A San Bernardino County Superior Court has found that a Civil Service Commission’s findings upholding a termination were against the weight of the evidence presented at the administrative hearing; that the Department violated pre-disciplinary due process rights (i.e. Skelly rights) by failing to provide audio recordings of critical complaining witness statements; and ordered retroactive reinstatement with backpay, benefits, and interest calculated back to the date of termination.
Deputy Donna Williams had been a deputy sheriff for seven years, nine months with the San Bernardino County Sheriff’s Department at the High Desert Detention Center, where she worked in the jail. During the 2013 holiday season, Williams attended the High Desert Detention Center Christmas Party. She left the party around 11:15 p.m. and then went to a friend’s after-party. From there, Deputy Williams and her boyfriend drove to Del Taco on their way home.
They arrived at the Del Taco drive-thru at approximately 4:00 a.m. They received their food, pulled past the drive-thru window to leave, and noticed there was a car stopped, blocking the driveway exiting the drive through window. Shelton, the driver of the other vehicle, got out and approached the drive-thru window. Deputy Williams politely requested that Ms. Shelton move her car. Shelton told Williams to “shut up” and added some racial epithets. Deputy Williams and her boyfriend were shocked at this response. Shelton came back around the passenger side of Williams’ car and went up to the drive-thru window. This time, Williams’ boyfriend got out and asked “Ma’am, could you please move your car? There are parking spots right there,” pointing them out. By now, there were five cars lining up behind Williams’ car. Shelton similarly responded to him.
Shelton’s passenger then exited the vehicle and came up behind the boyfriend and pushed him; this was followed by chaos, screaming, yelling, and name-calling. When Deputy Williams witnessed the passenger push her boyfriend, she got out of the car and tried to deescalate the situation. Williams identified herself as an off-duty deputy sheriff and immediately told everyone to get back to their car.
Instead, the two women threatened Williams. Deputy Williams went up to the Del Taco window to speak with the attendant, identified herself as an off-duty deputy sheriff and requested she call 9-1-1. Shelton started taking down Williams’ license plate number, and Williams’ boyfriend then began taking pictures of Shelton’s license plate, and then started to video record with his cell phone. According to testimony, Williams was surrounded, with the driver in the back and the passenger in the front, with nowhere to go.
The passenger began punching Deputy Williams in the head and face several times with a closed fist. Indeed, she even admitted to hitting Williams three to four times in her interview with deputies who responded to the scene, and admitted Williams did not hit her, but only “brushed against her.”
Shortly after that, deputies arrived. They interviewed all four, including Del Taco employees who were working the drive-thru window at the time of the incident. Williams voluntarily provided statements and cooperated with their investigation.
The driver and passenger filed a lawsuit against Williams and the Sheriff’s Department, alleging Williams used racial slurs against them. The Department settled the case for a nominal amount. But it was only once the lawsuit was filed that the Department investigated the incident.
Deputy Williams was interviewed and denied using the alleged racial slurs. Williams was terminated, effective July 1, 2014.
The allegations that formed the basis of the termination included using poor judgment in engaging in a confrontation; using a racial slur, and lying to investigators when she denied using the racial slurs attributed to her. Williams appealed the discipline to the County of San Bernardino Civil Service Commission.
Partner Kasey Castillo represented Williams in the administrative hearing. The Commission appointed hearing officer Joseph Gentile to hear the case. The driver and passenger of the other vehicle refused to testify at the hearing; they also would not submit to interviews by the Internal Affairs department.
Following the hearing, the Hearing Officer found that Williams used good judgment when she tried to calm the situation, by identifying herself as an off-duty deputy sheriff, and again when she left the altercation and asked Del Taco to call law enforcement. However, he found Williams did not use good judgment when she became involved in the altercation, and used a racial slur. The hearing officer also found that Williams was dishonest when she denied using the racial slur.
During the hearing, Williams also raised a due process violation in the pre-disciplinary Skelly proceedings. In Skelly v. State Personnel Bd. (Skelly) (1975) 15 Cal. 3d 194, the California Supreme Court determined that the minimum procedural due process protections required before disciplinary action can become effective includes “notice of the proposed action, the reasons therefor, a copy of the charges and material upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline.” (Skelly v. State Personnel Bd., supra, 15 Cal. 3d at 215.)
Williams argued that her Skelly rights were violated because, among others, the Sergeant who conducted the administrative investigation obtained and listened to audio recordings of interviews of the alleged “victims,” taken by the deputies who had responded to the scene. He never disclosed the existence of the recordings or that he listened to them in his investigative summary and report, and under cross-examination Castillo was able to elicit from him an admission that he should have disclosed it. In the audio recordings, the passenger admitted to hitting Williams three to four times, and stated Williams did not actually hit her, but “brushed against her.” Internal affairs never had an opportunity to interview the driver or passenger, so the Sergeant relied on the interviews they had for the criminal investigation.
Without much analysis, the hearing officer determined there was no Skelly violation. The Commission adopted and approved the Hearing Officer’s Decision as the final administrative decision of the County. Williams filed a Petition for Writ of Administrative Mandate (Cal. Civ. Proc. § 1094.5) in San Bernardino County Superior Court. Castillo Harper attorney Michael A. Morguess represented Williams in the writ proceedings.
Morguess argued the Commission’s finding that Williams used poor judgment by becoming involved in a confrontation was belied by the Commission’s own findings that a) Williams affirmatively exercised “’good judgment’ when she entered the argument” to calm things down and b) affirmatively used “’good judgment’ when she left the altercation” and asked the Del Taco employee to call law enforcement. Williams tried to intervene and de-escalate the situation. Instead, the passenger began punching her in the head and face several times with a closed fist, and in her interviews with deputy sheriffs that night admitted to doing so and acknowledged Williams only “brushed against her.” At no time did she exercise poor judgment.
With regard to the dishonesty about making racial slurs, it was argued that on a cell phone video Williams’ boyfriend took and turned over to exonerate her, there is barely audible background noise. The Department claimed one could hear Williams, in her own voice, make the racial slur. However, when the Hearing Officer himself tried to listen to the same audio played, he could not hear Williams use that word. The department produced a supposed transcription of the audio portion of the cell phone video, attributing certain statements to Williams. But even the person who assisted in transcribing it had only spoken with Williams twice in his life. The Hearing Officer listened to the same audio, and did not hear Williams’ voice, nor any such words. Williams argued she was not dishonest in her internal affairs interviews and the evidence did not support a finding that she was.
Morguess also continued to press the argument that the Department violated Williams’ Skelly rights by failing to provide her with the audio recordings of the driver and passenger, taken at the scene, and that formed part of the “material upon which the action is based.” Even though Williams lost the administrative hearing, the proper remedy for a Skelly violation is “the amount of back pay due therefore begins at the time discipline is actually imposed and ends on the date the board files its decision.” (Barber v. State Personnel Bd. (1976) 18 Cal.3d 395, 403)
The Department argued Williams was only entitled to the materials the Skelly officer reviewed, and not the materials on which the initial decision – before it ever gets to a Skelly – was based. The Department also argued Williams was required to ask for those materials – even though she was unaware of them and thus was unable to demand to be provided such documents. Castillo Harper responded with a hypothetical: What if the Skelly officer who reviews the initial proposal for discipline only relies on a one-page summary of the entire investigation, while the initial decision-maker relied on 250 pages of investigatory materials? Did the County seriously contend the employee is only entitled to the one-page summary because that is all the Skelly officer eventually relied upon? The court eventually shared this view.
At the hearing, the judge asked in disbelief how the County could argue straight-faced that the only recorded statements of the complaining witnesses were not part of the materials relied upon, particularly when the County did provide the police reports upon which those statements were based. From there, it went downhill for the County. The Court took the matter under submission.
On May 3, 2017, the Court issued its ruling, overturning all of the charges as against the weight of the evidence, and finding that termination was an abuse of discretion. Although the findings rendered the Skelly violation essentially moot, the Court made a point of finding that “[b]y failing to provide petitioner with critical complaining witness statements in conjunction with her rights to a pre-disciplinary due process response to the proposed discipline . . . Williams’ due process rights were thereunder violated.” In its judgment, the Court ordered the County to set aside the disciplinary decision, reinstate Williams retroactively to the date of termination with back pay, benefits of the value thereof, and interest.
Michael A. Morguess is an associate with Castillo Harper APC. His practice focuses on petitions for writ of mandate and appellate matters. He is certified by the California State Bar as an Appellate Specialist. He is licensed in California and Oregon.