SANTA MONICA OFFICER WINS
ANOTHER ROUND
By Ken Yuwiler
Silver, Hadden & Silver
As our diligent readers
will recall, in an earlier issue we chronicled the saga of Santa Monica
Police Officer John Biel, who was successful in having a hearing officer
overturn a 40-hour suspension. In that matter, Biel was suspended when
he sought overtime after receiving approval by an immediate supervisor,
only to have that supervisor deny that approval was given. Upon appeal,
the hearing officer found that there was highly credible evidence that
Biel was given approval. The ink had barely dried on the decision when
the department instituted new proceedings to terminate Biel's
employment. The proposed termination was based on the claim that Biel
was guilty of dishonesty and other unbecoming conduct stemming from his
testimony on a traffic court matter. After a Skelly hearing,
however, all of the charges against Biel were dismissed.
The Testimony: While testifying
in traffic court, Biel was asked by the violator whether Biel was
"investigated by internal affairs about the way you cite the
residents of this city and the ethical way you do it". Knowing that
he was not investigated by internal affairs about the way he cited the
city's residents and that internal affairs only investigated alleged
unethical behavior, Biel answered "no". The next question was:
"Internal investigations has never conducted an investigation on
you, is that correct in the last month or two"? Knowing that he had
not been involved in an internal affairs investigation in the "last
month or two", Biel answered "that's correct. No."
Biel, a 12-year employee
of the department, knew that all internal affairs investigations in
Santa Monica were handled by the Internal Affairs Unit. Additionally,
about a year before his testimony, Biel had been investigated (and later
received a disposition of "unfounded") in regard to a
citizen's claim that Biel was in a different police vehicle and at a
separate location than the vehicle and officer who issued that citizen a
citation. To avoid possible complaints about whether Biel was the
officer writing a citizen a citation, and without regard to officer
safety, a supervisor recommended that Biel should make some contact with
the violator, even if the contact was only visual through a window,
rather than have his reserve officer make the citizen contacts.
A lieutenant reviewing
Biel's new personnel complaint concluded that because Biel was
previously told to make contact with the violator, Biel must have lied
in court when he testified that he was not "investigated by
internal affairs about the way you cite the residents of this city and
the ethical way you do it". In order to support his erroneous
conclusion, the lieutenant felt compelled to contort the facts. He began
by asserting that the supervisor's training instructions to Biel
constituted an "investigation" that "should be considered
an internal investigation because it was conducted by a
supervisor". Obviously, that twisted logic would mean that any
training conducted by a supervisor would be considered an "internal
investigation". The supervisor next claimed that the previous
investigation constituted an investigation regarding the manner in which
Biel cited residents of the city, even though such was not the subject
of the inquiry. Finally, the lieutenant ignored the actual questions
posed to Biel, as to whether he was investigated by "internal
affairs" and whether the investigation was "about the way you
cite residents of this city", neither of which was the case.
The lieutenant admitted
that Biel's answer was "correct", yet his analysis concluded
that a correct answer would not comply with Santa Monica's Mission,
Vision and Value statement! The lieutenant contended that even though
Biel gave the "correct answer" he was somehow deceptive by not
volunteering additional information. This conclusion ignores the fact
that every officer is routinely trained to give testimony only in
response to the exact question asked and to otherwise volunteer nothing.
It is ludicrous to contemplate a departmental order requiring officers
to attempt to give narrative answers to every question for fear that
they might be terminated for not being forthcoming with enough
information. Judges, of course, refuse to allow witnesses to answer
their own questions or to deliver narratives at will.
Although the lieutenant
claimed Biel lied and was deceptive, he said that the allegation for
perjury should be classified as "not sustained" and
recommended a suspension for giving a false statement. Chief James
Butts, Jr., initially recommended termination claiming that "it is
clear to me that these responses, while not legally falling under the
definition of perjury, were not complete and honest".
The Conduct Unbecoming: In a vain
attempt to bootstrap its vacuous assertions of dishonesty, the
department next claimed that Biel failed to comply with the supervisor's
prior instructions to make contact with the traffic violator, rather
than let his reserve officer do so. Even though police departments
routinely use one radar officer to observe the violation and have
another cite the citizen, or have an air unit use a ground unit to write
the citation, the department claimed that Biel did not contact the
violator and that his failure to do so "gave the impression of
impropriety and manipulation of the court justice system" and
"brought a perception of deception and conduct unbecoming by you,
your fellow law enforcement officers, and the Santa Monica Police
Department".
To arrive at this
tortured and bizarre conclusion, the department had to work hard to
ignore the simple facts screaming from the pages of its own
investigation. There was no impropriety or perception of wrongdoing
because the citizen, contrary to the department's assertions, confirmed
that she saw Biel writing the ticket and believed Biel signed the
ticket. Moreover, Biel's new supervisor had superseded the prior
requirement of contacting the violator based on his own assessment of
important officer safety considerations.
The Skelly Hearing: I
emphatically dismembered the allegations against Biel at the Skelly
hearing. There appeared no reason for the charges whatsoever, but for
retaliation against Biel for the prior exercise of his lawful rights in
pursuing his appeal and other matters. Butts took the matter under
consideration and issued a written decision about a week later.
If there was any question
about the department's animus towards Biel, Butts' final Notice of
Disposition removed all doubt. Forced to find that all of the charges
were either unfounded or not sustained, Butts could still not bring
himself to acknowledge the obvious, namely that Biel was truthful and
that the complaint had absolutely no merit. Instead, Butts claimed that
his about face was "in large part due to technical semantic
constructions" although he professed to believe that Biel's
"pattern of actions reflected poorly on yourself, your fellow
officers, on the Santa Monica Police Department, and the entire law
enforcement profession". Rather than ridicule the department
managers who developed a vicious but toothless disciplinary action,
Butts also wrote that the manner in which Biel issued citations caused
"citizens to be left with a perception of deception and
impropriety", notwithstanding the fact that Biel's own supervisor
approved Biel's procedure and that other officers in the department, who
were not investigated, utilized the same procedure. In an amazing
display of audacity, Butts, who was noted in our last story to have
refused to investigate a lie perpetrated about Biel by one of Biel's
prior supervisors and who shortly thereafter promoted that supervisor,
preached in the Notice of Disposition to Biel that "integrity is
the cornerstone of the law enforcement profession". Perhaps the
management of the Santa Monica Police Department should be reminded that
the best way to promote integrity is to practice it.
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