From: Merced County Times
By: Beverly Barela, 10/11/18
Atwater City Manager Lori Waterman signed and sent a letter notifying Police Chief Sam Joseph of the city’s intent to fire him, according to Michael Rains, Joseph’s attorney.
Rains, who was appalled as he updated the Times on the new developments in his client’s employment situation, became aware of the notice on about Oct. 1.
Joseph was placed on paid administrative leave on Jan. 22 by former interim city manager Art de Werk on de Werk’s eleventh business day on the job. When asked why, de Werk stated it was a move that required no justification.
De Werk then authorized Churchwell White, a city attorney firm solicited by the council majority and recommended by de Werk, to pursue a management review of the police department to determine Joseph’s status, although de Werk had admitted this needed to be done by an independent, outside management review consultant.
Instead, Doug White, Atwater’s then interim city attorney (who expressed hopes of becoming permanent), pursued and initiated numerous management reviews of the Atwater Police Department and investigations of Chief Joseph by attorneys affiliated with Churchwell White over the next seven months, by which time White had been voted in as permanent city attorney by the council majority.
These reviews resulted in the compilation of what Rains described as allegations of wrongdoing against Joseph none of which are fair or have any real basis.
Rains said, “The council majority brought in the permanent city attorney, who was able to orchestrate an investigation that would never produce a fair result.”
He explained, “For the last 30 years, I have taught classes certified by POST on Internal Affairs investigations, so I certainly am familiar with, and much up on, what the law requires in terms of fair and objective investigations of police officers when they are accused of wrongdoing.”
“For reasons I can’t speak to, they seem to be incapable of doing the right thing.”
It is anticipated Doug White will charge the city his firm’s litigation rate of $255 per hour to defend the city against Rains’ legal actions.
Rains’ mid-September offer to the city for a less costly solution – – mediation of Joseph’s employment situation instead of an expensive hearing – – has fallen on deaf ears.
He said, “Sam wants to come back. He’s got roots in Atwater, and he cares about the people in the department. I was hoping we could do a mediation and try to resolve the case expediently and cost-effectively. If the city really wanted to treat the taxpayers right, they would bring in a mediator, which is faster and less expensive than an arbitrator.
“They didn’t want a mediation. A mediator would have said, ‘You can’t fire this guy on this stuff so you need to think about putting Sam Joseph back to work’, or the mediator would say to Sam, ‘They don’t want you back so you need to take an appropriate monetary settlement.’”
What city officials now propose instead has aroused Rains’ ire.
He said, “They have sent to Sam and to me a notice advising him that they want to terminate his employment.
“They recognize they have an obligation under the Peace Officer Bill of Rights Act in California to give him a hearing. That’s the law. But of course when they sent me the letter saying they have to give him a hearing, they wanted to orchestrate the hearing.
“As if they haven’t spent enough of the city’s money on this case, they offered to appoint the hearing officer at the city’s expense and you know who that would be – – a hearing officer they could control and who wouldn’t be fair or impartial.
“The investigator they selected [to investigate Joseph for workplace misconduct] did the shoddiest job I’ve ever seen in an investigation. Her analytical conclusions defy belief and the evidence.
“Not only did they say, ‘We’ll supply the hearing officer’, because they want to get someone who would tell them what they want to hear, they said, ‘We don’t have to produce any witnesses and Sam has the burden of disproving the charges.’
“The reality is that since they’re accusing Sam of these things, they have to prove them up to a hearing officer.”
Rains, who is incredulous at the one-sided nature of the city’s proposed next steps, concluded, “The city wants to orchestrate this so they can facilitate Sammy’s demise.”
He added, “It’s very frustrating to encounter a city like this, and it’s rare to see this. I represent close to 30,000 law enforcement officers in the state, including huge agencies, including officers in LAPD and L.A. Sheriffs, and also the smallest agencies, and I don’t see this kind of complete indifference to fairness in the other agencies we deal with. But sooner or later, they’re going to be held accountable for this.”
Rains is in the midst of explaining his position to the city officials, which he informed the Times is based on well-established law in the State of California.
He said, “I’ve now written an appeal letter stating that’s not the law in the State of California. They have to put on witnesses to prove their case, and I get to cross-examine them and they have the burden of proving the charges – – Sam doesn’t. That’s been the law in the State of California for the last two decades.
“If they want to take a shot at Sam and recommend his dismissal, they’re going to have to prove to the satisfaction of a hearing officer that Sam has done something justifying being terminated.
“And they just don’t have the evidence to prove that.
“And I propose that we get a neutral hearing officer who is a lawyer and arbitrator who hears disciplinary cases and is on a list with the California State Mediation and Conciliation Service, a service that most lawyers in the state use. These are people who have experience in deciding these cases and have no ties or obligations to any party in the case . They are true neutrals.
“I propose that Sam and the city split the cost of getting the hearing officer from the service.
“That person will know what the law is, and the city will have to prove up the charges, produce witnesses, and allow me to cross-examine them.
“If they don’t agree to do that, I’m taking them to court.
“If they do not provide a procedure by which we can select a hearing officer that will be fair to both sides and if they don’t agree that the hearing, once we get a fair hearing officer, will require them to call witnesses and prove the charges against Sam, I’m taking them to Superior Court.
“The Superior Court action is called a writ of mandate. A writ of mandate is brought against a governmental agency to force the agency to comply with existing law, so that’s what I would bring in Superior Court, and I would ask the court to order the city to do that which it is required to do under existing law, and that is to give Sam a fair hearing.
The consequences
“They’re going to have to go this route for an arbitrator from the service, or they’re going to spend taxpayer money defending my case in Superior Court and use more money. It’s such a misuse of taxpayer money to have to do this.
“Then Sam’s going to get his job back, and then there’ll be a civil lawsuit for the way they treated him.
“By the time we get done with a court case, the city will easily have spent a half million dollars . And they’re going to lose.
“Someone needs to tell them to wake up.
“It’s on and on – – the police department is disrupted, the delivery of police services is disrupted.
“I understand that a number of good, qualified, capable officers have left. They’re leaving because they can’t stand the disruption in the way this place is being run. “They don’t know how long this charade is going to go on, and they fear that Sam is going to get railroaded, so they get another job.
“Where do they go next?” Rains queried.
“The city does not have the money to spend on a stupid thing like this. They’re creating a cause of action for a civil lawsuit for the way they treated Sam and they need to do the right thing.”
City Manager’s role
Rains said, “Lori Waterman signed the letter notifying Sam of the city’s intent to terminate him. It was clearly a letter prepared by the attorney. She wouldn’t know the technical points. She is getting taken advantage of because they gave her a lot of money and wanted her to do things the way they said.”
Waterman’s 3-year contract as city manager includes medical benefits, vacation, other types of leave, and the use of a city vehicle.
The Times researched Waterman’s 2018 promotions and salaries: grants manager/interim director of community development to deputy city manager on March 26; deputy city manager to interim city manager on April 3; and interim city manager to permanent city manager on August 27.
During the five months between March 26 and August 27, Waterman’s hourly wage increased from $36.97 as grants manager to $65.13 as permanent city manager, according to Kindall Flint, the city’s public information officer.
She has an associate of arts degree, so the city’s educational requirements of a bachelor’s degree and preferably a master’s degree were waived.
Two of Waterman’s three promotions resulted from the 3 to 2 vote by the council majority.
Rains explained, “The city manager in her letter also advised me that once the hearing officer renders an advisory decision, that advisory decision comes back to the city manager and she’ll make the final decision on Joseph’s employment.
“But I’ve told her that’s not going to work because she is legally prohibited from participating in that decision, which I will address in another letter.
“I will be communicating with them as to why the city manager is not the person to make the final decision on Sam Joseph’s case. I haven’t addressed it yet.
“The city manager is in a bit of a pickle. She has a contract and she has to play ball and get rid of Sam, or she’s gone.
“They have been able to rig the whole thing up to now because they’re the majority, and they’ve been able to control it.
“They make up their rules as they go, and as long as they keep it insulated to the 3 to 2 majority council, they can get away with things, like appointing the lawyer to get the investigation they wanted.
“But now we’re at that point where they can’t keep making up the rules. That’s where we are. We’re in a good place. I’m sorry to see we’re there, but we’re going forward.
“It’s a crazy, zany thing but I’m glad we’re finally in a position where I can force them to court.”