COUNTY OF SAN MATEO
HUMAN RESOURCES DEPARTMENT
Inter-Departmental Correspondence
DATE: April 21, 2014
TO: All Management Employees
FROM: Nicole McKay, Employee & Labor Relations Manager
SUBJECT: Employee Relations Bulletin 20 Potential Criminal Actions/Arrests/Convictions
This bulletin provides procedures to follow when you a) learn of an allegation of potential criminal action by an employee, or b) learn that an employee has been arrested. The third part of this bulletin contains the County’s policy requiring any employee who is convicted of a felony or misdemeanor to report such conviction within twenty-four hours.
Note: The information contained in this bulletin is not meant to be applied to employees who are Peace Officers. For such employees, managers/supervisors should follow procedures established by their departments to ensure that the provisions of the Peace Officers Procedural Bill of Rights are followed
Potential Criminal Actions
The attached memorandum from County Manager John Maltbie outlines the procedures to be followed when a manager or supervisor becomes aware of an allegation of potential criminal action by an employee. It is essential that supervisors and managers contact the County Counsel’s Office as soon as they become aware of an allegation that involves potential criminal action. If you are unsure whether the allegation involves potential criminal action, contact the County Counsel’s Office for guidance.
Arrests
Occasionally, a manager or supervisor learns that one of his/her employees has been arrested. Sometimes this information comes directly from the arresting agency, sometimes it is reported by a co-worker or member of the public, and sometimes the employee reports the arrest. What, if anything, should the manager/supervisor do?
When you learn about an arrest, you should immediately contact County Counsel and Employee Relations for assistance in planning whether and how to conduct an investigation. If there is an arrest, you can, and should, investigate the underlying conduct that led to the arrest to determine whether disciplinary action based on the underlying conduct is warranted. This must be distinguished from using the fact of the arrest itself or the police record of the arrest, to take an employment action, which, generally is not permissible. California Labor Code section 432.7(a) provides that, an employer may not use “any record of arrest or detention that did not result in conviction” as a factor in determining any condition of employment, including the decision to hire or terminate. Thus, an investigation of the facts themselves (as opposed to the arrest itself) is necessary to determine if any action is warranted. Contact County Counsel and Employee Relations for guidance.
County Counsel and Employee Relations will provide guidance on how to inquire into the underlying facts without relying on the arrest report, the arresting officer, or any of the police documents. This inquiry will focus on the nature of the conduct to determine whether it has any connection to the employee’s job duties. County Counsel and Employee Relations will provide guidance throughout this process.
Convictions
The County’s policy on Reporting Convictions is as follows:
- Any County employee who is convicted of a felony or a misdemeanor, or placed on parole or probation subsequent to employment must report such conviction, parole or probation to Employee Relations within 72 hours of the conviction, or of being placed on parole or probation. A conviction will not necessarily result in disciplinary action. Each conviction will be reviewed/investigated to determine if disciplinary action is warranted. Failure to report a conviction within 72 hours of the conviction will result in disciplinary action, up to and including dismissal, absent an explanation of the failure to report which is satisfactory to the appointing authority.
- The District Attorney’s Office will notify Employee Relations of any San Mateo County convictions of County employees.
If an employee advises you of a conviction, or you become aware of a conviction, contact Employee Relations and County Counsel immediately.