Public safety employers: Don't ignore an arbitrator's decision

By Mike Stone, RSA Chief Legal Defense Counsel

Suppose you are a public safety agency head. On the basis of an internal investigation, you decide to demote and suspend an officer or deputy. In your agency, the rules provide that imposed discipline can be appealed by the employee, leading to arbitration before a neutral hearing officer. Although the arbitrator's decision is binding at the department level, the rules provide that either side may seek review of the neutral's decision in the superior court by filing a petition under a familiar and well-settled procedure outlined in Code of Civil Procedure 1094.5.

Assume further that in your hypothetical discipline case, the arbitrator rules against the department on a "technical ground", in this case, that the discipline was not initially noticed (the so-called Skelly11 Skelly v. State Personnel Board, (1975) 15 Cal.3d 533. notice) within the one-year statute of limitations prescribed in Government Code 3304(d)22 3304(d) is part of the Public Safety Officers' Procedural Bill of Rights Act, Government Code 3300-3311.. Your legal counsel opines that the arbitrator's decision is flawed, because the enforcement mechanism in the Bill of Rights Act (3309.5) places "initial jurisdiction" over violations of the Act's provisions in the superior court, not in the neutral arbitrator. Therefore, the arbitrator in this case had "no jurisdiction" to rule on the statute of limitations defense. Certainly a fair argument in an area of the law that is somewhat murky, with no clear precedent. In any event, your counsel believes you can safely ignore the decision.

But can you, should you, do nothing? That is, the employee has been suspended and demoted. You and your counsel disagree with the ruling setting aside the discipline. Are you permitted to ignore the decision and force the employee to seek a petition in superior court at his/her expense, and then raise your "jurisdictional" claims there? This is risky business. Apart from perhaps waiving your right to contest the arbitrator's decision, you may be buying real trouble for yourself and your agency in the United States District Court.

Such is the case in Cullen v. County of Riverside, USDC No. CV-02-9685 FMC (FMOx) (C.D. Cal. 2003). Cullen was a veteran Correctional Corporal in the Riverside County Sheriff's Department. He was demoted and suspended by the Sheriff, following Skelly proceedings wherein the statute of limitations argument was first raised, as a complete defense to the proposed discipline. The demotion and suspension were finalized by the Sheriff.

At the arbitration (appeal), Cullen's counsel, Michael P. Stone and Deborah A. Krane, argued that the Department missed the deadline to serve notice of intended discipline by 17 days. Hence, the discipline was void ab initio. The Department's counsel countered with an argument that one of the statutory exceptions in 3304(d) applied to warrant an extension, and that in any event, Corporal Cullen should have taken the issue to superior court, citing 3309.5. The arbitrator, Mark Burstein, disagreed. First he said, the Department clearly missed the deadline by 17 days. Second, he ruled that the Act was made applicable to correctional deputies as a matter of contract in the MOU. Thus, it became an issue raised by the charges and defenses thereto and within the arbitrator's jurisdiction. He ordered Cullen reinstated with backpay and benefits lost.

The Department found itself at a crossroads. It could abide by the decision. It could seek relief in superior court under its own rules (MOU). Or, it could, as it did, ignore the decision, citing the arbitrator's alleged "lack of jurisdiction", and force Cullen into superior court to enforce the award, where the Department would then "renew" its jurisdictional arguments.

But Cullen's lawyers took a different route. First, a written "Demand for Reinstatement" was sent to the Department and to its counsel. This too, was simply ignored. Meanwhile, the 90 day statute of limitations on the Department's petition to superior court to overturn Burstein's award trickled away. The award thus became final.

Having eschewed its rightto seek review in the superior court of a decision with which it disagreed, the Department opened itself up to a far worse risk: a federal civil rights lawsuit under 42 USC 1983. Here's the analysis: Cullen had a clear and substantial property right in his position as a regular corporal and in the salary and benefits of that position. Hence, under the 14th Amendment, the Department could only destroy or suspend that property right with due process. The arbitration procedure meets due process requirements for appeals of imposed discipline affecting property rights. Now, if the employer acts in palpable disregard of this due process procedure, by ignoring the command of the arbitrator, and while eschewing the opportunity to attack the decision in superior court, permits the decision to become final (and virtually immune from further review), the employer violates the United States Constitution's 14th Amendment Due Process Clause, subjecting itself to civil rights liability under 42 USC 1983, for the "taking of property without due process".

And so it was in the Cullen case. Cullen's counsel filed the civil rights complaint in United States District Court for the Central District of California. It was assigned to District Judge Florence-Marie Cooper. Cullen's counsel promptly moved for summary judgment on the basis that the undisputed facts in the case showed Cullen was entitled to judgment as a matter of law.

The Court granted Cullen's motion, and denied County's cross-motion. The continuing refusal of the Department to restore Cullen's position and pay violated his civil rights, entitled him to all the remedies he sought in his complaint and to attorney's fees as the prevailing party.

The rule that emerges is this: Ignoring an arbitrator's ruling may amount to a federal constitutional violation, because the deprivation is of a constitutionally-protected property right &emdash; public employee salary and benefits. If you have waived the right to challenge the decision by failure to petition within the statutory period, consider the benefit of further refusal to comply versus the risks and costs presented by a civil rights lawsuit, if your employee decides to "make a federal case out of it."

Put more simply, recognize a loss when you see it, and don't gamble further with the public's money and perhaps, your personal exposure to liability.

Corporal Cullen was represented throughout these proceedings by Michael P. Stone and Deborah A. Krane, of Michael P. Stone, P.C., Lawyers, of Pasadena and Riverside. Michael P. Stone is RSA-LDT's General Counsel.