An 18-year veteran police officer of the City of Orange Police Department is back to work after being fired for 19 counts of misconduct, most of them involving alleged dishonesty. The staggering number of serious allegations were largely the product of a captain who had a longstanding and very obvious dislike of my client and who apparently believed that no arbitrator would require the City to prove each of the allegations with competent and credible evidence. The captain was wrong.
My client’s termination resulted from his reporting of a DUI/traffic collision investigation that occurred in June 2015. My client, to his credit, had agreed to relieve his partner early that day, allowing him to attend a family function. That was considerate and on its face not an issue but, in retrospect, it led to my client alone having to deal with a DUI arrest resulting from a collision.
In addition, this turned out to be a more complicated call because it involved an off-duty LAPD police officer who refused to provide a chemical or blood sample for the DUI investigation. The off-duty officer’s refusal meant that my client had to draft and present to a judge a so-called McNeely search warrant that would compel the LAPD officer to provide a blood sample. Our client was responsible for the traffic collision report as well as the DUI investigation. And, because it involved another department, the investigation seemed to take on greater importance than it would have otherwise. For my client, who was a traffic officer, this would be only his second time drafting a McNeely warrant. Our evidence established that the Department did not adequately train its officers in the preparation of these types of warrants.
The record further established that no one involved in the investigation or the disciplinary process — including the Professional Standards Sergeant, the captain who reviewed and directed the investigation, or the chief of police — had ever authored a McNeely search warrant. This still did not prevent the Department from condemning my client’s behavior.
Here, my client’s major mistake was including in the affidavit for the warrant his belief that the collision victim had identified the suspect as the driver that struck her (even though the Department also took issue with two other statements in the warrant). The investigation involved three separate interrogations of the client.
Our client assumed an in-field identification of the driver had been made based upon a discussion he had with two patrol officers who arrived before him at the scene. These were patrol officers the client had worked with for years. They were experienced and the client testified he had certain expectations of what they would and should have done before he and his other traffic officer partner arrived on scene as the investigation unfolded.
However, the in-field identification had not happened, which led the Department to decide that, because the client included this assumption in a search warrant affidavit, he had perjured himself. Perjury is an intentionally false statement made under oath, in open court or on an affidavit and, unlike a false statement made in violation of an employer’s policies, has criminal implications. Having determined that our client had perjured himself, the City forwarded the matter to the Orange County District Attorney’s office for investigation.
Thankfully, the district attorney’s office determined that there had been no perjury because there was no intentional deceit by the officer. The district attorney’s investigation began in October 2015 and concluded seven months later. On May 16, 2016, a senior deputy district attorney assigned to the Special Prosecutions Unit advised the Department in a letter that “upon review it does not appear to our office that the officer intentionally included information in the search warrant he knew to be false.” However, the captain would later question and criticize the motives and conclusions of the senior deputy D.A. who made that decision.
My client’s partner, the one my client relieved early so he could attend a family event, testified that he would have made the same decisions our client did regarding the DUI/traffic collision. This testimony displeased the Department and after the partner concluded his testimony, a sergeant advised him that the sergeant had been directed to write a “negative blue log,” or critical performance log entry, against him for his specific testimony. That same sergeant told the officer that he and his superior disagreed with that particular order (which came from a captain) and told the officer that rather than write a negative entry in his personnel file, they instead would have the officer provide training to the Department on — of all things — McNeely search warrants. Not only was this as close to provable retaliation as it got, but also it was an acknowledgment that there had been a lack of relevant training in completing McNeely search warrants, which was directly useful to the client’s appeal hearing. Adding to the Department’s upset, my client’s partner further testified that when his interview ended with the City’s outside investigator and the tape recorders were off, the investigator, a retired captain from a neighboring agency, stated, “I don’t know what they are looking for. There’s nothing here.”
If that weren’t enough, two of my client’s supervisors told D.A. investigators doing the criminal investigation and the outside investigator doing the administrative investigation that they believed my client had simply made a mistake.
In life, and in police departments, it is better to keep your friends close and your enemies closer. That is the first lesson this case illustrates. Our client had made a powerful enemy within his department — the captain — who ultimately laid the groundwork, as he apparently had been trying to do for years, for the officer’s termination.
The second notable takeaway here is that it is imperative to take the time necessary to secure a good arbitrator or hearing officer. Here, we were fortunate to present our appeal hearing before a neutral, intelligent arbitrator who found “[t]he City has not met its burden with respect to the alleged policy violations. The level of discipline imposed (termination) for conduct associated with the officer’s unsatisfactory performance is not appropriate.” The officer was ordered reinstated with “back pay to the position and seniority he had at the time of termination.”
A final takeaway from this case is the legal standard used to evaluate whether the City had met its burden of proof when it terminated our client. The arbitrator stated, “[D]ue to the implication that termination for making false statements may have on an employee’s future employment, especially in a law enforcement career, the appropriate burden of proof an employer must show is that termination was warranted by clear and convincing evidence.” The arbitrator noted that even under the lesser standard of preponderance of the evidence, the City had not met its burden in this case. Typically, the legal standard a city has to meet to uphold its burden in administrative proceedings is “preponderance of the evidence,” which means that the evidence in support of the City’s case has to just slightly outweigh the employee’s evidence. Here, we argued and the arbitrator adopted a “clear and convincing” evidence standard to determine if the City had met its burden of proof. It is important to remind arbitrators that this should be the controlling standard in termination cases involving law enforcement officers.
There were a lot of issues to address when we appealed the client’s termination, and there were many good lessons to take away from the matter. I would be remiss to not mention that our client was terminated in 2017, so he lived for a year without a job and benefits, having been branded a liar. Fortunately, he has a good support network. He stated that “God and his faith was the foundation for his ability to keep himself together and deal with the matter.” Next, he gave thanks to his wife “for her never-ending support and belief in my honesty and morals for serving the community in the manner that I have and have always wanted.”
I am humbled to add that he thanked the Legal Defense Fund for its support and me, his attorney, saying among other things, “Susan’s grit and energy was inspiring and always comforting … she always listened to me and treated me with dignity and respect. Susan really worked for me and my quest for redemption.”
It is always an honor to be a part of reinstating someone improperly terminated, and seeing that the right thing happens even when the allegations are both numerous and serious. As Winston Churchill said, “The only way to get through hell is to keep marching.” In this case, it was a march resulting in both justice and victory!
Susan R. Jerich is a member of the Rains Lucia Stern St. Phalle & Silver Legal Defense of Peace Officers Practice Group. She represents officers in administrative investigations, disciplinary appeals, criminal investigations and prosecutions and Brady list appeals.