Making the Right Decision: The Three Costs of the Non-Scope Option

ANDY SCHLENKER Chairman, Region II

Your Legal Defense Fund administrative coverage provides a defense to any administrative disciplinary action up through and including the Skelly hearing.Afterward, LDF will only defend those matters that are determined to be within the “scope of employment,” such as allegations of excessive force used during the arrest of a subject. Typically, for those matters deemed to be “non-scope,” like an off-duty DUI, LDF coverage ceases immediately after the Skelly hearing, unless the member association has elected the “non-scope option.”

This non-scope option was implemented many years ago, at the request of the membership. It enables the member association to pay a higher monthly dues amount and provides coverage through the entire administrative appeal process for any matter, regardless if it is found to be within the scope of employment or not.In other words, if the member’s association has chosen the non-scope option, it does not matter whether the member faces an allegation of off-duty domestic violence or an allegation by a supervisor of failure to submit timely reports; LDF will fund the entire administrative appeal through the conclusion of the administrative appeal process, such as a civil service board or arbitration.

The cost of this non-scope option has several components. Most member associations already know that their LDF Plan 1 or Plan 3 rates are dependent upon their association’s usage. This experience rating formula causes the rates to be adjusted each year, based largely upon the association’s prior year’s expenditures of LDF dollars. If the non-scope option is selected, the following costs are also added to this base rate: First, an additional $5.00 is added to the base membership dues; Second, if the association’s rate is already at the “ceiling” — the highest amount of monthly dues as set by the Board of Trustees, regardless of the usage — then the membership rate can be even further increased by as much as $9.00 per member per month; Third, and most important, history tells us that the costs of defending a member through the Skelly hearing typically pales in comparison to the costs incurred by a full administrative appeal.

The process of arbitrations, Civil Service Commission hearings and the like are akin to a trial involving the presentation of evidence and witnesses and often require the use of experts and investigators. Thus, the more frequent administrative appeal hearings encountered by any member association, the more likely that association will have a large usage attributed to the experience-rating formula, causing their rates to increase.

Thus, when you add all the cost components together, the $5.00 fee, the increase in the dues ceiling and the increase in experience, the total amount your association may be paying for this option may likely be much more than the initial $5.00 additional fee.

Anecdotally, we found that associations who call the LDF office to vocalize their concern over their increasing LDF rates, most often have elected the non-scope option. In contrast, those associations who have elected to drop the option have seen a subsequent drop in their LDF rates. Bear in mind, only the $5.00 drop will occur immediately; the drop in experience takes some time to filter into the new rates.

Every member association has the option to add or drop the non-scope option from their LDF coverage. Each member association has to make their own decision whether the non-scope option, with ALL of its related costs, is the right decision for their membership. It should be a fully informed decision.

Deputy Sheriff Found “Not Guilty” on Theft Charge

KASEY CASTILLO Associate Lackie, Dammeier & McGill

More than one of the bloggers after the “not guilty” verdict commented that it was a waste of taxpayer money to go to trial over such a small thing. But for those of you in law enforcement, you know that allegations of theft, even over such a small thing — a novelty Zippo lighter — are nothing to take lightly and would be career-ending. That is exactly why San Bernardino Deputy Sheriff Jason Boros sought out to vigorously defend himself with the assistance of PORAC’s Legal Defense Fund and the law firm of Lackie, Dammeier & McGill.

In April 2010, Deputy Boros was on duty and assigned to the Hesperia station. His co-worker, Deputy Schroeder, had radioed that he was serving a due diligence arrest warrant and needed assistance. Deputy Boros, along with his sergeant, arrived on scene at the residence. Upon arrival, they found that Deputy Schroeder had arrested the sole person at the residence, who was not the subject of the warrant. Instead, he was an individual that had warrants of his own and claimed to be “staying” at the obviously abandoned property with permission. Upon contact, this individual gave no less than three fake names and false dates of birth and told Deputy Schroeder he had never been arrested. In fact, he had previous convictions for misdemeanor petty theft. By the time trial rolled around, he was on felony probation for attempted grand theft.

While on scene, the sheriff ’s deputies attempted to learn who owned the property and whose property was left at the residence. There were numerous tools, articles of clothing and personal and furniture items. There was clutter and trash everywhere. The electricity was off.There were propane tanks and heaters in the rooms being used to cook and heat.

During a search of the residence, Deputy Boros and his sergeant found and took apart a larger, novelty Zippo lighter to determine if there was contraband inside. Finding none, Deputy Boros’ sergeant placed the lighter back inside the room and left the location. Deputy Boros located a knife in the residence and brought it out to see if Deputy Schroeder wanted it for a charge. He did not, and Deputy Boros left the knife with him.

Deputy Boros continued to search the house and the property, noting serial numbers on generators and searching through articles of clothing. He picked up the lighter again with the intention of asking the subject in the back of the patrol car about the property in the residence, including the lighter, the generator and the tools. Deputy Boros placed the lighter in the small of his back, in plain view, as he often did with items, in order to continue to have his hands free during his search of the residence.Deputy Boros was heading outside to speak to the subject when Deputy Schroeder returned. They engaged in conversation, and Deputy Schroeder indicated he was done with the investigation and the subject would be cited for trespassing. His dog would also be taken by animal control, and his vehicle would be towed from the residence. In order to allow Deputy Schroeder to lock up, Deputy Boros stepped aside and backed out of the residence. Deputy Schroeder locked the door behind him and walked toward the back of the house to lock up from there.

As Deputy Boros began to walk toward where the patrol cars were parked, he realized he still had the lighter. He turned toward the front door and tossed it toward the house. It came to rest somewhere near the front door and a sprinkler box.Deputy Boros then continued to assist Deputy Schroeder, pulling up the subject’s picture on his MDC and identifying the man. After further conversation, he left and continued to work.

After Deputy Boros left, the subject in the back of the patrol car told Deputy Schroeder that Deputy Boros had backed out of the house with his lighter in his back and then appeared to “stash” his lighter. Deputy Schroeder went to where he was directed by the subject and located the lighter.

The next day, Deputy Boros was called Into the office by another sergeant who asked about missing property from the residence. Knowing he had only moved the knife (which he left with Deputy Schroeder) and the lighter, Deputy Boros asked if the inquiry was about the lighter. The sergeant confirmed it was, and Deputy Boros told him where he had left it, that he left it there due to laziness (for not returning it to the location he picked it up from) and that ultimately, it was likely a fire hazard in the house (due to the propane in the cluttered house) anyway. Instead of chalking this up to a poor choice by a deputy who didn’t return property to the exact location it had been obtained from, San Bernardino County officials decided to charge Deputy Boros with 484(a) PC, petty theft of the lighter.

When he came to the law firm of Lackie, Dammeier & McGill, he teamed up with attorney Kasey Castillo. After almost three days of trial, the case was given to the jury on the afternoon of Thursday, December 8, 2011. The jurors picked a foreman and decided to go home and sleep on it. They returned at 8:30 a.m. the next day, and by 9:00 a.m. reported to the bailiff that they had reached a verdict. That verdict was not guilty to the crime of petty theft and the added lesser included charge of attempted petty theft. The jurors clearly saw that there was no criminal intent on the part of Deputy Boros when he moved or tossed the lighter.After the trial, one juror told Deputy Boros that he would be proud to have him return to patrolling the city of Hesperia, the city where the juror lives.

Having been vindicated by a jury of his peers, Boros’ next hurdle is the administrative hearing where he will work to get his job back. Borros is of course thankful to LDF and his attorneys for vindicating his innocence in this matter.

About the Author

Kasey Castillo is a former deputy district attorney and now an associate and LDF panel attorney with Lackie, Dammeier & McGill specializing in criminal representation of police officers throughout California.

Jaramillo v. County of Orange

SUSAN SILVER Silver, Hadden, Silver, Wexler & Levine

In 1996, George Jaramillo met Mike Carona. They became friends, and Jaramillo served as Carona’s campaign manager in his run for Orange County sheriff. When Carona was elected, he appointed Jaramillo as one of four or five assistant sheriffs to serve immediately under Carona. Right before his appointment at the very end of 1998, Jaramillo was asked to and did sign what is described by the court as a “formal ‘waiver of rights’...” that told Jaramillo that he was agreeing to serve at will, i.e., “solely at the pleasure” of the sheriff. On February 28, 2000, Jaramillo signed another waiver that affirmed that he served solely at the “pleasure and discretion” of the sheriff.It was somewhat more specific about the rights that Jaramillo was waiving and contained a provision for a severance package of 90 calendar days of pay and health benefits, should he be terminated by the sheriff.

Both in these waivers were short, onepage documents that acknowledged that Jaramillo could be terminated without notice and implicitly referred to existing rights to notice, cause and appeal that were being waived. The documents were clearly a condition of Jaramillo’s appointment as assistant sheriff. Neither of them mentioned any specific statutory rights.

A serious breakdown in the relationship between Jaramillo and Carona ensued.Jaramillo objected to covering up the sheriff ’s misconduct and undertaking “errands,” such as interceding with the district attorney on behalf of the teenage son of another assistant sheriff who was accused of serious sexual crimes. At a meeting with Carona in August 2003, Jaramillo told Carona that he wanted Carona’s endorsement for a run for sheriff to succeed Carona. Carona refused on the basis that Jaramillo was no longer loyal, and an acrimonious exchange occurred during which Jaramillo listed all the things that Carona was doing that he believed were illegal and improper and warned Carona that he would no longer cover up for him.Jaramillo tried to make peace in March 2004 at a wedding, but Carona rebuffed the olive branch. About a week later, Carona called Jaramillo into a meeting with the human resources officer, four other sheriffs and the county counsel and asked Jaramillo to resign. When he refused, Carona fired him on the spot and referred to the 2000 document that had classified Jaramillo as an “at will” employee.

Jaramillo had been a city police officer for 14 years before becoming assistant sheriff and knew his rights under the Public Safety Officers Procedural Bill of Rights Act (California Government Code Section 3300, et seq., “POBRA”). He told Carona that he should have “some sort of hearing,” but he never received one Of any kind. On March 17, 2005, on the first anniversary of his firing by Carona, Jaramillo filed suit seeking back pay from the date of his dismissal on March 17, 2004.(The court eventually limited his claim to only extend until the date in January 2007 when he pled no contest to two state law felony counts, as the no-contest plea would make it impossible for him to continue to work in law enforcement pursuant to Government Code Section 1029. ) Judgment was entered from the trial court’s ruling in Jaramillo’s favor and the County of Orange appealed.

The ensuing Appellate Court Opinion filed on November 8, 2011, by the Fourth Appellate District, Division Three (200 Cal.App.4th 811) made it clear that there was no dispute that Jaramillo’s termination was without notice or the opportunity for an administrative appeal and therefore violated POBRA. However, the county argued that the trial court should have disallowed Jaramillo’s claim for back pay for two reasons: First, he was convicted of a felony in 2007, and second, he had waived his rights under POBRA by signing the waivers described above in 1998 and again in 2000. The Court of Appeal did not agree and affirmed the judgment of the trial court below.

With respect to the alleged waivers of POBRA rights, the Court analyzed the decision of the California Supreme Court in County of Riverside v. Superior Court (County of Riverside) (2002) 27 Cal. 4th 793 (“the Riverside case”). It was the only case as of the date of the Jaramillo opinion that had addressed the issue of whether rights under POBRA could be waived at all and, if so, under what circumstances. The parties disagreed over the way in which it should be applied to Jaramillo’s case. The Riverside court held that there could be no “blanket” waivers of POBRA rights. However, it looked at the waiver before it narrowly. The majority of the justices ruled that there may be a possibility of a valid “limited waiver” of POBRA rights. However, that kind of a waiver would have to be very narrow, so as to serve the public purpose of POBRA and not undermine it.

The facts in Riverside were unusual.When a city’s police department was disbanded and the county took over responsibility for enforcing the law within the city, the county offered immediate but probationary employment to former city officers. The conditions of probation included a waiver of the right the city officers had under POBRA to review any background investigation. The Riverside court defined the issue before it as whether “an ‘applicant’ can waive POBRA rights ‘with respect to a background investigation, while otherwise retaining’ other rights under POBRA.” While refusing to endorse a waiver of the city officers of all POBRA rights, the Riverside court distinguished between files relating to pre-hiring conduct and post-hiring conduct and approved enforcement of a waiver of POBRA rights only with respect to investigation of matters that arose prior to employment with the county (and limited to one year). The Riverside court held that such waivers would both serve the public purpose of POBRA and not undermine it. After analyzing Riverside’s holding in detail, the Jaramillo court went on to hold that the waivers signed by Jaramillo did not fit within the type of “limited” waivers that were left as possibilities. The first reason was that the waivers were, in substance, blanket waivers of all important rights under POBRA. The second was that the waivers were entirely prospective. Jaramillo had no reason to think that the sheriff was angry with him when he signed. Third, and most important, the waivers undermined POBRA as opposed to serving it.

Enforcing these kinds of waivers would allow an easy way around the protections applied to high-ranking peace officers by POBRA, which applies even to chiefs of police. “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 POBRA.”

The Jaramillo judgment contained only two awards of $50 each for the two violations of POBRA in addition to the back pay award. However, it did include an injunctive provision that requires the county to amend its waiver forms for executive management to expressly include language that no POBRA rights are included in the waiver. The court found this injunctive relief appropriate under Government Code Section 3309.5(d) (1), which allows the court to render appropriate injunctive relief “to prevent future violations of a like or similar nature” when there has been a POBRA violation. The Jaramillo court held that the relief was appropriate even though Jaramillo himself will never be employed by the county again.

The court also decided that Jaramillo’s warning to Carona that he would stop covering up for him did fit within the protections of Labor Code Section 1102. 5, the whistleblower statute, even though it was a report by an employee only to his superior who was actually committing the violations of a state or federal statute. In addition, it also refused to apply the equitable defense of “unclean hands” based upon Jaramillo’s legal troubles subsequent to his termination and also rejected the county’s arguments that the doctrine of “after-acquired evidence,” in this case Jaramillo’s subsequent indictment and plea to two state law felonies, should bar his award of back pay. Finally, it held that an award of attorney fees to Jaramillo’s counsel was proper under Code of Civil Procedure Section 1021.5 (the private attorney general statute).

A Petition for Review has been filed with the California Supreme Court. In addition, there is also a Pending Request for Depublication of the Court of Appeal’s Opinion. Stay tuned!