July 2013 Warning Bells article

Doing Right versus Being Right

A new city attorney has been elected. Hopefully, he can straighten some things out that need to be addressed in the role of legal advice to the Department. Former City Attorney Trutanich complained about the lack of city attorneys and about the workload. Maybe that situation had something to do with the inability or unwillingness of the city attorney’s office to control the Department’s ego in legal matters. The Department doesn’t seem to be able to live with a judge telling them they are wrong.A pparently, the courts haven’t heard of the Department’s two-rule policy. Rule No. 1: The Chief is never wrong. Rule No. 2: When the Chief is wrong, see Rule No. 1. (This means any Chief; it came into being long before Charlie Beck, but he is certainly covered.)

The Superior Court judges do not want to run the Los Angeles Police Department, so it is an uphill battle for the League to get a judge to overturn a Department decision, but it happens. For instance, the League won the Special Order 47 (downgrades) lawsuit, the Department appealed and the appellate court affirmed the decision won by the League.

When the Los Angeles Times researched City payouts on lawsuits and published the information to prove that LAPD traffic accidents cost the taxpayer almost $24 million during a nine-year period, unmentioned was the fact that the same data table contained information that taxpayers lost almost $29.6 million because of successful officer lawsuits against LAPD management. If lost money is the criteria, PIIs are better drivers than LAPD managers are leaders!

Maybe the new city attorney needs to either provide better advice to the Department or insist that his advice be taken. Freeing up $29 million would hire a lot of extra city attorneys.

Actions by the Department have caused the League to file at least seven lawsuits in the past few years fighting for the rights of officers in the disciplinary system. These lawsuits are costly for both sides. In addition, the League files numerous writs challenging Department rulings in Boards of Rights and Administrative Appeals where officers’ rights have been invaded. All of this takes time and money.

There is a simple cure: Treat the officers fairly in day-to-day operations and, when discipline is necessary, administer it in a fair and open way. “Do right” instead of being obsessed with “being right.”

What has happened during the last six years to someone we will call “Officer O” is a good illustration of the waste visited upon the courts, the city attorney’s office, the League, the Department and the careers of individual officers by the Department’s two-rule system of always being right. If this is an example of how members of the LAPD family are treated, someone needs to be booked for child abuse.

For years, Officer O was a PIII+I in Metro. He was described by his OIC (who was under oath) as a hardworking, dedicated employee who was by far one of the most talented plus-ones in the platoon. He organized and ran a variety of Metro details ranging from VIP protection to crowd control events that, his OIC testified, were a model for other plus-ones. He was a lead instructor who was recognized as an expert in his field and looked upon to train the trainers. Metro was his life.

May Day is an annual event in which thousands march and demonstrate in downtown Los Angeles and MacArthur Park. On May Day 2007, Officer O was involved in the MacArthur Park demonstration as a linebacker behind a skirmish line that was receiving rocks and bottles from the crowd at 7th and Alvarado. When LAPD management ordered the park cleared of demonstrators, he and his fellow Metro officers carried out those orders.

Little needs to be said about the extensive media coverage and subsequent investigations that resulted from this action. Officer O continued his duties at Metro and prepared for May Day 2008. A few days before, he was told that he wouldn’t be taking part that year. Later he was ordered to a Board of Rights, then transferred out of Metro and downgraded to a PII.

He was charged with three counts of misconduct. A Board of Rights was held and he was found guilty of all three counts. As mentioned above, his supervisors, his captain and even a deputy chief came into the penalty phase of the Board of Rights and testified as to his outstanding work ethic and dedication to his job. He had never had any previous discipline. As a result, the Board did not recommend termination, but instead recommended suspension days.

Officer O appealed the guilty findings of the Board to the Superior Court in a writ. The judge looked at the evidence, consisting of over a thousand pages, and affirmed Counts 1 and 2, but ruled that there was insufficient evidence to find Officer O guilty of Count 3. Since Count 3 was the most serious count, this was good news. The judge vacated the count and remanded it back to the Board for the penalty to be reconsidered. The Board should have reconvened and recommended a lower penalty, and it would have been over. It should have been simple, but that doesn’t take into account Rule Nos. 1 and 2.

First, after the judge had signed the order to be served on the Department, the city attorney scheduled an ex parte hearing to allege that the judge had made a mistake. After vigorous argument in front of the judge, the order was modified into a less clear order. That order was served and the Board met for a remand hearing.

At the hearing, the advocate and the city attorney recommended that the Board either take new evidence or rewrite its rationale and reinstate Count 3. The Board decided to reinstate the count and spent two days going over the evidence and writing a rationale justifying its decision that was twice as long as the previous one. See Rule No. 2.

Because the League attorney knew that there was no choice but to go back to court to challenge the reinstatement of Count 3, it made sense to now appeal Counts 1 and 2 to the appellate court. There were potential discovery violations that could be challenged, so an appeal was filed. In addition, a writ had to be filed over the reinstatement of Count 3. What had potentially been over was now headed back to court.

Was this because Officer O was a problem officer who the Department had to beat down because he had an attitude, or refused to learn his lesson? No. In fact, Officer O was a poster child for the way the discipline system was supposed to work. He became even more productive.

When Officer O was transferred out of Metro, he was assigned to Central. Guess where the May Day demonstrations are held? Central Bureau, of course. Because of his extensive Metro experience in managing demonstrations, Officer O was assigned to a unit that manages and coordinates demonstrations, including the annual May Day demonstration.

He received a commendation for his role in helping make May Day 2009 a success. He received a commendation from the Police Commission and a public thank-you from the commission and the Chief of Police for his role in making May Day 2010 a success. He received commendations for his work in May Day 2011, 2012 and 2013, along with commendations from a City Council member and members of the community. Talk about demonstrating rehabilitation!

But there is more. Also because of his prior experience in Metro, he was assigned to help guard Secretary of State Condoleezza Rice when she visited Los Angeles. He was also assigned to guard the Mehserle family when the BART trial was held in the downtown courthouse amid multiple demonstrations. Finally, when it came time to evict the Occupy L.A. squatters camp at City Hall, Officer O was actively involved in the planning and was chosen to be the officer who issued the unlawful assembly dispersal order to the crowd that justified the sweep and arrests of those who refused to leave. To date, he has testified on behalf of the Department in over 20 jury trials of the arrestees from that action, with several more trials scheduled.

While he was performing in this outstanding manner (at the reduced pay grade of a PII), the court actions dragged on. Eventually, the appellate court decided against him on Counts 1 and 2, but a different judge reviewed the thousand-page record on the issue of Count 3 and came up with the same ruling as the previous judge: insufficient evidence. This judge also ordered that Count 3 be vacated and remanded it back to the Board to reconsider their penalty.

So is it finally over? Not a chance. See Rule Nos. 1 and 2. The Department has decided to appeal the second judge’s ruling to the appellate court. Two Superior Court judges have independently examined the evidence and both found insufficient evidence, but Officer O is being forced to go through the stress, time and expense of more court action. The Department will lose, but when you are only interested being right, not doing right, that doesn’t seem to matter.

The new city attorney has a chance to correct this madness by establishing a strong relationship with the Department and having the courage to tell LAPD management when it is off base and insist on fair treatment of Department employees. The city attorney should care about the fairness of the treatment of all employees, not just those with the rank of captain or above. It is the good and welfare of the entire city that should be the ultimate goal. Fairly treated employees do not sue, or if they do, they lose.

The fairness of the Department disciplinary system has come under media scrutiny because of the Dorner incident. According to the Department, 69 terminated officers have requested that their cases be reviewed because the officers believe that they have been treated unfairly by the system. The Department has responded by sending letters to the officers demanding affidavits of why they feel they were improperly treated, and telling them that the Chief does not have the power to do anything if the termination was more than three years ago.

This is arguably not true. Section 1070 (t) of the City Charter is a section that gives an officer three years to request a Board of Rights rehearing based on good cause. The three-year limitation is on the officer’s ability to request the hearing. Section 1070 (u) gives the Chief power to modify penalties and does not put a time limit on the ability to do so. The charter does not put a time restriction on the Chief’s ability to do right.

Furthermore, the Department instructions tell the ex-officer to clearly state the new evidence or change in circumstance that would justify a re-examination of their termination. If you are fired under a system that is arbitrary and unfair, what new evidence would that be? The whole point of the inquiry was to examine cases for unfair treatment under an unfair system.

The Department has established a set of criteria that can’t be met by most of the 69 officers. The question is, as a practical matter, would a review matter anyway? Well…see Rule Nos. 1 and 2.

I propose a new set of policy rules. Rule No. 1: The Chief of Police is always fair. Rule No. 2: When the Chief isn’t fair, he fixes it and makes it fair. Dorner struck a warning bell in a sick and twisted way, but the Chief should pay attention.

For hyperlinks to various things mentioned in this article, go to my website at www.warningbells.com.

Be legally careful out there.

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