By: Ken Yuwiler
Dan Carr was a Supervising Welfare Fraud Investigator with the County of San Bernardino. He was investigated by the County for alleged misconduct and, after a superficial investigation, the County terminated his employment. Having the benefit of LDF coverage, he appealed and was represented throughout the proceedings by Ken Yuwiler, a partner at Rains Lucia Stern St. Phalle & Silver, PC.
Months later, after the first day of the expected multi-day appeal, the hearing officer mentioned that he was going to need a delay of a couple of months due to a medical problem. Instead of agreeing to the small delay, the County made a motion before the Civil Service Commission to have another hearing officer appointed, apparently, to get a hearing officer the County thought would be more favorable to its case. Although opposed by Carr, the Civil Service Commission granted the motion which ironically created an even further delay, to the tune of about one year.
Given the breadth of the delay, Carr decided to retire to get the additional income. Unbeknownst to Carr, a Court of Appeal case from San Bernardino holds that if an employee retires then the Civil Service Commission loses its jurisdiction, and any back pay or benefits could only be obtained through the pursuit of a civil case. (Court of Appeal decisions from other parts of the State of California hold otherwise.) Seeking to get the matter away from the Civil Service Commission, the County filed a motion to dismiss, but before the motion was heard, Carr rescinded his retirement thereby making the motion to dismiss moot.
Then, on the first day of the new hearing and without any notice, the County unilaterally withdrew the termination and, instead, issued a fifteen day suspension. In doing so, the County claimed that a witness had recanted. In fact, it must have realized the case clearly did not merit termination. To resolve the matter, Carr agreed to the fifteen day suspension expecting immediate reinstatement and back pay. The County balked, claiming that Carr had filed a workers’ compensation claim and while he was terminated the doctor issued prophylactic restrictions that the County now claimed would not allow him to do his job. Although by this time Carr had been away from duty for two years, the County refused to compensate him for more than six months’ back pay and refused to put him back to work.
With the acceptance of the fifteen day suspension, the Civil Service Commission encouraged Carr to dismiss his appeal, but he refused, as the County had failed to provide full back pay and benefits and failed to reinstate him to duty. When the County claimed he could not physically perform the duties of the position, Carr sought a disability retirement but the County’s Retirement Board rejected his claim. Despite the Retirement Board’s decision, the County continued to refuse to pay Carr the back pay and benefits he was due and it continued to refuse to reinstate him. Carr again went to the Civil Service Commission for relief. Given the decision by the County’s Retirement Board, the Civil Service Commission agreed to determine if Carr was entitled to his back pay and benefits but only until the time he was “reinstated.” Another hearing was set after which the hearing officer determined that the County was obligated to pay all back pay and benefits during the entirety of Carr’s wrongful termination. The County did not appeal the Civil Service Commission’s decision.
Carr is very grateful for his LDF coverage without which he would not have been able to get all of his back pay, benefits and interest. Ironically, had the County not forced Carr to rescind his service retirement the amount the County would have owed Carr would have been greatly reduced.
Unfortunately, the Civil Service Commission declined to address the County’s actions post “reinstatement.” To compel the County’s continued obligation to pay Carr his back pay and benefits after being “reinstated” and to compel the County to allow Carr back to work, LDF approved the filing of a Petition for Writ of Mandate which is still pending. Carr looks forward to reporting soon on this continuing saga.
Ken Yuwiler is a partner in the Rains Lucia Stern St. Phalle & Silver, PC Legal Defense Practice Group. Ken practices labor and employment law primarily representing public safety employees in civil and administrative proceedings, assisting his clients during internal affairs investigations, critical incidents, disciplinary proceedings, and grievances, including writs and appeals.