicate Garvin’s conduct as insubordination.”
The Court “noted that Garvin had been discharged for refusing to obey an order that did not concern performance of police duty, but that required him to serve as a ‘witness against himself’ in a quasi-criminal investigation of the charges underlying his suspension. Such conduct, the court concluded, could not constitute insubordination in violation of the department’s rules and could not serve as a jurisdictional basis for the order discharging Garvin from the police department.”
However, “Negron was discharged not for insubordination, but for violating state law by driving in a dangerous manner while under the influence of alcohol; for driving with a suspended license; for being uncooperative, evasive, and belligerent toward CHP officers; and for making false statements — conduct for which he could be held accountable even when relieved of his duties as a deputy sheriff.”
The Court found that “(t)he fact that a person is on leave from his ‘employment’ makes him no less an employee. Furthermore, Negron himself — while relieved-of-duty — held himself out as a deputy sheriff by presenting a business card which identified him as a deputy sheriff to the CHP officer at Newhall station.”
“Negron’s conduct reflected adversely upon and was a discredit to the Department. At the time of his arrest, Negron’s sheriff’s deputy uniform was plainly visible in the back seat of his car, of which CHP Officer Escalara took note. The vehicle registration for Negron’s car indicated the owner was a deputy sheriff.”
The Court held that “(g)iven these circumstances, we hold that the Department had authority to discharge Negron and that Garvin did not preclude the Department from doing so. The trial court’s conclusion to the contrary was in error.”
The Court found that the alleged POBR violations was not before it and didn’t rule on them.
HOW THIS AFFECTS YOUR AGENCY
Off duty misconduct is frequently challenged as being beyond the reach of an agency’s authority to impose discipline. However, it has long been found that if there is a nexus between the off duty misconduct and the job, disciplinary action can be imposed.
The instant case is unique since the deputy was in a “relieved of duty” status and not being paid during that time. Nonetheless, the analysis of the Court identified a nexus since there were numerous things which connected him to the LASO as a deputy sheriff.
It is important to note that the underlying misconduct was of a nature that brought discredit upon Negron and the LASO as well. As the Court stated, “Negron’s conduct reflected adversely upon and was a discredit to the Department.”
The Court found, in distinguishing the facts of Garvin, that “(u)nlike Garvin, in which the dismissed officer’s refusal to serve as a witness against himself could not constitute insubordination in violation of departmental rules, Negron’s conduct comes squarely within the prohibitions imposed by the Department’s Manual of Policies and Procedures.”
Even though he was on unpaid “relieved of duty” status, he was still subject to the agency’s rules and regulations. “Until he was discharged by the Department, Negron was a classified employee of Los Angeles County. Though Negron contends his relieved-of-duty status takes him outside the classified service, he offers no persuasive authority for that assertion.”
The Court held that “(t)he fact that a person is on leave from his ‘employment’ makes him no less an employee.”
As with all legal issues it is important to seek out and secure advice and guidance from your agency’s counsel. However, if you wish to discuss this case in greater detail, please feel free to contact me at (714) 446 – 1400 or via email at mjm@jones-mayer.com.
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