Court Enforces Sheriff’s Department’s Agreement To Arbitrate Discipline, Despite Applicability of Contrary Process in CBA

CATEGORY: Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room
CLIENT TYPE: Public Employers, Public Safety
DATE: Dec 08, 2020

In December 2015, the San Francisco Sheriff’s Department (Department) terminated Deputy Sheriff Douglas Jones for misconduct.  The notice of termination, signed by then-Sheriff Ross Mirkarimi stated: “You have a right to appeal this decision. . . . The appeal termination is subject to those procedures provided for in Rule 122 of the Civil Service Commission.”  Rule 122 of the San Francisco Civil Service Commission Rules contains procedures related to the dismissal of employees “except the Uniformed Ranks of the Police and Fire Departments . . . or as may be superseded [sic] by a collective bargaining agreement[.]”

Jones timely appealed his termination, and the parties selected a neutral arbitrator in accordance with Rule 122. In October 2017, the arbitrator reduced Jones’s termination to a written reprimand and directed that he be reinstated with back pay and benefits.

On December 5, 2017, then-Sheriff Vicki Hennessy informed Jones that she would not accept the arbitrator’s recommendation for reinstatement and that his termination was final. In support, Sheriff Hennessy referred Jones to the collective bargaining agreement (CBA) between the City and County of San Francisco (City) and the San Francisco Deputy Sheriffs’ Association (Association), which provided that an appeals decision is not binding on the Department “when the decision is a recommendation of a reduction in the discipline.”  The CBA also provided that disciplinary grievances could not be submitted to arbitration, but instead had to follow a different appeals procedure outlined in the CBA.

On December 29, 2017, Jones and the Association (collectively “Association”) filed a complaint against the City and Sheriff Hennessy to enforce the arbitration award.  The Association argued that Sheriff Hennessy rejected the arbitration award pursuant to the CBA even though the Department had directed that Jones’s termination appeal proceeded under Rule 122 of the Civil Service Commission.  The Association alleged that the City and Sheriff Hennessy were now equitably estopped from relying on the CBA to reject the arbitration award.

The trial court agreed and confirmed the arbitration award.  The City appealed on the grounds that Jones was not entitled to equitable estoppel.  The California Court of Appeal disagreed and affirmed the trial court’s ruling.

The Court of Appeal described the doctrine of equitable estoppel as: “a person may not deny the existence of a state of facts if that person has intentionally led others to believe a particular circumstance to be true and to rely upon such a belief to their detriment.”  For equitable estoppel to apply to a government entity, five elements must be present: (1) the entity to be estopped must be appraised of the facts; (2) the entity to be estopped must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; (4) the other party must rely upon the conduct to his injury; and (5) injustice would result from a failure to uphold estoppel. The City argued that Association failed to establish the third, fourth, and fifth elements.

For the third element, the City argued that the Association was not ignorant of the longstanding appeals provisions within the CBA.  The Court of Appeal disagreed and held that Jones was ignorant of the true state of facts since the Department advised that his appeal was subject to Rule 122. The Department then carried out the appeal in accordance with Rule 122.  Further, the Department had consistently proceeded with deputy termination appeals under Rule 122 for 20 years.

For the fourth element, the City argued Jones incurred no injury because the CBA appeal process was the only process available to him despite the Department’s incorrect representations about the applicability of Rule 122. The Court of Appeal disagreed and held by rejecting the arbitrator’s award, the Department injured Jones by retroactively depriving him of the ability to arbitrate his termination and then depriving him of employment.

For the fifth element, the City argued there was no injustice to Jones by holding him to the CBA’s terms. The Court of Appeal again disagreed. Jones incurred injustice because the City participated in arbitration without objection, and then, only after losing, argued that the underlying agreement to arbitrate was not applicable.

The Court of Appeal affirmed that the City was equitably estopped from challenging its agreement to arbitrate Jones’s termination appeal.

San Francisco Deputy Sheriffs’ Association v. City and County of San Francisco, 2020 WL 5568553 (2020)


This case is unpublished and therefore generally not citable.  However, it is an important reminder that employers should review any overlapping disciplinary appeal process rules and select the appropriate rule.  This case shows that once an employer selects one appeal process it may be estopped from later denying the applicability of that appeal process.

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