From: PORAC LDF
By: William J. Hadden, ESQ., 7/8/2013
“Just when I thought I was out…they pull me back in!” — Al Pacino as Michael Corleone in The Godfather: Part III
And so it is with Hawthorne Police Officer Tom Kang, who thought his three-and-a-half-year nightmare was over on March 7, 2013, when the Hawthorne Civil Service Commission announced its decision to reinstate him that very day. Kang was first affectionately congratulated by all the commissioners. Next, he was graciously embraced by police administrators, now led by Chief Bob Fager, who was not in office when Kang was terminated. The City’s representatives even announced that they would not pursue an appeal. The process, which endured numerous scheduling delays due to changes at City Hall, as well as the unavailability of parties and witnesses other than Kang himself, finally appeared over. Sounds like a completely happy ending, right?
Well, not exactly. There remained the little issue of back pay. The Commission had not sustained any of the most serious charges against Kang, upholding a single allegation of misconduct, which Kang had acknowledged from the outset. This charge, the Commission said, was not a termination offense, and merited only a 30-day suspension. But by reinstating Kang on March 7, 2013, rather than on the date of his termination, September 9, 2009, the Commission somehow ignored all the time that had transpired since his termination as if it never existed. Then, given the wording of the decision, the Department felt compelled to impose the 30-day suspension, as none of the three-and-a-half-year period had been identified by the Commission as suspension time.
Surely, Kang hoped, this was merely an oversight that might be correctable. While typically an agency that renders what purports to be a final decision loses jurisdiction to take any further action on the matter, there is a recognized exception to this general rule that allows an agency to correct
a “clerical error.” In this case, optimistic that in the Commission’s zeal to put Kang back to work it had mistakenly chosen a 2013 date rather than one in 2009, he requested and received the opportunity to address the Commission at a special meeting.
The meeting was held on April 11, 2013, at which time the Commission was apprised that it retained the authority
to correct any possible clerical errors in the decision, and that there appeared to be a conflict between the March 7, 2013, reinstatement date and the Commission’s ruling that Kang’s conduct merited
only a 30-day suspension. The Commission, however, declined to modify its original decision.
While it is certainly not unusual for an administrative trier of fact to render a decision that provides reinstatement without back pay when some misconduct is sustained, the decision typically provides that the time in between constitutes a disciplinary suspension. In this case, however, the Commission emphatically stated that any misconduct warranted only a 30-day suspension, and declined both in its original decision and at the special meeting to identify the interim period as a suspension without pay. As it stands, three and a half years remain unaccounted for in the appeal process, leaving Officer Kang to now reluctantly seek redress in Superior Court, with LDF’s continued assistance, to recoup the lost wages and benefits not afforded him by the Commission.
The endurance of such an odyssey would have embittered many, but not Officer Kang, who says, “In retrospect I understand that the Department relied on what witnesses told them. Under cross-examination, we showed that those witnesses had no credibility. Sometimes only a full hearing can bring out the truth, as happened here. Understanding all this, I have a choice. I can choose to look backward and complain, or instead look forward to 25 more years of having the best job in the world with the support of the Department and good friends. I choose to look forward.”
Officer Kang has been represented throughout by Bill Hadden of Silver, Hadden, Silver, Wexler & Levine.
