Thursday, February 23, 2012
S.C. Lets Backpay Award to Former O.C. Assistant Sheriff Stand
By KENNETH OFGANG, Staff Writer
A Fourth District Court of Appeal ruling allowing a convicted felon to receive a backpay award as a remedy for violation of his rights under the Public Safety Officers Procedural Bill of Rights Act and the state whistleblower statute was left standing yesterday by the California Supreme Court.
The justices, at their weekly conference in San Francisco, voted 5-2 to deny review of a Nov. 8 ruling by the appeals court’s Div. Three in Jaramillo v. County of Orange (2011) 200 Cal.App.4th 811.
Justices Joyce L. Kennard and Marvin Baxter were the only members of the court to vote in favor of review. The county’s request for depublication of the opinion was denied.
The beneficiary of the ruling is former Orange County Assistant Sheriff George Jaramillo, whom the Court of Appeal said was illegally dismissed in March 2004. The award, which with attorney fees was more than $500,000, 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.
Out of Prison
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 of last year.
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 was lifted as a result of the Ninth Circuit decision.
Jaramillo spent 14 years with the Garden Grove Police Department, reaching the rank of sergeant, leaving in 1997 after managing Michael Carona’s campaign for sheriff. Carona named several assistant sheriffs, including Jaramillo and Don Haidl.
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 of 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. His certiorari petition is before the U.S. Supreme Court.
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.
Clashes With Carona
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.
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. 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.
In other conference action, the justices:
•Unanimously left standing a Fourth District ruling that allowed a church school to fire a teacher who lived with a man to whom she was not married and with whom she was raising a child.
Red Hill Evangelical Lutheran Church of Tustin fired Sara Henry as director of its preschool in May 2009, saying her lifestyle was inconsistent with the church’s teachings.
Henry claimed she was terminated in violation of the Fair Employment and Housing Act and the state’s public policy against discrimination based on marital status. The church responded that it was not an “employer” as that term is defined in the FEHA, that the church has a federally protected right to terminate an employee for religious reasons, and that the “ministerial exception” to the asserted public policy applied.
Henry explained at trial that she was married when she first applied for work at the school, but subsequently divorced. She and her boyfriend had their child in 2007.
She said she told church officials during her pregnancy that she and her boyfriend planned to marry but that she was not ready to do so. She said she did not know whether the school principal was aware of the fact that the couple was living together, prior to hearing a complaint from a parent around the end of 2008.
Orange Superior Court Judge Derek Hunt ruled that the school, being an integral part of the church, was a religious institution that had the right to hire and fire employees based on religious precepts. Henry’s termination fell in that category, he said.
Justice Eileen Moore, in her opinion for the Court of Appeal, said the church is not subject to the FEHA because it is “a religious association or corporation not organized for private profit” and thus excluded from the definition of employer by Government Code Sec. 12926(d).
As for the public policy claim, Moore said it was barred because it was not grounded on any policy expressed in state or federal legislation. Such a claim could not be grounded on the FEHA, for the same reason the FEHA claim itself failed, and could not be grounded on Title VII of the federal Civil Rights Act of 1964, because that act does not prohibit discrimination based on marital status.
Title VII, she added, contains a religious exemption that has been interpreted as allowing a religious organization to terminate an employee whose conduct is inconsistent with the employer’s theology. It has been held, for example, that a religious organization may not terminate an employee for becoming pregnant, but may do so because the employee committed adultery.
It was clear, Moore explained, that the church did not fire Henry due to her pregnancy, or because she had a child out of wedlock; it would have allowed the plaintiff to remain employed if she either married her boyfriend or stopped living with him.
The case is Henry v. Red Hill Evangelical Lutheran Church of Tustin (2011) 201 Cal.App.4th 1041.
•Unanimously left standing a ruling by the Court of Appeal for this district, throwing out a malicious prosecution case against a Santa Monica attorney based on his submission of an affidavit during judicial proceedings in Zimbabwe.
Div. Five said, in Summerfield v. Randolph (2011) 201 Cal.App.4th 127, that the filing by Donald C. Randolph of Randolph & Associates qualified as a writing made in connection with an issue under consideration by a judicial body for purposes of protection under Code of Civil Procedure Sec.425.16, the anti-SLAPP statute.
•Denied a petition by the Housing Authority of the City of Los Angeles to review a decision upholding a $440,000 jury verdict in favor of a former attorney for the agency on her wrongful termination claim.
This district’s Div. Eight explained last November that Ada Cordero-Sacks, now in private practice in Encino, could sue the authority under the False Claims Act for retaliating against her for performing her job duties when her investigation cast suspicion upon the agency’s president and CEO.
The case is Cordero-Sacks v. Housing Authority of the City of Los Angeles (2011) 200 Cal. App. 4th 1267.
Copyright 2012, Metropolitan News Company