DEPUTY PROBATION OFFICER PREVAILS IN TERMINATION CASE AFTER INCOMPETENT COUNTY INVESTIGATION FAILS TO SHOW GOOD CAUSE

Archie Kelley, a veteran Sacramento County deputy probation officer, received nearly $90,000 in back wages and benefits after an arbitrator found he was dismissed without cause on charges of dishonesty and neglect of duty in reporting field contacts with juvenile probationers. Arbitrator John LaRocco ordered Kelley reinstated following six days of hearing in which we established Kelley was fired despite the lack of any performance standards, prior warnings, remedial training, progressive discipline or substantial evidence he had engaged in misconduct warranting termination.

Kelley had been employed by the Sacramento County Probation Department for over 25 years when he was assigned to the Home Supervision Unit in 2004 and 2005. He was required to make daily home, school and field visits to minors who had been sentenced to home supervision by the juvenile court. Kelley was required to maintain computer records, or “chronos,” of the visits and of any communications he had with the juveniles or parents.

Like the other officers in the unit, Kelley was required to contact the juveniles on his caseload as often as possible, but did not have to maintain a daily log, record his mileage, or report his contacts to his supervisor. Kelley had several “chrono” entries for every juvenile on his caseload.

Supervisor Conducts Questionable Investigation

In early October, 2004, Kelley’s supervisor decided to investigate him after a parent complained Kelley had not provided information to her daughter about an alternative school program. The supervisor, John Bennett, selectively reviewed Kelley’s chronos and telephoned – but did not visit – several other parents and minors on the officer’s caseload in an attempt to determine whether he had made the visits he reported in his chronos. The supervisor did not tell Kelley he was investigating him, but he also did not remove Kelley from his assignment.

Based on the telephone interviews, Bennett alleged Kelley had made false entries on his “chronos” on several occasions involving approximately 14 juveniles. Bennett did not, however, verify the many other chronos Kelley had recorded for the same minors.

Bennett interrogated Kelley in December, 2004, without providing him access to any of the voluminous entries regarding the probationers. Kelley was only able to state the entries were accurate to the best of his recollection. Kelley remained in the assignment.

Three months later, Bennett again reviewed Kelley’s “chronos”, talked to probationers and parents over the telephone, and again accused Kelley of making false entries. In a second interrogation, Kelley could only state he believed the entries were accurate because he was given no other information to review. Kelley was fired in May, 2005, for alleged false entries and dishonesty.

Hearing Features False Witness Testimony

Kelley appealed his termination. At the arbitration hearing, the deputy county counsel representing the Probation Department subpoenaed several probationers and their parents to testify Kelley had not had contact with them as reported in his chronos. In what could have been billed a legal comedy show, many of the witnesses changed their testimony, contradicted Bennett’s investigative report, or were caught in a lie on cross-examination.

One probationer who testified he had never met Kelley despite being on his caseload admitted on the stand that he was lying and in fact had met Kelley at least twice. Another juvenile testified so incoherently his testimony was rejected entirely by the arbitrator. The father of one minor had given Kelley a t-shirt, and testified he may even have given it to him on the date in question. Another parent had told Bennett there was no custody dispute with her child’s father, as Kelley had recorded in an allegedly false chrono, yet on the stand she admitted having sued the father over paternity.

Bennett was forced to admit on the stand that he had taken no corrective action toward Kelley before investigating him. He admitted he had given Kelley no remedial training and could not produce an e-mail he claimed gave Kelley directions regarding his chronos. Bennett conceded he had taken such non-disciplinary action with other officers, and blamed his own supervisor for the decision to investigate and increasingly agitated, causing the arbitrator to admonish him repeatedly as he failed to carry his burden of proof, repeated his questions again and again, and seemed not to have prepared his witnesses. The arbitrator already had urged the County’s representatives to settle the case; however, the Probation Department was unwilling to reach any compromise.

After several months, the hearing concluded with Arbitrator LaRocco ordering Kelley reinstated with back pay, benefits, and other compensation. With a new deputy county counsel assigned to the case, I was able to resolve outstanding issues relating to Kelley’s retirement eligibility, interest on his back pay, and other matters. Archie Kelley retired honorably after nearly 29 years of service to the Sacramento County Probation Department.

Christopher W. Miller is the supervising partner for the Labor Department at Mastagni, Holstedt, Amick, Miller, Johnsen & Uhrhammer. He has represented the Sacramento County Probation Association since 1995.