COURT USES ‘COMMON SENSE’
INTERPRETATION OF WHAT CONSTITUTES
AN "EMPLOYMENT BENEFIT"
By Edward Marc Fishman
On a normal duty day in
September 1998, Deputy Kip Ringen (of the Lake County Sheriff’s
Department) was on-duty, driving his patrol vehicle. Traveling on a
two-lane highway, he found himself behind a long, slow-moving line of
traffic. In an effort to pass this string of cars, Ringen moved toward
the next car in line. Immediately, traffic slowed, and he found himself
braking as the distance between the vehicles shortened. At that same
moment, a patrol sergeant who happened to be traveling in the opposite
direction observed the short distance between Ringen’s vehicle and the
one immediately in front of him. The sergeant contacted Ringen by radio,
and asked him why he was driving in that manner. In response, Ringen
stated, among other things: "I have been trying to pass this string
of cars since Bottle Rock Road."
This statement soon
became the subject of a subsequent internal affairs investigation, which
called into question Ringen’s honesty.
Apparently, as Ringen was
explaining the circumstances to his sergeant, those same radio
communications were being monitored by another sergeant who happened to
observe Ringen while he passed Bottle Rock Road. Upon hearing Ringen’s
explanation, this second sergeant immediately exclaimed to the deputy
riding shotgun with him: "He’s lying." The second sergeant
then informed the first of the perceived discrepancy, and, following a
meeting between the two sergeants; Ringen was formally accused of
untruthfulness, in addition to the driving offense. Ringen, president of
the deputies’ Association, director of the Redwood Chapter of PORAC,
and a long-time vocal advocate of the rights of his fellow deputies,
voiced extreme objection to the allegation of untruthfulness.
Dennis Wright, a
non-attorney labor representative, was engaged by the Legal Defense Fund
to protect Ringen’s interests in the related internal affairs
investigation. At the resulting internal affairs interview, when asked
to explain the factual discrepancy between Ringen’s and the second
sergeant’s observation, Ringen graphically described his belief that
the second sergeant was the one not being truthful. Quickly, Ringen was
issued a letter of reprimand concerning those statements. Wright was
soon able to have that letter rescinded, due to its impropriety.
Eventually, the sheriff
meted out the following punishment for the driving/untruthfulness
incident: a 20-hour suspension and loss of the associated benefits.
Additionally, the sheriff stripped Ringen of his permanently assigned
patrol vehicle, which Ringen regularly drove between his home and duty
station.
Following an unsuccessful
Skelly hearing, the proposed discipline was imposed. Wright,
anticipating the potential for ensuing legal action due to the tenor of
the allegations, contacted me to aid in the appeal process. LDF agreed
to provide attorney services for the appeal.
With Wright’s
assistance, I pursued the appeal in an advisory arbitration forum.
During the hearing, there was extensive exploration into not only the
veracity of the subject officer, but also as to the charging witnesses.
While testifying, the deputy who was riding shotgun with the second
sergeant was unable to fully corroborate the second sergeant’s
observations. I then directed my cross-examination toward the two
sergeants’ markedly differing descriptions of their meeting to discuss
Ringen’s alleged untruthfulness.
The arbitrator, Joe
Henderson, carefully listened to the testimony, and in his decision
concluded that the imposed discipline was unwarranted, because the
department failed to prove to his satisfaction that Ringen was the one
being untruthful.
Of significance, the
arbitrator recommended the following remedy:
Ringen was to be
reimbursed for any compensation he lost for the 20-hour suspension;
All documents related
to the matter were to be removed from his personnel file; and,
Ringen was to have
"all leave and any other benefits restored to him, if any were
lost due to this action".
The board of supervisors
later adopted this recommendation in full, and the deputy was reimbursed
for the loss in pay, had his patrol vehicle returned to him, and
presumably all documents related to the matter were removed from his
file.
Ringen then calculated
the cost to him during the time he was deprived of the patrol vehicle.
As to this amount, he requested reimbursement.
The department and the
county vehemently argued that the use of the patrol vehicle was neither
compensation nor a benefit to be restored. They claimed that the sheriff’s
allowance to each deputy of a permanently assigned take-home patrol
vehicle could have been withdrawn at any time, thus there was no
entitlement to its continued use.
Wright asked that the
matter be calendared for hearing before the board of supervisors for
clarification. At the resulting hearing, the sheriff and county counsel
argued against Ringen’s requested restoration of benefits. The board
quickly and unanimously agreed with the sheriff’s position.
LDF, recognizing the
importance of this issue, authorized an appeal to the Superior Court to
determine the propriety of the county’s decision. Accordingly, a
petition for writ of mandate was filed.
While the matter was
pending, deputy county counsel and I explored the prospects of
compromise. I suggested that the county offer Ringen the amount claimed,
but to avoid their fear of "setting a precedent", we would
construe the payment as something other than mileage expense
reimbursement. Although this compromise was acceptable to Ringen and was
supported by the sheriff, surprisingly the board of supervisors refused
to compromise in any manner. Accordingly, the writ was fully pursued.
After full legal briefing
and oral argument, the court recognized that the case was one of first
impression, and thus no guiding statute or case law was of assistance.
Instead, the court explained the need to take a "common sense"
approach. A benefit by its own terms necessarily imposes a burden on one
party, and provides an advantage to another. Ringen’s use of the
vehicle did burden the county by the resulting costs of gasoline,
maintenance, etc. The advantage to him was obvious. Additionally, the
court recognized that the vehicle was taken away not for an independent
non-disciplinary reason, but instead as a direct result of the unfounded
charging allegations. Finally, the court interpreted the spirit and
intent of the arbitrator’s ruling to make Ringen whole, so that he
suffered no loss from the county’s unwarranted disciplinary action.
Thus, the court granted
the petition, found the amount Ringen claimed for reimbursement to be
reasonable, and ordered the county to pay him that amount, in addition
to Ringen’s attorney’s fees.
The final decision
rendered by the court this past December marks the end of a more than
two-year struggle over a highly questionable disciplinary action taken
against an 18-year veteran deputy sheriff.
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