HEARING OFFICER REINSTATES
25 YEAR VETERAN DEPUTY; CIVIL SERVICE BOARD AGREES-DEPARTMENT VOWS TO
FIGHT ON
By Bob Krause
Law Office of Castle & Krause, Temecula
Notwithstanding an award
reinstating 25-year veteran Deputy Sheriff Manuel "Ray"
Carrasco and a rejection of the department’s appeal to the full Civil
Service Board to overturn the hearing officer, the San Bernardino County
Sheriff’s office has vowed to fight on. Of course, taking
responsibility for their part in this matter (ever hear that one out
there, you in the rank and file?) does not appear to be an option.
Therefore, the department is seeking a writ in Superior Court to
overturn the decision. The LDF has authorized our office to challenge
this writ.
Background: The incident
prompting this termination occurred on April 19, 2000, following an
all-day narcotics surveillance action. Deputy [A] and Carrasco exchanged
unprofessional comments over the radio towards the end of the shift. At
the end of the shift, all of the deputies reported to a parking lot
adjacent to a McDonalds for debriefing. While waiting for the sergeant
who was to conduct the debriefing to finish a telephone call, several of
the deputies were standing around talking near Deputy [B]’s vehicle.
Carrasco was one of the last to arrive. He parked his car some distance
away from the other cars and walked toward the group. He approached
Deputy [A] from behind and tapped him on the shoulder or arm to get his
attention and asked [A] something like, "Do you have something to
say to my face?" [A] moved his other arm and removed Carrasco’s
hand from his arm as he [A] was turning around. [A] ended with something
like, "Ya, I have something to say." As [A] was turning around
to face Carrasco, Carrasco’s flat, open hand made contact with [A’s]
cheek and chin. The whole incident reportedly occurred in 2-to-5
seconds. An Internal Affairs investigation was initiated and Carrasco
was ultimately terminated.
The Appeal and Hearing:
In spite of my vigorous attempts to convince the department at the
Deputy Chief’s Board and Skelly hearing that this was a
"low level" incident requiring minimal (if any) discipline to
both Carrasco and Deputy [A]. Only Carrasco was terminated. Indeed, only
Carrasco received any form of discipline whatsoever. The steadfast and
unwavering position of the department to terminate Carrasco necessitated
an appeal to the Civil Service Commission through the services of a
neutral hearing officer.
The hearing was held over
a three-day period in late 2001 after numerous unavoidable delays.
Hearing officer Judy A. Gust was selected. Sixteen or more witnesses
were called and dozens of exhibits were entered into the record
principally on behalf of Carrasco.
The hearing officer in
her decision, which will be cited further below, best summed up this
case when she wrote, "Consequently, it appears that this April 19,
2000 incident was seized upon as a way to get rid of a loyal and
dedicated employee who has high standards, productivity and performance
and who also exhibits some impatience when trying to get others to meet
the high standards he sets for himself. The accuracy and sufficiency of
the facts simply do not support the act of termination of
employment."
Gust was able to come to
such a conclusion because of the tone and tenor of the case the
department brought. The problem the department had with its case is that
we were able to rebut virtually every point proposed by the department.
Most troublesome was the department’s vehement position that this
"striking" of another employee by a peer was simply
intolerable. The department’s own rebuttal witness, Lt. (now captain)
Richard Beemer, testified that there were two other cases (1991 and
1993) were physical altercations resulted in termination. On
cross-examination however, he had to testify about two recent cases
where physical contact was made and the principles were not terminated.
Gust commented "It is clear from the record and the testimony that
the department does not have a ‘zero-tolerance’ policy . . . ."
Gust was then left with
the issue of inappropriate statements made over the radio by Carrasco
and Deputy [A]. She stated, "Being unable to sustain the respondent’s
charge that Carrasco intentionally struck [A], the one remaining issue
that was charged against Carrasco concerns the verbal exchange over the
radio between [A] and Carrasco. Carrasco admitted he told [A], ‘If you
get your head out of your ass, you’d know’ in response to a similar
statement made by [A]. Because the accuracy of whether or not [A] used
the word ‘ass’ first is not at issue here. The admission by Carrasco
using that language over the radio sustains a charge of discourteous
treatment of a fellow officer. However, again, the appropriateness of
the penalty must be reviewed."
Thereafter Gust, in a
very thorough and well-reasoned decision stated that "the appellant’s
representative (Krause) argued that the severity of this penalty, under
the totality of the circumstances, ‘shocks the conscience’ and ‘reaches
too far’. This hearing officer would agree. Carrasco’s recent
performance evaluations are compelling as to the overreaching of this
discipline, although there is one area of concern relating to how
effectively or not Carrasco shares his vast knowledge and experience
with others. This deficiency is noted only in the comments section on
areas for development. Nowhere in the performance factors themselves is
he ever marked below job standards or unsatisfactory. Rather, his many
"exceeds job standards" rating far exceed even the "meet
standard" ratings and the comments on his exemplary performance
track accordingly. In 1996, 1997 and 1998, Carrasco rated 7 or 8 out of
a possible 9 on judgment and stability (as well as others) with
stability being defined as "is emotionally well-balanced shows good
self-control and poise and can be relied upon to perform under
pressure." It was then that Gust made her most telling of
statements, referencing seizure upon this April 19, 2000 incident to
simply get rid of Ray Carrasco. It didn’t work.
The Decision:
In her findings of fact, Gust states, "As to the first charge, ‘discourteous
treatment of the public or other employees’, it is found that Carrasco
did treat Deputy [A] discourteously when he responded in kind to an
offensive remark made by Deputy [A] over the radio."
"Regarding the
second charge, there is no evidence presented that Carrasco neglected
his duties on April 19, 2000 or at any other time." Gust went on to
point out that the third and fourth charges cited against Carrasco were
pile-ons and duplicative charges. She summarily treated them as such.
Gust concludes, "As noted above, the preponderance of the evidence
supports only a finding of discourteous treatment of a co-worker in
violation of department rule I-215.40. The evidence was insufficient to
find that Carrasco intentionally struck Deputy [A] on April 19, 2000, or
that his behavior under the circumstances was excessive, unwarranted, or
unjustified, or that it brought discredit to the department. That he
spoke disrespectfully to a fellow officer is the only charge that can be
sustained".
Conclusion:
It is the conclusion of this hearing officer that the termination of
Carrasco was unwarranted and not supported by either the accuracy or
sufficiency of the evidence.
The Department’s First
Appeal Fails: Not at all happy
with Gust’s decision, the sheriff’s department appealed to the full
Civil Service Commission for a new hearing. Actually, they first sought
to have the commission review De-Novo the transcripts and overturn the
hearing officer. It turns out the commission cannot do this under local
rules. The commission did read the record, and both sides had to brief
their positions and argue before the commission for or against a new
hearing. In a four-to-one vote, the commission denied the department’s
appeal, commenting favorably on the well-reasoned decision of Gust. The
order became final subject only to C.C.P. §1094.5 judicial review.
Some observations:
Way back during the administrative process and particularly during the Skelly
level hearings, I had argued, and Ray Carrasco had agreed, that some
discipline for the use of the words over the radio was probably
warranted and that he would be willing to accept reasonable discipline.
Ironically enough, and without any access to this evidence, the hearing
officer imposed a reasonable discipline of a five-day suspension,
overturning the termination and ordering full back pay and benefits to
Ray Carrasco. The moral of the story; we are right where we started,
only now we have to convince a judge as well.
About the Author:
Bob Krause is a former (now retired) sergeant with the Oceanside
Police Department where he served many years as president and negotiator
with the OPOA. While with OPD he worked in patrol, traffic,
vice-narcotics and violent crimes (homicide) assignments. As a sergeant
and detective-sergeant he supervised patrol, violent crimes (homicide)
and special operation units. Krause is a partner in the Law Office of
Castle & Krause, Temecula, CA, and has been representing the
interest of public safety officers for the past 17 years throughout
southern California.
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