2001 NAC 109 City of Inglewood and Inglewood Police Association

Title: City of Inglewood and Inglewood Police Association
Date: April 2001
Arbitrator: Jack Calhoun
Citation: 2001 NAC 109

IN THE MATTER OF THE

ARBITRATION BETWEEN:

INGLEWOOD POLICE ASSOCIATION, )

and ) OPINION AND

CITY OF INGLEWOOD. ) AWARD

AAA Case No. 72 300 00151 00 KJC

BEFORE

JACK H. CALHOUN

ARBITRATOR

HEARING HELD

February 9, 2001

Inglewood, California

REPRESENTATION

FOR THE ASSOCIATION: FOR THE CITY:

Richard A. Levine Larry W. Peterson

Attorney at Law Assistant City Attorney

330 Washington Blvd. One Manchester Blvd.

Suite 707 Inglewood, CA 90301

Marina Del Rey, CA 90292

This matter came to hearing after the grievant, Officer Kevin Lane, an investigator with the Inglewood Police Department assigned to the Gang Intelligence Unit, was suspended without pay for five working days and reassigned to the Patrol Division. The discipline was imposed because of his conduct involved in the arrest and booking of a suspect. The parties agreed that the issue in dispute was properly before the arbitrator. Post-hearing briefs were filed. The case was considered closed on the day the briefs were received, April 13, 2001.

The grievant did not contest the five-day suspension and he stipulated that he violated Police Department rules. The only issue in dispute is whether the City had just cause to reassign the grievant from the Gang Intelligence Unit to the Patrol Division. If not, what is the proper remedy?

Officer Lane is a seven-year employee of the Inglewood Police Department. He had prior experience in law enforcement with another city. Since 1997, he had been assigned to the Gang Intelligence Unit, which is considered a coveted position within the Department. He did an outstanding job in the Unit and received very high performance evaluations. He had one previous disciplinary measure imposed on him prior to the time he was assigned to the Gang Unit. That occurred when he failed to report a minor traffic incident caused by him backing a police car into another car. He received a minimum suspension for that conduct.

The work done in the Gang Intelligence Unit is highly specialized and requires that an individual be able to perform with little supervision. The work requires officers to exercise considerable discretion and maintain a high level of integrity, trust and candor. Officers assigned to specialty units such as Gangs are given pretty much free reign to pursue their investigations, to prioritize their work and to make appropriate follow ups.

On December 27, 2000, Officer Lane responded to a robbery-in-progress report indicating shots had been fired. He, the senior officer on the scene, and Officer Sissac arrived on the scene at about the same time. After disarming the alleged victim, who owned the barbershop that was the location of the alleged robbery, Officer Sissac placed the suspect, Aimes, under arrest and Officer Lane did a pat down of him for weapons. Several other police officers arrived later and were present on the scene. Officer Lane did not hear any officer say anything about there being marijuana present. Suspect Aimes, however, told Officer Lane that he had come to the barbershop to buy marijuana and that the owner pulled a gun on him. Aimes told Officer Lane there were bags of marijuana in the back area of the barbershop. There was a general discussion among the officers present about the possibility of marijuana being involved and about the credibility of the alleged victim. Officer Lane mentioned to the other officers present that, based on his knowledge of the location, marijuana had been sold there previously. Officer Lane stated he would not be surprised if there was marijuana present, however, no officer saw any.

One of the officers present was Officer Gallatin, who transported Aimes to the station. Officer Gallatin was a probationary officer at the time. At the station, Custody Officer Chism took custody of Aimes and searched him. While searching Aimes, Chism discovered a bag of marijuana in one of his pockets.

Custody Officer Chism approached Officers Lane and Gallatin in a hallway and said he had found marijuana on Aimes during his search and asked, “What do you want me to do with it? Do you want me to get rid of it?” Officer Lane replied, “As far as I’m concerned, it does not exist.” Officer Gallatin said, “You have to talk to the arresting officer.” Chism destroyed the marijuana.

At the scene of the alleged robbery, Aimes had repeatedly told the officers that he went to the barbershop to buy marijuana, that it was the owner of the shop who pulled the gun on him because of Aimes’ gang associates, and that he, Aimes, would be a third-strike offender. Aimes also said that the owner of the shop sold marijuana.

Officer Sissac wrote the arrest report on the matter and did not mention the marijuana that was found on Aimes nor anything about marijuana at the scene of the incident. When Robbery Detective Barrow interviewed Aimes, Aimes said he had marijuana in his pocket when arrested and there were four bags of it that officers seized at the barbershop. Detective Barrow knew Aimes intended to use the marijuana for his defense to the robbery charge so he contacted the officers involved in the arrest and jailing of Aimes. Officers Lane and Sissac said they did not see any marijuana. Officer Chism said Officers Lane and Gallatin told him to get rid of the marijuana Chism had found on Aimes.

As a result of Detective Barrow’s report, an internal affairs investigation was initiated. Sergeant Cohen conducted the investigation. He reviewed the case and twice interviewed all department personnel who were involved in the case and he interviewed the suspect, Aimes. Aimes said one of the officers felt in his pockets, pulled out the bag of marijuana Aimes had just bought and immediately put it back in Aimes’s pocket. Aimes also said the officers removed four bags of marijuana like the one Aimes had just bought and took it in the police car.

During Sergeant Cohen’s interview with Officer Lane on January 28, 2000, Officer Lane told him he had been told by Aimes at the scene of the alleged robbery there were bags of marijuana in the back area of the barbershop. Officer Lane said he did not see the marijuana nor did any officer tell him it was there. He said he first learned about the marijuana Aimes had in his pocket at the station while talking with Officer Gallatin. Officer Chism came up to them and said he had found marijuana on Aimes and wanted to know what he should do with it. Officer Lane said that as far as he was concerned it did not exist to him, meaning it was not his responsibility because he was not the arresting officer. However, during his first interview with Sergeant Cohen on January 13, 2000, he told Sergeant Cohen, “I don’t know anything about any marijuana, what are you talking about?” in response to Officer Chism’s statement that he had found more marijuana on Aimes.

Officer Lane knew at the time that Officer Chism told him he, Chism, had found marijuana on Aimes that it, in fact, existed despite telling Officer Chism, “It doesn’t exist as far as I am concerned.” When Officer Lane talked to Detective Barrow he did not tell Detective Barrow he knew the marijuana existed even though Officer Lane knew Detective Barrow was trying to find out why the police report did not mention anything about marijuana. In retrospect, Officer Lane said he knew that information would have been helpful to Detective Barrow.

During the second interview with Sergeant Cohen, Officer Lane explained why he responded as he did, during first interview, to the question from Officer Chism about what Officer Chism should do with the marijuana he had found on Aimes. He said that he had made the statement, “As far as I’m concerned, it doesn’t exist” because he meant he was not the handling officer and he did not want to know what Officer Chism did with it. If Officer Chism did destroy it, he did not want to know, and if the arresting officer said destroy it, he did not want to know because he, Lane, was concerned about being called as a witness during an internal affairs investigation. If he were called, he could honestly say, “I don’t know if it was destroyed.” Officer Lane said he understood that Department policy was that the marijuana in question should have been booked as evidence in the case.

On June 7, 2000, Officer Lane received a notice of intent to reassign and suspension. The Department concluded he was aware of the presence of marijuana at the crime scene because Officer Sissac had made a statement to that effect and the defendant, Aimes, had so stated. He also had to be interviewed twice before he confirmed the finding of marijuana on Aimes at the jail, according to the notice. He never admitted to instructing Officer Chism to destroy the marijuana, but the notice stated that the obvious duplicity of the words he chose seriously eroded his credibility. It also stated he vacillated on stating the facts and manipulated circumstances to avoid taking responsibility, which was deplorable. The notice also stated he had previously violated Department rules by failing to report an on-duty traffic mishap. The notice, which was subsequently upheld by the Chief of Police, advised Officer Lane he would be reassigned from the Gang Intelligence Unit and suspended without pay for five ten-hour days.

Officer Sissac, the arresting officer in the case, received a four-day suspension based on the same charges with which Officer Lane was charged. Officer Sissac was later promoted to the Detective Bureau and placed in the Sex Crimes Unit at a higher rate of pay. Even though the Chief of Police had the discretion to pass over Officer Sissac on the eligible list, he did not do so. Officer Sissac was promoted to detective because she was ranked number one on the list and she was assigned to the Sex Crimes Unit because the Captain of the Bureau needed to fill a position there. Officer Sissac had previously received a one-day suspension for a traffic accident.

Custody Officer Chism received a four ten-hour day suspension. He had previously received a one-day suspension for not reporting for duty.

Officer Gallatin, a trainee at the time, received two ten-hour day suspensions. He was later made a full-fledged police officer.

Officer Rodriguez received a penalty of six days off without pay for an unrelated incident involving the destruction of an amount of cocaine, but he did not attempt to mislead or minimize his involvement in the matter. He was not assigned to any special unit at the time.

The City contends it had just cause to suspend and reassign Officer Lane from the Gang Intelligence Unit. The Department rules that officer Lane violated were reasonable. Police officers are required to promptly report any information or incident that might indicate the need for Department action. Failure to do so can lead to serious consequences such as false arrest, claims of police misconduct, or dismissals of serious crimes due to improper destruction of exculpatory evidence.

Police officers are required by rule to assume responsibility and exercise diligence, intelligence, and interest in pursuit of their duties, the City argues. That is a reasonable rule because the wise and conscientious performance of their duties is the essence of why we have police officers. Police competence and public trust in law enforcement is essential to public safety. The failure to report or take action flies in the face of a responsibility to exercise diligence in the performance of an officer’s duties.

There is substantial evidence that Officer Lane violated department rules when he failed to reveal what he knew about the presence and destruction of marijuana and by his not taking responsibility to prevent its destruction. Although he stipulated that he violated these rules, the City believed it was important to understand that there was substantial evidence that he violated the rules to demonstrate that the penalty imposed was not excessive. Officer Lane made statements that were misleading or false. He was unwilling to take responsibility for the possible destruction of evidence.

The Department did not abuse its discretion when it removed Officer Lane from the Gang Intelligence Unit. Punishment imposed by an administrative agency should not be disturbed unless there has been an abuse of discretion, the City maintains. A court is not free to substitute its discretion for that of the administrative agency over the degree of punishment imposed. If reasonable minds may differ as to the propriety of the discipline imposed, the administrative decision may not be regarded as an abuse of discretion. Officer Lane’s failure to accept full responsibility, his willingness to provide misleading statements, and the potential liability of having a Gang Unit officer who could not be completely trusted made it necessary for the chief to remove Officer Lane from the Gang Unit.

The California Supreme Court stated that in considering whether an abuse of discretion has occurred in the context of public employee discipline, the overriding consideration is the extent to which the employee’s conduct resulted in, or if repeated, is likely to result in harm to the public service. The City contends that in the present case, a potential felony case for committing assault with a deadly weapon was tainted due to the destruction of evidence that Officer Lane failed to stop and failed to report. Officer Lane deliberately ignored his responsibilities as a police officer. He was the senior officer involved when his total service in law enforcement is considered. His conduct was evasive and misleading and he attempted to elude responsibility for the outcome.

The Department conducted a thorough and fair investigation prior to imposing discipline on Officer Lane and it applied its rules in an evenhanded manner. The officers involved in the incident were given various levels of punishment depending on their level of involvement, past disciplinary history, truthfulness and cooperation in the investigation.

The Association contends the City did not have just cause to impose the degree of discipline it imposed on Officer Lane inasmuch as the reassignment out of the Gang Unit was excessive. Officer Lane did not challenge the allegations of misconduct, nor did he challenge the length of the suspension. He maintains his reassignment, in conjunction with the suspension, was disproportionately greater than the penalties imposed on other police officers involved in the case, as well as in a more egregious case.

Officer Lane was a very high functioning investigator in the Gang Intelligence Unit. His evaluations while assigned to the Unit were from superior to distinguished. While assigned to the Gang Unit, he did not sustain any similar misconduct charges for failure to report, nor did he receive any disciplinary suspensions.

Officer Sissac, the arresting officer, received a four-day suspension based on the same charges as Officer Lane. Officer Sissac had primary responsibility over recording any evidence found on the suspect. Officers Sissac and Lane had the same number of years with the Department, in fact, Officer Sissac was sworn in before Officer Lane was.

Moreover, Officer Sissac was promoted to the Detective Bureau and placed in the Sex Crimes Unit at a higher rate of pay. Although the Chief had the discretion to pass over her on the eligibility list, he did not.

Officer Gallatin received a two-day suspension for his conduct. Yet, the Chief later conferred permanent status on him.

The Association argues that not only did Officer Lane receive a harsher penalty than Officers Sissac and Gallatin, without proof of more culpability by him, but also that he received greater total discipline than another officer who destroyed narcotic evidence. Officer Rodriguez received only a six-day suspension for destroying a small amount of cocaine.

The Chief of Police stated that one of the reasons he reassigned Officer Lane from the Gang Unit was because the Gang Unit requires a high level of integrity. Yet, Officer Lane had not been involved in any disciplinary incidents while a member of the Unit. In addition, the Chief erroneously believed Officer Lane had failed to report an on-duty traffic collision while he was in the Gang Unit. The Department derived considerable recognition of Officer Lane’s expertise in that he was invited frequently to speak to law enforcement groups.

While the Chief stated his decision to reassign Officer Lane was based on Officer Lane’s being less than candid during the investigation, the Association holds that the record shows that all officers involved in the matter where interviewed twice, with more information being elicited in the second interview. Officer Lane clarified and edited his statement on his own initiative.

Officer Lane’s misconduct did not involve failure to report evidence as a part of his Gang Unit duties, but rather to report evidence found with regard to a patrol case of which he was an assisting officer. His duties in the Gang Unit did not involve daily ongoing dealings with receiving and booking evidence.

The Association argues that the California Supreme Court set forth the standards for administrative discipline by holding that while the administrative body has broad discretion in respect to the imposition of discipline, it does not have absolute and unlimited power. It is bound to exercise legal discretion, which is judicial discretion.

The only dispute to be resolved here is whether the City had just cause to impose the penalty of reassignment from the Gang Intelligence Unit. The Association conceded Officer Lane violated disciplinary rules of the Department and did not contest the suspension without pay. It is the degree of discipline imposed on Officer Lane compared with the discipline imposed on other officers in the Department that the Association challenges.

There is ample evidence on the record to support the conclusion that, given the totality of the circumstances considered by the Chief of Police in imposing punishment upon Officer Lane, the punishment was not disproportionate to that imposed on other officers in the Department, including Officer Rodriguez. The officers were given various levels of punishment depending on their level of involvement, past disciplinary history, and their truthfulness and cooperation in the investigation.

The Chief did not abuse his discretion. He found that Officer Lane failed to accept full responsibility, that his willingness to mislead during the investigation and the potential liability of having a Gang Unit officer who could not be trusted warranted removal from the Unit. His findings are supported by the evidence on the record in the present case.

None of the officers involved mislead, tried to cover up and escape responsibility during the investigation of the destroyed marijuana to the extent that Officer Lane did. Although Officer Lane was functioning as a Gang Unit specialist and did not get involved daily on an ongoing basis in the handling and booking of evidence, he had several years of experience outside the Gang Unit in the Department and he had several more years of experience in another city in law enforcement. It is reasonable to conclude that he knew what proper police conduct is. His intentionally worded response during the first stage of the investigation to lay the ground work for a denial later, if it became necessary, was indicative of his knowledge of how the situation should have been handled when he first learned about the marijuana. The Chief looked at the character of the offense that Officer Lane was involved in, the destruction of evidence, and concluded it was serious and called his integrity into question. He looked at Officer Lane’s prior record of discipline. Contrary to the Association’s argument, he did not erroneously believe that discipline came about while Officer Lane was in the Gang Unit. He also looked at Officer Lane’s cooperation and candor during the investigation when the allegations were uncovered and found then seriously lacking. Since the Gang Unit officers often worked independently and without supervision, he concluded Officer Lane must be removed because he had not displayed a high level of trust, integrity and candor.

Office Sissac’s punishment was less than that of Officer Lane, however, at the time she was not working in one of the coveted positions, as was Officer Lane. While she was not denied the promotion, neither had she been entrusted with the greater responsibility and then demonstrated a disregard for that responsibility. Moreover, her conduct, while remiss, did not involve misleading and covering up to the extent Officer Lane’s did.

Similarly, with the other officers involved, the Chief of Police considered the totality of their involvement, their honesty and truthfulness, their past discipline and concluded their punishment should be less than that imposed on Officer Lane. Officer Rodriguez did not attempt to cover-up his misdeed, nor did he minimize his involvement in the incident in which he destroyed evidence. Moreover, he had no prior discipline.

The degree of discipline imposed by the Chief of Police on Officer Lane was not excessive and it was well within his discretion. I am unwilling to substitute my judgment for that of the Chief over the degree of the punishment imposed, although reasonable minds could differ.

For the reasons discussed, I have concluded the City had just cause to reassign Officer Lane from the Gang Intelligence Unit. Accordingly, I will enter an award.