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Davis v. County of Fresno

California Court of Appeals, Fifth District

May 3, 2018

JAMES DAVIS, Plaintiff and Appellant,
COUNTY OF FRESNO et al., Defendants and Respondents.


          APPEAL from a judgment of the Superior Court of Fresno County. 14CECG01490 Carlos A. Cabrera, Judge.

          Law Offices of Jacob M. Weisberg and Jason M. Weisberg for Plaintiff and Appellant.

          Daniel C. Cederborg, County Counsel, Catherine E. Basham, Deputy County Counsel, for Defendants and Respondents.


          FRANSON, JUDGE.

         Plaintiff James Davis was dismissed from his employment as a supervising juvenile correctional officer based on findings of insubordination, discourteous treatment of a subordinate, wrongfully assuming supervisorial duties over his wife despite several admonitions to the contrary, exaggerating the hours he worked on multiple time cards, and other misconduct. Davis's administrative appeal of his dismissal was denied by the Civil Service Commission (Commission) of the County of Fresno (County). Davis filed a petition for a writ of administrative mandamus requesting the superior court to set aside the Commission's decision. The superior court denied the petition.

         On appeal, Davis contends County violated his constitutional due process rights by failing to provide him a copy of all materials upon which the disciplinary action was based prior to his Skelly hearing.[1] Davis also contends County's failure to produce complete copies of reports and witness interviews conducted during the internal affairs investigation into his alleged misconduct violated the Public Safety Officers Procedural Bill of Rights Act, Government Code section 3300 et seq. (POBRA).[2]

         We conclude the materials delivered prior to Davis's Skelly hearing satisfied the requirements of due process applicable before disciplinary action is imposed. In contrast, we conclude County violated Davis's right under POBRA to receive “any reports or complaints made by investigators or other persons.” (§ 3303, subd. (g).) We interpret the term “any reports” to include the incident reports and interview transcripts attached to a September 2012 memorandum prepared by a special probation investigator who looked into a retaliation complaint made by another officer against Davis. Davis's alleged discourteous treatment of this officer was one of the grounds for his dismissal.

         The issue of the appropriate remedy for a violation of POBRA is committed to the broad discretion of the superior court. Here, the record does not compel this court, as a matter of law, to reinstate Davis with backpay. Furthermore, there exists a wide range of remedies and we make no comment as to the merits of any of the possible remedies the trial court might select. Therefore, we remand this matter to the superior court and direct it to decide in the first instance the appropriate remedy.

         We therefore reverse the judgment.


         Davis worked 14 years for the California Highway Patrol before retiring due to a service-related injury. In September 2002, County hired Davis as a full-time juvenile probation officer. In June 2006, Davis was promoted to supervising juvenile correctional officer.

         Davis was selected as the probation department's employee of the month in March 2004 and September 2008. In October 2008, Davis filed a complaint with the Federal Bureau of Investigation (FBI) alleging a County employee had used excessive force against a juvenile inmate. Davis informed his supervisor of his complaint to the FBI.

         In February 2009, Davis was placed on paid administrative leave for alleged misconduct. Without using progressive discipline, County terminated Davis's employment in December 2009. Davis contends County placed him on leave and then fired him in retaliation for filing the complaint with the FBI. In March 2010, the Commission overturned the termination, reinstated Davis to his former position, and found a suspension of six weeks (i.e., 240 hours) without pay was appropriate. Davis asserts the Commission made its decision after hearing County's case in chief and did not wait for him to present evidence.[3]

         September 2012 Memo

         On July 5, 2012, Lonny T. Blue, juvenile correctional officer II, was informed by other officers that Davis had instructed them to write incident reports because Blue had brought a juvenile out for recreation on the 4th of July even though the juvenile was on a “High Security 1” contract for having a pencil in his cell. Blue then prepared an incident report dated July 5, 2012, describing what the officers had told him.

         On August 3, 2012, Blue filed an internal complaint alleging Davis was retaliating against him by making it difficult for him to carry out his duties and causing him stress. Blue attached a copy of his July 5, 2012, incident report to his complaint. Blue's complaint was investigated by Glenn Johnson, special probation investigator. Johnson asked Blue for additional information supporting his allegation of retaliation and Blue responded by email dated August 21, 2012. Johnson interviewed a number of officers, including Blue and Davis. Davis was interviewed on September 7, 2012.

         On September 12, 2012, Johnson completed a memorandum to Linda Penner, chief probation officer, addressing Blue's complaint of retaliation (September 2012 Memo). The September 2012 Memo was 20 pages long without its attachments and described Johnson's investigation as follows:

         “This investigation involved the review of numerous documents (each Tabbed for reference), and personal interviews (each transcribed and Tabbed for reference). Witness/interviewee statements are summarized below, however, it is suggested the full transcript be read for a complete review of the interview.”

         The materials placed under a particular tab might include incident reports, interview transcripts, and emails. For example, Tab 6 to the September 2012 Memo included a transcript of an interview with juvenile correctional officer Angie Marquez and an email to Marquez. It also may have included a copy of an incident report prepared by Marquez and dated July 6, 2012.

         Other Events

         On October 12, 2012, Davis forwarded to supervising juvenile correctional officer Anthony deLanda an email Davis received from program service manager Melissa Madsen. The Madsen email stated a complaint had been made against Davis and directed him not to discuss the matter with anyone other than his chosen representative. As deLanda was not Davis's representative, Davis's forwarding the email to deLanda disobeyed Madsen's directions.

         On October 22, 2012, Rick Chavez (who was later promoted to chief probation officer in 2013) observed Davis arrive at the parking lot at 4:13 p.m. Davis had been scheduled to work as watch commander and should have reported at 3:48 p.m. for briefing by the outgoing watch commander. Davis's timesheet reflected that he began work at 3:48 p.m. Subsequently, a private investigator was asked to verify Davis's arrivals and departures on three Sundays when Davis was scheduled to work from 7:48 a.m. until 4:00 p.m. On those Sundays, Davis submitted false timesheets.

         On December 9, 2012, while on duty and logged onto the watch commander's computer, Davis completed a timesheet for his wife, a juvenile correctional officer. Previously, Davis had been provided a copy of the department's nepotism policy, directed not to supervise his wife, and counseled that his approval of his wife's timesheets was performing a supervisory function.

         Administrative Leave and Investigation

         On December 13, 2012, County placed Davis on administrative leave and initiated an internal affairs investigation into various allegations of misconduct. In April 2013, Davis was notified by mail that additional allegations of misconduct would be included in the investigation. The violations of policy alleged included incompetency, insubordination, neglect of duty, discourteous treatment of other employees, dishonesty, and fraud.

         Special probation investigator Johnson was assigned to the matter and conducted “Internal Affairs Investigation #12-0012.” Davis was interviewed on May 9, 2013. Johnson also interviewed Vince Ariz, a probation services manager who acted as Davis's supervisor at the juvenile detention facility; Sandra Hearnes, a supervising juvenile correctional officer; and Chavez, who had observed Davis's late arrival to work.

         Internal Affairs Report

         Johnson prepared a report for “Internal Affairs Investigation #12-0012” which was dated June 14, 2013, and sent to Penner (IA Report). The IA Report was 31 pages long without its attachments. Tab J to the IA Report was the September 2012 Memo, which addressed Blue's complaint of retaliation.

         The IA Report's conclusions stated the “investigation identified numerous instances of misconduct on the part of Mr. Davis” and some occurrences violated more than one policy. To illustrate this point, the IA Report stated Davis “failed to timely review and submit [incident reports] pertaining to a specific assault on a minor who was injured and subsequently filed a Claim for Damages against the County. This misconduct can be viewed as an act of incompetency and neglect of duty.” The IA Report also stated:

         “The discourteous treatment of Officer Blue is supported by Mr. Davis receiving a clandestine E mail from SJCO Herrera singling out JCO Blue; not requesting JCO Blue's input regarding activities which occurred in a Pod supervised by Mr. Davis; having peer staff write reports about Officer Blue and telling the peer officers not to discuss the matter with Officer Blue; approving a staff's time sheet for overtime in order for that staff to avoid contact with Officer Blue without Administrative approval; and the reference to ‘That Kid' in describing Officer Blue.”

         The IA Report recommended sustaining the allegations that Davis violated (1) County personnel rules, (2) administrative policies of the probation department, and (3) a County management directive relating to the completion of timesheets.

         Notice of Disciplinary Action

         On July 26, 2013, County gave Davis a notice of intended order for disciplinary action signed by Penner, who was still acting as chief probation officer, [4] and dated July 24, 2013. The notice included an unsigned copy of a 12-page proposed order and stated Davis could make an oral or written reply within five days. The proposed order stated the department had received numerous complaints of inappropriate conduct by Davis and several coworkers and an investigation determined Davis had (1) engaged in discourteous treatment of a subordinate employee; (2) violated directives regarding confidentiality of personnel investigations; (3) failed to review and submit reports as directed; (4) improperly engaged in supervision of his wife; and (5) failed to properly account for his working hours on his timesheets. As to the last of these allegations, paragraph 20 of the proposed order described four timesheets on which Davis falsely reported his time of arrival or departure from work.

         Also on July 26, 2013, County provided Davis with a packet of information containing the IA Report and the September 2012 Memo, without attachments. County's decision to withhold the attachments is challenged in this writ proceeding as a violation of Davis's POBRA rights and his constitutional right to due process. One rationale County subsequently offered for excluding the attachments was that “[t]he attachments were not included in the packet provided to either Ms. Penner or Chief Chavez and were not considered by them in making the decision to discipline Mr. Davis.”[5]

         On August 14, 2013, a Skelly hearing was held. At the time of the Skelly hearing, Chavez was the chief probation officer, but he did not conduct the hearing because he witnessed some of the alleged misconduct by Davis. Penner was still employed by County and she conducted the hearing, but Chavez signed the order for disciplinary action issued after the hearing, following Penner's recommendation. The order was dated August 14, 2013, and stated Davis was dismissed from his position with County effective as of that date.

         Administrative Appeal and Decision

         On August 21, 2013, Davis completed a request for appeal. He admitted some of the allegations in the order of discipline (including paragraphs 7, 18, 20 & 22) and denied other allegations on the ground they were not true. Specifically, Davis admitted (1) he had acknowledged during the May 9, 2013, interview that his actions in sharing certain information with deLanda were not consistent with the directives he had been given; (2) he had been provided with a copy of the nepotism policy, counseled that he could not supervise his wife, and told approval of her timesheet constituted a supervisory function, yet he completed a timesheet for his wife on December 9, 2012; (3) he submitted false timesheets on three Sundays when his arrival and departure was observed by a private investigator; and (4) he had previously been disciplined with a suspension for discourteous treatment of others, failing to comply with policy, and dishonesty.

         On November 5, 2013, a prehearing conference was held. The parties exchanged witness lists and the department provided copies of 28 possible exhibits. The prehearing officer directed Davis to provide his exhibit list and copies within a week. Davis requested that the department be ordered to disclose materials related to the investigation of complaints made against him. On November 20, 2013, the prehearing officer issued a letter addressing Davis's request for disclosure of materials. The letter directed the department to produce some documents and concluded other documents need not be disclosed because they were irrelevant, privileged or confidential. For instance, the letter referred to “a July 7, 2012 ‘IR' and complaint filed by employee Dominguez-Marquez ‘against Blue alleging use of profanity and discourteous/intimidating behavior'” and denied Davis's request for the materials. Davis wanted the documents relating to the incident involving Blue and Marquez to impeach Blue.

         On November 25, 2013, Davis's counsel sent a letter to opposing counsel about the copy of the IA Report provided to Davis. The letter stated Tab J to the IA Report contained the September 2012 Memo from Johnson to Penner regarding Blue's retaliation complaint, but did not include all the documents attached to the memo and submitted to Penner. The letter stated that, because of the significance of the charges involving Blue, “Davis is entitled to have all the documents presented to Chief Penner and which are referenced in [the September 2012 Memo] at pages 1-20 as Tab 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11.” The letter requested “a copy of the entire report submitted to Chief Penner by Johnson on September 12, 2012.”

         The next day, Davis's union representative sent a letter to County's attorney supporting Davis's request for documents. The representative's letter stated Davis's right to due process had been violated by the failure to produce the materials and, at the least, Davis should receive backpay from the date of his Skelly hearing (August 14, 2013) until his appeal was decided.

         On November 27, 2013, Davis's counsel sent a letter to the prehearing officer and opposing counsel requesting the termination of the proceedings because of violations of Davis's Skelly rights and POBRA. Counsel representing County responded by refusing to provide the additional documents.

         On December 3, 5, 6, and 18, 2013, hearings were held before the Commission. At the opening of the hearing, the Commission considered and denied Davis's motion to dismiss the proceeding due to the failure to produce documents.

         On January 9, 2014, the Commission issued a notice of decision denying Davis's administrative appeal and confirming the probation department's termination of his employment. Davis requested written findings of fact and conclusions of law. On March 20, 2014, the Commission issued a 31-page decision stating its findings and conclusions, which became the final administrative decision on Davis's dismissal.


         In May 2014, Davis filed a pleading consisting of a petition for writ of administrative mandamus and complaint for damages. In November 2014, Davis filed a first amended petition and complaint, which ...

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