CASE UPDATES

By: Martin J. Mayer

Due Process Requires At-will Peace Officer Be Given Name Clearing Hearing Prior to Termination

HOLMES v. DISTRICT ATTORNEY FOR THE CITY AND COUNTY OF SAN FRANCISCO 99 Daily Journal D.A.R. 295

Robert Holmes was employed as a senior investigator with the San Francisco District Attorney's Office, an "at will" peace officer position. On January 13, 1997, Holmes was informed by his supervisor that he had been transferred to the welfare fraud team, and Holmes took two weeks off. On January 21, 1997, Holmes's doctor placed him on disability status due to an injured back. Subsequently, Holmes submitted workers' compensation forms stating that he injured his back on January 23, 1997, at work.

On April 7, 1997, the District Attorney informed Holmes by letter that he was scheduled to meet with the law office manager, an assistant deputy district attorney and his supervisor "to discuss" Holmes's workers' compensation claim, among other matters. Holmes attended the meeting with his attorney, and denied talking with and telling his supervisor, January 22, 1997, that he injured his back while moving his wife's office the previous day.

On May 2, a letter was sent to Holmes stating that "a conference has been scheduled ... to discuss a recommendation for disciplinary action," based on the charges of falsifying a workers' compensation application and dishonesty. Holmes's counsel was informed by telephone a few days later that the conference was a Skelly hearing and that Holmes could present evidence and argue his defense. Holmes's counsel requested a continuance and "discovery" in the form of documents or reports used to support the decision to discipline The continuance was granted and a number of documents furnished.

On the day before the scheduled conference Holmes's counsel requested more information and documents as "discovery," further requested that various members of the District Attorney's staff be present at the conference and available to testify, informed the District Attorney that he anticipated calling a number of witnesses, and asked for a continuance. The request was denied, noting that the conference had been continued previously at Holmes's counsel's request, and informed counsel that Holmes was not entitled to discovery nor "to call witnesses." Holmes's counsel was informed that the purpose of the hearing was to respond to the charges, and that if Holmes was unable to attend, he could respond in writing.

Holmes sent a letter stating that his injury occurred at work on January 9, and that a fellow employee, Megan Costello, witnessed the injury occurrence. On June 3, the Chief of Investigations sustained the charges against Holmes and the termination was upheld. Holmes argued that he was denied procedural due process and his petition for a writ of administrative mandamus was granted by the trial court.

The First District Court of Appeal reversed and remanded. The court found that Homes' status as an at-will employee was undisputed. Although at-will employees generally have no right to continued employment, when the employee's termination stems from charges "that might seriously damage his standing ... in the community," due process requires a hearing to allow the employee to clear his name. However, at-will peace officers who are fired for impropriety or wrongdoing are not entitled to a full evidentiary hearing with live witness testimony and cross-examination. Furthermore, the court held, although due process requires a hearing there was no violation here since Holmes chose not to attend the May 21 hearing.

/ How this affects your department:

Following proper procedure and adhering to sound "due process" principles to insure "fairness" will insulate and agency from having to repeat time consuming procedures. When dealing with "at-will" employees, i.e., Reserve Officers, Volunteers, part time, etc., if what the individual is being released for would or could impugn the person's reputation then due process mandates a "name clearing" hearing.

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Employer Has Absolute Privilege From Liability For Information Given to Law Enforcement During Background Investigation

BARDIN v. LOCKHEED AERONAUTICAL SYSTEMS CO. 99 Daily Journal D.A.R. 1985

Bethany Bardin was employed by Lockheed from 1987 until 1993 when she was laid off. In November of 1995, she applied for a position with the Los Angeles Police Department and signed a "Release and Waiver: form provided by LAPD authorizing it to conduct a thorough background investigation. In March 1996, Ms. Bardin received a letter from LAPD entitled "Police Officer Background Problem." The letter detailed a number of problems with Bardin's application stating that she "failed to disclose you had employment problems and a complaint related to your drinking while at Lockheed." Ms. Bardin was informed that her application had been suspended until she provided a written explanation of the problems revealed by the background investigation.

In August 1996, Bardin sued Lockheed for breach of contract, breach of the implied covenant of good faith and fair dealing, intentional infliction of emotional distress, defamation, violation of Labor Code sections 1050, 1053 and 1054, and intentional interference with prospective economic advantage. Ms. Bardin alleged that Lockheed made false statements about her employment, and interfered with her application to LAPD "through the dissemination of false information without a good faith belief in the truth of the information given to prospective employers, without just cause and, in addition, as a means of retaliating against and harassing Plaintiff for resisting or complaining about wrongful conduct in regard to her employment ... ." The trial court granted summary judgment, holding that Civil code secton47, subdivision (b) provides absolute immunity, and that O'Shea v. General Telephone Co. (1987) 193 Cal.App.3d 1040, was directly on point. It also held that Government Code section 1031.1 did not change that rule.

The Second District Court of Appeal opined that the primary issue was the extend of the applicable privilege and that if the former employer had an absolute privilege it must affirm the trial court's award of summary judgment. On the other hand, If they had only a conditional privilege under Government Code section 1031.1, subdivision (b), which does not apply to information provided with fraud or malice, it must reverse.

The court concluded that the statue must be read to provide a qualified immunity, but to allow a defendant to assert any other common law or statutory privilege available. Case law provides that an employer who provides information to a law enforcement agency has an absolute privilege under Civil Code section 47, subdivision (b) and on that basis affirmed the grant of summary judgment on the tort causes of action. Judgment was also affirmed on the contract causes of action based on the release signed by Ms. Bardin.

/ How This Affects Your Department:

This case reaffirms that current and prior employers have absolute immunity from civil liability for statements, even if false, made to a law enforcement agency while conducting a background investigation. This however does not give a law enforcement agency the right to intentionally deceive another law enforcement agency by misstating the qualifications of a current employee. The California Supreme Court held in Randi W. v. Muroc Joint Unified School District, 60 Cal.Rptr 2d 163 (1997), that current and prior employers owe a duty to prospective employers not to misrepresent facts in describing qualification and character of a former or current employee. To do so would open the department to liability for the tort of "misrepresentation."

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As always, before taking any legal actions be certain to seek appropriate legal advice, whether it is from a city attorney, county counsel, or your police legal advisor. As always, if you have any questions, please do not hesitate to call Martin J. Mayer at (562) 590-8280.

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