SUSPENSION FOR SANTA
MONICA POLICE OFFICER OVERTURNED
Santa Monica Police
Officer John Biel was vindicated and his 40-hour suspension was
rescinded, after a lengthy hearing before Hearing Officer Michael Prihar.
Biel was represented by Ken Yuwiler, of Silver, Hadden & Silver.
In March 1997, Biel had
been a police officer for the City of Santa Monica for about 10 years.
He had been told by a supervisor that he would be paid overtime for his
attendance at an award’s ceremony during which he was to receive his
five-year service pin. Biel submitted an overtime request for his
attendance. When the request was reviewed, this same supervisor denied
giving approval for the overtime. At the Skelly hearing, Police
Chief James T. Butts was put on notice that another officer heard the
supervisor give approval for the overtime and that the supervisor also
told the department's most senior sergeant that the supervisor
"f----d up," because he gave Biel approval for the overtime.
After being told that neither of those witnesses were interviewed during
the investigation, Chief Butts asked the name of the witness officer
saying, "We can make sure that [the officer's interview] happens,
don't worry about that, just give us his name." Nonetheless, Chief
Butts failed to have either of those witnesses interviewed and failed to
conduct any investigation into the supervisor's conduct, saying there
did not "form any questions in [his] mind" whether the
supervisor lied.
The department also
ignored its own Mission, Vision and Values Statement in its fervor to
investigate and discipline Biel. For example, the department completely
failed to interview both witnesses that the department knew would say
that the supervisor gave Biel approval for the award’s ceremony
overtime, failed to conduct a complete investigation, completely failed
to investigate the supervisor's apparent dishonesty, and investigated
and disciplined Biel for conduct which occurred to numerous others, none
of whom were investigated or disciplined.
Amazingly, the supervisor
who approved the overtime was even allowed to have an active role in the
disciplinary process, which included increasing the proposed discipline
from a 24-hour suspension to a 40-hour suspension. Chief Butts
ultimately gave Biel the 40-hour suspension for submission of the
overtime slip for the award’s ceremony, for claiming 3 hours of
overtime, when he was only entitled to 1.5 hours, and for receiving
overtime in the past to which he was not entitled, even though he did
not submit a request for that overtime. Among other things, the
department claimed that Biel was dishonest, because of his claim that
the supervisor gave him approval for submission of the award’s
ceremony overtime.
A Notice of Suspension
and Statement of Charges were provided to Biel. Each was signed by
Butts, and prominently addressed the circumstances surrounding the award’s
ceremony overtime. Biel appealed. Hearing officer Prihar conducted an
evidentiary hearing. At the hearing, the department, no doubt
recognizing the significant flaws in its case, sought to change the
focus of the discipline away from the award’s ceremony. Butts
testified that he gave "[v]ery little" weight to the award’s
ceremony issue. Then he testified that "the service award’s
ceremony was not the main issue" of the discipline. Still later,
Butts testified that the award’s ceremony "was not part of my
decision in implementing discipline," insisting that had he read
the Statement of Charges more closely, he "would have excised the
section about the awards ceremony, "because I considered it
irrelevant at the time" and that "it has no bearing on the
punishment he received".
As the award’s ceremony
was obviously part of the discipline and the department declined to
stipulate that the award’s ceremony issue was not a ground for the
discipline, the issue was litigated. During the investigation and
hearing, the supervisor denied he gave Biel approval for the award’s
ceremony overtime. During cross-examination, the supervisor contradicted
himself, testifying that after he was told of the other officer's
knowledge about the overtime approval, the supervisor asked the officer
about it "to refresh my memory if I missed something or
whatever," because "I thought maybe he could shed some light,
and maybe it was something I did forget". The supervisor then
emphatically denied that it was even "possible" that he forgot
that he approved the overtime. The witnesses' testimony was
overwhelming. The hearing officer concluded that the "evidence
would not have sustained charges of dishonesty or improper conduct
pertaining to the filing of the award ceremony overtime ... [because
there was] highly credible testimony to the effect that appellant had
been authorized by [the supervisor] to claim the award ceremony
overtime".
The department's next
volley at Biel was based on the department's internal affairs
investigator's testimony that he conducted approximately a four-year
audit of Biel's payroll records, and located two times that Biel
received overtime to which he was not entitled. The department asserted
Biel should have known of the alleged overpayments. However, even the
department admitted Biel had not submitted a request for overtime on
those two occasions. The investigator testified that during his audit of
Biel's payroll records, he only looked for overpayments, not
underpayments. The investigator admitted he did not conduct a similar
audit on anyone else's payroll records. Hence, there was no
determination whether other employees had accidentally been paid
overtime to which they were not entitled. The hearing officer concluded
that the record "failed to provide any basis for disciplining the
appellant" for one date, and that it was "highly plausible
that the appellant may not have realized that he was overpaid" on
the other date.
Ironically, at the time
Biel was being investigated, a detective had been assigned to determine
the efficacy of the payroll system. To do so, the detective conducted a
two week audit of the entire department's payroll system and reviewed
over 400 employees' payroll files. Incredibly, the detective found a 25
percent error rate. Although pay adjustments were needed for numerous
employees, only Biel was investigated and disciplined. The hearing
officer also determined that there was "an inconsistency in the
manner in which overtime has been monitored" and concluded that the
"absence of any discipline in those [other] cases was a patent
unreasonable disparity in comparison to the appellant's [Biel's] 40-hour
suspension".
Finally, the department
sought to discipline Biel for writing 3 hours on an overtime slip when
he meant to write 1.5 hours. Biel admitted the error, but said it was
unintentional. The department asserted otherwise. The hearing officer
agreed with Biel and concluded that it was an "unintentional
error" that constituted a "minor level of inefficiency"
for which Biel should receive a "written warning for
inefficiency".
The hearing officer's
decision was taken to the personnel board. The department did not
dispute the hearing officer's findings. Yet, the department now sought
to have Biel receive a 24-hour suspension rather than the original
40-hour suspension. The personnel board sustained the hearing officer's
findings, ordering only a written warning as discipline.
Epilogue: During the Biel
hearing, the supervisor was promoted. Biel received a written reprimand
for negligence, not inefficiency as ordered by the hearing officer.
Further, although two supervisors and the chief all acknowledged that if
Biel was given approval, it was appropriate for him to submit the
request, the department still refuses to pay Biel for his attendance at
the award’s ceremony.
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