From: PORAC Law Enforcement News
By: PORAC, January 2002
The California Court of Appeal, Second District, called Ventura County “penny-wise and pound-foolish” and described its devious behavior as “inexplicable” in connection with its handling of Deputy Sheriff Mark Jurisic’s proposed disciplinary action. In so doing, the Court affirmed peace officers’ rights to procedural due process.
Prior to his termination, Jurisic worked for the county as a deputy sheriff for approximation 14 years. In 1997, the sheriff’s department conducted a two-month investigation into allegations, among others, that Jurisic, while assigned to patrol the Silver Strand Beach beat, drove a marked sheriff’s unit to Tommy’s Hamburgers, located in Canoga Park (known as a “Tommy’s run”), and slept on duty.
The sergeants assigned to the investigation authored a report of approximately 100 pages, in which they detailed their findings and conclusions. They determined the evidence was insufficient to support the charge that Jurisic slept on duty. Their report was forwarded to their supervisor, Capt. Bill Edwards, who used the report as the basis of his own 25-page memorandum, in which he recommended Jurisic’s termination. Edwards concluded that Jurisic had, in fact, slept on duty.
On June 23, 1997, the county placed Jurisic on administrative leave and served him with a notice of proposed dismissal. The notice set forth Jurisic’s right to respond by July 3, 1997, at 5 p.m. According to the notice, if Jurisic chose to respond verbally, he or his representative was to contact Edwards and be “ready to supply Edwards with multiple potential meeting dates and times.” The notice was also accompanied by a “Skelly package” that was purported to be all of the material upon which the action was based.
On July 1, 1997, Jurisic, through his attorney, Robert M. Wexler, of Santa Monica based Silver, Hadden & Silver, sent a letter to Edwards via facsimile and first-class mail, indicating that Jurisic wished to respond to the charges. Wexler asked for “copies of all notes, letters, documents, tape recordings, photographs and other evidence to which Jurisic was entitled pursuant to Skelly v. State Personnel Board.”
He also advised the county that a copy of the anonymous letter that launched the investigation and the tape recording of one witness’s interview were missing from the materials provided to Jurisic as part of his Skelly package. He suggested that the pre-disciplinary Skelly meeting be scheduled in three weeks to permit him time to review the two-inch thick file and the missing materials, which had yet to be furnished. Finally, he advised the county that he would be out of town until July 8, 1997.
On July 3, 1997, a county employee hand-delivered the county’s response (notwithstanding Wexler’s absence), indicating they were proceeding with the termination effective midnight July 6, 1997. The letter stated that the county could find “simply no legitimate reason for the citizens of Ventura County to continue to keep [Jurisic[ on paid leave” to accommodate the additional requested for the Skelly hearing.
“Although the dismissal will occur,” the letter stated, Chief Deputy Richard Rodriguez was willing to meet with Jurisic and listen to his response “and then decide whether or not to undo the dismissal.” Accompanying the letter was the missing tape recording and the anonymous letter to the sheriff. There was also two additional pieces of evidence to which Jurisic was entitled and that the county had not provided to him.
On July 7, 1997, the department served Jurisic with a notice of dismissal. On July 9, 1997, Wexler wrote the county, advising that, upon reviewing the material provided to Jurisic, the county seemingly failed to turn over other evidence upon which the charges were based. Accordingly, he indicated, “Until all materials upon which the proposed discipline is based are delivered to phim[, Jurisic cannot be expected to attend a pre-disciplinary hearing or be terminated without the opportunity for such hearing.”
Wexler demanded that the county reinstate Jurisic until he was afforded a proper pre-disciplinary hearing, following receipt of all materials upon which the charges were based. The county responded by letter dated July 16, 1997, indicating that it would neither provide the additional information, nor alter its position with regard to his request for a pre-removal meeting.
On July 21, Jurisic met with the Chief Deputy Rodriguez and presented his verbal response to the charges. Rodriguez decided to maintain the termination action.
On August 15, 1997, Jurisic timely appealed his termination to the Civil Service Commission. Through cross-examination of the county’s investigators and administrators, Jurisic learned for the first time the county was surreptitiously concealing numerous documents, reports and witness interviews.
The true extent of the missing materials was staggering. Among the materials the county withheld from Jurisic as part of the Skelly package were: (1) the 100 page report compiled by the Internal Affairs investigators, in which they determined that the evidence did not support that Jurisic slept on duty; (2) numerous transcripts that contained information about other deputies and supervisors making “Tommy runs” and/or sleeping on duty with impunity; (3) the 25-page memorandum by Edwards in which he overruled the investigators’ determination that the evidence did not support that Jurisic slept on duty; and (4) various memoranda between county officials regarding the investigation.
The commission eventually directed its law officer to conduct an in camera review of the evidence. He ordered the department to turn over approximately 200 pages of nnever before-produced evidence directly related to the charges, including pertinent aspects of each of the above-mentioned evidentiary items. After a total of 11 days of hearing, the commission issued its decision upholding Jurisic’s termination for engaging in the “Tommy’s run” and for sleeping on duty.
Jurisic, with the full support of the Legal Defense Fund, petitioned the Superior Court for an administrative writ of mandamus, arguing among other claims that the pre-termination process followed by the county violated his due process right under Skelly v. State Personnel Board. Following a hearing, the trial court determined that the county’s refusal to grant Jurisic a Skelly hearing was a violation of his right to due process.
The court also held that the county violated Jurisic’s right to due process by purposefully concealing 200 pages of evidence uncovered during its investigation and upon which it based the charges against Jurisic, but which it did not produce until ordered to do so by the commission’s law officer during the waning days of the evidentiary hearing, long after the discipline was imposed and Jurisic’s opportunity for a pre-disciplinary response elapsed.
The Superior Court awarded Jurisic full back pay from the date of his termination until the commission’s decision. That sum is expecting to approach $100,000.
The county appealed. The Court of Appeal, Second District, in an unpublished decision filed Sept. 17, 2001, affirmed the Superior Court’s judgement. The Court rejected the country’s argument that Skelly only requires 10-days notice of an employee’s opportunity to be heard.
The Court, confirming that due process is a flexible concept that requires a balancing of interests, determined that Jurisic had a substantial interest in his job as a deputy sheriff. The Court found that the length of the Skelly package, the fact that certain items appeared missing from the Skelly package, and Wexler’s indicated absence were ample justification for Jurisic’s inability to meet with the county by its self-imposed July 3 deadline.
The suggested meeting dates, within three weeks of the county’s deadline, were reasonable under the circumstances, according to the justices. Ultimately, the Court affirmed the Superior Court’s holding that “the financial burden of keeping [Jurisic] on the payroll for a few additional weeks until the required pre-termination hearing could be held was outweighed by the substantial loss of income and benefits he faced due to a potentially wrongful termination.”
The Court dismissed the county’s claim that Jurisic was not entitled to the sergeant’s investigative report, as it reflected the department’s deliberative process. The justices also rebuked the department’s argument that Jurisic’s July 21 meeting with Rodriguez, following his termination, was sufficient to satisfy due process requirements. The Court agreed with Jurisic that there can be no meaningful opportunity to respond until such time as the employee is provided all materials upon which the proposed discipline is based.
In what seemed to be an obvious reference to the arrogance with which the county handled the matter, the Court wrote that the county acted “penny-wise and pound-foolish” in refusing to allow Jurisic an additional few weeks to respond to the initial notice of proposed dismissal and in withholding material upon which that action was based.
“denying this 14-year employee of these items,” the Court wrote, “when settled principles of due process mandate a pre-termination hearing and a complete Skelly package was inexplicable.”
Jurisic, who expressed his gratitude to the entire staff at Silver, Hadden & Silver for its tremendous support and quality work, was awarded costs and fees by the courts.