Oct 2014 Warning Bells article

Chief’s Interference with Board of Rights Rebuffed by Appellate Court

“I send people to a Board of Rights for a reason – to be terminated,” Chief Beck told Dominique DiPrima during a KJLH-FM interview. As mentioned in previous columns, two prior Board of Rights members alleged in separate lawsuits that high-ranking Department officials told them pretty much the same thing. Those same Department officials were then retaliated against by the Department when they failed to follow those orders and did not recommend termination.
That is not the way it is supposed to work. The Los Angeles Charter says officers are to get “a full, fair, and impartial hearing before a Board of Rights,” who must then find “good and sufficient cause” before recommending removal. [Los Angeles City Charter section 1070 (a)] Fortunately, the California Court of Appeals last week agreed with the League in the case of Pedro v. City of Los Angeles. The court also looked at the fairness of the investigation process and put its foot down there too.
A couple of days later, a Los Angeles Superior court judge also chimed in on a different officer’s case and tossed out 4 of 5 counts that a Board of Rights had used to terminate an officer. It was a bad week for those on the Department who believe that the disciplinary process is nothing but a rubber stamp for whatever action the Department wants to take.
What is, and remains, a shame is that the League has to spend treasure and time trying to force the Department to recognize something that should be obvious to all. The process is meant to be fair.
In the case of Pedro v. City of Los Angeles, the appellate court in a published decision (which means it is binding case law and can be cited as precedent in future cases) upheld a trial court that had told Chief Beck that he had “improperly directed a Board of Rights.”
Officer Pedro had been charged with four counts of misconduct and was sent to a Board of Rights. Pedro’s attorney, Randal Quan, objected that three of the counts were out of statute. The Board heard testimony and agreed. The Board ruled the counts out of statute and proceeded with hearing evidence on the remaining count. A week later, Internal Affairs brought a “motion for reconsideration.” It should be called a “notice that the Chief thinks you screwed up.”
This is a request for a re-argument on what the Board has already ruled on. The first thing you generally see on the document in the upper left corner is “Charlie Beck.” It has happened to me a couple of times and my sympathies go out to Quan and the officer. Usually, the Board “reconsiders” and reverses its previous decision. One can speculate on whether they are moved by the arguments in the motion (usually the same as originally ruled upon) or whether they are moved by thoughts of career suicide, but in either event, the officer loses what had previously been gained.
In Pedro’s case, the Board reconsidered and did not change its opinion. My compliments to their recognition of what their job is under the Charter as to being “impartial.” Undaunted, Internal Affairs met with the Chief and came back with an order. The Board was told, “After deliberating on the matter, the Chief has affirmed his original position that all four counts are in statute and directs the Board to proceed as such.” So much for an impartial hearing.
The trial court and the appellate court looked at the law and told the Chief that he was wrong. He did not get to reach into the Board of Rights and assert his influence. “We conclude that the Board failed to proceed in the manner required by law by yielding to the Chief of Police rather than exercising its independent judgment,” the appellate court stated. Amen.
We had to go through three years of litigation to figure out that it isn’t fair for the Chief to reach into a Board of Rights and over rule their decisions before the Board is even over.
It is this rigging of the game that has brought the deep-seated anger among our officers that surfaced during the contract ratification meetings. There has to be a sense among the troops that there is a fair process in place where they can get an impartial hearing when they think that they have been wronged.
It is a “matter of statewide concern,” the state legislature said when they enacted the Public Safety Officers Procedural Bill of Rights (largely because of abuses of LAPD management in the discipline system). “The Legislature further finds and declares that effective law enforcement depends upon the maintenance of stable employer- employee relations, between public safety employees and their employers,” they continued. (Gov Code section 3301) And that is what we don’t have. There is no sense that the discipline system provides a stable platform to resolve differences of opinion on guilt between officers and management.
Other points came out of the Pedro case based on fairness. The watch commander had been contacted by a citizen that Pedro was conducting personal business on duty and sent a sergeant out to investigate. The sergeant engaged Pedro in a conversation about his activities without informing Pedro that he was the subject of a complaint. Later, the Department charged Pedro with a misleading statement to that supervisor. The trial court concluded this conversation was both an investigation and an interrogation, and that Pedro was entitled to know the nature of the investigation before being interrogated. The court suppressed the statement. Again this is nothing more than the recognition of what is basically just plain fair.
A further point that came out of the case was a ruling on how statute of limitations are to be interpreted when the misconduct is known, but not the identity of the officer. In this case, the Department received a letter from the citizen that made the complaint about an unnamed officer in a vehicle with a specific license number. Although, the Department at that time did not know the identity of the officer, they did know about the allegation. The appellate court ruled that this started the statute. There was one year to investigate. The Department failed to complete its investigation in that year, so the charge was out of statute.
It is unfortunate that it takes lawsuits to accomplish anything in reforming the LAPD discipline system, but that seems to be the only way. The League will continue to fight in court, sponsor legislation in Sacramento, court public opinion, and push in every other way we can think of to get the system to change. It promises to be a long fight. In the meantime…
Be legally careful out there.