RETIRED JUDGE RECOMMENDS
EXONERATION OF FIRED IRVINE SERGEANT
After an 11-day hearing
and a lengthy briefing process, retired Superior Court Judge Richard J.
Beacom has recommended to Irvine city manager Allison Hart that
terminated police Sergeant Brian Clifton be reinstated without
discipline. Bill Hadden, of Silver, Hadden & Silver, represented
Clifton was represented at all stages of the proceedings.
The police department had
fired Clifton in October 1999, based on a laundry list of 84 charges,
the most serious involving allegations of falsification of overtime,
accepting pay for hours not worked, and making dishonest statements in
the internal affairs investigation. Clifton, a nine-year sergeant and
23-year law enforcement veteran who had received excellent performance
evaluations and no prior discipline, just happened to be the president
of the Irvine Police Officers’ Association.
As soon as he assumed the
presidency of the IPOA in 1996, Clifton became a relentless and
formidable spokesman for association issues, some that resonated to the
very wallets of management personnel. For instance, Clifton complained
to the chief, as well as management, about a certain lieutenant, who in
his off-duty business employed department members above, equal to and
below his rank. He complained when the same lieutenant was being
evaluated for promotion by a commander who was employed by the
lieutenant off duty. He complained when that same commander sought to
refer department legal business to a law firm that employed the
commander’s own wife, a firm that also employed another lieutenant at
the police department. He complained when the same commander was
continuously noticed to be working out in the city gym for almost two
hours per day. By the latter part of 1998, according to the unrebutted
testimony of several witnesses, management personnel was openly and
continually berating Clifton, stating that he was "out of
control" as association president and that "he better watch
his step." The chief of police (who has since retired) called the
association board the "most dysfunctional" he had ever seen,
and openly ridiculed board members for their political endorsements.
In November 1998, almost
1 ½ years after Clifton took over the special enforcement team of the
police department, a member complained about certain practices of the
unit. Even though the main issue complained of had been resolved over a
year before, the department feverishly embarked on a "management
audit" of Clifton’s unit, which was quickly scrapped in favor of
a formal internal affairs investigation in which Clifton was made the
premier target. In January 1999, without any reasonable cause, Clifton’s
briefcase was searched (which produced absolutely nothing), after which
he was sent home on administrative leave.
The Clifton investigation
was handled like no other in the history of the department. The
department’s internal affairs lieutenant was removed from the process
altogether, as management deemed him a "friend" of Clifton.
While otherwise trumpeting his own concern for "fairness," the
chief shamelessly delivered the investigation task to Clifton’s most
rabid detractors. The commander about whom Clifton complained headed the
investigation for three months. The lieutenant who employed him –
before becoming a commander himself – assisted in the direction of the
investigations, before taking it over altogether for the investigator’s
final months. Like the chief, the two commanders were particularly
vehement in their denunciations of Clifton’s police association
activities. Other major participants in the investigation included a
lieutenant who was quoted as having said, "I hate Brian
Clifton," and a sergeant who unsuccessfully competed for Clifton’s
position as head of the SET, bitterly maintaining that he had been
better qualified than Clifton. Overseeing it all was an attorney from
the same law firm that was the object of Clifton’s complaints.
In February 1999, a month
before Clifton was interviewed in the internal affairs process, the
commander initially in charge of the investigation proclaimed, according
to testimony, that "the facts are in, and Clifton will be
fired." It was thus hardly any surprise that the investigators
emerged from their months-long witch-hunt with a voluminous charge
letter sated with real and imagined minutiae alleged to have occurred
over the previous 21 months, together with a demand for Clifton’s
termination. The chief later fired Clifton although, as he later
testified, he read virtually none of the investigative materials.
Judge Beacom emphatically
rejected all assertions that Clifton had been dishonest in any way. The
evidence, he said, "showed that the department practices allowed
appellant to retain banks of ‘memory bank time’ and ‘flex time’
that were not required to be exhausted at any particular time, and that
appellant actually worked far more hours of overtime than that for which
he was ever compensated." Judge Beacom additionally found that the
department’s allegations that Clifton was late for duty and did not
work full shifts were completely unsupportable. The judge noted that
Clifton’s own supervising lieutenant testified that Clifton had no
specific starting time and that, therefore, he could not be considered
late under any circumstances. Moreover, Clifton was given, according to
the standard procedures of the unit, tremendous flexibility in the
manner in which he recorded his time, and any short workday could be
duly compensated for on another day. The evidence, Judge Beacom also
found, showed that Clifton worked numerous hours for which he was never
compensated, and that the city was never shorted for any of his work
hours.
In regard to the six
seemingly contrived allegations that Clifton made untruthful statements
during the internal affairs investigation, Judge Beacom wrote, "The
department failed to prove that any of the responses by appellant were
knowingly false at the time that he gave them, or even that they were
false at all."
The judge summarily
dismissed the seemingly interminable list of trivialities with which the
department filed its charge letter stating, "While there were
certainly many issues raised in relation to Sergeant Clifton’s
supervision of the unit, many of them were petty, and virtually none of
them were brought to his attention in a timely manner so as to make him
appear as a recalcitrant or non-correctable employee. To the contrary,
Sergeant Clifton apparently showed himself to be a more than competent
supervisor for nine years before this disciplinary action was
initiated."
Judge Beacom’s decision
left no doubt that he felt that Clifton was fired for the exercise of
his association activities.
"Given the clear and
unrebutted trail of testimony showing that management was tremendously
dissatisfied with Sergeant Clifton’s police association activities,
and in light of the numerous instances cited in which other employees
were treated differently than Sergeant Clifton, it is apparent that but
for those activities Sergeant Clifton would not have received the
discipline imposed…The department’s counsel was severely handicapped
in meeting the burden of proof in most instances by two factors; one,
the flawed procedures under which the department operates, and two, the
obvious animosity of departmental management toward the appellant."
Judge Beacom concluded
that there was no cause to fire or demote Clifton, and that any errors
attributable to him "should be appropriately remedied by counseling
and/or training."
The judge’s
recommendation will be reviewed by the city manager, who has the final
authority to act on Clifton’s appeal pursuant to the Memorandum of
Understanding between the city and the IPOA. We will keep you posted on
any future developments.
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