April 2012 Warning Bells Article

Hey, who cares? It’s someone else’s tax dollars!

Councilman Dennis Zine (currently running for city controller) asked a question that hasn’t been asked before: Why are police officers successfully suing the Department, forcing the City to pay out millions in damages from jury verdicts?

“Crazy juries,” LAPD management shouts. “Slick plaintiff ’s attorneys,” they lament. It’s never “we screwed up.” Those staff officers who are convicted by the jury are held innocent by the Department.

Zine’s question deserves to be answered. After all, he is part of the City leadership and hopes to be the one in charge of finances. Judging by the penny-pinching he was known for when he was on the League’s Board of Directors, he is likely to watch City expenditures closely. So let’s look for an answer to his question.

Why are so many officers suing the City? That’s easy. There is no other place for them to go to address their grievances except a plaintiff ’s attorney.

All too often, reporting misconduct such as hostile working conditions falls on deaf ears, or worse, results in retaliation. Discipline is administered haphazardly and there is no trust in the appeal process.

There are supposed to be systems within the Department that officers can use to appeal discipline, downgrades and transfers. The administrative appeal hearing from the officer’s point of view is a joke. In this process, a hearing officer (until recently a captain or above) is drawn by the officer wishing to dispute a paper penalty, transfer or downgrade. A hearing is held and the hearing officer makes a recommendation to the Chief of Police. The Chief is not obligated to follow the hearing officer’s recommendation. So first of all, an officer has to convince a captain to tell the Chief that he was wrong. That is a steep hill to climb. Then, even if the officer climbs it, the Chief doesn’t have to follow the recommendation — and doesn’t. In the last nine years, you can count the number of times on one hand and you don’t need to use your thumb.

In the last contract negotiations, the League negotiated for civilian Board members to be the hearing officer. We hoped that they would be free from Department politics and that the size of their paycheck would not depend on the Chief ’s opinion of them. The first civilian decision just came in. The officer won. The Chief ignored the civilian hearing officer’s decision and refused the hearing officer’s recommendation. So much for citizen review.

An officer’s view of the Board of Rights cannot be much better. The League has filed a lawsuit against the Department for repeated violations of due process. One of the problems repeated over and over again is the Department’s refusal to provide the accused officer with discovery.

In a recent deposition, a remarkably candid member of the Internal Affairs Advocate Section testified that even if the Department had evidence that could help an officer’s defense, it would not be given to the officer if it wasn’t specifically mentioned in the Board of Rights Manual as something that had to be provided. It would have to be ordered to be produced by the Board of Rights. This, of course, presupposes that the officer even knows of the existence of this exculpatory evidence.

What is wrong with this picture? A federal judge could tell. In a recent decision refusing the City’s request for a summary judgment in federal court against an officer who had filed a lawsuit against the Department, the judge looked way back to 1990 to Los Angeles Police Protective League v. Gates. The judge noted that the 1990 court held then that the suppression of information necessary to a full and fair hearing violates due process.

After a jury found in favor of the officer who filed this lawsuit against the Department, the 1990 appellate court said this after the City appealed:

“Furthermore, three witnesses testified that it was common practice for the Department to regularly withhold relevant information from an officer under investigation. Therefore, there was evidence from which the jury could have concluded that it was the custom of the Police Department to withhold relevant information from officers under investigation. The jury was entitled to hold the City liable. … As we have already pointed out, there was at least some evidence that LAPD had a custom of withholding materials from its employees before suspension. It was certainly reasonable for the jury to infer that Police Chief Gates and Acting Police Chief Iannone were well aware of this pervasive activity in their Department. The jury could have reasonably expected that Gates and Iannone would present persuasive evidence that they were not aware of the Department’s custom, if indeed they were not. Therefore, we uphold the jury’s finding that the Chiefs were liable for the violation of Gibson’s rights when the custom of the LAPD was applied to him.”

The 2012 federal court noted that there were similarities between the current case and the 1990 case. In denying the City’s request for a summary judgment, the court stated:

“Plaintiff has presented evidence that the LAPD regularly refuses to identify witnesses or produce documents in BOR proceedings, despite procedural rules in place for doing so. Plaintiff has presented sufficient evidence to permit a jury to find that Defendant ________, who initiated the personnel complaint, deliberately withheld information concerning the scope of the investigation, the substance of the charges (i.e. what behavior constitutes misconduct), and the unwritten policies relevant to Plaintiff ’s defense.”

The officer was granted the right to proceed with the lawsuit. Chief Gates was found liable in 1990; Chief Beck should hear warning bells.

The lesson here is that the Department never learned its lesson. Twenty-two years later, we still have the same problems. What the Department and the Police Commission do not seem to understand is that a fair disciplinary system that officers can have faith in is a good thing on several levels. It’s good for morale. It’s good for justice. And, in these financially troubled times, it’s good for the City’s pocketbook.

A fair investigation placed on the table for all to see, followed by a reasonable disposition, will eliminate the need for a lawsuit. If the officer feels that he or she can get a fair shake from the Department’s internal processes, there is no need to go outside to find an attorney who will sue.

If management cannot see this, then it is time for the politicians to step in and force LAPD management to provide officers with a system that fosters trust, not hopelessness. As it stands now, management has no motivation to change. There is no action taken against those managers who cost the City millions, and the money comes out of someone else’s budget, not LAPD’s. It’s a free ride all around — except for the taxpayer.

Be legally careful out there.

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