The California Supreme Court has agreed to address whether the whistleblower statute, Labor Code section 1102.5, subdivision (b), applies to and protects from retaliation, an employee who discloses violations of law when that information is already known to the governing agency or person of authority at the employer. This question stems from the case
Court Of Appeal Holds That Assistant Sheriff’s Waiver Of Right To Administrative Appeal Violated The Public Safety Officers Procedural Bill Of Rights Act
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.…
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