POLICE CHIEFS TAKE NOTE:
RETALIATION AGAINST POA REPRESENTATIVES
VIOLATES CONSTITUTIONAL RIGHTS
Chief of Police, Deputy Chief of Police and City Held Liable
for Violating POA President’s Civil Rights
By: Dieter C. Dammeier
LACKIE & DAMMEIER LLP
A Federal Jury has
unanimously ruled that former Alhambra Police Chief Leon Burrus, former
Deputy Police Chief Jeffrey Templeman, and the City of Alhambra,
violated police officer Joe Flannagan’s constitutional rights by
denying him special assignments in retaliation for his making critical
statements against city and police management.
Joe Flannagan, a 23-year
veteran of the Alhambra Police Department, has been on the Alhambra
Police Officers Association Board of Directors for the last 20 years,
including four years as its president. Flannagan also has been on the
PORAC Board of Directors for the past 17 years. He is very outspoken
when it comes to police officer rights and association representation,
both locally in Alhambra and statewide for PORAC.
Flannagan had spearheaded
numerous activities by the Alhambra POA in regard to wage disputes,
peace officer rights violations and other actions taken by city and
police management adverse to police association members. The POA
activity included three picketing events in 1994 against the city over
wages and working conditions, a vote of no confidence in the city
manager in 1994, endorsing of city council candidates running against
incumbents in 1996 and 1998, and obtaining an injunction in 1998 against
Chief Burrus and the city to prevent further violations of the Peace
Officer Bill of Rights. In 1995, Flannagan also initiated a vote to
remove Burrus and Templeman from the association after they refused to
pay a dues increase, complaining that they did not support the APOA’s
political activities.
Although Flannagan has
been outspoken throughout most of his career, the problems of
retaliation did not arise until Burrus became a captain in 1996, and
chief of police in 1997, (despite the APOA, through Flannagan, lobbying
against the appointment. Starting in 1996, Burrus ordered that Flannagan
no longer be used to train other officers. Prior to this, Flannagan had
been the department’s certified instructor in the use of police baton
and other officer safety tactics. In 1997, Burrus removed Flannagan from
his instructor position at the Department’s Citizen Academy. More
significantly, and what ultimately led to the filing of a civil rights
lawsuit, was Flannagan’s denial of assignment to the Detective Bureau
on three consecutive occasions. Flannagan tested for the detective
position in 1997, 1998 and 1999, each time ranking number one in the
testing process, each time being recommended by the detective
supervisors for the position, and each time being denied that position
by Templeman and Burrus.
In August of 1999,
Flannagan, represented by Dieter Dammeier of LACKIE & DAMMEIER LLP,
filed a civil rights lawsuit in Federal District Court, alleging
retaliation for acts of expression and assembly protected by the First
Amendment to the United States Constitution. Due to the time span
involved and the numerous witnesses in the case, Flannagan requested
assistance of the Legal Defense Fund in his case. The Legal Defense Fund
granted coverage for the discovery phase of litigation, enabling us to
depose reluctant department witnesses and develop the evidence required
to go forward to trial in the matter.
At the initial stage of
litigation, we offered a settlement proposal to the defendants,
proposing that the case be dropped if Flannagan would be given the
detective position. True to form in the City of Alhambra, the defendants
refused to do the right thing and save the citizens of Alhambra the
exorbitant cost of defending a civil rights lawsuit.
During the discovery
phase of the litigation both individual defendants, Burrus and Templeman
retired in April, 2000. As expected, without the defendants looming over
department witnesses, witnesses became much more cooperative and
complete in the information they provided. Defendants, wasting more
Alhambra tax payer dollars, made a Motion for Summary Judgment,
requesting the court to dismiss the case, arguing that there was no
direct evidence of retaliation. In response to defendant’s Motion, we
produced evidence to the court of the time frames, the multiple adverse
actions by the defendants and their implausible excuses for those
actions. This convinced the court to proceed with the case and order a
jury trial, which began on July 19, 2000.
At trial, we presented
witnesses establishing that the defendants on numerous occasions
expressed dissatisfaction with Flannagan’s police associations
activities. Documentation was introduced, written by Burrus to Flannagan
in 1995, which read "I don’t share your political beliefs or
agree with the tactics you employ to achieve your political ends."
In a memorandum by Burrus, he described Flannagan as "a wounded dog
snapping at everything that moves." Witnesses testified about the
adverse actions taken by Burrus and Templeman against Flannagan,
including the coordinator of the citizen’s academy where Flannagan was
an instructor. This witness testified that Burrus ordered her to no
longer use Flannagan because he was afraid of what Flannagan might say
to the class that would be critical of police or city management.
Detective bureau supervisors testified about how Flannagan tested for
detective in 1997, 1998 and 1999, ranked number one, and was recommended
by them to Templeman and Burrus. They testified how the chief ultimately
overruled their recommendations, refusing to give Flannagan the
assignment. Even defense witnesses had to admit that Flannagan was a
good officer.
Defendants, in a
desperate attempt to defend themselves, testified that they had
legitimate reasons for taking adverse action against Flannagan. One of
the more entertaining points of the trial was when Burrus, under
cross-examination, was unable to justify Flannagan’s being removed
from the instructor’s positions at the citizen’s academy. Burrus
testified that his "legitimate" reason was because Flannagan
was no longer a detective, and since Flannagan was assigned to be an
instructor in the "investigations" course, he removed him so
that a current detective could teach the course. We pointed out through
documents that Flannagan taught numerous topics in addition to
"investigations". Moreover, I asked Burrus on
cross-examination that since Burrus wanted a current detective teaching
"investigations", then why did he have a sergeant and officer
who were assigned to administrative duties teaching "patrol
procedures". It was obvious that the city’s highly paid defense
team of attorneys did not adequately prepare Burrus for
cross-examination.
Templeman while
testifying, claimed that in the 1999 detective examination, Flannagan
did not in fact rank number one in the testing, but was "tied"
for first. Templeman said he broke the tie giving the position to
another officer. Under cross-examination, setting the trap for Templeman,
I got him to admit that Flannagan was a "close second" in the
1999 selection process. Templeman was then asked why it was then that
the second position that opened up in 1999, which was assigned using the
same testing process and list (where Flannagan was a "close
second") was given to another officer instead of Flannagan? As with
Burrus, Templeman could not justify this action in front of the jury.
After a five-day jury
trial and two days of jury deliberation, the jury unanimously held that
Leon Burrus, Jeffrey Templeman and the City of Alhambra violated Officer
Flannagan’s civil rights by retaliating against him for him exercising
his freedom of speech and expression. In doing so, the jury awarded
Flannagan all of his lost back wages as a result of not receiving the
detective position and not being able to teach at the citizen’s
academy on an overtime basis, totaling an amount of $6,301.00. In an
apparent effort to look decent in front of the jury, Flannagan had
finally received the detective assignment two weeks prior to the trial
commencing (which if the city would have done early on, could have
avoided the expense and embarrassment of a trial). Therefore, an order
by the court to place Flannagan in the detective assignment was not
requested. As in most civil rights cases, a losing defendant is also
required to pay costs and attorney’s fees, an amount which will likely
be over $100,000.00.
Police chiefs throughout
the state should think very carefully before holding a grudge against
association leaders for them representing their members. As was the case
in Alhambra, no matter how sneaky a chief is, it is not difficult to
show motive by a pattern of adverse decisions. Fortunately, the Legal
Defense Fund will be here to continue to protect its members and
association leaders from such retaliation.
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