On The Cover

By the time Jason Daniels was criminally charged in 2014 with committing rape and sexual battery while on patrol as a Humboldt County Sheriff’s Office deputy, he’d already been “separated from his employment,” as the county put it.

And as the case wound its way through court, local headlines all had a familiar refrain: “Ex-sergeant’s Sexual Assault Case Gets February Prelim Date,” “Ex-deputy Gets Day in Court,” “Alleged Sexual Assault Victim Testifies Against Former HumCo Sheriff’s Sergeant Jason Daniels” and, finally, “Former HCSO Sgt. Jason Daniels Found Not Guilty.” But five years after the last of those headlines, Jason Daniels has his job back — technically anyway, though he is no longer working as a law enforcement officer — despite the county having spent more than $240,000 on outside attorneys in personnel actions involving the case. While Daniels is not currently working or receiving a regular paycheck, he holds one of the Humboldt County Sheriff’s Office’s 17 sergeant positions on paper, apparently after an independent arbitrator reversed the county’s decision to “separate” him from his employment.

Public sector personnel actions are largely kept strictly confidential, and even more so with police officers, who enjoy not only enhanced due process protections but also specific laws guarding their disciplinary proceedings — and outcomes — from public view. As such, the county is legally limited in what it can say about Daniels’ situation, and Daniels himself declined several attempts to be interviewed for this story, so exactly what happened remains murky.

But information gleaned through a series of California Public Records Act requests offers a basic outline and, amid an upwelling of demands for police officer accountability nationally in the wake of George Floyd’s murder and locally as the Eureka Police Department texting scandal unfolds in real time, Daniels’ case has reverberations in all directions. For those advocating for police reform, it’s a sobering reminder of the degree to which state laws are designed to protect officers and keep their alleged transgressions secret. For municipalities calculating the potential liabilities of personnel actions, it can be seen as a warning of just how wrong things can go. And for police chiefs and sheriffs clamoring for more authority to fire and discipline their officers, well, Jason Daniels might be seen as a prime example of how California law is overprotective of officers and their disciplinary records.

Humboldt County Sheriff William Honsal said he’s legally very limited in what he can say publicly about Daniels’ case, so said very little about it specifically. But speaking generally, he said California needs to shift toward a system that either gives agencies more leeway to fire problematic officers or creates a statewide system for decertifying bad actors.

“If we are to be able to police our own — which is what the public is begging for, what they want — we need the tools to do so,” he said. “If we identify a law enforcement officer who has moral issues, integrity issues or racist issues, a law enforcement executive should be able to fire those people so they don’t carry a badge and don’t carry this awesome power that’s afforded to peace officers.”

By Thadeus Greenson

thad@northcoastjournal.com

By all public accounts, Jason Scott

Daniels’ career had been successful. A local product, he’d graduated from Eureka High School and the College of the Redwoods Police Academy before being hired on as a police officer, first in Trinidad then in Blue Lake. He was hired as a deputy sheriff in 2000 and promoted to sergeant in 2011, serving as a field training officer, a member of the county gang task force and crisis negotiation team, and had been supervising a graveyard shift for several years.

In April of 2013, he was honored by the Humboldt County Board of Supervisors for saving a suicidal 21-year-old woman. She’d been standing on a 2-inch ledge on the Willow Creek Bridge, about 75 feet above a rocky river bar, and Daniels had been negotiating with her for 90 minutes when she leaned just a bit closer to him and he grabbed her by the hair and pulled her over the railing to safety. In an interview with the Times-Standard, Daniels was dismissive of the award and any hero talk: “It’s just what we do,” he said.

Six months later, at about 5:30 a.m. on Oct. 18, 2013, investigators with the Humboldt County District Attorney’s Office called Daniels down to the jail, saying there was an issue with someone in custody there. When he arrived, they placed him under arrest on suspicion of raping a woman while on duty two months earlier. The Humboldt County Sheriff’s Office immediately placed Daniels on administrative leave and four months later, after an internal investigation, he was “separated from county service.” In the aftermath of Daniels’ arrest, another woman came forward to allege he’d sexually battered her during a traffic stop on March 13, 2013, pulling down her pants and fondling her against her will.

Roughly a year after Daniels’ arrest, the Humboldt County District Attorney’s Office filed a three-count felony complaint charging him with sexually penetrating Jane Doe 1 with a foreign object against her will and sexually battering her while she was unlawfully restrained Aug. 29, 2013, as well as a separate charge of sexually battering Jane Doe 2 during the March 13 traffic stop.

Photo by Mark McKenna

When the case came to trial in 2016, involved beyond Daniels. Downey did say, Daniels’ defense attorneys — Steven Betz however, that his department had impleand Julia Fox of the high-powered firm mented additional tolerance training in Rains Lucia Stern, PC, paid for through the aftermath of the investigation, sendthe law enforcement Legal Defense Fund ing an unspecified number of employees — focused on inconsistencies in the to take courses at the Simon Wiesenthal stories of both women, highlighting their Center for Tolerance in Los Angeles. years-long struggles with substance abuse But when it comes to Daniels’ “sepand Jane Doe 1’s work as a prostitute, aration” from county employment, it’s calling their allegations “a story concoct- unclear exactly what alleged misconduct ed by two con artists to try and squeeze that was based on. When the Journal money out of the county and the sys- recently filed a California Public Records tem.” Prosecutors countered that Daniels Act request with the county seeking had chosen to assault these women pre- documentation of Daniels’ misconduct cisely because they “were very vulnerable under Senate Bill 1421 — which requires victims” and that while some details of departments to disclose sustained their stories had been inconsistent, both findings of officers’ dishonesty or sexual had consistently maintained that Daniels misconduct with members of the public assaulted them against their will. — the county said it had no responsive

Ultimately, a jury of seven women and documents. five men voted to acquit Daniels of all charges, with some later saying the prosecution hadn’t presented enough evidence to prove the charges beyond a reasonable doubt.

After trial, court filings revealed that a judge had barred prosecutors from presenting character evidence they felt buttressed the criminal charges, finding it wasn’t directly relevant to the alleged crimes and risked unduly prejudicing the jury. According to court documents, this evidence included an empty condom box and a methamphetamine pipe found in the trunk of Daniels’ patrol car, a witness who said she’d had consensual sex with Daniels while he was on duty and some 700 inappropriate text messages allegedly found on his cell phone, many shared among “co-workers, including those of lower ranking working at the sheriff’s office.”

Specifically, the Jason Daniels texts allegedly included County of Humboldt terms ranging from the sexually crass (boobies, boner, vag) and sexist (bitch, cunt, slut, whore) to the racist (nigger, dot head) and homophobic (fag, gay-ass), according to the documents.

While then Sheriff Mike Downey confirmed at the time there was an internal affairs investigations into the text messages, he declined to say how many employees received them, if any of Daniels’ subordinates reported them to a supervisor and whether any disciplinary action was taken against any of those

acquittal, the Times-Standard asked Betz about his client’s future plans. The attorney said he did not know, “other than moving on with his life.”

It now appears moving on included fighting the county — successfully — to get his old job back. Much about this fight is shielded from public view, due to laws that keep many personnel records secret, especially police officer disciplinary records, and Daniels and his attorney declining to be interviewed for this story. But we do know from a public records act request that the matter went to arbitration. State laws — known collectively as the Police Officers Procedural Bill of Rights — afford police officers a bevy of due process protections that are beyond the reach of most employees. The rights ensure that officers aren’t disciplined absent an investigation and a sustained finding of wrongdoing. They guarantee officers access to representation — often through the deep pockets of the Police Officers Research Association of California’s Legal Defense Fund, which is funded by union contributions from officers throughout the state — and require that officers be advised of the allegations facing them and given an opportunity to prepare for interrogation. Further, the rights guarantee that the interrogation be conducted in a specific manner, with

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When a department issues a final notice of discipline, officers also have the opportunity to appeal, which takes different forms in different municipalities based on union contracts and personnel rules. For example, if a Eureka officer wants to challenge a disciplinary action, that appeal is heard by a city personnel board, whose decision would then be again appealable to the Eureka City Council. In the county, the process is governed by Humboldt County Merit System Rules, which hold that disciplinary appeals be heard by a panel of three people — the employee gets to choose one, the Humboldt County Board of Supervisors gets to choose another and those two panelists choose the third member, who then serves as its chair.

But the rules also hold that “upon mutual agreement” of the panelists chosen by the county and the employee, a hearing officer — in this case an arbitrator — can be brought in to decide the appeal “in lieu” of the panel. This appears to be what happened in Daniels’ case. When a case goes to arbitration, a statewide mediation entity offers a list of five or seven arbitrators who can hear a case and the employee and the county get to alternate crossing a name off the list until one remains, thus selecting them to hear the case.

The county declined to release any documents relating to arbitration hearings in the case, so it’s unclear when they were held, why the arbitrator didn’t uphold Daniels’ “separation” of employment or whether they imposed any discipline at all. But billing records related to “outside counsel or consultants in personnel matters involving” Daniels indicate the process was both lengthy and costly.

The county contracted with Liebert Cassidy Whitmore, which bills itself as the state’s premier labor and employment law firm, and ran up a bill of more than $244,000 from April 30, 2014 through Nov. 30, 2020. The bulk of that — $149,000 — was billed in the second half of 2018. And while we don’t know when the arbitrator ruled in the case, we know they ultimately ruled in Daniels’ favor, reinstating his employment.

Honsal said he couldn’t comment on Daniels’ exact status with his department, but said he is no longer a “sworn peace officer.”

“He is filling a sergeant position on paper but he is not an active sworn peace officer with the sheriff’s office,” he wrote in an email to the Journal.

County payroll records seem to confirm this. Under the California Records Act, the Journal requested documentation of any payments the county has made to Daniels since Oct. 1, 2013. In response, the county released records from June 19, 2020 through May 7, and none shows Daniels working any hours. (A follow up inquiry as to why the county didn’t release earlier payroll records did not get a response from county Human Resources Director Linda Le by deadline.)

Transparent California, a database of public employee salaries and pensions, shows Daniels hasn’t been paid by the county since 2014, when he received $11,321 in salary and a little more than $54,000 in “other pay,” which would fit his being on paid administrative leave through the first two months of the year and then getting paid out for any accrued vacation and sick time in a final check.

But the records released by the county for 2020 and 2021 show that Daniels, despite not working any hours, has received some payments. On June 19, 2020, he received a “gross adjustment” of $95,110 and on Sept. 25, 2020, he received a direct deposit of $13,227, though it’s unclear for what, as Le did not respond to Journal requests to clarify the records. Then, on Dec. 4, 2020, Daniels received a pre-tax payment of $53,245 under the line item “4850 Time,” an apparent reference to California Labor Code section 4850, which provides up to one year of leave at full pay and no tax deductions when a police officer is temporarily totally disabled due to an industrial injury.

According to the county, Daniels has not submitted any claims for damages or entered into any settlement agreements related to his employment.

Speaking generally about police disciplinary processes and not about Daniels’ case specifically, Honsal said that when an arbitrator orders the county to reverse an officer’s firing, the county is obligated to take them back as an employee but they would have to be “fit for duty” to return to their job as a police officer under Government Code section 1031, which mandates officers be “of good moral character,” free of emotional and mental conditions — including race, ethnicity or gender-based biases — that might adversely affect their exercising police powers and being physically fit for duty.

“If they don’t meet some of those requirements, whether it be health or moral aptitude or psychological review, the county has to figure out what to do with that person,” Honsal said, explaining that could involve finding another position to place the employee in.

In Daniels’ case, it’s unclear if the county would be able to find anoth-

er position for him or would look to negotiate some kind of settlement that would again “separate” him from county employment. According to labor law experts consulted by the Journal, such a settlement would likely have to include all or some percentage of seven years of back pay at a sergeant’s salary due to the arbitrator’s reinstating his employment, as well as credits for his pension through the California Public Employee Retirement System.

Asked specifically about the impact of having one of his department’s 17 sergeant positions filled by someone on paper only, Honsal said it’s problematic.

police officer accountability, arbitrators have become a flash point. In the circles of rank and file officers, they are often seen as a crucial, unbiased check against local police chiefs and sheriffs, who may be unduly guided by petty grudges or public pressures. But to the public — and sometimes law enforcement executives — they are often seen as impediments to officer accountability.

In a groundbreaking study of 624 arbitration cases heard between 2006 and 2020 from “a diverse range of law enforcement agencies” across the country, Stephen Rushin, an associate professor at Loyola University Chicago School of Law, found that arbitrators more often than not rule in favor of officers. Overall, Rushin found that in 52 percent of cases the arbitrator reduced or overturned police officer discipline and in 46 percent of cases involving termination, they ordered departments to rehire previously fired officers. When the punishment in question was a suspension, Rushin found arbitrators on average reduced them by “approximately 49 percent.” Looking at arbitrators’ justifications for their rulings, Rushin found some trends.

“Frequently, arbitrators found the original discipline to be excessive relative to the offense committed or relative to punishments received by other officers,” he wrote. “In a somewhat smaller number of cases, arbitrators cited insufficient evidence or procedural flaws in the investigation or adjudication of the original internal disciplinary process.”

As Rushin notes in his study, arbitrators are frequently sticklers for process, so they want to see how a disciplinary action compares with others meted out by a department, they want to see signs of progressive discipline — meaning an officer has received warnings or incremental discipline when there are patterns of misconduct — and they want to make sure their due process rights were protected during the investigation.

“Arbitrators follow due process as closely as the judicial standard,” Arnold Zack, former president of the National Academy of Arbitrators and a lecturer at Harvard Law School, told U.S. News & World Report in 2016. “It is more important to have the process operating properly, even at the price of an inequity in a particular case. That overrides the bad apples.”

Speaking generally, Honsal said that’s a problem in a climate when trust in law enforcement is in question and the public is clamoring for accountability.

“We have to have that public trust, so we have to have the ability to weed out those who have some major character issues and can’t be rehabilitated,” he said, adding that the extensive background investigation process in police officer hiring processes are specifically designed to identify applicants with character flaws. “The public doesn’t want those people wearing a badge. If it’s an issue that would prevent someone from being hired in the first place, why should they be able to keep their job after having those same issues on duty?”

Currently working its way through the Legislature, Senate Bill 2 attempts to address the issue by creating an advisory board of both members of the public and law enforcement to review allegations of officer misconduct and consider revoking an officer’s certification. But the bill also goes much further, limiting the qualified immunity that protects officers from civil litigation and Honsal said he does not support it. (The bill’s author, state Sen. Steven Bradford, says the limits on qualified immunity are necessary to allow families to seek justice when their rights have been violated.)

In an August 2020 article in the California Law Review, six experts on arbitration proceedings in the state, meanwhile, argued that making arbitration proceedings and police disciplinary records public would go a long way toward reforming the system. They also advocated changing evidence standards in appeals hearings so that minor due process violations don’t preclude holding officers accountable if the violation is “a harmless error without prejudice to the merits of the officer’s case.”

Frustration evident in his voice, Honsal said he’s seen protests locally and across the nation demanding officers be held to account for malfeasance. He said he understands the anger and the mistrust, as well as the need for due process rights and officer protections. California leads the nation in innovative law enforcement training and practices, he said, and the Legislature needs to find a way — either through a decertification panel or giving local chiefs and sheriffs more autonomy — to allow officers to be disciplined for misconduct in a way that engenders public trust.

But the sheriff made clear he thinks the current system is not working. Asked if there have been instances when he’s felt hamstrung in his ability to discipline or dismiss an officer for conduct he felt was inappropriate, Honsal didn’t pause.

“Yes,” he said. l

Deputies block Bhune Drive in Fields Landing during a standoff with a barricaded subject following a domestic dispute earlier this year. Photo by Mark McKenna

Thadeus Greenson (he/him) is the Journal’s news editor. Reach him at 442-1400, extension 321, or thad@ northcoastjournal.com. Follow him on Twitter @thadeusgreenson.