County’s ‘Automatic Suspension If Charged With Felony’ Policy Called Into Question

Darrin Wilkinson, David Sherr, Lisa Brown Debs, and Sean O’Donoghue are four current or former Los Angeles County deputy sheriffs. All four were charged with felonies. Wilkinson was charged in June 2002 with nine felony counts of falsifying police reports. Sherr was charged on June 11, 2003 with seven counts of workers’ compensation insurance fraud, perjury, and grand theft. Debs was charged on June 27, 2004 with felony drunk driving. O’Donoghue was charged on June 3, 2002 with two counts of falsifying a police report, three counts of accessory after the fact to possession of narcotics for sale, one count of perjury, and one count of false imprisonment.

The four deputies were served by the Los Angeles County Sheriff’s Department with letters of intent to suspend them. The deputies responded in writing and denied the allegations against them, but were nonetheless suspended without pay. All four then requested post-suspension hearings before the Los Angeles County Civil Service Commission. The request was held in abeyance pending completion of the criminal proceedings and disciplinary action by the Sheriff’s Department.

Ultimately, the criminal charges against Wilkinson and Debs were dropped, and Sherr and O’Donoghue were acquitted by juries. All four were reinstated from their suspensions and returned to paid status. They continued to demand hearings before the Commission to contest the propriety of their suspensions without pay.

Many months after their reinstatement from suspension, and before any post-suspension hearings were held, all four deputies were discharged from the Sheriff’s Department, at least in part based on the allegations underlying the criminal charges. They all requested hearings on their discharges. These hearings were consolidated with the still-pending post-suspension hearings.

While waiting for their hearings on their suspensions and discharges, Wilkinson and Sherr were both granted disability retirement by the Los Angeles County Employee Retirement System. The date of retirement was set retroactively to the day after their discharge. This effectively converted Wilkinson and Sherr from discharged employees to retired employees. The Commission subsequently issued final decisions stating that it did not have jurisdiction over the appeals of retired deputies, including Wilkinson and Sherr. Neither Wilkinson nor Sherr ever received a post-suspension hearing.

Debs and O’Donoghue received post-suspension hearings. The Commission’s hearing officer found that Debs’s suspension and discharge were both improper because the allegations underlying the felony charge against her were untrue. The hearing officer recommended that the Commission reinstate Debs from her discharge and also restore the pay lost during her suspension. After hearing this recommendation, the Commission ordered Debs reinstated from her discharge, but denied Debs any back pay for the time she was suspended. The Commission held that Debs’s suspension was proper because a felony charge, whether supported by valid allegations or not, was pending against her at the time the Sheriff’s Department imposed her suspension.

As for O’Donoghue, the hearing officer issued a report recommending O’Donoghue’s full reinstatement with back pay to the date of his discharge. The hearing officer also recommended that O’Donoghue receive back pay and benefits for the time he was suspended. After hearing the recommendation, the Commission ordered O’Donoghue reinstated from his discharge. Rather than reversing the suspension, however, the Commission directed the Sheriff, the Sheriff’s Department, and the County to reconsider the decision to suspend O’Donoghue. They did not do so. O’Donoghue was not reimbursed for his lost pay and benefits for the time he was suspended.

The four deputies then brought suit against the County, alleging that their suspensions violated their procedural due process rights. The federal Ninth Circuit Court of Appeals refused to dismiss the lawsuit, finding that the deputies had sufficiently alleged a violation of the law.

The Court began by citing a Supreme Court decision, Gilbert v. Homar, 520 U.S. 924 (1997), for the proposition that “employees who occupy positions of great public trust and high public visibility, such as police officers, can be temporarily suspended without any pre-suspension due process if felony charges are filed against them.” However, the Court found, the ability to temporarily suspend an employee exists only if the employer povides a thorough post-suspension hearing: “The constitutionality of a suspension without any pre-suspension procedural due process depends on the availability of a post-suspension hearing. Where a State must act quickly, or where it would be impractical to provide pre-deprivation process, post-deprivation process satisfies the requirements of the due process clause. The deputies allege – and at this stage of the proceedings we must assume the allegation is true – that the pre-suspension process provided by the County consisted of nothing more than a determination that felony charges had been filed, without any inquiry into the veracity of the allegations underlying those charges. In other words, once the County confirmed that the deputies had been charged with felonies, the pre-suspension inquiry was at an end, and the deputies were suspended. The fact that the deputies in the instant case were given an opportunity to respond makes little difference when their response could have had no effect on their suspension. Therefore, due process requires that the deputies receive post-suspension hearings in addition to the limited procedures they received before their suspensions.”

The Court also found that the County’s treatment of the retired deputies potentially violated the law: “The deputies allege that the County has adopted a policy of denying post-suspension hearings to employees who resigned after the suspension was imposed but before the hearing was completed. Due process requires that an employee suspended solely on the basis that felony charges were filed against him must be granted a post-suspension hearing. Because the Deputies Wilkinson and Sherr were denied any post-suspension hearing at all, pursuant to defendants’ policy, they have sufficiently stated a claim.”

In the end, the Court found that “making every inference in favor of the deputies, as we must at the pleading stage, we conclude that the deputies could conceivably prove facts to support their allegation that the County’s policy caused a violation of the deputies’ right to due process. For example, the deputies could show that the limited post-suspension inquiry created too great a risk of erroneous deprivation of their protected interest in employment, or that the County’s interest in maintaining such limited procedures does not outweigh the deputies’ interest in a more thorough investigation. We need not and do not decide whether, in all cases, a post-suspension hearing that looks no deeper than whether felony charges were filed against an employee would or would not pass constitutional muster. It is possible that the County’s post-suspension hearings are more robust than the deputies allege, or that the County has a strong justification for its challenged policy. We leave it to the trial court to make these determinations.”

Association for Los Angeles Deputy Sheriffs v. County of Los Angeles, 2011 WL 3524129 (9th Cir. 2011).

The article appears in our January 2012 issue.