SONOMA COUNTY CORRECTIONAL SERGEANT REINSTATED AFTER HEARING Ending a 14-month ordeal, dishonesty charges leveled against Correctional Sergeant Robin Smith by Sonoma County Sheriff's Department managers were dismissed when the Sonoma County Civil Service Commission recently granted her appeal overturning her termination. On April 21, 2002, Smith participated in a restraint chair placement of an inmate. The inmate spat in the face of a correctional officer during the placement. The spit, however, did not contact the officer's eyes, nose or mouth, and Smith therefore was not required to refer the officer to Occupational Health. The officer told Smith she had washed up, and later declined offers of further medical attention. Investigating Lieutenant Violates Smith's POBR Rights Consistent with department practice, Lieutenant Randall Walker reviewed the restraint chair placement. He watched a videotape of the incident and interviewed witnesses, including the officer who had been spat upon. He questioned whether Smith had violated department policy by not referring the officer to Occupational Health. The Public Safety Officers Procedural Bill of Rights Act (POBR), Government Code section 3303, subdivisions (c) and (i), requires (1) the public safety officer subject to interrogation for alleged misconduct must be informed of the nature of the charges against her; (2) the officer must be afforded the right to representation in any interrogation; and (3) the officer has the right to tape record the interrogation. The failure of the officer questioning the employee to advise her she may be subject to discipline and to afford her the rights under the POBR can result in suppression of any statements the employee makes during the illegal interrogation. (City of Los Angeles v. Superior Court (Merinio Labio)(1997) 57 Cal.App.4th 1506, 1517.) Walker requested Sergeant Smith meet with him to review the placement to discuss supervisorial deficiencies he believed had occurred. Although Walker believed Smith had violated department policy, and therefore could be subject to discipline, he did not advise her she was being interviewed about matters that could result in discipline or tell her she had a right to have a representative present for the interview. During Sergeant Smith's interview, Walker tried to get Smith to accept responsibility for the alleged deficiencies in the placement. He accused her of failing to provide appropriate medical assistance to the correctional officer. When Smith refused to accept the degree of responsibility Walker expected, and Smith responded she had afforded the officer the opportunity for treatment, another lieutenant present during the interview, Corrado Ghioldi, interceded. He reminded Smith she had been ill the night of the placement. Walker concluded the interview. Smith Placed on PIP and Investigated Based upon Walker's belief Smith had been dishonest when questioned about the medical treatment she had provided, he issued a memorandum to Captain Linda Suvoy requesting an internal investigation. Concurrently, Suvoy ordered Smith be placed on a Performance Improvement Plan (PIP) due in large part to an 18- month absence as a result of a work-related injury suffered by Smith. Given Smith's concern over the audit interview, Suvoy assured Smith and I that all issues regarding the restraint chair placement would be handled through the PIP and there would be no internal affairs investigation. However, on the date Smith began the PIP, Suvoy requested the initiation of an internal affairs investigation into Walker's allegations of dishonestly. During the 90-day PIP, Smith exceeded all supervisors' expectations. She was twice interviewed regarding the dishonesty allegations, but she was assured by a lieutenant she had nothing to worry about regarding the pending internal affairs case. Smith Terminated for "Dishonesty" Smith nonetheless was fired March 31, 2003, for having been dishonest during the audit and internal affairs interviews. At the hearing before the Civil Service Commission, I argued there was insufficient evidence to show Smith was dishonest during the course of the audit interview. The fact there was no tape-recording or transcript of the interview made it nearly impossible to determine what was actually asked and responded to during the course of the interview. I also demonstrated the rights afforded Smith by the POBR were violated when Walker failed to advise Smith her responses during the audit interview could subject her to discipline. Walker was impeached at the hearing based on several inconsistencies between his representation of what occurred during the audit interview, and testimony by Lieutenant Ghioldi and Sergeant Smith. At the hearing, Walker denied Smith's illness was discussed during the interview, even though both Ghioldi and Smith testified the topic was raised. Walker also disputed words attributed to Smith in a memorandum he had prepared. He also claimed Smith's case was the first instance in which he had sought disciplinary action against an employee and denied having authored a letter of counseling to a former department employee. The employee produced a five-page letter of counseling in which Walker threatened the employee with insubordination. Commission Reverses Termination and Finds No Dishonesty The Commission found significant Smith's exemplary and unblemished 13 year employment record. Several witnesses, including retired Sonoma County Sheriff Jim Piccinini, testified to Smith's character. In a 3-1 decision, the Commission overturned Smith's termination. The Commission ruled: Dishonesty implies some acknowledgment that the statements being made are untrue. The Commission cannot find that the evidence preponderates in favor of finding that any of the inaccurate statements that Sergeant Smith may have made during the audit interview were knowingly false. Implicit in the Commission's decision was a finding of no dishonesty in Smith's internal affairs interviews. Smith has returned to work and is hopeful this chapter in her life will soon be forgotten. She is thankful for the support given by her friends and co-workers and is particularly appreciative of those who were able to attend the hearing on her case. Kasey Christopher Clark is the senior litigation attorney of the Labor and Employment Law Section of Mastagni, Holstedt & Amick. His expertise includes the administrative defense of peace officers.