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San Bernardino County Probation Corrections Officer’s 5-Day Suspension Overturned

As of 2011, our client had worked as a Probation Corrections Officer (PCO) for San Bernardino County for 25 years. In February 2011, he was transferred from the West Valley Juvenile Detention Center (WVJDC) to the Central Valley Juvenile Detention Center (CVJDC). Prior to this time, he had not received any discipline or had any performance issues. Upon being transferred, our client immediately encountered problems with his new supervisor, and within a year he was suspended for poor performance.

The department claimed that our client had been on notice since March 2011 that his work performance was deficient. They supported this claim with weekly notices that his case work reports were late. These reports also showed that the other PCOs were also consistently late with their reports. In addition, the department began to issue various notices of deficiency including a May 2011 “Letter of Concern” that was allegedly sent to all the unit officers via email yet was unacknowledged and unsigned by our client.

In August 2011, the supervisor was re-assigned yet he still completed our client’s yearly evaluation, giving him a “Below Standards” rating. It was established at hearing that the supervisor did not contact our client’s prior supervisor at WVJDC for input, even though the Probation Division Director stated that would have been appropriate. When questioned about the short time he had supervised our client, the supervisor stated 6 months was adequate time to evaluate his performance. As a result of the “Below Standards” rating, our client was placed on a Work Performance Improvement Plan (WPIP) in January 2012, at the same time he was served his November evaluation. The WPIP was written by the same supervisor who had been re-assigned in August as well as our client’s new supervisor. The WPIP called for our client to meet his supervisor two times per week for a total of 17 meetings. These meetings were to be a chance for him and the supervisor to review his work and to conduct training. When the WPIP concluded in March 2012, our client and the supervisor had met a total of 4 times, and each time the written evaluation that was a component of the WPIP was given to our client days, and in one case a month, after the meeting.

The department charged our client with a failure to meet work performance standards, willful disobedience to department rules and inefficiency/incompetence or negligence in the performance of his duties. They supported these allegations with several letters of reprimand and even introduced at hearing a letter of instruction that was not part of the original discipline or mentioned at the Skelly meeting. The department also attempted to introduce three Work Performance Evaluations from 2005 when our client had been assigned as a supervisor but had eventually returned to the PCO position. In the final Notice of Suspension, the department alleged that he was negligent when he failed to meet performance standards for January to March 2012, the exact time of the WPIP. They also alleged he failed to follow his supervisor’s instructions by missing three of the schedule performance review meetings. Two these missed meeting were after the WPIP had ended. The department issued a 5-day suspension that our client was served with in July 2012. Attorney Mike McCoy appealed that suspension on behalf of our client, which resulted in a one-day hearing before a neutral arbitrator.

After the evidentiary hearing, in his written decision, the arbitrator addressed the fact that the department was keeping a supervisor’s “drop file” that our client was unaware of and had no access to review the contents. At hearing, the arbitrator expressed a concern that the department was keeping “secret files” on its employees. He noted that as a peace officer, our client was entitled to protection under California Government Code section 3300 -3311, also known as Peace Officers’ Procedural Bill of Rights (POBOR). The arbitrator found that there were “clear violations” of our client’s POBOR rights, specifically section 3305. He ruled that there were a number of documents placed into his personnel file in violation of this section and would be excluded from consideration because their use would deny our client’s due process rights as well.

The arbitrator agreed that the supervisor had cancelled most of the meetings where our client was to receive training and counseling from his supervisor. He noted that even though the supervisor claimed our client had performance issues, the evidence at hearing did not indicate the supervisor felt it was necessary to work with him since she only met with him four times out of 17 scheduled meetings. The arbitrator also agreed that the WPIP had ended on March 9, 2012 and that our client could not be charged with missing the March 15 and 19 meetings. In regard to the March 9 meeting, the arbitrator stated the department had failed to assist and to be proactive in assisting our client in attending this meeting.

In addressing progressive discipline, the arbitrator noted that other officers also had trouble completing reports on a timely basis and that the recording of behavioral points for the juveniles was not solely our client’s responsibility. He stated that there was no evidence that these other employees were given suspensions. The department did not consider our client’s long history with the department, his years of having achieved standard performance and his lack of discipline to mitigate his discipline. In conclusion, the discipline was harsh and excessive.

Ultimately, the arbitrator decided that our client had violated policy in one instance, but that the other charges were not sustained and as a result the 5-day suspension was overturned and reduced to a letter of reprimand. He also directed that our client be made whole in regards to loss of pay and other benefits associated with the suspension. On first blush, this case appeared to be an uphill battle. However, with the aid of  attorney Mike McCoy, our client overcame that suspension. Our client notes that he is grateful for the hard work of his attorney, and is “truly happy about the outcome of this matter.”

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