Public Sector Case Notes

• Publication year: 2014
• Author: By J. Scott Tiedemann & Leighton E. Davis

Public Sector Case Notes

By J. Scott Tiedemann & Leighton E. Davis

Scott Tiedemann is the Managing Partner of Liebert Cassidy Whitmore, California's largest public sector labor, employment and education law firm. He is the author of the CPER Pocket Guide to the Firefighters Procedural Bill of Rights, as well as a chapter on that topic in California Public Sector Employment Law. Leighton E. Davis provides representation and legal counsel to Liebert Cassidy Whitmore clients in matters pertaining to education, employment, and labor law.

DUE PROCESS

School District Did Not Violate Due Process by Amending Disciplinary Charges Against Terminated Employee During Course of Hearing

Thornbrough v. Western Placer Unified Sch. Dist., 223 Cal. App. 4th 169 (2013)

The Western Placer Unified School District hired Michael Thornbrough in 1997 as an Assistant Director of Maintenance. In August 2007, Thornbrough was accused of referring to a subordinate, David Zinzun, who is of Mexican ancestry, as "Paco" and "Pepe." Thornbrough was also accused of making offensive comments about Zinzun's wife, Rhia, who also worked for the District. Thornbrough and the District settled the matter under terms which resulted in Thornbrough being placed on unpaid leave for fifteen days and undergoing sexual harassment prevention training.

When Thornbrough returned to work, District Superintendent Scott Leaman ordered him not to contact Rhia and not to go to the District office without permission. The next day, Thornbrough went to the District office without permission and spoke to Rhia for the alleged purpose of apologizing to her. However, Rhia claimed that Thornbrough actually tried to justify his earlier comments, suggested that he was responsible for hiring her and mentioned favors he had done for her.

Meanwhile, Zinzun claimed that after he complained about Thornbrough's comments regarding Rhia, Thornbrough did not talk to him and falsely accused Zinzun of workers' compensation fraud. Not to be outdone, Thornbrough filed a report accusing Zinzun of fraud, accusing Rhia of improperly recording absences for Zinzun, accusing Leaman of failing to investigate claims, and accusing his direct supervisor Cathy Allen of incompetence. The District subsequently found "massive" amounts of downloaded pornographic and other inappropriate material on Thornbrough's District computer.

The District terminated Thornbrough, and he administratively appealed his termination. During the appeal hearing, the District amended the charges against Thornbrough on three separate occasions. At the conclusion of the hearing, the hearing officer sustained most of the charges against Thornbrough such as insubordination, violating an order to stay away from Rhia, misuse of a District computer, and retaliation against Zinzun and Rhia. Thornbrough's termination was upheld, and he petitioned the trial court to overturn his termination. The trial court also upheld his termination, and Thornbrough appealed.

On appeal, Thornbrough claimed that the amendment of the charges against him during the hearing violated the Education Code and due process. However, the court determined that Thornbrough had a sufficient opportunity to prepare and present an adequate defense to each amendment. For example, Thornbrough stipulated to a continuance after the first amendment, agreed to a 24-hour continuance after the second amendment, and was granted a one-week continuance after the third amendment. Although Thornbrough claimed that he could not afford the legal fees resulting from the continuances, he did not submit any evidence demonstrating a financial hardship. Accordingly, the court held that amending charges against Thornbrough did not violate his due process rights because he had the ability to prepare for and respond to each amendment.

RETIREMENT

Retiree Health Benefit Was Not a Vested Right and Could Be Modified by the City

Dailey v. City of San Diego, 223 Cal. App. 4th 237 (2013)

Denise Dailey worked for the City of San Diego and was a member of the San Diego Police Officer's Association (POA). In 2009, the POA and the City failed to reach a final agreement on a successor memorandum of understanding (MOU) and the City imposed its last, best, and final offer modifying the City's postemployment health benefit. Specifically, the City froze the maximum amount it would reimburse to members of the POA who retired from 2009-11 at $8,880 per year. Dailey retired during this timeframe.

Dailey filed a lawsuit against the City, alleging that the $8,880 per year reimbursement was approximately $600 less than the cost of her...