Seal Beach Police Chief Kirkpatrick (now retired) was again unsuccessful in attempting to justify an improper termination of one of his employees. Two weeks after the termination of Appellant, the Seal Beach Police Chief was forced to reinstate Appellant’s wife, whom he had previously terminated improperly for an unrelated incident. Rather than avoid costly litigation after learning of his failure to justify the termination of Appellant’s wife, Chief Kirkpatrick continued to move forward with litigating the termination of Appellant, relating to two off-duty incidents. Attorney Andrew M. Dawson represented Appellant during the administrative appeal of this matter.
Appellant was issued a Notice of Termination relating to an off-duty incident where he tased his brother-in-law, pursuant to his brother-in-law’s request and in the presence of other family members. Appellant’s brother-in-law was never injured, plus Appellant’s brother-in-law was positioned near a bed so that he would fall directly on the bed when he was tased. Additionally, prior to the tasering incident, Appellant contacted his sergeant to ask permission to tase his brother-in-law who was curious about what it was like to be tased prior to enlisting in the military. The sergeant never disputed that a conversation took place with Appellant. Rather, the sergeant claimed he jokingly said yes to Appellant’s request, but that Appellant should have known it was a joke and that he would never give him permission to tase his brother-in-law.
The Department believed the sergeant over Appellant, despite (1) a prior history of an alleged “miscommunication” with this sergeant and another officer where that officer’s termination was overturned based on the “miscommunication” by the sergeant and (2) another long-time retired officer submitting a sworn declaration prior to the termination stating that the sergeant had told him in a separate conversation that he had given permission to Appellant to tase his brother-in-law.
The Department placed Appellant on administrative leave after it became aware of the video of the tasering incident. The Department charged Appellant with excessive force, failure to report the use of force, and misuse of Department property.
While Appellant was on administrative leave, he was stopped by the CHP and issued a citation for reckless driving, which was eventually reduced to a speeding ticket. Appellant did not report the citation as the Department had a policy that stated only convictions are reportable offenses. The Department relied upon a contrary policy that stated any law enforcement contact is reportable in order to justify an additional basis for the termination. Based on the Department’s alleged application of the policy, it would require all employees to report any moving citation or parking violation they receive, which is a ludicrous proposition.
Appellant never argued that he should receive no discipline; however, termination was clearly excessive in this matter. Appellant’s counsel approached the City once again after the City was unsuccessful in justifying the termination of Appellant’s wife; however, the City refused to budge and elected to move forward with the arbitration. The Arbitrator agreed with Appellant that he made a mistake; however, termination was excessive.
The Arbitrator held “While this event [taser incident], as well as the subsequent driving incident, brought into question Appellant’s judgment making skills and evidenced immaturity, a certain amount of immaturity and questionable decision-making must be expected of a junior officer with limited experience. There is nothing in Appellant’s performance during the two years on the job that evidenced his inability to act responsibly, that it was unlikely he would learn from his mistakes, but would actually be prone to repeat them.”
As a result, the Arbitrator ordered Appellant to be reinstated less a 4-month suspension. This is another example of departments refusing to act reasonably. We continue to see in many disciplinary cases departments refusing to settle and choosing instead to incur additional litigation costs to have an arbitrator make the same determination Appellant was requesting. Unfortunately in the process, the lives of the employees are turned upside down and the citizens of these governmental agencies must bear the expenses of these poor decisions by department heads.