JUSTICE DELAYED IS JUSTICE
SERVED
By: Michael D. Lackie
PORAC Panel Attorney
Garden Grove Police
Officer Patrick Ryan’s fight to overturn his termination became one of
the most unusual and lengthy administrative appeals in recent history.
Ryan, a master officer in this Orange County Police Department, survived
two police chiefs, two hearing officers, two administrative appeal
hearings and nearly four years of battle with Garden Grove, to
eventually win back his job. The road was long and arduous, but Ryan
prevailed in the end. Ryan was represented by Michael D. Lackie of
Lackie & Dammeier.
Ryan’s journey began in
November 1996, when he observed another officer (who is no longer with
the department) threaten an arrestee in an inappropriate manner. As a
master officer and nine-year department veteran, Ryan admonished the
officer that his actions were misconduct under department rules and
could be viewed as criminal conduct.
At the time of this
incident, it was very common for senior officers to verbally counsel
other officers and to take remedial action, such as training, to insure
that future conduct conform with department rules. In 1996, it was also
prevalent for officers in Garden Grove (as well as many other police
departments in this country) to use peer pressure as a behavior
modification tool rather than reporting every incident of potential
misconduct to management. It is unlikely Ryan would have survived the
peer pressure had he reported his fellow officer rather than handle it
in the manner that he did.
Ryan had a supervisor who
did not like him. Ryan knew that this sergeant would have a field day
with any bad news regarding him, including his failure to report another
officer’s misconduct.
As it turned out, the
officer whose misconduct started this saga was involved four months
later in another arrest that was marginal at best. Word soon leaked out
that Ryan was present during the earlier incident. Of course, Ryan’s
"favorite sergeant" was initially assigned to investigate,
even though the sergeant was not Ryan’s supervisor. Ducking for cover,
Ryan told his immediate supervisor of the November 1996 incident and
prepared a memorandum outlining the other officer’s actions and what
Ryan did in response.
Ryan’s discussion of
the incident with his immediate supervisor and writing a memo upset the
investigating sergeant because he thought he told Ryan not to discuss it
with anyone else and viewed it as an act of defiance. On March 28, 1997,
the investigating sergeant called Ryan into his office and began yelling
at him. Finger-pointing and harsh words were exchanged. The arrival of
another sergeant calmed things down. However, Ryan chose to file an
internal complaint against the investigating sergeant for his conduct
while attempting to question Ryan. Ryan thought his rights had been
violated (which they had) and believed the investigating sergeant was on
a vendetta against Ryan.
Approximately three
months later Ryan discovered that the Internal Affairs division gave the
investigating sergeant a copy of Ryan’s internal complaint without
having given Ryan a copy of the sergeant’s response. Ryan was then
accused of finding his complaint memo in the investigating sergeant’s
briefcase, claiming that Ryan searched the sergeant’s briefcase
without his permission.
Eventually, Ryan was
interviewed by internal affairs concerning the November 1996 arrest, the
memo to and conversation with his immediate supervisor, his
confrontation with the investigating sergeant and the alleged search of
that sergeant’s briefcase. In August 1997, Ryan was charged with
failing to report the November 1996 misconduct of another officer. That
allegation alone would have made sense because Ryan probably should have
at least mentioned the incident to his supervisor. However, the Garden
Grove Police Department, under then-Chief Stan Knee, charged Ryan with a
multitude of transgressions relating to Ryan’s interaction with the
investigating sergeant (the sergeant who hates him). Ryan was accused of
insubordination for disobeying that sergeant’s order not to discuss
the case with anyone, because Ryan informed his immediate supervisor of
the investigation and wrote a memo concerning the November 1996 arrest.
He was also charged with rude and discourteous treatment of a superior
officer on the basis that it was Ryan’s fault that the sergeant
engaged Ryan in a heated discussion and interrogation. Ryan was also
charged with violating the Constitution because he conducted an
"illegal search and seizure" of the investigating sergeant’s
briefcase. The department concluded this was an invasion of that
sergeant’s privacy, because Ryan did not have permission to be in the
briefcase. Lastly, the department charged Ryan with dishonesty because
the investigating sergeant and internal affairs chose not to agree with
Ryan’s version of the foregoing events. Ryan’s discipline was
termination.
In Garden Grove,
disciplinary appeal hearings are heard by an arbitrator, whose decision
is final, except as to procedural errors, which are reviewed and decided
by the city council and the city manager. A hearing before long-time
arbitrator, Leo Weiss, began on February 25, 1998, and concluded on the
fourth day of hearing on September 11, 1998. Although continuances were
granted because of witness unavailability, illness of participants, and
an attempt at mediation, the primary reason for taking so long was the
illness of Weiss. That illness prevented him from preparing his
decision, which was due December 1998. Weiss passed away before he could
write his decision.
Although Weiss’ passing
was sad and unfortunate, it left Ryan in the position of choosing
between submitting the transcripts from the hearing to a new arbitrator
for review and decision, or starting a new hearing from the beginning
with a new hearing officer. The city’s attorneys, naturally, wanted to
submit the case to a new hearing officer, who would make his decision
based on the transcripts without further testimony and evidence.
However, those transcripts revealed that Weiss was in ill health and
having a difficult time in conducting the proceedings. In addition, many
significant events had occurred which could change the course of the
hearing. Chief Knee retired and Ryan’s nemesis, the investigating
sergeant, also retired.
Under the circumstances,
Ryan chose to begin another hearing. An experienced arbitrator was
selected by the parties and the hearing went forward in September 1999,
lasting three days. Understandably, Knee and the retired sergeant did
not want to attend the hearing — and they did not show up. The city
attempted to introduce the transcripts of the sergeant’s prior
testimony. We persuasively argued against the use of any transcripts
from the prior hearing unless the city could prove its missing witnesses
were truly unavailable. Not being able to prove that mere retirement
makes one unavailable, the transcripts were not admitted.
During the hearing, the
city argued that Ryan had a mandatory obligation to report any and all
misconduct of other officers, especially the misconduct he witnessed in
November 1996, which, in fact resulted in that other officer’s
departure from law enforcement. However, the city went beyond the norm
and argued that Ryan should not be a peace officer anymore anywhere,
merely because he waited four months to make his report.
The city tried to
convince the hearing officer that Ryan should not have discussed the
incident with his immediate supervisor, and should not have written a
memo detailing what he observed during the arrest in November 1996, even
though his supervisor had a right to know, and such information was
going to be elicited from Ryan during the later internal affairs
investigation. Oddly, the department was effectively claiming that Ryan
told someone what happened too soon. Of course, a lot of management’s
problem was that they did not like Ryan’s version of the November 1996
arrest, and were annoyed that he told someone outside of internal
affairs the truth of what happened before the department could assemble
a case establishing its contrary version of the events. The department
also considered Ryan’s actions in speaking with his supervisor and
writing the memo a form of insubordination, because the investigating
sergeant allegedly told him not to speak to anyone about the
investigation. The department was unable to establish that such an order
was given, nor could they convince the hearing officer that Ryan’s
actions in this regard were inappropriate.
The department then moved
to attack Ryan over his encounters with the investigating sergeant. The
department claimed that Ryan was rude and insubordinate to that sergeant
for refusing to answer questions until he was advised of his POBR
rights. Even though the investigating sergeant started the argument and
was yelling at Ryan, the department believed Ryan’s duty was to sit
still and take it, and answer questions even though his rights were
being violated. Ryan was never informed that he was being interrogated
and the sergeant refused to acknowledge that AB301 applied.
We argued on behalf of
Ryan that the incident was caused by a supervisor with a well-known
dislike and disregard of Ryan, and that he was someone who should never
have been assigned to interview Ryan under any circumstances. Moreover,
the sergeant chose to violate Ryan’s POBR rights, doing so in a loud
and arrogant tone of voice and while angrily pointing his finger in Ryan’s
face. Any rudeness on Ryan’s part had to be excused and the entire
issue dismissed because of the rights violations.
The hearing officer
agreed. He called the city’s evidence concerning the order not to
speak to others purely speculative. The hearing officer concluded that
the testimony of Ryan and the city’s witnesses were consistent with
Ryan’s description of the sergeant’s conduct during the meeting.
Given the sergeant’s aggressive and provocative conduct towards Ryan,
his response was neither disrespectful nor discourteous. The hearing
officer wrote, "indeed, it was arguably restrained in view of the
circumstances." The hearing officer concluded that "peace
officers have a statutory right to be advised if they are being
investigated." The hearing officer dismissed the allegations of
insubordination and rudeness.
The department then
attempted to prove that Ryan unlawfully entered the sergeant’s
briefcase to search it for evidence against the investigating sergeant.
The department put on a number of witnesses claiming to have heard Ryan
say that he searched the sergeant’s briefcase. The department alleged
numerous constitutional and statutory violations in this regard.
Ryan countered that he
opened the unidentified briefcase, laying in the middle of the sergeant’s
office to determine its owner. Finding his own confidential internal
affairs’ memo in that sergeant’s briefcase would cause anyone to
pause for a moment. Ryan immediately reported to neutral witnesses what
he had observed and tried to bring the issue to the forefront. Instead,
the department turned the tables and accused him of an illegal search
and seizure rather than admitting that the sergeant had no business
possessing a copy of Ryan’s memo. The hearing officer found no
evidence of wrongful motive by Ryan opening an unidentified briefcase
and finding this memo. His prompt reporting of this breach of internal
affairs’ rules was justified. This allegation was dismissed.
The department charged
Ryan with dishonesty because he allegedly lied to internal affairs
investigators when questioned about all of the events which subsequently
lead to his termination. Essentially, the department simply did not like
Ryan’s story and, because it did not line up with its version of the
events, he had to be dishonest.
Again, the hearing
officer found no credible evidence in the record that Ryan was
intentionally dishonest in any of the circumstances cited by the city.
Instead, the hearing officer concluded that Ryan "truthfully and
accurately explained the situation as he understood it" to his
immediate supervisor, as well as the internal affairs investigators.
The hearing officer
ultimately concluded that the city was unable to prove its case except
as to Ryan’s failure to promptly report the serious misconduct of
another officer. Under the totality of the circumstances, the hearing
officer concluded that a 30-day suspension was warranted. The hearing
officer’s decision and award, which included reinstatement as a master
officer and payment of all back wages and benefits less the 30-day
suspension, was made December 31, 1999. Ryan had a wonderful New Year’s
present.
Normally stories such as
these would end here with the usual celebration. However, the City of
Garden Grove wasn’t through. Although Ryan was reinstated as a master
officer (a promoted position) and reassigned to patrol on January 29,
2000, the city chose not to pay Ryan nearly 24 months of back wages and
benefits. Instead, the city wanted to blame Ryan and his attorneys for
the 2 ½ year "delay" in bringing his case to a decision.
Essentially the city wanted to make Ryan pay for the first hearing
officer’s illness and death, Ryan’s own brief illness, which caused
the continuance of one day of hearing, his refusal to submit the
uncompleted first hearing to another arbitrator for decision, and for
generally taking too long to get things going. Of course, the city had
no law to back its play and, instead, argued that it was
"unfair" to charge the city with payment of back wages when
the termination could have been resolved years ago.
Finally, the city
believed that Ryan had an affirmative duty to find work flipping
hamburgers, or as a private investigator, to earn wages so that the city
could take credit for that income against the back wage order.
A hearing was set before
the hearing officer to resolve the back pay issues raised by the city.
We argued that Ryan was trained and skilled in being a peace officer,
and nothing else. The reason he could not find alternative employment
was because the city had terminated him. Since he had no reportable
income and could find no employment as a peace officer, the city could
not reduce the back wage award on the "mitigation of damages"
theory.
We also argued that Weiss’
illness and the other reasons for the continuances during the first
hearing were not Ryan’s fault. The delay was of no harm to the city
since the hearing officer concluded the city had no right to terminate
Ryan in the first place.
Moreover, the city cannot
hold Ryan hostage because he and his attorneys decided that they wanted
a new hearing. The death of Weiss, as unfortunate as it was, made all
dates of hearing to that point meaningless. Ryan had a right to have a
decision by a hearing officer who observed and listened to the
witnesses, and would make credibility determinations. As it turned out,
Ryan made the correct decision in going to another hearing officer,
since that hearing officer’s decision was based in large part on the
credibility of Ryan and his witnesses. In any event, there is no legal
precedent suggesting that the length of time between the first and
second hearings has to be shared as a reduction in back wages by the
officer and department.
The hearing officer agreed. After several
hours of discussion, an agreement was reached between the city and Ryan
providing for immediate payment of back wages and benefits
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