Judge Eller considers Luman case
Former Mono County employee Richard Luman was in court again on Wednesday, March 26, in an attempt to gain reinstatement as County mechanic after his termination over two years ago. His lawyer, Katie Maloney Bellomo, filed a writ of mandate appeal, asking the California Superior Court to overturn the County’s Personnel Appeals Board’s 2012 decision to uphold Luman’s termination.
McCurry was reinstated as a County employee in August 2012.
Judge Stan Eller was reassigned to hear Luman’s case after Deputy County Counsel John-Carl Vallejo asked Judge Garbolino to be recused from the case due to his “prejudice” against the County.
Luman was originally terminated because of three specific actions: fighting in the workplace, making a threat in the workplace and making misleading comments about the meaning of his threat. As the story goes, Luman got into a physical altercation with fellow employee Brett McCurry after he made a comment to McCurry. According to Luman this comment was a wisecrack, but according to the County it was a threat.
“Luman was terminated over one sentence but no one knows exactly what was said,” Bellomo said. “As with all remarks with this proceeding, there are many versions of what happened because no one had a tape recorder.”
But, she argued, “The court is going to have to sift through all of this to decide what was said because that’s what [Luman] was terminated over.” Bellomo also reminded Judge Eller that County Personnel rules do not require termination for Luman’s actions. There is room for progressive discipline, as the rules say the penalty for violating the zero tolerance policy (no violence in the workplace) is “up to and including termination.”
In Bellomo’s opinion, the penalty of termination is excessive for Luman’s actions and the Personnel Appeals Board’s decision to uphold Luman’s termination was arbitrary and capricious, because of the presence of Obenberger, whose department investigated the altercation, and Goode, whose wife, at the time of Luman’s hearing, was being investigated by the D.A.’s office for embezzling money.
In response, Deputy County Counsel Vallejo argued that “No reasonable person assumes that the Sherriff and his personnel are unethical. No reasonable person assumes a threat that precipitates a physical altercation is somehow a funny joke.”
According to Vallejo, even if it was an indirect as opposed to direct threat, the County personnel rules still allow for Luman’s termination. Vallejo argued that there is nothing more important to an employer than workplace safety and since Luman’s threat, whether meant as a threat or not, led to physical altercation, “it is clearly within our reasonable discretion to let someone go over a matter like this.”
As to the presence of Obenberger and Goode on the Personnel Appeals Board, Vallejo said there are “no concrete facts of actual bias. We can’t disqualify people for being friends with people. That doesn’t work in this small community.”
Judge Eller questioned Vallejo on this point, saying that if he were sitting on the Board, he would recuse himself if there were any appearance of conflict of interest.
Vallejo’s argument: “this is not the standard that applies to these tribunals.” With the Personnel Appeals Board, there needs to be an actual conflict of interest, not just the appearance of it, as it is in the Superior Court, he said.
Judge Eller accepted Vallejo’s argument for the different standards of the Personnel Appeals Board. “What standard am I to apply?” he asked Bellomo. “The appearance of conflict [of interest] or actual conflict [of interest]? Is there any evidence of actual conflict?”
Bellomo argued that while there may not be actual conflict of interest, there is a personnel bias. “Certain kinds of bias can never be proved through actual evidence,” she said. “You can’t prove someone’s attitude, for example.” Bellomo then admitted that she does not believe Obenberger or Goode had any personal interest in finding Luman guilty.
Eller thanked both Bellomo and Vallejo for their arguments, and said he would make a decision within 30 days.
