HUNTINGTON BEACH
DETENTION OFFICER ORDERED REINSTATED, 80 HOUR SUSPENSION REDUCED TO 10
HOURS
Arbitrator Louis M. Zigman reduced a Huntington Beach detention
officer's 80 hour suspension to 10 hours and recommended reinstatement
to the Reserve Officer program. At the hearing the officer was
represented by Gregory Petersen of the Petersen Law Firm, Costa Mesa,
California.
The Appellant was employed as a Detention Officer at the Huntington
Beach City Jail beginning in July, 1989. He was also employed as a
Reserve Officer for the Huntington Beach Police Department. As a Police
Reserve Officer, Appellant was required to qualify with his service
revolver on a monthly basis. Furthermore, the Huntington Beach Police
Department requires that all police officers, including reserves,
maintain all equipment, including service weapons, in a clean and
polished manner.
On September 7, 1993, the Appellant was working the night shift at
the Huntington Beach City Jail. At that time, he decided to take his
weapon and leather gear home to clean. During his lunch break, Appellant
retrieved his weapon and leather gear from his reserve officer's locker.
Appellant had parked his own vehicle on a residential street adjacent
to the jail facility, and did not want to walk through the neighborhood
with a gun. To avoid that situation he placed the gun in a vehicle used
by the Huntington Beach Jail for jail business. He intended to drive
that vehicle to his own to transfer the gun and gear. However, at that
time, a number of arrestees were brought to the station for various
offenses based on Labor Day weekend revelry. Appellant, seeing the crush
at the intake of the jail, returned to his post to assist his fellow
jailers, leaving the weapon in the vehicle. The jail activity remained
at a high level until the end of Appellant's shift, causing him to
forget the weapon.
The next day, the weapon was discovered in the jail vehicle by a
fellow city employee. The weapon was turned into the department.
Upon his return to work the following evening, Appellant was
illegally called in by a sergeant for questioning regarding the weapon.
Appellant tried to explain the scenario involving the inadvertent
leaving of his weapon in the jail vehicle. For a long period afterwards,
Appellant heard nothing from the Department on this mater.
Coincidentally, prior to November 2, 1993, Appellant had filed a
grievance against the Department for having been denied
promotion/employment as a police officer. On November 2, 1993, a hearing
was held on that grievance. The same sergeant who made the initial
complaint against Appellant relative to the gun and who performed the
investigation was present at that grievance.
Additionally, Appellant testified that, whereas his employee
evaluations as both a jailer and reserve officer were satisfactory or
above prior to the grievance for failure to hire, the evaluations now
turned negative.
The very next day after Appellant's grievance hearing on the failure
to promote, he was accused of misconduct for allegedly violating various
sections of the Huntington Beach Police Department Manual. The
activities came after the matter had sat dormant for nearly two months,
but immediately after Appellant's initial grievance hearing.
On November 6, 1993, Appellant was again interviewed by the same
sergeant who initially spoke to him the day the weapon was discovered.
On November 10, 1993, the allegations against Appellant were changed.
One allegation was dropped. The Department now alleged that Appellant
lied to the investigating sergeant concerning the circumstances
surrounding the weapon found in the jail vehicle.
Appellant, on his part, never denied leaving the weapon in the
vehicle. He explained that the occurrence was simply an accident.
Upon completing his investigation, the sergeant wrote a report and
recommended a 50 hour suspension. The investigating sergeant's
recommendations were subsequently reviewed by a lieutenant who increased
the recommendation to an 80 hour suspension and removal from the Reserve
Program.
After hearing testimony from numerous witnesses and reviewing all the
evidence, the arbitrator recommended that the charge of untruthfulness
not be sustained. The arbitrator found many inconsistencies in the
police department's assertions regarding any mis-truths told by
Appellant relative to the leaving of his weapon in the jail vehicle. The
main factor in the arbitrator's decision as to untruthfulness was the
fact that Appellant, at all times, had admitted to leaving the weapon in
the vehicle. Therefore, reasoned the arbitrator, there was no reason for
Appellant to lie regarding the incident. Why, reasoned the arbitrator,
would Appellant lie concerning minor details of the misplacement of the
weapon when he readily admitted to the corups of the act?
The arbitrator further found relevant other factors, including the
length of time it took the department to investigate the incident and
the fact that the investigating sergeant, who was the alleged recipient
of the untrue statements from Appellant, did not initially charge
Appellant with "untruthfulness." This is so in spite of the
fact that the sergeant testified at the arbitration that "he knew
immediately that Appellant was not telling the truth" when he
initially questioned Appellant concerning the weapon left in the jail
vehicle.
The hearing officer also found suspect the timing of the charges,
having been field the day after Appellant's hearing on a previously
filed grievance. This was after the matter laid relatively dormant for
nearly two months.
Further, the hearing officer took note of the fact that it was
Appellant's chief accuser who was selected by the Department to
investigate the allegations. This was a potential conflict of interest.
Based on all of the issues raised by Appellant's defense and the
facts as found by the hearing officer, the hearing officer found that
the Department failed to satisfy its burden of persuasion that Appellant
was culpable of the charge of untruthfulness.
In conclusion, the hearing officer recommended that the disciplinary
action be reduced from an 80 hour suspension and removal from the
Reserve Officer program to a 10 hour disciplinary suspension. The
hearing officer further recommended that the Appellant be compensated
and reimbursed for any loss of wages and benefits for the 70 hours
difference in suspension and, further, that Appellant be reinstated to
the Reserve Officer program.
