After over twenty years with the Barstow Police Department and serving as the President of the Barstow Police Officers’ Association (“BPOA”), Officer Ray Warren was terminated from the Department for allegedly secretly tape recording an interrogation by his Sergeant and Lieutenant. Attorney Andrew M. Dawson, represented Warren during the administrative appeal of this matter. The City was represented by Liebert Cassidy Whitmore. The Hearing Officer held that no misconduct occurred, and that the claims by the City’s witnesses were suspect.
On May 8, 2007, the Barstow City Manager supported the recommendations by then Police Chief Gibson to terminate Warren. The Department alleged Warren violated Penal Code Section 632(a) (surreptitious recording of a confidential meeting) when he recorded what he believed to be an interrogation in January of 2007 by Sergeant Keith Libby and Lieutenant Rudy Alcantara. The Department also alleged Warren was dishonest regarding his belief that he was entitled to record the meeting pursuant to his POBR rights, as he believed the meeting was an interrogation could lead to punitive action.
In December of 2006, Warren was involuntarily reassigned to the School Resource Officer (”SRO”) program along with a female officer. The Department attempted to claim the SRO position was a desirable position and was not punitive or retaliatory, even though no officers applied for the position when it was posted. This reassignment coincidentally occurred after Warren assisted the female officer, as the BPOA President, with filing a sexual harassment complaint against Lt. Alcantara.
A dispute arose in January of 2007 when Sgt. Libby allegedly notified Warren on January 5, 2007 that his work schedule was changed due to the new SRO assignment and as a result he was not to work his patrol shift on Sunday, January 7. Warren reported to work on January 7 and informed the sergeant on duty regarding his understanding of the agreed upon work arrangement for January 7 and approval for him to take off the following work day instead of the 7th. Sergeant Libby testified he believed Warren was dishonest to the on-duty supervisor regarding his work schedule, so he drafted a documented oral reprimand alleging dishonesty that was reviewed by Lt. Alcantara and Chief Gibson.
On January 12, 2007, Lt. Alcantara went to a school event and became visibly upset when the female officer was working in place of Warren. Lt. Alcantara was upset when he learned the female officer, who had voluntarily agreed to work the overtime event, was working the special event rather than Warren. The female officer called Warren to warn him regarding Lt. Alcantara and Warren remained on edge waiting to be called in by Lt. Alcantara during the following work week.
On January 16, 2007, Warren and the female officer met with the Human Resources Director to discuss the sexual harassment complaint filed against Lt. Alcantara.
On January 17, 2007, Warren was called out of the field and told Lt. Alcantara wanted to meet with him. No further details of the meeting were disclosed to Warren. Warren anticipated being interrogated by Lt. Alcantara based on the information he received from the female officer and decided to tape record the meeting. Warren entered the meeting with the tape recorder in his hand and held it in his hand throughout the duration of the meeting. Sgt. Libby and Lt. Alcantara were at most approximately five feet away from Warren during the meeting.
During the meeting, Sgt. Libby gave Warren the documented oral counseling and Lt. Alcantara “interrogated” Warren. The Department claimed the meeting was a counseling session since no further discipline was going to ensue other than the documented oral counseling, even though one of the allegations against Warren was dishonesty. By the Department claiming it was a “counseling session” and not an interrogation, the City claimed POBR did not apply. The City conceded he would have been allowed to record the meeting if it was an interrogation.
In testimony from Sgt. Libby and Lt. Alcanatra, their feigned ignorance of Warren’s recording the meeting was suspect. Sgt. Libby claims he did not see the recorder from a mere five feet away throughout the entire meeting. Lt. Alcantara testified, at the hearing, he saw an object that might be computer sticks in Warren’s hands and that he did not have a “conscious” thought that the object was a recorder, however, he did testify that he “wondered” if it was a recorder. Lt. Alcantara, an experienced law enforcement officer, testified he did not know why he failed to ask Warren if the object he was holding was a recorder.
It was not until Warren had left the office that Lt. Alcantara asked Sgt. Libby regarding the recording. Immediately upon leaving the office, Warren went to the Human Resources Department and played the recording to the Human Resources Director, which is inconsistent with someone secretly recording a meeting. Sgt. Libby called Warren back to the Police Department for him and Lt. Alcantara to confront Warren regarding the suspected “secret” recording. When Warren entered the building, the recorder was still in his hand and was in plain view, once again such actions are not consistent with that of a person secretly recording a meeting. Warren was then asked if he recorded the meeting and he admitted he had without any hesitation. The Department immediately initiated a criminal investigation for an alleged violation of Penal Code Section 632(a).The District Attorney of course rejected the case, citing Warren’s right under POBR to record an “interrogation,” however, the Department subsequently terminated Warren for the alleged violation of Penal Code Section 632(a) and for Warren allegedly lying about his belief that he had a right to record, even though his actions evidenced his belief that he had a right to record the meeting.
Lt. Alcantara testified in reference to the recording that he thought it was typical for Warren to act in a “sneaky, underhanded manner.” However, the arbitrator agreed that if Warren truly wanted to secretly record the meeting, why would he not place the recorder in his uniform shirt pocket rather than holding it in his hands. The arbitrator also held that Lt. Alcantara’s and Sgt. Libby’s testimony regarding the recorder “raised numerous questions and the lack of any plausible answers or explanations made their testimony suspect.”
Furthermore, if Warren’s actions would have constituted a felony and Lt. Alcantara thought it could have been a recorder, why did Lt. Alcantara not stop Warren from committing a felony in his presence? As the Arbitrator held, “since Lt. Alcantara acknowledged that he ‘wondered’ if Appellant had a tape recorder, I find it incredulous to believe that a trained law enforcement officer, let alone a supervisor who acknowledged that he thought that Appellant was ‘sneaky’, acting in an ‘underhanded manner’ and had been dishonest would not ask what Appellant had between his legs or what he was holding in his hand.” As such, the Arbitrator held that Warren did not conceal the tape recorder and therefore did not “eavesdrop” on the conversation as required by Penal Code Section 632(a). Moreover, the arbitrator held “unlike Sgt Libby’s and Lt. Alcantara’s testimonies, I do not find any reason to question Appellant’s [Warren’s] testimony.”
The Arbitrator found no misconduct by Warren and ordered him to be reinstated with full backpay. Warren was ecstatic with the completion of this three-year battle with the City and is grateful for the support he received from LDF and his attorneys.