A Los Angeles School Police Senior Police Officer (“FTO”) was successful in overturning an unjustified five-day suspension imposed by his Department. However, it was not just the suspension that was at issue, but rather the lengths that a Department will go to hide its motives in imposing discipline. Thanks to the unwavering representation of the attorneys at Dawson & Riley, LLP, the hearing officer was enlightened about the shenanigans played by the Department’s management and the managers involved in the matter were deemed not credible.
Appellant was accused on two different occasions of failing to book or a delay in booking small amounts of marijuana. On October 30, 2015, Appellant admittedly had a student flush a small amount of what appeared to be marijuana, which was in the student’s possession, and then told the student to never do that again. He chose to cut the student a break and not pursue criminal charges.
The school administration had found the alleged marijuana and then contacted Appellant for him to handle the situation. The Department thus had the ability to investigate the alleged incident close to the date of occurrence, but failed to do so. Rather, an investigation was not started until May of 2016 when the Department was investigating another officer at the same school. The hearing officer held that the alleged belated discovery can only be because the alleged misconduct was not sufficiently egregious to warrant discipline. As such, the Department should have known about the alleged misconduct and should have served Appellant with the Notice of Intent within the one year statute of limitations outlined in Government Code section 3304(d), which in this case would have been no later than October 30, 2016. Since the Department failed to notify Appellant within the one year statute of limitations that particular charge must be overturned.
The hearing officer further held that even if the incident was not barred by the statute of limitations the Department still failed to prove that the incident constituted misconduct. The Department failed to prove that Appellant’s action on the date in question was in violation of a policy that was in effect at that time. Moreover, there was no complaint ever filed or harm to the public relating to Appellant’s actions. As such, this particular charge was overturned.
On April 21, 2016, Appellant recovered alleged marijuana from a student. At the time of the incident, the Department had implemented a new diversionary program wherein students would not be criminally charged for possessing small amounts of marijuana. The Department’s new policy simply required that officers book the marijuana for destruction. Shortly after recovering the marijuana, Appellant received a call from his wife and he had to leave work due to a family emergency. He notified his Lieutenant as to why he needed to leave work, and he even subsequently discussed the matter with the Chief. Given the family emergency, Appellant did not have a chance to book the alleged marijuana prior to leaving work. However, when he returned to work four days later, he booked the item and submitted the report to his supervisor outlining the time delay. His supervisor approved the report and never reported any misconduct by Appellant. As outlined above, this matter was not investigated until the Department began an investigation involving another officer at the same campus. Appellant admitted that he violated the policy for not booking it the same day, but that there were mitigating circumstances. The hearing officer held that technically the four day delay was in violation of policy; however, it was for good reason.
As to the level of discipline, there was substantial testimony regarding the level of discipline in this matter by a Lieutenant and two Deputy Chiefs, as the discipline had been increased by someone. Prior to the hearing, Appellant’s attorneys subpoenaed all of the email communications relating to the matter. In those emails, it became apparent that the Lieutenant had initially recommended a one day suspension, and it was then increased by five times that amount at a later time. Who was responsible for that increase is still unknown, as the Department management provided testimony that was not credible relating to this issue.
The Lieutenant, when confronted with his original draft showing a one-day suspension, tried to claim that it was merely a typographical error and that he was not influenced by anyone to change the amount of discipline. This was not credible. It would have required the Lieutenant to have made a typo on the “O”, then the “N”, and then the “E”. Moreover, approximately twenty days after he allegedly drafted the Notice and supposedly corrected the typo per his testimony, he forwarded the same one-day suspension notice to a Deputy Chief for review. If it was merely a typo and then was fixed on the date in question, why was it sent twenty days later to the Deputy Chief with the one-day suspension? Moreover, the Lieutenant was also confronted with two cases involving other officers at around the same time as the one involving Appellant. In those matters, the Lieutenant increased the disciplines after submitting lower discipline recommendations to the Deputy Chief for review. Were those typos too? The Lieutenant initially tried to avoid answering the question by objecting and then claiming that those other two disciplinary actions were not “germane” to the proceeding. Clearly it would not be believable to claim that those also were typos, as such he did admit at that point that he had discussions with upper management regarding changing the discipline regarding those two matters.
The Deputy Chief also denied having any discussion with the Lieutenant regarding the level of discipline. The hearing officer held that their testimony was not credible and that it was far more likely that the Lieutenant was asked to adjust the recommended discipline pursuant to the Deputy Chief’s request.
Given that there should have only been one sustained allegation of misconduct and that there was credible mitigating circumstances, the hearing officer rescinded the suspension in its entirety and ordered the issuance of a comment card. It is reassuring to know that the hearing officer could see through the non-credible testimony presented by the Department, while at the same time disconcerting to know what the Department is capable of doing in order to try to win its case. Appellant is thankful for the zealous representation by Dawson & Riley and for the support provided by the Legal Defense Fund.