By: Zach Lopes, Russell Perry
San Bernardino County Probation Corrections Officer (PCO) Harold Guinn has been reinstated to his position after a 10-month contentious legal fight with the County. PCO Guinn fought the Probation Department’s desperate and vindictive attempt to terminate him without completing a fair and impartial investigation and, equally important, without an adequate showing of just cause. Guinn, a 28-year veteran of the Department, was terminated in January 2014. Russell Perry and Zachery Lopes of the law firm Rains Lucia Stern, PC, represented Guinn in his efforts against the County. Guinn’s eventual reinstatement arose from Mr. Perry’s aggressive and thorough administrative advocacy, along with Mr. Lopes’ simultaneous civil lawsuit against the County, contesting the calculated steps taken by the County to terminate Guinn in violation of his rights under the United States Constitution and California Government Code §§ 3300, et seq., also known as the Public Safety Officers Procedural Bill of Rights Act (POBR). The two-pronged approach eventually forced the County to relent and reinstate Guinn with back pay.
The County’s allegations against Guinn arose from a use-of-force incident that occurred in a Juvenile Detention Center in February 2013. During meal time at the center, one juvenile assaulted another in an unprovoked attack. Guinn was one of two PCOs present at the scene. PCO Guinn provided cover by keeping watch on the other juveniles and issuing commands to get on the ground, which is consistent with Department policy, his experience and training. The PCO in closer proximity to the fighting juveniles became the primary contact officer in the attempt to stop the assault. Because the aggressive minor failed to comply with verbal commands, the primary contact PCO was forced to deploy pepper spray on the attacking juvenile several times. Unfortunately, the juvenile’s long hair was blocking his face (the intended target) from the stream of pepper spray. As trained, the primary officer repositioned himself to the side in an attempt to get a better view of the facial area. After three to four attempts, the primary contact officer managed to spray the aggressive minor. Eventually the attacking juvenile was handcuffed, after responding staff arrived on the scene. During the pepper spray deployment, Guinn maintained his command of the other juveniles while putting on his protective gear, also consistent with Department policy. The entire incident was captured on overhead surveillance cameras.
The Department attempted to terminate Guinn on the allegation that he failed to properly assist his partner by intervening in the assault, despite the fact that Guinn was doing exactly as trained and acted according to policy by maintaining command over the numerous uninvolved juveniles present. Anyone who has worked in a correctional institution knows that often, a fight acts as a diversion for another incident to occur. The Department was particularly critical of Guinn’s application of latex gloves and surgical mask before he went in to handcuff the compliant victim minor on the ground. During his interview, Guinn had stated that he saw blood on the floor, and he put on the mask to protect himself from being contaminated by the effects of the deployed pepper spray.
In making the decision to terminate PCO Guinn, the Probation Department relied on the opinion of its in-house use-of-force trainer. Under the guise of protecting PCO Guinn’s right to privacy in personnel records, the Department failed to let the trainer review the actual video of the incident or the corresponding reports before rendering an opinion on whether or not PCO Guinn acted appropriately. Instead, the investigator described the incident verbally. Demonstrating the Department’s resolve to terminate Guinn by any means, the Department’s verbal description to the trainer was grossly inaccurate, including its claims that the assault lasted 40 to 50 seconds, prompting the trainer to say, “Wow, that’s a long one.” In fact, as demonstrated clearly by the surveillance video, the altercation was approximately 18 seconds. Further, the investigator’s description of the incident failed to adequately portray what actually occurred. A review of the video shows that Guinn was not simply “standing around,” but rather he was standing a few feet away from the contact officer, while maintaining command over the numerous uninvolved juveniles present at the scene. This is precisely why a verbal description relayed to an expert trainer, instead of the actual video, is inappropriate. It invited the investigator to solicit a negative opinion from an expert based on an incomplete or inaccurate hypothetical situation. Given the fact that the Department failed to remediate PCO Guinn for any perceived deficiencies in his response to a use-of-force situation and instead jumped to termination, the worst penalty an employer can dish out, it became clear that the Department was simply looking for a reason to get rid of Guinn.
To clear up these inaccuracies, prior to Guinn’s Skelly hearing, Mr. Perry sought to interview the trainer and simply show him the video, knowing that his opinion would likely change if he witnessed the actual incident underlying the Department’s allegations. The purpose of a Skelly meeting is to give the employee an opportunity to present evidence as to why the discipline should not be imposed. Mr. Perry went to the training center for the Department in an attempt to gather that evidence. The Department refused Mr. Perry’s request to speak to the trainer, on the basis that the investigation was not considered to be complete until the final order for discipline. The confidentiality order that was in place for the duration of that investigation was still in effect, which precluded anybody but the Department from speaking with the trainer. This was after the Department issued Guinn a notice of proposed dismissal, containing various allegations derived from its completed investigation. Mr. Perry brought this fact to the Department’s attention. In response, the Department simply took the position that the investigation would not be over until it said it was. Needless to say, the termination was upheld at the Skelly hearing.
Thereafter, Mr. Perry quickly obtained authority from Guinn’s employee union, the Safety Employees’ Benefit Association (SEBA), to file a writ/lawsuit in superior court. Additionally, he filed a request for affirmative relief with PORAC’s Legal Defense Fund. With the financial backing of SEBA and LDF, Mr. Lopes thereafter filed that writ/lawsuit, alleging the Department’s conduct violated Guinn’s due process, freedom of association and POBR rights. For the POBR claim specifically, the lawsuit alleged that Guinn’s rights under POBR include the right to have a completed investigation prior to the Department’s notice of discipline, especially termination. This argument was derived from the language of Government Code § 3304(d)(1): “In the event that the public agency determines that discipline may be taken, it shall complete its investigation and notify the public safety officer of its proposed discipline by a letter of intent …” Thus, the lawsuit argued, an employer cannot serve a letter of intent prior to completing its investigation. Here, of course, the Department was attempting to do just that, in its claim that its investigation would continue as long as it deemed necessary, even past its notice of proposed dismissal.
In addition to the express language above, there was also a policy argument: How can an employer give notice of discipline in good faith if its investigation is not complete? POBR exists to afford peace officers a fair response to allegations of misconduct. The protections listed in § 3304(d) exist specifically to guard peace officers against “the uncertainty of a lingering investigation.” The Department’s claim that its investigation of Guinn was still open after its notice of proposed dismissal, and that it would remain open until it said otherwise, completely refuted these purposes.
After various rounds of legal maneuvering, including a victory over the County’s attempts to have the lawsuit dismissed and the court’s order to the County to disclose documents it had steadfastly refused to produce to Mr. Lopes, the lawsuit was set for trial. In the meantime, LDF approved the retention of a use-of-force expert for the upcoming administrative hearing. Mr. Perry chose a retired undersheriff who is well respected by San Bernardino County, in part because he had many years testifying as a “person most knowledgeable” for the County when it was being sued for use-of-force incidents. Since the undersheriff was not under the control of the Probation Department, he was able to obliterate the Department’s findings that Guinn failed to act on the date of the incident.
As a result of the preliminary wins in superior court on the writ and the expert opinion rendered by Guinn’s retained use-of-force expert, neither the administrative hearing nor lawsuit were going well for the County. So the Department decided to throw in the towel. In exchange for the imposition of minor discipline, the County agreed to reinstate Guinn with full back pay, among other benefits. Thanks to aggressive legal advocacy and the financial support of SEBA and LDF, Guinn was formally reinstated to his position as a probation corrections officer in November 2014.
About the Authors
Russell Perry and Zachery Lopes are associates in Rains Lucia Stern’s legal defense of peace officers group. They also work with the firm’s litigation and collective bargaining groups.
Rains Lucia Stern St. Phalle & Silver, PC, with offices in Fresno, Ontario, Pleasant Hill, Sacramento, San Francisco, San Jose and Santa Rosa, specializes in defending public safety employees.