Your due process rights trashed?
In America, we have a government built on a series of checks and balances because our founding fathers had a healthy and realistic appreciation of the shortcomings of human nature. Unchecked power corrupts, therefore, the American constitutional preoccupation with the rule of law and the concept of due process. In more practical terms, it boils down to a fair hearing before being deprived of life, liberty, or the pursuit of happiness. Your paycheck and your job are two
of the things that due process protects.
In 1935, the Board of Rights system was implemented as a check and balance against too much power held by the Chief of Police. Corruption was rampant at the time, and officers who wouldn’t go along with the program found themselves terminated. The answer to this problem was checking the power of the Chief to arbitrarily terminate and requiring an evidentiary hearing where officers had the right to defend themselves. Officers could no longer be “suspended, demoted in rank, suspended and demoted in rank, removed, or otherwise separated from the service of the department (other than by resignation), except for good and sufficient cause shown upon a finding of guilty of the specific charge or charges assigned as cause or causes after a full, fair, and impartial hearing before a Board of Rights…” [City Charter section 1070 (a), emphasis added.]
But power never likes to be checked, and abuse piled upon abuse. In September of 2011, the League was forced to file a lawsuit when the Chief ignored a Board’s finding that charges were out of statute and ordered the Board to proceed in spite of their ruling. The judge ruled in favor of the League, but the case is not yet final.
Again, the League had to file a lawsuit in July of 2012 alleging that the Department was subverting officers’ rights to defend themselves, violating due process and interfering with an officer’s ability to have full, fair and meaningful hearings. Among many abuses listed in the lawsuit, the League alleged that the Department “exerted pressure, influence and/or reprisal on Los Angeles Police Department command staff presiding as hearing officers in administrative cases….” Unfortunately, this lawsuit was dismissed by the court because “alleged violations of due process must be examined on a case by case basis.”
Since then, several things have happened confirming the League’s suspicions and fears.
On April 14, 2014, an LAPD captain (Captain A) filed a lawsuit against the Chief and the City of Los Angeles. Captain A said in his lawsuit that at a meeting of captains and above, where the Chief of Police was present, a deputy chief, speaking on behalf of the Chief of Police, told the captains and above (your jury pool in Boards of Rights) that “when the Chief sends an officer to a BOR, he expects that officer to be terminated, and the commanding officers sitting on the Board of Rights do not have the authority to do anything different.” Captain A had reservations about this, he says, because he thought officers were required to have a fair and adequate hearing before being terminated. Later, acting on this belief, Captain A was chosen to sit as a board member on a Board of Rights. After hearing evidence, Captain A found that an officer should be suspended instead of terminated. After so ruling, Captain A had a conversation with an assistant chief about his “career advancement.” He was told that one of the things the Chief looks at when considering promotion is a captain’s findings during a Board of Rights. Captain A believes and alleges in his lawsuit that, in part, “because he complied with applicable laws, and refused to follow what he believed to be unlawful orders from Chief Beck to terminate the employee, he has been denied being upgraded to the position of Captain II and/or III.” Captain A has other reasons in his lawsuit also, but these are the reasons relevant to this article.
One maverick captain? No, there is another who is also filing an independent lawsuit about a different Board of Rights.
Captain B filed a Notice of Claim (the required predecessor to a lawsuit) and the actual lawsuit will be filed soon. Captain B (who is now a lieutenant), while sitting as a member of a Board of Rights, also did not terminate two officers that the Chief sent to a Board with a recommendation of termination. according to the Notice of Claim, a short time later, Captain B was ordered into a meeting with an assistant chief. Captain B was told by the assistant chief that both he and the Chief of Police were “disappointed” in his decision not to terminate the officer. Captain B was sent to special “training” by the deputy chief in charge of Internal Affairs and the two officers were transferred to his command. At a later training day for command officers, Captain B said in his Notice of Claim, “During his opening remarks, Chief Beck stated his ‘expectation’ that captains sitting on Boards were to terminate employees that he (the Chief) ordered to a Board for termination, or that such captains would have to answer to him.” Captain B was ordered into a follow up meeting with the assistant chief who wanted to know what he had learned from his special training. Captain B’s next rating report showed “needs improvement” in Boards of Rights decisions. Other things mentioned as retaliatory in the lawsuit are not relevant to this article.
At last, insiders are being so repelled about the unfairness in the disciplinary system that they are speaking out.
A case in point is the Internal Affairs investigator who was so frustrated that she brought her complaint to an open session of the Police Commission meeting in April of 2014. In the open forum session and on camera, she told the commission that she had been an LAPD officer for 23 years and was a lieutenant colonel in the Air Force. For the last five years she was assigned to Internal Affairs. After spending “countless sleepless nights,” she felt she had no choice but to come forward. For the last year and a half, she had been working on an investigation where allegations had been made against officers, which included high-ranking members of the LAPD. When she turned the investigation in, she was directed to make deletions that would have made the investigation meaningless. She refused and was removed from her unit. She accused the Department of favoritism and cover-up in this and other investigations.
Dorner’s manifesto attacked the fairness of the Board of Rights system and threw the light of publicity on it. This sick, twisted murderer can be ignored, but what was interesting was the fact that over 60 terminated officers requested that their cases be reviewed because they had the same feeling of being deprived of any semblance of a fair hearing. That speaks volumes.
Administrative hearings are not faring any better. The Officer Representation Section wins favorable verdicts from hearing officers for their accused officers approximately 50 percent of the time. But since hearing officer rulings are not binding on the Chief of Police, 70 percent of the time the hearing officer’s favorable decision is overruled. This does not foster any faith in the disciplinary system, or in hearing officers, most of whom were civilians.
When a disciplinary system reaches a critical tipping point, it starts to fall apart. Lawsuits, public outcry, and anger are symptoms that this is happening. LAPD management is responsible for losing multi-millions of dollars to aggrieved employees in jury verdicts. Management mistreatment of officers has lost more tax money to lawsuits than all of the traffic accidents caused by all the police cars in the fleet. (As this article goes to press, the taxpayers just lost another $13 million to five recruits.)
It’s time to bring some checks and balances back into the system. Fairness in the disciplinary system means that lawsuits are not necessary. Maybe in this year’s MOU negotiations the League can provide officers with a pressure release valve. It is called binding arbitration.
What’s needed are hearing officers from outside the Department to hear evidence and render decisions. People who are not beholden to the Chief of Police. Someone whose next promotion does not depend on satisfying higher management. Or in other words, an independent set of checks and balances. The concept should not be “who” is right, but rather “what” is right. But that would require LAPD management to give up power.
Officers do not want a Chief of Police who tells their hearing officers that if they don’t follow the Chief’s recommendation, they will “answer to him.” Officers want a Chief who tells their hearing officers this: “Captain, I have looked at this case and I think this officer should be fired, but I realize that this is a terrible thing to this officer and the officer’s family, and the worst thing that I could do as a Chief is to visit that on an officer who does not deserve termination. Therefore, captain, I want you to examine every shred of evidence at this officer’s hearing and make damn sure that I am right to terminate this officer. And if you find that after an honest assessment of the evidence that this officer doesn’t deserve termination, then I thank you for keeping me from making a mistake. That is your job. I promoted you to captain because I respect your judgment. Show everyone on this Department that we are fair.”
Unfortunately, that has not been our experience. So, we are forced to take our business elsewhere.
To be sure, there is always another side to the story. The Chief will probably fight both captains’ lawsuits tooth and nail. It is a fight that we will be watching carefully and will be bringing to you regularly. You are very much an interested party. The depositions and discovery should be fascinating. In the meantime…
Be legally careful out there.
