THE KLAVER TRILOGY
Deputy K. W. Klaver began
his unblemished career with the Santa Clara County Sheriffs’
Department on July 4, 1983. He had experienced several run-ins with the
present sheriff, Laurie Smith, on several occasions, dating back to
1990, when now Sheriff Smith was the assistant sheriff. The first
difficulty was when Klaver received an evening telephone call from his
captain, telling him to report from his assignment in the Patrol
Division to the Courts Division the next day without reason or
explanation. There was, apparently, some investigation which had been
launched, but Klaver’s captain advised Klaver that he could not talk
to him about the investigation and that the orders had come from above.
This failure to follow procedure, and specifically the failure to advise
Klaver of the nature and/or extent of the investigation resulted in his
going out on stress disability and filing an action with the Workers’
Compensation Appeals Board alleging a punitive transfer. The WCAB came
down firmly on the side of Klaver, and in its opinion, specifically
found that there was "[N]o explanation whatsoever for this
investigation…offered by defendant" (Santa Clara County Sheriffs’
Office) and that the sheriffs’ office "…did not deny that it
failed to follow established procedures" in this transfer. Klaver
was off from work on stress disability from November 1990 to April 3,
1991, and forced, by the department, to use up all of his vacation and
sick leave, rather than being put on paid administrative leave.
Even before Klaver
returned to work, he was allowed to bid his usual south county patrol
beat for which his seniority made his transfer to that beat automatic.
However, on the transfer date, he was denied transfer to that beat and
assigned to a distant location. Klaver filed a grievance with then
Sheriff Gillingham, since he understood that the refusal to allow him to
return to his normal beat was based on direct actions by then Assistant
Sheriff Laurie Smith. Based on Klaver’s grievance, Sheriff Gillingham
overruled Smith, and allowed Klaver to resume work at his normal south
county beat.
Klaver, who is an expert
in dispatching hazardous wild game, was called substantially off his
beat in August 1995 to dispatch a mountain lion who had been terrorizing
a local community. Klaver killed the mountain lion, and the
investigation of the propriety of this shooting within the next 24 hours
completely cleared him of any misconduct. Approximately two weeks later,
Klaver was advised that there was a "major investigation"
regarding this incident and was told that it was started by "…somebody
above the captain level." At that time, there were only two people
above that level, one of who was then Assistant Sheriff Smith. This
investigation was held over Klaver’s head for five months before it
was again deemed to be a justified action on his part.
Finally, in approximately
August 1997, the Klaver Trilogy began. Having an unblemished record as a
deputy sheriff and having informally been appointed lead deputy on many
shifts in patrol, Klaver applied for a field training officer position.
When called, off-duty, and told that the oral exam for the FTO position
was scheduled for the next day, Klaver advised that he had commitments
the next two days (both of which he was off-duty) and needed to
reschedule his oral examination. He was advised by the clerk to talk to
the sergeant in charge of Personnel and Training, and after having left
numerous messages with that sergeant, without response, Klaver became
aware of the fact that the oral examination had taken place, and that he
was never given an opportunity to participate. He then began the process
of complaining about his treatment, and the department’s failure to
offer any accommodation to him for this examination. As soon as Klaver
began complaining up the chain of command, he was advised that he was
being transferred from the Patrol Division to the Courts Division,
thereby making him ineligible to even take the FTO exam. The stress of
the department’s failure to acknowledge Klaver’s right and
opportunity to take the FTO oral exam, coupled with its transfer of
Klaver to the Courts Division, and refusal to allow him to transfer from
the San Jose Courts Division to the South County Courts Division (where
he lived), thus creating serious child care issues for his family,
caused Klaver to go off work due to cumulative stress on April 15, 1998.
By November 1999, Klaver’s treating psychologist, Dr. Peter Van Oot,
sent a report to Personnel and Training, advising that Klaver was
capable of immediately returning to work. Unlike every action in the
past, the department refused to return Klaver to work based on the
recommendation of his treating psychologist and insisted on having him
examined by "their own" psychiatrist. They also refused to
allow Klaver to return to paid administrative status and, in fact, he
was advised by the sergeant in charge of Personnel and Training that he
would remain "in limbo." Thus began the three separate
grievances filed by Klaver.
Grievance No. 1 related
to the sheriff’s department’s (1) failure to grant Klaver an FTO
oral interview, (2) his transfer to the Courts Division from Patrol
Division, in violation of the department’s transfer policy, and (3)
the department’s failure to transfer Klaver from the San Jose courts
to south county courts as punitive action. At the last minute, prior to
the start of Klaver’s arbitration in this matter before Arbitrator
Bonnie G. Bogue, the Santa Clara County Labor Relations Department
objected, on the date of the arbitration, to the arbitrability of two of
the three grievances filed by Klaver. This resulted in a substantial
delay and an additional hearing on the issue of arbitrability alone. On
June 15, 2000, arbitrator Bogue ruled that these two matters were
arbitrable, and scheduled hearing on all three grievance issues. The
arbitration, which was held on July 28, 2000, resulted in an order by
Bogue on November 21, 2000, which read in pertinent part as follows:
"Deputy Klaver
was denied the opportunity to reschedule an FTO oral examination in
violation of the MOU. He is to be granted an oral examination
immediately…"
After further
disagreement between the Labor Relations Department and counsel for
Klaver, LDF panel attorney William R. Rapoport, of San Mateo,
California, arbitrator Bogue, at the request of Rapoport, and over the
objections of the Labor Relations Department, modified her decision and
ordered an FTO oral exam for Klaver within 60 days after the date on
which he has returned to his duties as a patrol deputy, and has been in
those duties for 90 days.
Grievance No. 2 began in
mid-November 1999, when the sheriffs’ department refused to allow
Klaver to come back to work and refused to put him back on paid status,
thereby keeping him "in limbo." Klaver’s grievance resulted
in an initial refusal by the County of Santa Clara to even allow Klaver
the opportunity for an administrative hearing, but eventually, after the
threat of litigation over Klaver’s right to such a hearing, agreed to
the proceeding regarding his fitness for duty. This hearing took place
over four days in April, May and July 2000, before administrative law
judge, the Honorable Jonathan Lew. The department’s witnesses included
Lieutenant Ernie Smedlund, Captain Roy Froom, Commander Bernal and
Sheriff Laurie Smith, who, during the course of the proceedings,
volunteered "…I don’t think in my career with the sheriffs’
office I have known who Deputy Klaver was…" despite their
numerous prior negative interactions. The sheriffs’ department took
the position that Klaver was (1) not fit for duty, and (2) if he was fit
for duty, that duty began as of the date of Judge Lew’s order and did
not extend back to the period from November 5, 1999, when Klaver’s
psychologist advised the department that Klaver was fit for duty. In
addition to himself, Klaver presented Dr. Peter Van Oot and Dr. Robert
Flint (Concord, California) as witnesses on his behalf. Klaver, through
his counsel, argued that he was not only presently fit for duty, but
also was fit for duty as of November 5, 1999, and should be entitled to
complete back pay and benefits as of that time. On October 10, 2000,
Judge Lew ruled in favor of both Klaver’s positions, i.e., (1) he was
presently fit for duty, and (2) that from the date of November 5, 1999,
to the present, Klaver was also fit for duty. Without further argument
on that point, the County of Santa Clara adopted the Proposed Decision
of Judge Lew on November 27, 2000, and Klaver returned to work on
December 26, 2000.
Klaver’s return to work
did not, however, convince the county that he should be entitled to back
pay and benefits for the time from November 5, 1999, to his return to
work on December 26, 2000, thereby resulting in Grievance No. 3.
Grievance No. 3 was filed
to (1) compel the department to pay Klaver from November 5, 1999,
forward, and (2) to find that the refusal of the department to return
him to work as of November 5, 1999, was arbitrary and capricious. That
matter proceeded to the first of two days of arbitration before
arbitrator Alexander Cohen. The second session for the arbitration of
this matter was scheduled to begin on March 21, 2001, but at the end of
February 2001, the county agreed to reimburse Klaver for complete back
pay and benefits in his position of deputy sheriff, effective November
12, 1999. At the present time, Klaver has been reimbursed for all back
pay and benefits with the exception of medical reimbursement and
retirement benefits which are presently being negotiated.
LDF Home Page | News
Article Index
