This guest post was authored by Jennifer Rosner
On November 8, 2011, the Fourth District Court of Appeal ruled that the former Assistant Sheriff of Orange County was entitled to an administrative appeal from his discharge despite twice signing a waiver acknowledging that he was an at-will employee with no right to appeal a discharge. The Court of Appeal held that the waiver that the Assistant Sheriff signed was ineffective to waive his rights under the Public Safety Officers Procedural Bill of Rights Act (“the POBR”) and California whistleblower statute.
George Jaramillo was appointed to Assistant Sheriff in 1998 after managing Michael Carona’s campaign for Orange County Sheriff. On December 31, 1998, just before he was appointed Assistant Sheriff, Jaramillo signed a formal “waiver of rights.” It was a three page document that made no direct reference to the POBR. On February 28, 2000, Jaramillo signed another one page waiver that made no direct reference to the POBR. The 1998 and 2000 waivers stated that Jaramillo served “solely” at the “pleasure and discretion” of the Sheriff and could be terminated “at any time without notice, cause or rights of appeal.” The documents also outlined a severance package that Jaramillo would receive if he was terminated.
Over the next few years, Carona and Jaramillo began to clash over a series of issues, leading Carona to ask for Jaramillo’s resignation in 2004. When Jaramillo refused to resign, Carona fired him. Jaramillo insisted that he had a right to “some sort of hearing” under the POBR, but his request was denied. Jaramillo filed a lawsuit against the County in 2005, alleging that his firing violated 1) the POBR; 2) 14th Amendment due process; and 3) Labor Code section 1102.5 (based on the idea that Jaramillo had been fired for whistleblowing on Carona’s activities).
In March 2006, almost two years after he was fired, the Orange County grand jury handed down a 13-count indictment, charging Jaramillo with various crimes, including perjury and misuse of public funds. Jaramillo eventually pled no contest to these charges on January 29, 2007. Meanwhile, Jaramillo’s lawsuit was still pending. The case was tried in Spring 2009. The trial court found that Jaramillo’s firing and the subsequent refusal of the County to afford him an administrative hearing violated his rights under the POBR.
On appeal, the Court of Appeals affirmed the trial court’s judgment. The Court found that the waivers that Jaramillo had signed in 1998 and 2000 did not effectively waive his rights under the POBR.
In reaching its conclusion, the Court examined a previous California Supreme Court decision in County of Riverside v. Superior Court (2002) 27 Cal.4th 793, which upheld a limited waiver of rights under the POBR, but indicated that such a waiver would have to be narrow and “serve” the public purpose of the POBR, not “undermine” it. (Id. at 805-806.) The Court of Appeals noted three key differences between Jaramillo’s case and the County of Riverside case: 1) Jaramillo’s waivers of his the POBR rights were blanket waivers, something which the Court believed had been rejected in County of Riverside; 2) Jaramillo did not have “full knowledge” at the time he signed the waiver, i.e., he had no reason to suspect he was in Carona’s ill graces when he signed the 1998 and 2000 waivers; and 3) the waivers would clearly undermine the public purpose of the POBR and not serve it.
The Court noted that if the waivers were enforced, the protections afforded high-ranking peace officers by the POBR could easily be circumvented. The Court noted that even police chiefs are covered by the POBR, stating: “To make a high ranking peace officer an at will employee is, in effect and as happened here, to strip that officer of the rights to notice of discipline and an administrative hearing that are central to the POBR.”
In addition, the Court affirmed Jaramillo’s claim that he was fired in contravention of the California whistleblower statute (Labor Code section 1102.5.) Jaramillo had allegedly warned Carona about his “illegal” use of the County helicopter for trysts with mistresses and his practice of “selling” badges and concealed weapons permits to campaign contributors. The Court found that Section 1102.5’s whistleblower protection applied to Jaramillo even where the only person who could hear the proverbial whistle was the wrongdoer himself.
Finally, the Court rejected the County’s arguments that the doctrines of “after-acquired evidence” and unclean hands should act to sever liability for the County. The after-acquired-evidence doctrine enables an employer to avoid liability for wrongful termination if, after firing an employee, it discovers that the employee engaged in misconduct that would have justified termination had it been known. The Court stated that the trial court did properly apply this doctrine to cut off the accrual of Jaramillo’s backpay after the day he pled no contest to state law felonies, and thus, was no longer eligible for employment with the County as a peace officer. The Court noted that the accrual period might have stopped running earlier had an administrative hearing been conducted that established that Jaramillo engaged in wrongdoing that related directly to his termination. But, the Court held that having violated the POBR by denying Jaramillo an administrative hearing, the County could not claim that his no contest pleas in state court and subsequent guilty pleas in federal court retroactively meant he was unqualified for his job.
Similarly, the Court stated that the doctrine of unclean hands depends on analogous case law, the nature of the misconduct, and the relationship of the misconduct to the claimed injuries. In rejecting this defense, the Court stated that none of the wrongful conduct to which Jaramillo admitted was related to his summary termination on March 17, 2004.
Despite the Court of Appeal’s decision in the Jaramillo case, there are still opportunities to have officers execute limited waivers of their rights under the POBR. For example, in Lanigan v. City of Los Angeles, the Second District Court of Appeal recently held that a peace officer could waive his POBR right to an administrative appeal as part of a settlement of a disciplinary matter. In the settlement agreement, Lanigan agreed to resign if he was later charged with similar misconduct. Lanigan agreed to submit a signed letter of resignation, which would be held in abeyance unless he violated the terms of the agreement. He also agreed to waive several of his rights under the POBR, including the right to appeal future discipline. A couple of years later, Lanigan was charged with misconduct similar to that which he had been charged with earlier and which violated the terms of the settlement agreement. The City processed his resignation in accordance with the settlement agreement. The California Court of Appeal found the agreement enforceable. The Court held that when faced with disciplinary proceedings, police officers may waive their POBR rights if the waiver is voluntary, knowing and made with sufficient awareness of the relevant circumstances and likely consequences. Unlike in Jaramillo, Lanigan’s waiver was not a pre-employment, blanket waiver of the POBR rights. Instead, he deliberately waived some of his the POBR rights in exchange for avoiding an appeal hearing which his attorney believed would likely result in his termination. Lanigan understood that he could keep his job, but only on condition that he would resign and lose certain the POBR rights as a consequence of any similar future misconduct. Thus, his waiver of his the POBR rights was knowing and intelligent.
These cases most likely will have an effect on fire agencies as well given the similarities between the POBR and Firefighters Procedural Bill of Rights Act.