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Title: Officer of Brea Police Department and Brea Police Department
Date: July 8, 1996
Arbitrator: Allen Pool
Citation: 1996 NAC 106

ADMINISTRATIVE HEARING

(Advisory Arbitration)

 

In the Matter of the Appeal of                           )

                                                                        )

MICHAEL BUDROW, Officer of Brea            )
Police Department                                            ) FINDINGS, CONCLUSIONS, AND Appellant or  Grievant                                               

                         with                                         )        RECOMMENDATIONS

 CITY OF BREA, Police Department               )  
 
                   Respondent or  City.                          OF THE HEARING OFFICER          

                                                                         )                        

Re: Termination of Employment                         )

____________________________________)                          

                                                                                                                July 8, 1996

 

 

STATEMENT OF THE MATTER

            Michael Budrow (Appellant) was a ten-year employee of the City of Brea (City). He was hired by the City's Police Department (Department)  in 1984 at the age of 30.  For the first six years, he worked as a patrol officer.  For the next three and a half years, October of 1990 to July 23, 1993, he worked on assignment as a team member of the Orange County Regional Narcotics

Suppression Program (RNSP).   On August 30, 1993 the Department served the Appellant with a Notice of Proposed Disciplinary Action.  A Skelly hearing was held on November 8, 1993 with the Appellant being in attendance with counsel, Mr. Stuart Adams, Esq.   Representing the City at the hearing was Mr. Paul Coble, Esq. 

            Following the Skelly hearing, Acting Chief J. Oman issued the Appellant with a notice of Final Determination on Proposed Disciplinary Action dated November 11, 1993.   The Department had found him to be in violation of City Personnel Rules and Regulations and Department Policies and Procedures   The charges levied against the Appellant were:

            Charge #1:       Misuse of Credit Card

            Charge #2:       Misuse of Credit Card

            Charge #3:       Use of Your RNSP Vehicle for Personal Business

            Charge #4:       Failure to Properly Report Sick Time Hours

            Charge #5:            Improper Handling of Evidence

            Charge #6:            Untruthfulness

            Charge #7:            Insubordination

The Appellant's effective date of termination was November 12, 1993 (Joint Ex. #1). 

            The Appellant exercised his appeal rights pursuant to Section 2 of  the Third Party Advisory Process for Disciplinary Appeals (Joint Ex. #2).  The parties, through the procedures of the American Arbitration Association, selected C. ALLEN POOL to serve as Arbiter (Hearing Officer) in the matter.  In accordance with the Third Party Advisory Process, the Hearing Officer's opinion would be advisory only with his opinion setting forth findings of fact, conclusions, and recommendations.

            The Hearing was held in the City of Brea, Orange County, California on fourteen (14) separate days:  July 24-27, September 21-22, October 5-6, 1995, February 8, 12-14, 16, and 24, 1996.   The parties were afforded the opportunity, of which they availed themselves, to examine and cross-examine witnesses and to introduce relevant evidence, exhibits, and arguments.  The witnesses were duly sworn and a written transcript of made of the hearing.  Posthearing briefs, followed by responses, were timely filed by the parties with the Hearing Officer. The Appellant attended the entire hearing and testified.

 

 

APPEARANCES BY COUNSEL

 

For the Applicant:                                                         For the Defendants:

 

Stuart D. Adams, Esq.                                                    Paul R. Coble, Esq.

Silver, Shaeffer & Hadden                                            Mayer, Coble & Palmer

1428 Second Street                                                   249 East Ocean Blvd., Suite 900

P.O. Box 2161                                                             Long Beach, California 90802             

Santa Monica, California 90407-2161                (310) 590-8280

(310) 393-1486

 

 

THE ISSUE

 

            Was there just cause to discipline Michael Budrow?  If so, was termination the appropriate penalty; if not, what, if any, penalty is appropriate?

 

 

RELEVANT PROVISIONS OF THE THIRD PARTY

ADVISORY PROCESS FOR DISCIPLINARY APPEALS

 

SECTION 2 Appeal Process

           

The "third party" advisory process is the step between the Department Director's action and the City Manager's final decision......

h)         The arbiter shall determine relevancy, weight, and credibility of testimony and evidence.     He/she shall base his/her findings on the preponderance of evidence........  His/her decision shall set forth which charges, if any, are sustained and the reasons therefor.  The opinion shall set forth findings of fact and conclusions.  The opinion shall be advisory only (Emphasis added).

 

i)          The arbiter may recommend sustaining or rejecting any or all of the charges filed against the employee.  He/she may recommend sustaining, rejecting or modifying the disciplinary action invoked against the employee.  He/she may not recommend for discipline more stringent than that invoked by the Department Director.

 

            The arbiter's opinion and recommendation shall be filed with the City Manager, with a copy sent to the charged employee, and the Personnel Director, and shall set forth his/her findings and recommendations.  If it is a dismissal hearing and a dismissal is not the arbiter's recommendation, the opinion  shall set forth the recommended date the employee is recommended to be reinstated and/or other recommended action.  The reinstatement date, if appropriate, may be any time on or after the date of disciplinary action.

 

 

 

RELEVANT PROVISIONS OF THE

REGIONAL NARCOTICS SUPPRESSION PROGRAM (RNSP)

MEMORANDA OF UNDERSTANDING

 

 

Authorized Use of RNSP Vehicles

 

Each RNSP sworn officer is assigned a vehicle while attached to this program.

 

Assigned units will not be used by other details or departments.

 

Each officer will be responsible to assure compliance with contractual stipulations in the area of maintaining the vehicle in proper working order according to the owner's manual/new car warranty guide.

 

Each officer is responsible for reporting monthly mileage.

 

Members shall only use their RNSP assigned vehicle for official RNSP business, and further, shall avoid creating the impression that these cars are used for any type of personal business.

 

Vehicles are provided as a necessary investigative tool.  As such, they may be driven from the officers place of residence to his duty assignment and, of course, as needed during his working day.  Vehicles are not to be driven when an officer is considered off-duty on weekends, holidays, or when taking vacation, sick, comp time or any other scheduled or non-scheduled time off.

 

Sick Time

 

All personnel will utilize sick time in accordance with their respective agency's policy and procedures.

Reporting of sick time will be made to an RNSP program supervisor.  Each officer will be responsible for reporting sick time to their respective agency.

 

CITY OF BREA

PERSONNEL RULES & REGULATIONS

Rule VIII, Section 5

d)    Willful disobedience and insubordination such as a willful failure to submit to duly appointed and acting supervision or to conform to  duly established orders or directions of persons in supervisory position.

e)    Dishonesty involving employment.

h)                 Inexcusable absence without leave.

i)     Conviction of a crime  or conduct constituting a violation of State law.

k)    Improper or unauthorized use of City property.

l)     Violation of the rules and regulations of any department, which rules and regulations are adopted pursuant to or continued pursuant to these Rules and Regulations.

n)    Any act of conduct undertaken which, either during or outside of duty hours, is of such a nature that it causes discredit to fall upon the City, the employee's department or division.  Failure to maintain proper decorum during working hours causing discredit to the employee's department or division.

v)    Violation of any of the provisions of the City Code, lawful ordinances, resolution or any rules, regulations or policies which may be prescribed by the City Manager, department manager or supervisor.

 

BREA POLICE DEPARTMENT POLICY & PROCEDURES

Section: 5.01A

Professional Ethics

 

Standard 2.2 -- Peace officers shall truthfully, completely and impartially report, testify and present evidence in all matters of an official nature.

Standard 3.4 -- Peace officers shall safely and efficiently use equipment and material available to them.

Standard 4.8 -- Peace officers shall not engage in any activity which would create a conflict of interest or would be in violation of any law.

Standard 4.9 -- Peace officers shall at all times conduct themselves in a manner which does not discredit the peace officer profession or their employing agency.

Standard 4.10 -- Peach Officers shall not be disrespectful, insolent, mutinous, or insubordinate attitude or conduct.

Standard 6.3 -- Peace officers shall conduct themselves so as to set exemplary standard of performance for all law enforcement personnel.

 

 

 

Section:  5.05B

Standard of Conduct

       You shall conduct your private and professional lives so as to avoid bringing the Department into disrepute

 

Section:  5.05E

Obedience to Laws and Regulations

       You shall observe and obey all laws and ordinances, all rules and regulations of the Department and all general or special orders of the Department of Division thereof.

 

Section:  5.10B

Performance of Duty

       You shall perform your duties as required or directed by law, departmental rule, policy or order, or by order of a superior officer.  You shall perform promptly as directly required by competent authority, notwithstanding the general assignment of duties and responsibilities.

 

Section:  5.10C

Knowledge of Laws and Regulations

       You are required to establish and maintain a working knowledge of the laws and ordinances in force in the City, the rules and policies of the Department,  and the orders of the Department and Division thereof.  If you commit an improper action or breach discipline, it will be presumed that you were familiar with the law, rule or policy in question.

 

Section:  5.10G

Absence from Duty

                 If you fail to appear for duty at the date, time, and place specified, you will be "Absent Without Leave".  Such absences within the period of one day must be reported in writing to the Division Commander.  Absences without leave in excess of one day must be reported in writing to the Chief of Police.

 

Section:  5.35.B

Insubordination

       If you fail or deliberately refuse to obey a lawful order given by a superior officer, you shall be charged with insubordination.  Ridiculing a superior officer or his orders, whether in or out of his presence, is also insubordination.

 

Section:  5.50B

Truthfulness

       You are required to be truthful at all times whether under oath or not.

 

 

 

 

 

FACTUAL SUMMARY

            The incident which triggered the investigation that led to the termination of the Appellant by the City took place on Friday, July 16, 1993.   On that day,  the Appellant, driving a blue pickup truck and towing a boat, purchased gasoline at the 76 Station at 4200 Chino Hills Parkway in Chino Hills.  With the Appellant in the vehicle was an adult female and three children. 

            The gasoline purchase was made with a Orange County Sheriff/Coroner Department UNOCAL  gasoline credit card.  On presenting the credit card to the attendant in the booth, the attendant noticed that the card was an Orange County Sheriff's card and that the vehicle license plate number written on the card was not the license plate number of the pickup truck.  After the Appellant departed, the station attendant lined out the license plate number written on the card by the Appellant and wrote in the vehicle license number of the pickup truck.. The purchase was for $22.01 and the transaction took place at approximately 7:45 p.m..

            Later that same evening, the station attendant was in conversation with a frequent customer he knew to be a member of the San Bernardino County Sheriff's Department,  Lt. Swope.  The attendant told Lt. Swope that several police officers had stopped by for gasoline that evening.   The attendant told of one that seemed to be very young to be a police officer and another who was driving pickup truck and towing a boat.   Lt. Swope later informed the station attendant that the "very young" person was in fact a police officer.   However, he became suspicious of the purchase for the pickup truck which was charged to the Orange County Sheriff's card. 

            The station attendant was asked to notify the San Bernardino Sheriff's Department if the driver of the pickup truck came in again.  On July 20, 1993, the station attendant called to report that the person, the Appellant, had returned driving a Ford Thunderbird.  Arriving with the person was a  second vehicle, a Mercedes-Benz, driven by a female.  The station attendant reported that the Appellant, using one nozzle, pumped gasoline into both vehicles and paid for the gasoline with an Orange County Sheriff/Corner Department credit card.  The amount of the purchase was $24.26.

            The San Bernardino Sheriff's Department reported  the matter to Captain T. Simon of the Orange County Sheriff's Department.    The Orange County Sheriff's Department notified the Brea Police Department of the matter and that they were conducting a criminal investigation.  At that point, the Brea Police Department began an administrative investigation into the matter.

            On July 22, 1993 the Appellant's RNSP team supervisor, Sgt. Robert Hogbin, told him to report to the RNSP office in Santa Ana the next morning to go over some evidence.  On arriving the next morning at about 8:30 am, he reported to Sgt. Hogbin whereupon he was escorted to the Orange County Sheriff's station.  They were met at the Station by Sgt. Douglas Dickerson, the Appellant's supervisor from the Brea Police Department.   Sgt. Dickerson then turned him over to Sgt. Wayne Carlander and Lt. Randell Blair of the Sheriff's Department to be interviewed.                          Upon introducing the Appellant to Sgt. Carlander, Sgt. Dickerson told the Appellant, "He's got some questions that he needs to ask you, about a case I'm investigating.  And then I'll need to talk to you about it later."  Sgt. Dickerson left the room but did not leave the interview. He remained and observed and listened to the entire interview from an adjacent room through a one-way glass.  The purpose of the interview, as it was made known to the Appellant,  was the possible criminal abuse of a County credit card.  Embezzlement was the specific term used by  Carlander and Blair.

            The interview conducted by Carlander and Blair commenced at approximately 9:00 am and ended at or about 11:30 am.  Except to note that the Appellant, upon realizing he was the subject of a criminal investigation made it known five times he wanted an attorney, the details of the interview will not be summarized for it was captured verbatim in the record (City Ex. 93 & 94).  However, the findings and conclusions drawn from this interview will be stated in the "Discussion" portion of this decision.

            At the conclusion of this first interview, the Appellant was transported by two homicide detectives to the Brea Police Station.  He had been directed by Sgt. Dickerson to report to Officer Connie upon arrival.  He was told he would be taken to a room and was directed to wait there for Sgt. Dickerson.   After Sgt. Dickerson arrived, the Appellant was subjected to a second interview which began at 1:00 p.m. and went until approximately 4:30 p.m..   The subject of this second  interview was the possible misuse of  credit cards.  Again, except to note that the Appellant's desire for attorney was ignored, the details of the interview will not be summarized in that it was captured verbatim in the record (City Ex. 90).  The findings and conclusions drawn from this interview will, however, be stated in the "Discussion" portion of this decision. . 

            Over the course of the next few days, the City's administrative investigation was broadened to include additional allegations of misconduct.  By direction of then Captain James Oman, the administrative investigation was conducted by Sgt. Douglas Dickerson.   His investigation stretched over an eleven day period beginning on July 21, 1993 and ending on August 1, 1993 when he submitted his report to the newly appointed Acting Chief of Police James Oman.  Sgt. Dickerson also conducted a second interview of the Appellant on August 11th.  This time, however, the Appellant was represented by counsel. 

            In a letter dated August 30, 1993,  Acting Chief Oman issued a Notice of Proposed Disciplinary Action to the Appellant.   Responding to the Appellant's request, a Skelly Hearing was conducted on Monday, November 8, 1993.  At the hearing, the appellant was represented by his attorney, Mr. Stuart Adams and the City was represented by its attorney, Mr. Paul Coble.  In a notice dated November 11, 1993,  Chief Oman served the Appellant with formal notice of his termination effective as of Friday, November, 12, 1993.  The bases for Chief Oman's decision to terminate the Appellant were:

Charge #1: Misuse of Credit Card

            You are being charged with misuse of your assigned RNSP Unocal Credit Card #1 0623 6680 (RN43).  'Beyond any reasonable doubt' the card was misused for the purchase of gasoline for your personal vehicle on the following dates:  (The City cited the dates of 07-20-93, 07-16-93, and 11-16-91 to support its charge.)

 

Charge #2: Misuse of Credit Card

            You are being charged with misuse of your assigned RNSP Unocal Credit Card #1 0623 6680 0869 (RN43) as well as  Mobil credit cards, #8839303941043 (RN43) and #8839303941016 (RN16). 'From the preponderance of the evidence' the card was misused for the purchase of gasoline for your personal vehicle in the amount of about $1000 per year.  Evidence of this misuse is as follows:  (The City cited 13 examples of misuse to support its charge.)

 

Charge #3: Use of Your RNSP Vehicle  for Personal Business

            You are being charged with using your RNSP vehicle for personal business which is specifically prohibited by written directive and verbal directions of RNSP supervision.  Specific evidence indicating improper use:  (The City cited three examples of improper use.)

 

Charge #4:  Failure to  Properly Report Sick Time Hours

            On 02-11-92 and 01-06-93 you reported ill to RNSP.  You failed to notify the department of your illness on those two occasions.  You were therefore paid for 'regular duty' instead of 'sick time'.

 

Charge #5:  Improper Handling of Evidence

            You are being charged with improper handling of evidence.  On 02-03-93 a pager was confiscated during an investigation.  Sgt. Hogbin ordered you to book the paper into evidence at OCSD.  The pager remained in your desk at RNSP or at your home until surrendered to Sgt. Dickerson in July, 1993.

 

Charge #6:  Untruthfulness

            You are being charged with being untruthful in responses  to questions posed to you during this investigation.  Responses have been evasive, deceptive, misleading, and untruthful.  Examples are:  (The City cited 8 examples in support of this charge.)

 

Charge #7:  Insubordination

            You are being charged with insubordination. Prior to questioning during  this administrative investigation, Sgt. Dickerson ordered you to be truthful in responses.  He informed you that should you fail to be truthful in responses you would be additionally charged with insubordination.  The famous March 10th memo from Chief Forkus, further notifies officers that total truthfulness is the expectation of Brea Police Officers.  You were evasive, deceptive, misleading and untruthful to Sgt. Dickerson's questions.  I have no alternative but to charge you with insubordination.

           

            You will note that the Notice of Proposed Disciplinary Action included a charge of 'Misuse of Assigned Cellular Telephone'.  Information has come to light to show that this charge may be different than what it first seemed when that document was prepared.  This charge is being withdrawn at this time, investigation continues with regard to this charge.

 

            Listed are numerous City Personnel Rules and Regulations and Departmental Policy and Procedure Sections which were violated by your aforementioned actions.  Your actions have not only brought discredit on yourself, but also on the Brea Police Department, the City of Brea, and on law enforcement in general.  No longer can I trust you to the degree that I must trust every member of the Brea Police Department,  so I have no other option than to terminate your employment with the City.  This document serves as your formal  notice of termination effective Friday, November 12, 1993.

 

            This action is appealable under the City's Personnel Rules and Regulations, Rule VIII (Employee Conduct and Discipline), and XI (Appeal Procedures) as amended by Memorandum of Understanding between the City of Brea and The Brea Police Association -- January 1,

1993 through December 31, 1994. 

                                                                        (Joint Ex. 1)

 

            The above reflects a summary of the facts in this matter.  The summary was not intended to be exhaustive nor detailed.  It was written to place in perspective and focus the factual context and circumstances from which the following findings and conclusions were drawn.

 

FINDINGS AND CONCLUSIONS

            Before addressing the City's separate charges against the Appellant, it is necessary to relate some findings and conclusions about the following topics which had an influence on all or most of the City's charges:  (1) the City's independent investigation, (2)  RNSP new member orientation, (3) RNSP  assigned vehicles, (4) RNSP credit cards, and (5) the July 23rd interviews. The topics will not be discussed in detail.   However,  where appropriate, details will be offered when discussing the specific charges which were levied against the Appellant.  The purpose of this introductory discussion is to lay a foundation and to place in the proper context the findings and conclusions derived from the analysis of the evidence relative to the City's charges against the Appellant.

            The City's Independent Investigation:  Retired Chief Oman testified that in making his determination to discharge the Appellant that he relied on the independent investigation conducted by Sgt. Douglas Dickerson. Emphasis added. (Trans. Vol. 10, p. 19).   That factor was apparently pivotal to Chief Oman.  To the Hearing Officer, it was also pivotal.  Therefore, a few comments about what constitutes an independent investigation are in order.

            An independent investigation requires a thorough search for and consideration of any and all facts relevant to the issue.  Reliance on assumptions, possibilities, unsupported opinions, and funny coincidences must be avoided.  It requires that those doing the investigation follow up on conjectures and not stop the investigation prematurely where more probative facts might have been produced.  It also requires the observance of a standard of fairness that precludes bottom-line decisions before the knowable facts are known.   The upper management official who tries to make an effective evaluation of a disciplinary case would be hamstrung if the investigative report did not supply him with all the relevant information.  It is imperative to always keep in mind that the basic purpose of a disciplinary investigation is to find out whether the employee did in fact violate the rule or order.  The reason is simple.  If there was no misconduct, then no penalty is just. 

             My analysis of the evidence record led me to the conclusion that Sgt. Dickerson's investigation was not an independent investigation.  Details will be addressed where appropriate when discussing the specific charges, but it was significant to find that much of the evidence included in the investigative report to Chief Oman was based on statements made to Sgt. Dickerson by Orange County deputies,  statements which were taken as proof

without researching the supporting facts.   The evidence included in the investigative report was also based on weak assumptions, statements made by the Appellant and his wife which were selectively taken out of context and offered as proof, and conclusions arrived at without researching the basic question. The Hearing Officer's conclusion was that Chief Oman, in arriving at his decision to discharge the Appellant, relied upon an inadequate report which was not the product of an unbiased independent investigation.

            RNSP Orientation:   The evidence record established that the RNSP unit had no formal orientation program for incoming, new members.  Orientation of new members was the responsibility of the supervising, team sergeant.  In most instances, though,  orientation was left up to the officer the new member was to replace and was accomplished through word-of-mouth over one or two days (Trans. Lenyi, Vol.11, p.76; Gallardo, Vol. 12, p.1-6; Jenkins, Vol 12, p. 41; Perez, Vol 12, p. 62).  Each new incoming member was issued the standard equipment  for all RNSP officers which included: two County gasoline credit cards, one Mobil and one Unocal; a cell phone; and a vehicle.  The RNSP officers also had a false California Driver's License (CDL) with a false name.  

            The orientation was to also include familiarization with RNSP policies.  However, the evidence record showed that there were no written RNSP policies prior to September, 1991.  In the middle of September, 1991, a RNSP Memorandum of Understanding (MOU) was made available to all or most officers (Trans. Vol.11, p. 67; Vol. 12, p. 7, 41-42, 62-63; Appellant Ex.26, 28, 29, & 30).    The MOU contained a policy statement relative to assigned vehicles and sick time.  However, the MOU contained no policy statement relative to the use of assigned County credit cards.  Written policies relative to the use of County credit cards were not formulated until sometime after July, 1993 (Coutts; Trans. Vol.5, p. 42).  The conclusion of the Hearing Officer is that, contrary to the City's contention, there were no written policies prior to September, 1991 and, afterward , the only written policies were those contained in the MOU.

            RNSP Assigned Vehicles:   RNSP vehicles were rented from the various automobile rental companies and assigned to individual RNSP officers.  The rental vehicles were replaced about every three months.   As mentioned above, prior to September, 1991, there were no written polices concerning the use of assigned vehicles.  With the issuance of the MOU in September of that year, a policy was formulated for all RNSP members.  It included a requirement that each officer report his vehicle's  monthly mileage and, most pertinent to the matter,  the MOU restricted vehicle use to "official RNSP business".  The MOU allowed that the vehicles could be driven from the officer's  "place of residence to his duty assignment", but disallowed the use of the vehicles "when an officer is considered off-duty on weekends, holidays, or when taking vacation, sick, comp time or any other scheduled or non-scheduled time off" (Emphasis added). 

            The evidence record established that this policy was loosely followed.  One former RNSP officer describe the policy as "very vague" (Trans. Vol 12, p. 8-10).   The record was replete with vehicle use on weekends when not on duty by  both RNSP officers and supervisors (Appellant Ex. 23).  Moreover, these practices were condoned, given tacit approval, and commonly known by RNSP supervisors.  The off-duty use included the purchasing of gas and having vehicles washed on weekends, stopping off to visit family and/or friends, stopping at markets, dropping off and picking up children at school, and stopping after a day's surveillance for dinner and/or drinks at a bar.  A "Gentleman's Bar" called Fritz  was a favorite haunt. (Trans. Vol. 11, p. 96-97, 102-103; Vol. 12, p. 11-17, 43-47, 51 ).   There was even a so-called "NARC NIGHT" on Thursdays where all ranks would show up (Trans. Vol. 12, p. 37).  The Hearing Officer's conclusion was that off-duty use of assigned vehicles was frequent and widely practiced among RNSP officers and supervisors.  In short, the MOU policy related to vehicle use was not strictly enforced.

            RNSP Credit Cards:  As previously mentioned, each new member to the RNSP team was issued two Orange County/Coroner gasoline credit cards, one Mobil card and one Unocal card.  Each card was coded in a manner that prevented the card from being used to pay at the pump.  For each transaction, the credit card needed to taken to the station attendant and manually processed.  The credit card receipts were to be saved and turned in to the RNSP office.  There was a metal box in the clerk's office where the receipts were dropped (Trans. Vol. 5, p. 87-88; Vol. 11, p. 75). 

            The evidence record established that there was no written policy concerning the use of credit cards prior to July 23, 1993, the period of time the Appellant was a member of  RNSP.   More to the issue, though,  was the lack of any written policy regarding what was  required to be entered on a credit card receipt when used to purchase gasoline, a car wash, or miscellaneous items.  My analysis of the record regarding the entries on credit card receipts by RNSP officers and supervisors revealed a very loosely supervised procedure.  For starters, the receipts were not reviewed by the team supervisors.  RNSP members would save up receipts and drop them off when in the office or, often,  give them to another officer  to turn in who was going by the office.  In frequent instances, receipts were not turned at all.   In some instances, the purchase receipt was not even saved; it was left at the station because the officer was in too much of a hurry (Trans. Vol 12, p. 17).  The analysis also showed the frequent practice of multiple gassing.  A group of RNSP vehicles would pull into a station and, rather than take the time to make individual transactions, they would pump gas into more than one vehicle and charge it to one card.  This was done to as many as four vehicles at a time (Trans. Vol. 11, p. 78-79; Vol. 12, p. 19).   Also, because of the extensive driving, up to 400 to 600 miles per day and extending south to the Mexican border and east to Las Vegas, Nevada, there were numerous receipts showing that an officer had filled his gas tank twice in one day.  This was referred to as double-gassing and was a frequent occurrence (Appellant Ex. 23).

            The practice of recording vehicle license plate numbers on the receipts was not consistent (Emphasis added).  It was common for both RNSP officers and supervisors to find no entry of a

vehicle plate number (a blank), a plate number entered for a vehicle not on the RNSP list of vehicles, plate numbers which were transposed, the word "NEW" in place of a number (one entry contained the word "Sheriff"),  a VIN number in place of a plate number,  a California Driver's License number (CDL),  a plate number or CDL  number of an officer not on the RNSP list, and, in one instance, a number which had no meaning at all. The only entry on the credit card receipts which was a constant, were the signatures of  the officers making the purchase.  There were even instances where the date of the transaction, a function of  the station attendant, was incorrect on the receipt  (Appellant Ex. 24).   The Hearing Officer's conclusion was that entries on the receipts, particularly the vehicle plate number entries, were not reliable and that the practice was common among both RNSP officers and supervisors.

            The July 23rd Interviews:  After arriving at the RNSP office at about 8:30 a.m. to meet with Sgt. Hogbin, as directed and on the pretext of discussing a matter concerning some evidence, the Appellant was subjected to a criminal investigation interview by two Orange County Sheriff's officers, Sgt. Wayne Carlander and Lt. Randall Blair.  The interview lasted for approximately 2 and 1/2 hours from 9:00 to 11:30 a.m. 

            The Appellant was escorted to the interview and introduced to  Sgt. Carlander by his supervisor from the Brea Police Department, Sgt. Douglas Dickerson, who told him, the Appellant, "He's (Carlander) got some questions that he needs to ask you, about a case I'm investigating.  And then I'll need to talk to you about it later."   The Appellant, as he was being escorted to the interview, asked Sgt. Dickerson whether he would need an attorney and was told that was something we could worry about later (Trans. Vol 13,  p. 37).  Very soon into the interview, Sgt. Carlander made it clear to the Appellant that he was the object of a criminal investigation involving embezzlement, possible misuse of County credit cards.  Following this notice, the Appellant expressed his desire to be represented by an attorney five (5) separate times.  His requests were ignored on each occasion.

            Lt. Blair, who was observing and listening to the interview up to this time, took over from Sgt. Carlander and continued to question the Appellant.  The record was clear, from reading the transcript of the interview and from Lt. Blair's testimony, that Lt. Blair made a deliberate decision to ignore the Appellant's requests for an attorney and proceed with the questioning.  The record was also clear from reading the transcript that the Appellant was never read his Miranda Rights.   Lt. Blair's testimony made it clear that he was also personally aware that the transcript would probably not be admitted into evidence in court as part of the prosecution's case-in-chief, but could possibly be used to impeach the Appellant if called to testify in a criminal  trial (City Ex. 93 & 94; Blair, Trans. Vol. 9, p. 5).[1]

            Unbeknown to the Appellant, his wife was also being interviewed by two Orange County Sheriff's officers at the same time in another room at the station.  The transcript of her interview was not offered into evidence.  However, portions of the transcript were read into the record.  They will be addressed where appropriate later in this discussion. 

            Sgt. Douglas Dickerson observed and listened to the entire interview conducted by St. Carlander and Lt. Blair from an adjacent room through a one-way glass.  At the close of the interview, Sgt. Dickerson informed the Appellant he was bring placed on administrative leave, on emergency suspension, and that when done here, "you're going to be given a ride up to the (Brea) station ... you (will) need to see Connie.  She's (will) direct you to a room and wait for me to contact you there."  Sgt. Dickerson also told him, "when you get up to city hall you're not to go anywhere else.  Uh, wait for me to contact you there. Officer Connie will direct you to a room and, uh, you're not to go anywhere until I get there" ( City Exhibit 93 & 94).

            The Hearing Officer's conclusion is that the Carlander-Blair interview was conducted within the context of a criminal investigation and was flawed.   However, the Hearing Officer decided that the interview itself could not be excluded from the evidence record.  Portions of the interviews were selectively extracted  by the City to buttress their evidence offered in support of the charges against the Appellant.  Where appropriate they will be addressed  later in the discussion of the specific charges against the Appellant.

            The second interview that day was conducted by Sgt. Douglas Dickerson at the Brea Police Station.  The interview commenced at 1:00 p.m. and concluded at about 4:30 p.m. During such, there was one short lavatory break provided to the Appellant of approximately 15 to 30 minutes.  The Dickerson interview was clearly an administrative interview rather than a criminal interview.  The Appellant was informed of his rights, specifically those stemming from the Lybarger Decision.   However, when the Appellant made known his desire for an attorney to represent him (albeit, he did not specifically ask to have an attorney present), Sgt. Dickerson did not stop the interview but continued with his questioning.  (Sgt. Dickerson witnessed the Carlander-Blair interview just a few hours earlier and had heard the Appellant request to have an attorney present five times and was ignored.)  The Hearing Officer's conclusion is that, technically, there was no violation of the Appellant's rights, but it was also clear that the Appellant, despite his wish, was going to be interviewed without benefit of counsel that day, July 23, 1993.

            With these introductory findings, attention was given to the specific charges levied by the City against the Appellant.  The Hearing Officer's charge, using the preponderance of evidence standard, was to determine whether the City's evidence sustained the charges against the Appellant; and if not, to set forth his reasons why.  A separate analysis of the City's evidence was conducted for each of the six (6) charges with the result being a conclusion sustaining the charge or, if not, the Hearing Officer's reasons why the proffered evidence did not support the charge.   The charges levied against the Appellant were:

            Charge #1:       Misuse of Credit Card

            Charge #2:       Misuse of Credit Card

            Charge #3:       Use of Your RNSP Vehicle for Personal Business

            Charge #4:       Failure to Properly Report Sick Time Hours

            Charge #5:            Improper Handling of Evidence

            Charge #6:            Untruthfulness

            Charge #7:            Insubordination

The Hearing Officer's discussion of the charges was done not in the order listed above.

Charge #2: Misuse of Credit Card

            You are being charged with misuse of your assigned RNSP Unocal Credit Card #1 0623 6680 0869 (RN43) as well as  Mobil credit cards, #8839303941043 (RN43) and #8839303941016 (RN16). 'From the preponderance of the evidence' the card was misused for the purchase of gasoline for your personal vehicle in the amount of about $1000 per year.  Evidence of this misuse is as follows:

 

            The City cited 13 examples of misuse to support Charge #2.  With the exception the first example, which was a reiteration of the incidents cite in Charge No. 1 and which will be addressed separately, all of the evidence offered in support of Charge #2 was found to be insufficient and did not sustain the Charge. 

 

1)         The three previously detailed incidents show repeated misuse of the credit card, as long ago as November 1991, almost 2 years.  (These incidents will be discussed along with Charge #1.)

 

2)         There are repeated charges where RNSP license numbers were not properly recorded for gasoline purchases.  Of 45 license numbers recorded, 13 were RNSP license numbers.  Others were transpositions, omissions, vehicles registered to (the Appellant), drivers license numbers, etc.

            Prior to  July 23, 1993, there were no written policies concerning the use of credit cards.  Of particular significance was the absence of any written policies relative to the entry of RNSP vehicle plate numbers on the credit card receipts.  Sgt. Dickerson, in his investigation, made the assumption that transpositions of vehicle plates, use of CDL numbers, and omissions were "irregularities" and cited these as evidence that the Appellant had engaged in misconduct (Vol. 7 p. l21-123).  This was a false assumption (Emphasis added).  Transpositions, omissions, plate numbers not on the RNSP vehicle list, use of CDL numbers (and not always the same number), etc. were the usual and customary entries found on credit card receipts.

            If his investigation had included looking at the receipts of other RNSP officers and supervisors and if he had interviewed RNSP officers who were on the Appellant's team, Sgt. Dickerson would have known his assumptions were false and that the allegation could not be sustained (Sgt. Coutts: Vol. 5 p 42-44, 64-65;  Officer Lenye: Vol. 11 p 63-84; Officer Gallardo: Vol. 12 p 1-38; Officer Jenkins: Vol. 12 p 39-59; Officer Perez: Vol. 12 p 60-68; Appellant Ex. 23).

3)            There are 3 separate uses ( Sat. 03-13-93, Sun. 03-21-93 and Sun. 03-28-93) of the credit card in Chino for purchases of gasoline on Det. (Appellant's) days off in unusually high amounts ($21.99, $32.52,  and $28.78 respectively).

            The evidence record did not support this allegation.  If the investigating officer had extended his investigation to determine the hours the Appellant had worked the day before and after each of the cited dates and the type of vehicle driven and its tank capacity, he would have found a reasonable explanation for his "unusually high amounts".  The Appellant worked 11 hours on 3-12-93, 12 hours on 3-19-93, and 12 hours on 3-26-93.  The Appellant's assigned vehicle at that time was a 1993 GMC van with a tank capacity of 22.0 gallons.  None of the three purchases exceeded the tank capacity of the van.

            A thorough investigation at this time would have shown weekend purchases by other team members.  On 3-13-93, a day off, Sgt. Hogbin made a gasoline purchase for $21.54.  Officer Fox made a purchase of $27.55 on Saturday, 3-20-93, also a day off   A receipt for Officer Lenyi showed a car wash on Sunday, 3-14-94, a day off (Trans. Vol. 10 p 83-88 and Appellant Ex 23).  

4)         There were 3 charges, 3-2-91, 5-11-91,  and 3-23-92, where driver's license numbers E023458, N243772, and C489331 were given.  Only one of these license numbers belongs to (the Appellant).

            The Hearing Officer's conclusion was that the evidence record did not support this allegation.  The entry of CDLs on receipts was frequent and common among RNSP officers and supervisors.  For example, on a receipt dated 3-11-91, Officer Robinson had listed CDL # N4611205.  He was also not listed on the timesheets or assigned a vehicle for that date.  On  receipts dated 3-29-91 and 4-17-91 , Robinson had listed CDL # N1611205, a different number, and he was not on the timesheets for either date.  The logs also showed he was assigned no vehicle in March and May of 1992.

            In addition, Sgt. Coutts, the Appellant's RNSP team supervisor and a regular member of the Orange County Sheriff's Department, used CDL # H0332128 on a receipt dated 3-4-91.  RNSP records do not show him having an assigned vehicle in March of 1991 and he was not listed on timesheets for that date  (Appellant Ex. 23 and Trans. Vol. 10 p 88).  Sgt. Coutts also used yet  another CDL # H033272 on a receipt dated April 24th, 1993.  This was at a time after he was replaced by Sgt. Hogbin and was no longer a member of the RNSP unit (Appellant Ex. 15 and Trans. Vol. 5 p 63-64).   Officer Lenyi testified that he, on occasion, put some number other than the vehicle plate number (Trans. Vol. 11 p. 82).

5)         Det. (Appellant's) gasoline purchase records differ significantly from officers similarly assigned in the patterns of  usage.  Other officer's license numbers are properly recorded, multiple purchases in one day are rare, purchase of gasoline on days off are rare, miscellaneous charges are not seen, and all car wash usage is properly detailed.

            This was a rehash of some the above and, again, the evidence did not support the allegation.  The Hearing Officer was not certain what the phrase "properly recorded" meant.  Since there was no written policy, it may have referred to what other RNSP officers and supervisors did.  If so, then Sgt. Coutts may have sat the standard for his RNSP team members.   For March, 1991, Sgt. Coutts had four (4) separate vehicle plate entries: CDL #H0332728, 816600, NEW, and 2WBS046. He also had four (4) separate plate entries for October, 1991: NEW 2S42, NEWJ, and 2WBS046. For the same month, Sgt. Coutts had seven (7) receipts with missing plate numbers, blanks.   His four (4) entries for November, 1991 were: NEW, 2XRT337, 2XKT337, and 2XKT337.  He had for January, 1993 three (3) separate entries: 3AVE420, #BZB699, and 3BWB707.  

            A review of the testimony by Officers Lenyi, Gallardo, Jenkins, Perez, and Sgt. Hogbin clearly established that multiple purchases in one day, purchasing gas and washing vehicles on days off were common and frequent happenings (Vol.11, p. 63-82; Vol. 12., p. 1-38; Vol.12, p. 39-58; Vol. 12, p. 60-72; Vol. 6, p. 20-31).

6)         Det. (Appellant's) gasoline purchase records differ significantly from officers similarly assigned in the total amount of gasoline purchase over a long period of time.  Samples are as follows:

            The Hearing Officer excluded from the evidence record all evidence proffered by the City in support of this allegation. The Appellant's counsel, in letter dated September 8, 1993,  requested that the City provide them with copies of the above records in preparation for the scheduled Skelly Hearing ( Appellant Ex. 4).   In a letter dated September 24, 1993 and signed by then Captain James Oman, the City denied the request with the following response:

"After consulting with our city's legal counsel, Martin J.  Mayer, it was determined that other items requested in your letter are irrelevant to the charges against (Appellant) and were not relied upon in the formation of the charges against (Appellant).  The request for all documentation of all employees at R.N.S.P. during the time period that (Appellant) was employed with the task force would also place an unreasonable administrative burden on both the Brea Police Department and the Orange County Sheriff's Department in obtaining those records which, as indicated above, were also deemed to be irrelevant and were not relied upon in the charges that were brought against Mr. (Appellant)".   Emphasis added (Appellant Ex. 5).

            The Skelly Hearing was held on November 8, 1993 and the Appellant was issued his final termination notice by then Acting Chief James Oman on November 11, 1993 (Joint Ex. 1).  The problem was that the City denied the Appellant copies of the above records on the basis they were irrelevant  and then went ahead and cited them as evidence of misconduct (Appellant Ex. 4 & 5).[2]  The records were listed as evidence in the City's FINAL DETERMINATION ON PROPOSED DISCIPLINARY ACTION  (Joint Ex. 1) and were relied upon by Chief Oman in making his decision to terminate the Appellant.  As Hearing Officer, I excluded the records from the evidence record because the City had informed the Appellant in its letter of September 8, 1993 that the records

were "irrelevant to the charges against (Appellant) and were  not relied upon in the formation of the charges against (Appellant).

            Moreover,  because the City denied the Appellant copies of the records, materials which were relied upon by the City in its determination to terminate  him, there was a clear violation of the Appellant's Skelly Rights.  The remedy for such a violation is back pay.  This was clearly delineated by the California Supreme Court in Barber v. State Personnel Board (1976) 18 Cal. 3rd 395:  "the remedy for a public employee denied pre-deprivation due process rights was back pay beginning at the time the discipline is actually imposed and ending on the date that the final disciplinary decision is rendered" (Emphasis added).  Moreover, the back pay remedy holds even if the termination was subsequently upheld.

7)         There were 24 dates where the RNSP credit card was used to make gasoline purchases on a Saturday or Sunday,  (Appellant's) days off, when the unit was not working.

            The record does not support this allegation.  As shown earlier, gasoline purchases were not prohibited on days off and was commonly and frequently made by RNSP officers and supervisors (Appellant Ex. 23).

8)         On 6-11-91 (Appellant) made 4 separate gasoline purchases for $54.03.  Using a conservative estimate, he would  have had to travel approximately 600-800 miles that day to use that much gasoline.  Yet all four purchases were in Los Angeles and Orange Counties.

            On Monday June 10, 1991, the Appellant and most of his team worked 15 hours, 0700 to 2200 hours.  On Tuesday, June 11 he and most of the crew worked 14 hours, 0700 to 2100 hours.  On Wednesday, June 12,  he and most of the crew work 21 hours, 0800 to 0500 Thurs..  All totaled, he and the crew members work 50 hours in the three day period (a very busy three days).  He was driving a 1991 Volvo 740 with an average gas mileage of 20.5 mpg.  The purchases were $12.92 for gas in San Juan Capistrano, $8.00 for gas in Downy, $12.08 for gas in San Clemente plus an additional $11.99 for "works" on the same receipt, and a gas purchase of $9.04 at a different station in San Clemente.  Other officers that purchased gas on that day were Sgt. Coutts, Officer Gallardo (four purchases from 6-10 to 6-12), and Officer Jones with one purchase for $21.00 (Appellant Ex. 23).

            The evidence cited above was researched by the Appellant's private investigator.  If the Brea Police Department investigator had looked, I believe he, too, could have found the same evidence.  The Hearing Officer's conclusion was that the evidence did not support the allegation.

9)         On 4-6-93 (Appellant) made 2 gasoline purchases for a total of $65.48.  These purchases may contain an undocumented car wash,  but again  using a conservative estimate, he would had to drive a probable minimum of 600 miles, even if the gasoline were $1.50 per gallon.  These purchases were made in Buena Park and in Orange.

            On 4-5-93, the Appellant worked an 18 hour shift from 0630 hours to 0030 hours on 4-6-93.  On 4-6-93, he worked a regular 8 hour shift.  On 4-7-93, he worked a 15 hour shift and there was no record of a gas purchase on that date.  Neither purchase was for an amount which was greater than the capacity of the Van's gas tank, 22 gallons.  The second receipt had a extra charge of $4.95 which could have been the so called "undocumented car wash" (Appellant Ex. 23).  The Hearing Officer's conclusion was that this was a completely groundless allegation (Emphasis added).

10)       On 7-23-93, Sgt. Dickerson asked you about a gasoline purchase made on Saturday, May 9, 1992 in Mission Viejo.  You told him that unless you were working you had no reason to be there, "that's probably my personal vehicle."  Personnel records reflect that you were not working.

            The RNSP timesheets showed the  Appellant worked on May 8, 1992 from 0800 hours to 0100 hours on the morning of May 9, 1992.  This was a 16 hour shift.  Also, two officers, Aninag and Frizzell, made purchases in the same area that night (Appellant Ex. 23).   Sgt. Dickerson testified on cross-examination that his investigation into this allegation was wrong (Trans. Vol. 7, p. 137).  The Hearing Officer's conclusion  was that the allegation was completely groundless and that if City's investigator had adequately investigated the matter at the time, he would have known this.

11)       On 6-12-93 you purchased $14.98 of gasoline in Chino  while you were on vacation from 6-9 through 6-14.

            This is another example of a less-than-adequate investigation.  Brea Police Department timesheets showed that the Appellant did work on 6-12-93.  He came in that day for two hours to do a physical agility test for the Department (Appellant Ex. 19 and Trans. Vol. 7, p. 137-140).  The Hearing Officer's conclusion was that the evidence did not support this allegation.

12)       On 6-19-93 you purchased $14.45 of gasoline in Chino on a Saturday when you were not working.

            The evidence record has already established that there was no written nor verbal policy prohibiting gasoline purchases on days off and that such purchases by RNSP team members was common and frequent.  The Hearing Officer's conclusion was that the evidence record did not support this allegation.

13)       Your attempts to explain this listed evidence of abuse and many others which have not been specifically cited here have been totally unconvincing.

            The Hearing Officer's conclusion was that the City's evidence of abuse was totally unconvincing (Emphasis added).  The evidence offered was not only insufficient, it was obviously the result of an inadequate investigation.  This allegation was not supported by evidence.                                  Therefore, for the reasons above, the Hearing Officer's conclusion was that the evidence record did not sustain Charge # 2.

CHARGE # 3:  USE OF YOUR RNSP VEHICLE FOR PERSONAL BUSINESS

You are being charged with using your RNSP vehicle for personal  business which is specifically prohibited by written directive and verbal directions of RNSP supervision.  Specific evidence indicating improper use:

 

1)             You admitted that following work in 1992 you used your RNSP vehicle to drive to Hawaiian  Gardens for a date.  You continued to use the vehicle for personal business the following day.

            The evidence record did not support this allegation (City Ex. 90, p. 45-46, 49).  The Appellant thought that Sgt. Dickerson, during the interview, was referring to 1992. When he became aware 1991 was the year in question, he recanted the explanation.  (The City's investigator failed to mention in his report that the Appellant had recanted the statement.)The evidence record also showed, as mentioned earlier, that it was not uncommon for RNSP officers to spend the night or even a weekend with a friend or relatives and then drive home the next morning or Monday (Trans. Lenyi, Vol. 11,  p. 69; Budrow, Vol. 13, p. 105-106).

2)         During interview of your wife on 7-23-93 she told investigators that you were allowed to use your assigned RNSP vehicle for personal use and on weekends.  In fact, you sold a Honda Accord in December, 1990 because of the availability of your work  vehicle for personal use.

            This was an example where a statement made by the Appellant's wife during an interview with Orange County deputies was selectively taken out of context and misquoted (Emphasis added).   The transcript was not offered into evidence but the portion referring to the above was read into the record.  Her stated reason for selling the Honda was to qualify for a house loan.  She did say that on joining the RNSP, the original understanding was that they could use RNSP vehicles for personal business, but that shortly afterward they learned that was not true.  She also stated that since they did not have two cars, that awareness prompted them to buy a pickup truck.  (Trans. Vol. 7, p.77-99; Vol. 8, p. 39-42).   The Hearing Officer's conclusion  was that the evidence record did not support this allegation

3)         During interview with Sgt. Dickerson on  7-23-93 you admitted to using your RNSP vehicle for personal use when spending the night with your girlfriend in Corona.

            There was no violation here.  The evidence record has already shown that it was not uncommon for RNSP members to spend the night at someone's house and drive home or to work the next day or they spent the weekend, to drive the vehicle home later.  Moreover, there were no written or verbal directives prohibiting such practice.  This was a completely groundless allegation (Emphasis added).

            The Hearing Officer's conclusion was that Charge #3 could not be sustained.

Charge #4: FAILURE TO PROPERLY REPORT SICK TIME HOURS

"On 02-11-92 and  01-06-93 you reported ill to RNSP.  You failed to notify the department of your illness on those two occasions.  You were therefore paid for 'regular duty' instead of  'sick time'."

            The evidence record established that the Appellant did in fact work on February 11, 1992 with the Riverside District Attorney, Colleen Maas (Appellant Ex. 44).  If the investigating officer had properly pursued the question, this information could have been obtained before his report was submitted to Chief Oman.   Obviously, this part of the charge clearly could not be sustained

.           RNSP records showed the Appellant as off duty and on sick leave on January 6 & 7,  1993 (City Ex. 86 & 87).  There was a Request for Leave signed by the Appellant for January 7 but no request for January 6 (City Ex. 88).  The Brea payroll records showed him as having been paid his regular eight hours wages for January 6th (City Ex. 89).  This was interpreted by the City to mean that he intentionally and knowingly violated City rules and regulations to collect regular wages when in fact he did not work. 

            After analyzing the evidence record, I could not conclude that the Appellant acted intentionally and knowingly to collect wages when he in fact did not work on January 6.  Connie Lite, Office Manager of Police Administration, testified that when an officer worked outside like the Appellant, the usual practice was for the officer or his outside supervisor to telephone in the request for sick leave.  (The RNSP MOU puts the responsibility on the officer to report sick time to his home agency.)  A request form would be filled in by someone in the office and placed in the officer's box for him to sign when next he came in to the Brea Police station (Trans. Vol. 7, p. 6-22).

            The Appellant did put in a request, dated 1-8-93, for sick leave on January 7, 1993 (City Ex. 88).  The request had the Appellant's signature, but it was reasonable to believe someone else had filled in the particulars.  However, there was no request for sick leave for Jan. 6th and the Appellant was paid regular wages for that day.  As Hearing Officer, I could not conclude that Appellant's failure to request sick leave for Jan. 6th was intentional.  It could have been, but it could also have been an error in bookkeeping or an honest mistake on the part of the Appellant.  Regardless, the matter could have been easily corrected (Trans. Vol. 7, p. 10-11, 15, 20-21, 24-27).   Even if it was intentional, now retired Chief Oman testified that the misconduct would not have warranted discharge, only an oral or written reprimand (Trans. Vol. 10, p. 27).  

            The Hearing Officer's conclusion was that Charge #4 was sustained in part.  The Appellant received regular pay for January 6,  1993, but there was no evidence the act was intentional.  At the most, it was a failure on his part to perform the proper paperwork.

 

CHARGE #5:  IMPROPER HANDLING OF EVIDENCE  

You are being charged with improper handling  of evidence  On 02-03-93 a pager was confiscated during an  investigation.  Sgt.  Hogbin ordered you to book the pager into evidence at OCSD.  The paper has remained in your desk at RNSP or at your home until surrendered to Sgt.. Dickerson in July 1993.

            There was no misconduct or failure to carry out an order.  The implication that the Appellant was ordered in February of 1993 to book the pager into evidence was false.  The pager was found in an envelope in a desk during the remodeling of the RNSP office which was taking place the week of Monday, July 19th., just prior to the July 23rd interviews.   The envelope containing the pager had the Appellant's name on it.   Sgt. Hogbin testified that he gave the envelope to the Appellant that same week while

he was either in the office or in the field (he could not recall exactly where) and "ordered or told him"  it needed to be booked (Emphasis added).    The Appellant had the envelope with him when he came to meet with Sgt. Hogbin on the morning of July 23, 1993.  It was turned in later with his other property to the Brea Police Department (Trans. Vol. 6,  p. 11-13, 38, 49-51; Vol. 7, p 92-93; Vol. 8, p. 83-86).  There was no improper handling of evidence.

The Hearing Officer's conclusion was that the evidence record did not sustain  Charge #5. 

 

CHARGE # 6: UNTRUTHFULNESS

You are being charged with being untruthful in responses to questions posed to you during this investigation.  Responses have been evasive, deceptive, misleading, and untruthful.  Examples are:

 

1)         During interview with Sgt. Carlander and Lt. Blair on 7-23-93 you lied.  You told them there were no procedures for use of County credit cards or vehicles.  There is clear and convincing evidence that you received copies of written policies.  Supervisors of the unit have indicated that they have personally informed you of the procedures regarding use of credit cards and vehicles.  All other members of the RNSP unit that were interviewed clearly understood the policies relating to use of credit and vehicles.

            This allegation is completely false (Emphasis added).  The only written policy was the statement concerning vehicle use in the MOU which was made available mid September, 1991. There were no other written policies as evidenced by the testimony of RNSP officer, including the unit supervisor, Sgt. Coutts.  That testimony made it crystal clear that procedures concerning  vehicle use and credit cards very loosely run (Sgt. Coutts: Vol. 5 p. 42-44, 64-65; Darin Lenyi:      Vol. 11, p. 63-84; Jose Gallardo: Vol. 12 p. 1-38;   Robert Jenkins: Vol. 12 p. 39-59;  Armando Perez: Vol.12 p. 60-68).

2)         During interview with Carlander and Blair on 7-23-93 you repeatedly insisted that the gasoline purchase on 7-16-93 was made with your personal credit card.  It is proved by written receipt and Youssef statement that the purchase was made with the RNSP card and that gasoline was placed in your personal vehicle.

            This was a rehash of one of the allegations in Charge #1 which will be dealt with in my response to Charge #1 except to say that my analysis of the  transcript found no evidence that the Appellant lied (City Exhibit 93 & 94).

3)         During interview with Carlandar and Blair on 7-23-93 you stated that your gasoline purchases were higher than other RNSP members because you drove more and you seemed to turn in fewer "chits" than other officers.  This is refuted by statements of RNSP supervisors and other RNSP members.

            This was another example of the City's investigator extracting selected phrases from a coerced interview and offering it as proof.  Even more telling, was the fact that no RNSP supervisors or officers testified in support of this allegation.  In short, the evidence record did support this allegation as proof that the Appellant lied.

4)         During interview with Sgt. Dickerson on 7-23-93 you contended that your gasoline use was  higher than other RNSP members because you drove more, sat on  "point"  more while other team members were goofing off, and seemed to turn in fewer "chits" than other members.  This has been refuted by statements of supervisors of the RNSP unit and all other RNSP members interviewed.  

            This allegation was found to be completely groundless.  The testimony of the RNSP supervisors and officers did not support the allegation ((Sgt. Coutts: Vol. 5 p. 42-44, 64-65; Darin Lenyi: Vol. 11, p. 63-84; Jose Gallardo: Vol. 12 p. 1-38;   Robert Jenkins: Vol. 12 p. 39-59;  Armando Perez: Vol.12 p. 60-68; Sgt. Hogbin: Vol. 6, p. 88-98).

5)         During interview with Sgt. Dickerson on 7-23-93 you told him there was  no procedure for reimbursing RNSP team members for case expenditures, explaining that gasoline purchases into your personal vehicle  was reimbursement for personal funds expended for meals.  There are detailed procedures contained within the RNSP MOU (which you have received and are under orders to have read and understood) covering the proper way to receive this type of reimbursement.  You further contended that using the RNSP credit card "tit for tat" to obtain reimbursement for meals and other expenses was easier that using proper reimbursement procedures. Yet Sgt. Hogbin told Sgt. Dickerson on  7-27 that you have used the proper voucher  reimbursement procedure 121 time for reimbursement of $1,936 in expenses.  The evidence is clear there are procedures, you had knowledge of the procedures, you used the procedures for receiving meal reimbursement, and you lied about excessive gasoline usage being for meal reimbursement.

            Having carefully read the transcript, the Hearing Officer found no evidence of lying by the Appellant regarding this matter. This was another example of where a phrase was selectively extracted, taken out of context and offered up as proof by the City's investigator (City Ex. 90,       p. 12).  The evidence record did not support the City's allegation that the Appellant lied to Sgt. Dickerson in the interview about the so-called procedure in the MOU. 

 

6)         During interview with Carlander and Blair on 7-23-93 you specifically contended that the purchase of gasoline on 11-16-91 for your personal vehicle was for reimbursement for approved expenditures.  However, review of voucher  reimbursement reveals proper reimbursement for  dates of 11-8 ($6), 11-13 ($7), 11-14 ($7), and 11-19 ($5).

            This was another false accusation taken out of context from a coerced interview.  There was no support in the evidence record for the allegation the Appellant lied in regards to this matter (City Ex. 93 & 94).  

7)            During interview with Dickerson on 8-11-93 you told him that you have not used your RNSP vehicle for personal use.  This is clearly disputed by  considerable evidence.

            There was no evidence that the Appellant lied to Sgt. Dickerson (City Ex. 90,  p. 1-2 of Aug. 11th. interview).  The Hearing Officer addressed this matter earlier and it was concluded that, as charged, the Appellant had not used the his RNSP vehicle for personal use.  The allegation that he lied was a fabrication.  

8)         During interview with Dickerson on 8-11-93 he asked  you about two dates when  you called in sick to RNSP but failed to notify BPD of your illness which resulted in you being credited with a regular work day for payroll purposes.  You told him you were unaware of this requirement.  It is written RNSP policy, clearly BPD policy as directed by Sgt. Dickerson, policy which you have repeatedly used properly.

            As with item number 7 above, there was no evidence the Appellant lied to Sgt. Dickerson as alleged (City Ex. 90, p 3-4 of Aug. 11 interview).  And, as with item number 7 above, the allegation that he lied was a fabrication.  

            A lot of emphasis was placed on the charge of untruthfulness against the Appellant.  It was pivotal to then Chief Oman, as he testified,  in arriving at his decision to discharge the Appellant (Trans. Vol. 10, p. 7-9, 27-28). 

For the above reasons, the Hearing Officer's conclusion was that the evidence  record did not sustain Charge #6, Untruthfulness.

CHARGE # 7:  INSUBORDINATION

You are being charged with insubordination.  Prior to questioning during this administrative investigation, Sgt. Dickerson ordered you to be truthful in responses.  He informed you that should you fail to be truthful in responses you would be additionally charged with insubordination.  The famous March 10th memo from Chief Forkus, further notifies officers  that total truthfulness is the expectation Brea Police Officers.  You were evasive, deceptive, misleading and untruthful to Sgt. Dickerson's questions.  I have no alternative but to charge you with insubordination.

            As was established earlier, the Appellant  was not untruthful as charged.  Therefore, there was no insubordination.  The Hearing Officer's conclusion was that the evidence record did  not sustain Charge # 7: Insubordination.

CHARGE # 1:  MISUSE OF CREDIT CARD

You are being charged with misuse of your assigned RNSP Unocal Credit Card #10623 6680 0869 (RN43).  "Beyond any reasonable doubt" the card was misused for the purchase of  gasoline for your personal vehicle on the following dates:

 

            Before addressing the specific allegations below, a few comments are in order regarding (1)  the standard of proof, (2) the Youssef deposition, and (3) the diminished cognition defense:

            Standard of Proof:  By City Ordinance, the standard of proof to be use in this matter was "by a preponderance  of evidence".  It was interesting that with this charge and not the others, the City chose, apparently, to use a higher standard of proof.   This did not amend the Hearing Officer's required standard of proof, but it did cause me to focus very intently on the evidence

offered in support of the allegations.

            Youssef Deposition:  The Appellant argued that Mr. Youssef's deposition should not be allowed into the record as evidence.  Without going into all the details of the arguments and counter-arguments, the Hearing Officer's  ruling was that there were no grounds to exclude the deposition.  The deposition was taken under conditions which were protective of the Appellant's right  to cross-examine the witness and his right of rebuttal.

            Diminished Cognition Defense:  The Appellant argued that a result of the traffic accident he was involved in on June 23,  1993 was a state of mind labeled "diminished cognition" and that this was a significant factor relative to the purchases of July 16,  1993 and July 20,  1993.  The Appellant's contention was that the stress of the RNSP work, in combination with the mix of alcohol and prescription mediation at the time caused the "diminished cognition" and influenced his actions on the two dates.  (The two prescribed drugs were Vicodin, a pain medication, and Robaxan, a muscle relaxant.)   In support of this argument,  the Appellant offered the expert testimony of Dr. Emil Soorani, a Physician/Psychiatrist.  In opposition, the City offered the expert testimony of Dr. Joseph Shannon, a Physician/Psychiatrist. 

            The testimony of the two experts was both interesting and informative but inconclusive.  Their testimony clearly illustrated the possible effects of mixing alcohol with one or both of the drugs and the stress of the  RNSP work but was not conclusive that "diminished cognition" was the probable effect on the Appellant in this instance (Emphasis added).  The Appellant was undergoing therapy at time of the two incidents, he was taking the prescription drugs, and, by his own admission,  he was drinking.   However, he testified that although he was drinking everyday it was done only after work to wind down.  Dr. Soorani testified that the Appellant told him his drinking consisted of three or four drinks after work. The Appellant also testified that he only  took the Vicodin, the pain medication, after work (Trans. Soorani, Vol. 11, p. 130; Appellant Vol. 13, p. 31-32) .  Again, the Hearing Officer could not conclude from the evidence record that the Appellant was experiencing "diminished cognition" in the period of time following the accident on June 23, 1993.

 

11-16-91:  You purchased 12.5 gallons of gasoline and  a car wash of $8.20 for a total purchase of $24.41, voucher #309568.  The license number on the charge card was given as 4J26393, the license of your personal truck.

            Given the unreliability of vehicle plate entries on  credit card receipts as pointed out earlier for RNSP officers and supervisors (particular reference was made to the "irregular" entries by Sgt. Coutts), the presence of the Appellant's personal plate  number on the receipt could not be relied upon as proof of misconduct ( Sgt. Coutts: Vol. 10, p. 71-76 and Vol. 5 p 42-44, 64-65;  Officer Lenye: Vol. 11 p 63-84; Officer Gallardo: Vol. 12 p 1-38; Officer Jenkins: Vol. 12 p 39-59; Officer Perez: Vol. 12 p 60-68; Appellant Ex. 23)

 

07-16-93:  You purchased $22.01 in gasoline for your personal  vehicle, a pick-up truck pulling a boat.  You wrote the license # of your RNSP vehicle on the credit card slip and the attendant (Youssef) crossed that number off the charge slip and wrote in the number for the truck.  

            The Appellant did use his RNSP credit card to put gasoline in  his pick-up truck on that date.  This was established by the receipt itself (City Ex. 42) and the testimony of Mr. Youssef who saw the Appellant put gasoline in the pick-up.  Youssef did not, however, testify he saw the Appellant put gasoline into the boat (City Ex. p. 8-9). 

            The Appellant testified the action was not intentional (Vol. 13, p. 53).  He also testified on cross-examination that when he drove his personal vehicle on RNSP business he did fuel, gas up with his RNSP credit card.  He said he had done so several times when he was on light duty following  his auto accident on June 25, 1993 (Vol. 13, p. 190-192).  He was on light duty and without an assigned RNSP vehicle for just under a month following the accident and for the first week plus he was assigned to the RNSP office.  During this time he used his personal vehicle do RNSP business for Sgt.Alvis (Trans. Vol. 13, p. 40-41).   Sgt. Dickerson, the Appellant's Brea supervisor and the investigating officer in this matter, testified that if he had been using his personal vehicle to do RNSP business then he was entitled to compensation (Vol. 8, p. 118-119, 122-123). 

            The Hearing Officer's conclusion was that the Appellant did use his RNSP credit card to put gasoline into his personal vehicle.    That was a misuse of the card, but it was not proof of  embezzlement nor proof of a long-term pattern of abuse.  It could also have been an accident; his personal Unocal card and the RNSP Unocal card were similar in appearance, but I do not believe so.  The evidence record also made it clear that the Appellant had on occasion, albeit only a few times, reimbursed himself using the RNSP card for those times he used his personal credit card or cash to fuel the RNSP vehicle (City Ex. p. 6-8).  My conclusion, drawn from an analysis of the evidence record, was that the Appellant exercised poor judgment in this matter.  He committed an infraction warranting some minor discipline but not severe enough to warrant the ultimate penalty of discharge.

07-20-93:  You purchased $24.26 (total) in gasoline for  your RNSP vehicle, a Ford Thunderbird,  however, gasoline was also pumped from  this purchase into  your personal vehicle, a Mercedes Benz.  You wrote the license # for your RNSP vehicle on the credit card slip.  This was witnessed by station attendant Youssef.  Youssef went on to state that based upon the position of the Thunderbird, all gas purchased was put into the Mercedes.

            The wording of this allegation was a blatant misrepresentation of what Mr. Youssef stated in his deposition (Emphasis added).   In his original deposition, Youssef stated that he saw gasoline being pumped into both vehicles (Emphasis added).   In his amendment to the deposition, he made a correction and stated, "I indicated both because I believe both, but I can't testify I saw the nozzle in both cars" (City Ex. 1, p.21-22).

            The Appellant explained that as he and his wife were caravanning home, he pulled into the station to gas up the Thunderbird. (He has just been assigned the vehicle that day.)  His wife followed him and parked behind him.  He got out and told his wife he needed fuel and to visit the lavatory.  He entered the station office, handed the attendant his RNSP card, asked for restroom key, and after he exited the office he noticed his wife had stuck the nozzle in the  Mercedes.  He said he told her it was on the RNSP card and needed to go in the RNSP car whereupon she removed the hose and put it into the  RNSP car (Trans. Vol. 13, p. 44-45, 62-64).  The Hearing Officer's conclusion was that the evidence did not support the allegation.

            CHARGE #1: MISUSE OF CREDIT CARD was sustained in small part.  The appellant did misuse his  RNSP credit card for the purchase on July 16, 1993.  However, as explained earlier, the misuse was not proof of a pattern of long-term abuse nor an intent to embezzle.  It was an act of poor judgment sufficient to warrant some minor discipline, but not termination.

            I have one last conclusion regarding the City's investigaton. Based on the arguments, the documentation, and the testimony, I firmly believe that if the City's investigation had relied less on the unsubstantiated hearsay provided by the Orange County Sheriff's criminal investigators, this matter could have been reasonably resolved in the initial stages.  The testimony of Sgt. Dickerson, under cross-examination, illustrates this pivotal point:

                  By Mr.  Adams:  Q.  The City of Brea Police Department learned of the facts, the allegations, that started this investigation through the Orange County Sheriff's Department; is that correct?

                  A.  Yes.

                  Q.  You went down and you spoke to the Orange County Sheriff's investigators in conducting your investigation; is that correct?

                  A.  Yes.

                  Q.  You believed these investigators when they told you what they had; true?

                  A.  Yes. (Emphasis added)

                                                (Trans. Vol. 8,  p. 123)

           

By not conducting an independent, unbiased investigation, Chief James Oman was provided with an inadequate and biased report upon which to make his determination to discharge the Appellant.  The Appellant was denied his due process right to an investigation conducted fairly and objectively.

            For the reasons given above, Hearing Officer's conclusions with respect to the City's charges against the Appellant are summarized as follows:

Charge #1:            Misuse of Credit Card

            The charge was sustained in part.  There was no evidence to support the city's contention that the Appellant had intentionally misused the credit card over an extended period of time for the purpose of embezzlement.   However, with this specific charge, there was evidence that he misused his credit

card on July 16, 1993.  The misuse was more in the nature of poor judgment rather than embezzlement and sufficient to warrant some minor discipline but not the extreme penalty of termination.

 

Charge #2:            Misuse of Credit Card

            The charge was not sustained.  The City's evidence of abuse was totally  insufficient.  In addition, the materials used by the City when it considered Allegation No. 6 of this charge were denied to the Appellant in preparation for his Skelly hearing.  This was a clear violation of his pre-deprivation due process rights and the remedy is back pay.

 

Charge #3:            Use of Your RNSP Vehicle for Personal Business

            The charge was not sustained.

 

Charge #4:            Failure to Properly Report Sick Time Hours

            The Charge was sustained in part.  The Appellant received regular pay for January 6,  1993, but there was no evidence the act was intentional.  At the most, it was a failure on his part to perform the proper paperwork but only serious enough to warrant some minor discipline.

 

Charge #5:            Improper Handling of Evidence

            The charge was not sustained.

 

Charge #6:            Untruthfulness

            The charge was not sustained.

 

Charge #7:            Insubordination

            The charge was not sustained.

 

RECOMMENDATION

            By a preponderance of evidence, the City had just cause to discipline the Appellant but termination was not the appropriate penalty.  His misconduct was, at the most, an act of poor judgment when purchasing gasoline on July 16, 1993 and a failure to follow through with the proper paperwork for the sick leave infraction of January 6, 1993. 

 

            The Hearing Officer's recommendation is that the Appellant (1) be issued a written reprimand, (2) be reinstated to his position with the City of Brea Police Department, and (3)  be made whole for all back pay, less other income earned, and benefits from November 12, 1993 through the date the City renders its final disciplinary decision.

 

 

 

                                                                        Respectfully submitted,

 

 

 

                                                                        C. Allen Pool

                                                                        Hearing Officer

 

July 8, 1996



[1]On January 30, 1996, a jury acquitted the Appellant of misdeamor misconduct brought against him by Orange County (Appellant Ex. 22).

[2]The evidence record also showed that the Appellant's subpeona served on the County Counsel for these materials was denied on March 22, 1994 (Appellant Ex. 6).

 

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