Should Deputies Union Consider Going for Punitive Damages?


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First let me make it clear I am neither an attorney nor a current of former law enforcement employee. What I am wondering about comes from my viewpoint as an observer of local government and its machinations.

The Orange County Board of Supervisors and the Association of Orange County Deputy Sheriffs (AOCDS) have been in litigation for several years because the Board of Supervisors sued to try to get a decision of a prior Board to grant an enhanced retirement benefit to AOCDS union members reversed. Specifically, the Supervisors sought a court ruling that the prior action of the Supervisors was unconstitutional (the California Constitution) gift of public funds and also violated a requirement that the public must vote on whether local government can incur a debt.

When the Supervisors decided to turn to the courts on this issue the question was who should they sue? It was the Supervisors that made the decision (different people were occupying the Supervisors’ offices at that time in 2001) to grant the retirement enhancements, yet they could not sue themselves. The target selected was to sue the Orange County Employees Retirement System (OCERS) as it was the system issuing the monthly enhanced retirement checks going forward. So the Supervisors sued OCERS for following the Supervisors’ direction. Soon however the union representing Deputy Sheriffs (AOCDS) was added as a defendant with all parties agreeing to that. After all, AOCDS had the most to lose in this suit.

Press accounts have reported that when exploring whether to file this suit the Supervisors consulted several law firms and several of them told the Supervisors that they had no case and a suit would be futile. However, at least one law firm was willing to take on the suit – for appropriate legal fees of course. Whether that firm actually thought a win was possible we will never know, but we do know they at least saw it as a way to earn some money.

In February, 2009 the Los Angeles County Superior Court dismissed the suit in an action that appeared to tell the County it had no case. In spite of the prior legal advice the Supervisors received that it had no case, four of the five Supervisors voted to file an appeal. Early this year the California Court of Appeals, Second Appellate District (Division 1) in a decision I view as scathing, dismantled the County’s legal arguments point by point and while telling the county that “imprudence is not unconstitutional” ruled against the County. Not to be deterred, the same four Supervisors voted to appeal this case to the California Supreme Court, and early this month the press reported that the Supreme Court refused to hear the case. This means the detailed decision of the State Court of Appeals stands.

Again according to press accounts, the County has incurred over $ 2 million in legal fees, and the AOCDS says it has incurred a like amount of legal costs. We don’t know about OCERS costs, but there has to be some. At this point it is likely that AOCDS and OCERS are assessing if and how to seek reimbursement of their legal costs from the County. In making that determination, these organizations might study the concept of punitive damages.

A quick Google search led me to this definition, which is one of the reasons that a court can find for punitive damages in addition to regular damages – “Malice means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.”

Supervisor John Moorlach is quoted in the Orange County Register of April 14 as making this statement in defense of the county’s lawsuit and appeals “We owe it to the Orange County taxpayers to try and get this figured out.” One has to wonder if turning to the courts against the advice of several law firms, and then pursuing appeals after losing at every level, was necessary for the Supervisors to figure it out. Perhaps the Supervisors were just doing their duty, or perhaps it was an act intended to outlast and outspend the defendants and/or to bring them to the bargaining table with a willingness to make concessions. Is there evidence of malice or some other basis for considering punitive damages? Something for AOCDS and OCERS to think about.


About Over But Not Out

A retired Orange County employee, and moderate Republican. The editor seriously does not know OBNO's identity as did not the former editor, but his point of view is obviously interesting and valued.