February 2012 Warning Bells Article

Court recognizes Public Safety Officers Procedural Bill of Rights Act (POBRA)

The Department didn’t, but this time, at least, the judge had the last word and two officers who had been terminated were reinstated by the court with full back pay and interest. It went down like this, according to public court records.

About two-and-a-half years ago (yes, the process is lengthy), our two officers were working the Violent Crime Task Force. Apparently, one of their contacts became unhappy with them, or maybe someone else; it was hard to tell. Anyway, the suspect later went to the San Fernando Police Department to complain that two officers had detained him. He alleged he was handcuffed, called a booger and had his cologne criticized. All LAPD administrative felonies, I think.

The court had a list of reasons for not believing the suspect’s story, such as stating that he’d gone to the San Fernando Police Department because the letters on the side of the car were blue (LAPD’s are black). He also said the officers’ nametags were gold (LAPD’s are silver). He said one of the officers had a mustache (neither LAPD officer did). But the suspect did have a shop number. San Fernando P.D. was happy to refer him out of their jurisdiction and notified LAPD. LAPD launched a supervisor.

The supervisor met our officers in the field and, without mentioning that he was conducting an investigation, asked them if they had stopped anyone and called them a booger. Neither officer remembered anything like that and asked for the complainant’s name so they could check their Mobile Digital Computer (MDC) to see if they had even had contact with this person. The supervisor did not provide them with that information and merely told them that if they didn’t remember, they didn’t remember.

Two months later, a personnel complaint supervisor conducted an interview and presented them with an MDC printout showing they had run the complainant that night for a warrant check. The officers typically made 20 or so stops a night, so that did not ring any bells. They agreed that they must have had contact with the suspect, but everything that the suspect said had happened would have been against their normal practice, and they don’t call people boogers or care about their cologne. It was probably a consensual contact of some kind, they said.

Four months later, the supervisor received a kickback on his investigation and was told to re-interview the suspect and get a better description of the officers. Apparently, the description improved because the Department filed seven counts of misconduct against the officers and sent them to a Board of Rights with a recommendation of termination. The officers were charged with detaining the suspect without cause, discourtesy, false statements to the initial supervisor, no Code 6, inaccurate DFAR, failure to complete a field data report and failure to provide a business card.

After a two-day Board of Rights hearing, they were found guilty of all counts and terminated. The League filed a writ challenging the termination. (This is why it is good to be a League member!)

In a writ of mandamus, the court reviews the entire record of the Board of Rights and uses its independent judgment to determine the credibility of witnesses and inferences from the evidence to determine guilt. The judge did this and came up with this conclusion in the statement of decision:

“The Court declines to accept the Board’s rationalization that Franco’s wildly inconsistent identifications were simply the byproduct of immaturity or nervousness. Franco simply could not provide an accurate identification of the officers because what he reports having taken place simply didn’t happen. No thinking officer, much less officers with as many commendations and reports of outstanding police work as Petitioners, would have engaged in the tactically dangerous stunts claimed by Franco.”

That took care of all the counts except the false and misleading allegation. The Department took the position that when the supervisor contacted the officers on the night of the incident, he was merely “information-gathering and attempting to confirm some of the information initially provided.” The court pointed out that the supervisor knew there was a citizen waiting at the police station to file a complaint against the officers identified by their shop number. He also knew that there was no discretion in taking the complaint. And he knew the nature of the allegations. The court wrote:

“Where POBRA rights have not been afforded, the proper remedy of exclusion of the statements made to the investigating officer is appropriate. And, the weight of the evidence supports the finding that Sergeant _____ began immediately to question Officers ______ regarding their contact with Franco before informing them that there was a personnel complaint against them. This questioning by Sergeant ______ violated Petitioners’ rights under POBRA. Thus, the Board’s decision to deny Petitioners’ motion to strike Count 3 must be reversed.”

Because the supervisor immediately began questioning the officers before informing them that there was a complaint against them, neither officer had been given an opportunity to obtain representation before answering the supervisor’s question in violation of Section 3303 of the Government Code. The result was the exclusion of the statements. If the statements are excluded, the false and misleading statement issue disappears.

A lot of time and money could have been saved if all this had been recognized by the Department upfront. League panel attorney Jodi Gonda recognized it and did a great job at both the Board of Rights and in court with the writ of mandamus.

Court recognizes the due process issues in downgrades

This wasn’t the only setback the Department received from the court system recently. In 2009, the Department revised the downgrade procedure. Before 2009, the Department had to show a clear demonstration of an officer’s failure or inability to satisfactorily perform the duties of the position prior to the downgrade. In other words, counseling, comment cards, notices to correct and so on to let the employee know what deficiencies were being recognized and to give the employee a chance to improve. After all, a significant salary reduction was coming and the Department wanted the employee to realize it. However, apparently this was too fair.

What the Department really wanted was to have the power to hit you where it hurts — in the pocketbook. Then you would behave and do what you were told to do! Suspensions didn’t hurt enough because too many of you belonged to the League’s Legal Plan. So along came Special Order 47. No need anymore to show that an officer was unable to perform the duties of the advanced pay grade position. Now, all that was needed was the determination — at the commanding officer’s sole discretion — that the officer was unable to perform.

The League participated in a meet and confer that went to impasse and which we ultimately won. The fact-finding arbitrator agreed that Special Order 47 should not be implemented, as it impacted an officer’s due process rights. Unfortunately, the arbitrator’s decision was not binding on the Department. They issued Special Order 47 anyway. So, court was the League’s next stop.

The court recognized the League’s position. It found and ruled that the removal of an advanced pay grade of officers promoted before the effective date of Special Order 47 was a violation of due process. The same system in place when they were promoted should be the system under which they were to be downgraded. So, Special Order 47 does not apply to you if you were promoted before October 2009.

Note, however, that this decision is subject to prejudgment proceedings and appeal by the Department. Our thanks to panel attorney Richard Levine for effectively presenting the League’s case.

Don’t ignore us

One final bit of court intervention that also recently occurred: The League was compelled to file a lawsuit against the Department for multiple denials of discovery and interference with the representation of officers. (See Warning Bells article, June 2011 TBL.)

In conducting discovery for this lawsuit, the Department did to the League attorney what it was doing to the officers. It refused discovery. In this case, it refused to produce a member of Internal Affairs for a deposition. That might work when you have all the power when playing in your own sandbox where you own all the toys, but it doesn’t work so well out in the real world.

The Department was taken into court over the refusal, and the judge ordered the Department to produce the witness for a deposition and awarded the League $2,675 in sanctions against the Department.

We will keep you posted on the progress of this important lawsuit to establish fair hearings and representation for League members.

These three decisions were all handed down during the last week of December 2011. I hope we are as successful in 2012. Rather, I hope the Department just reads the handwriting on the wall and starts to recognize your rights.

Be legally careful out there.

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