Wednesday, November 9, 2011
C.A. Upholds Backpay Award to Former O.C. Assistant Sheriff
Convicted Felon Retains Rights Under POBRA, Justices Rule in Jaramillo Case
By KENNETH OFGANG, Staff Writer
A law enforcement officer convicted of a felony did not lose his right to backpay as a remedy for violation of his rights under the Public Safety Officers Procedural Bill of Rights Act and the state whistleblower statute, the Fourth District Court of Appeal ruled yesterday.
Div. Three affirmed a judgment in favor of former Orange County Assistant Sheriff George Jaramillo, whom the court said was illegally dismissed in March 2004. The award was for the period from that time to January 2007, when he pled no contest to perjury and misuse of public funds.
Jaramillo served a year in jail on those charges, which stemmed from his relationship with a firm that was trying to market a device that could disable electronics in cars being chased by police, and from his use of a sheriff’s department helicopter for personal business.
He was also sentenced to 27 months on federal charges of tax evasion and “honest services” mail fraud and fined $50,000.
Tax Evasion Conviction
The Ninth U.S. Circuit Court of Appeals upheld the tax evasion conviction but reversed on the fraud charge after the U.S. Supreme Court narrowed the scope of the statute to bribery and kickback schemes. The reversal did not affect the length of the prison term, and according to Bureau of Prisons records, Jaramillo was released from federal custody on Oct. 13.
U.S. District Judge Andrew Guilford of the Central District of California, in sentencing him on the fraud charge, ordered that any backpay resulting from the lawsuit be repaid to the county as restitution. But that order could be lifted as a result of the Ninth Circuit decision, the OC Weekly reported on its website yesterday, following a hearing before Guilford next week.
Jaramillo spent 14 years with the Garden Grove Police Department, reaching the rank of sergeant, then left in 1997 after managing Michael Carona’s campaign for sheriff. Carona named several assistant sheriffs, including Jaramillo and Don Haidl.
Disbarred After Plea
While working for Garden Grove, Jaramillo graduated from Western State University College of Law, and was admitted to the State Bar in 1994. He was summarily disbarred after pleading no contest to crimes involving moral turpitude.
Carona is currently serving a sentence 66 months in prison for witness tampering, based on his attempt to persuade Haidl to withhold testimony during a grand jury probe of Carona’s conduct in office.
Haidl, who was secretly cooperating with the government after being implicated himself in the investigation, served two years probation after pleading guilty to filing a fraudulent tax return, based on his failing to report as income money he took from businesses he controlled in order to pay his son’s legal fees in connection with sexual assault charges.
The relationship between Jaramillo and Carona, and the careers of both of them as well as Haidl, began to unravel in 2002 when a videotape of three young men gang-raping a comatose woman became public. One of the three was Haidl’s son.
As the story was later told in court, Carona asked Jaramillo to intervene with District Attorney Tony Rackaukas on behalf of the younger Haidl. Jaramillo expressed misgivings, but ultimately succumbed to Carona’s urgings and spoke to the district attorney.
The intervention came to naught, as the three men were tried, ultimately being convicted of rape by intoxication and related charges. Carona and Jaramillo subsequently clashed over a series of issues, Jaramillo testified, including Carona’s appointment of a campaign donor as a harbor captain, his use of a department helicopter to conduct trysts with several women—including Jaramillo’s former law partner—and the sheriff’s practice of selling badges and concealed weapons permits to campaign donors.
Matters went from bad to worse in August 2003, when Jaramillo asked the sheriff to endorse him as Carona’s successor. The sheriff was planning a bid for lieutenant governor in 2006.
Not a ‘Loyal Guy’
Carona, Jaramillo said, responded that he would not support him for sheriff because he was no longer a “loyal guy.” Jaramillo said he responded by telling Carona that he was no longer “the clean-cut sheriff” that Jaramillo had helped elect, that he was doing things that were “illegal” and “just flat stupid,” and that he was “done covering” for Carona with the sheriff’s wife and with the county supervisors.
Jaramillo said he made a final attempt to mend fences with Carona in March 2004, but was told the “train had left the station.” On March 17, 2004, Jaramillo said, he was called into a meeting with Carona and county officials and asked for his resignation.
When he refused, he was fired. And when he insisted that he had a right to “some sort of hearing” under POBRA, he was rebuffed by the sheriff, and later, by the county human resources officer.
In 2005, Jaramillo filed his Orange Superior Court suit, which he continued to press while dealing with the state and federal criminal charges. He told Orange Superior Court Judge Andrew Banks, who tried the POBRA suit without a jury, that he committed no crimes, but entered into plea deals in both cases because he was exhausted and wanted to avoid further hurt to his family.
Banks ruled that the county had violated Jaramillo’s rights under POBRA, but that backpay would be limited to the period ending when he entered into the state plea agreement. He ordered the county to pay him $183,688.66 in net pay and benefits, plus $8,400 in costs and $336,800 in fees under the private attorney general statute.
Justice William Rylaarsdam, writing for the Court of Appeal, rejected the county’s argument that the after-acquired-evidence and unclean-hands doctrines bar any award.
The after-acquired-evidence doctrine enables an employer to avoid liability for wrongful termination if, after firing an employee, it discovers that the employee engaged in misconduct that would have justified termination had it been known.
Rylaarsdam explained that the trial judge correctly applied the doctrine by ruling that Jaramillo’s right to backpay ended when he entered his plea, since he could not legally serve as a peace officer once that occurred. “But having violated POBRA by denying Jaramillo the administrative hearing the statute requires, the County cannot now be heard to say that his no contest pleas in state court and guilty pleas in federal court retroactively meant he was unqualified for his job,” the justice wrote.
Similar reasoning precludes the county from relying on the unclean-hands doctrine, Rylaarsdam said, noting that Jaramillo was fired for disloyalty to the sheriff, not for any of the conduct of which he was ultimately convicted.
The court rejected the county’s challenge to the attorney fee award. The case fits within the private attorney general statute, Rylaarsdam said, because it establishes that executive level peace officers have the right to a hearing under POBRA, and because the decision “will also inure to the benefit of the citizens and taxpayers of Orange County by lessening the probabilities of abuse and corruption in the sheriff’s office.”
If Carona had known in 2004 that he could not fire Jaramillo without “public consequences,” Rylaarsdam added, he “might have been willing to heed Jaramillo’s counsel and curtail his wayward ways.’
The court also upheld the judge’s use of a 15 percent multiplier, given that counsel took the case on contingency and “faced, at the very least, a degree of public opprobrium” for representing the disgraced law enforcement official.
The case is Jaramillo v. County of Orange, 11 S.O.S. 6018.
Copyright 2011, Metropolitan News Company