In a recent Court of Appeal decision, a probationary Deputy’s “desk assignment” counted toward his probationary period—which provide him with fully Skelly Rights after a lengthy administrative investigation.
The case involved, Los Angeles County Sheriff Deputy Christopher Trejo. Deputy Trejo was involved in critical incident four months after he began his position as a deputy sheriff. During this four month period, he was considered a probationary employee. Rather than being placed on paid administrative leave, he was reassigned to desk job while his administrative investigation was conducted.
Approximately 18-months later, the Department terminated Deputy Trejo. The Department took the position that he remained a probationary employee because they claimed his probationary period was extended in the County rules. The Department’s termination letter also informed Deputy Trejo of certain appeal rights. However, because the Department did not consider him a permanent employee, Deputy Trejo was not notified of any rights to a Skelly hearing or other pre-termination safeguards available to permanent County employees.
Deputy Trejo filed a lawsuit challenging the practice of extending his probationary period while the County investigated the alleged misconduct.
The Appellate court found that under the language of the L.A. County Civil Service Rules, Deputy Trejo was engaged in “actual service” and, thus the department, was required to credit time spent on administrative duty toward completion of deputy’s probation period under the rule authorizing recalculation of probation period “on the basis of actual service exclusive of” any time away. Here it is important to note that the civil service rules explicitly provided that “actual service” strictly meant “time engaged in the performance of the duties” of a public employee’s “position or positions.” Moreover, the Court found that the County could have placed Trejo on administrative leave which would have counted as time away and allowed the County to extend the probationary period. However, since Deputy Trejo was in a position and engaged in ‘actual service’ he had fulfilled his probationary period approximately eight months after being reassigned. For that reason, the Court of appeal held that he should be afforded post disciplinary procedures provided to permanent employees.
This is a narrowly tailored decision. However, it is a reminder that depending on agency rules, probationary status may not extended simply because one is given administrative duties.