After more then four years of fighting to get his job
back, El Segundo Officer Richard Fenwick, will finally put on his
uniform, pick up his check for back pay and benefits, and go back to
work. The Court of Appeal, in an unpublished decision, recently ordered
the reinstatement of Fenwick, with full back pay and benefits.
Fenwick was terminated in early 1995, for violation
of rules concerning use of departmental equipment (for other than
official business) and alleged sexual harassment. These charges were
based on the exchange of messages (with some sexual content) to a
consenting female officer via e-mail. The department had recently
installed e-mail and had encouraged employees to use it for personal
use. Employees were not given any guidelines for the e-mail system, nor
were they told that their private mailboxes could be accessed by the
department. Upon finding out that there were communications between
Fenwick and the female officer, the department who had once before
unsuccessfully tried to fire Fenwick, accessed all e-mails between the
two, even those which they thought had been deleted, or which they
considered to be private.
The department fired Fenwick, who filed an appeal and
was represented by Sylvia Kellison, of Kellison and Vasquez. During the
hearing the hearing officer ordered the production of samples of other
employees’ e-mail, including that of the chief of police.
Interestingly enough, e-mail by another male officer with sexual content
was discovered, however no action was taken against that officer. After
11 days of hearing, hearing officer Terri Tucker made findings of fact
that Fenwick had not committed sexual harassment and that the department
allowed, even encouraged, personal use of the e-mail system. She also
recommended that Fenwick be reinstated with full back pay and benefits.
The Los Angeles County Civil Service Commission, who performed the
review for the city, initially moved to uphold the findings and
recommendations, however, the city appealed that determination. During a
series of three hearings, the commission voted continually to uphold the
finding of facts, however, on a split vote continually recommended and
eventually imposed higher penalties, ranging from a 30 day suspension to
the final determination to adopt the findings of fact, but uphold
termination. In a response to questions by Ms. Kellison, the commission
chair admitted that they had never read the transcripts of the hearing,
however, they thought that what was done (according to the city’s
version) by Fenwick justified a higher penalty.
Fenwick appealed the decision to Superior Court,
before Judge Robert O’Brien. Judge O’Brien found that there was a
prejudicial abuse of discretion by the commission. Judge O’Brien
stated, "Nowhere in the findings does it find that petitioner has
violated any departmental rule or regulation concerning either
harassment or misuse of departmental equipment. To the contrary, the
findings indicate that there was no sexual harassment involved and the
department encourages officers to make personal use of the city’s
e-mail system and tolerates speech between officers which has sexual
content or terms, so long as the speech does not constitute actual
sexual harassment." O’Brien further refused to remand the hearing
to the Civil Service Commission on the basis that the Superior Court,
could properly refuse to remand the case where the commission had three
prior occasions to take appropriate action, and had failed to do so.
Two days after O’Brien’s judgment was issued, the
city appealed the decision to the Court of Appeal. During oral argument
before the justices, the city again argued for remand. Kellison argued
that if the case was remanded, there would never be an end to a process
that had already taken more than three years, 11 days of evidentiary
hearing, three hearings before the Civil Service Commission and one
hearing before the Superior Court. The justices chastised the city, and
suggested that they try to settle the case. After settlement
negotiations broke down, the Court of Appeal finally issued its
unpublished decision, upholding the Superior Court, not only on the
findings, but also on the issue of remand. The Court of Appeal
distinguished this case where there was no factual finding of
misconduct, from those cases where there was only an issue of penalty,
which should be remanded. Where there is no factual finding of
misconduct, there is no need to remand the case because no penalty is
appropriate where there is no misconduct.
The city has indicated that they will not further
appeal the decision, and has started the process of reinstating Fenwick.
The courts did not address the issue of privacy of
e-mail. The case law appears to be against a finding that e-mail is
private, there is no statute providing for such privacy. Employees
should beware of sending anything via e-mail that they don’t want
their supervisors to see.
