Termination After Trip To Mexico Overturned

A 7‐year San Luis Obispo police officer and his friend, a fellow SLO PD officer, drove to Mexico for a one‐day, fun‐filled excursion that turned into a three‐year nightmare and battle to get his job back. That nightmare has finally ended and an Arbitrator has ordered the reinstatement of the officer. This case was litigated by Andrew M. Dawson.

On September 15, 2009, prior to leaving Mexico, Appellant and his friend stopped at a Mexican pharmacy for Appellant’s friend’s wife to replace a bottle of diet pills, her in‐laws had brought on a previous vacation to Mexico. While there, Appellant spoke with the pharmacist regarding diet pills and supplements, similar to what he purchases from stores, such as GNC, in the US. The pharmacist provided Appellant with pills that were supposed to be diet pills and supplements. The pharmacist told him that they could be transported across the border.

Appellant and his friend were stopped at the US‐Mexico border and were detained until the morning of the 16th, due to the pills that were purchased. Appellant and his friend were both questioned and then eventually released. The pills that were purchased by Appellant were confiscated and the Border Patrol contacted the Department to notify them that they had their officers at the border. After the Border Patrol sent the unmarked pills for testing, Appellant was notified that some of the pills contained Methylphenidate (a component of Ritalin), a controlled substance in California.

Appellant was scheduled to work on September 16; however, since he was detained at the border, he contacted his fiancé and asked her to notify the Department that he would not be coming in that day. She in turn contacted the Watch Commander on duty and told him that Appellant was sick.

Once released and upon arrival at Appellant’s friend’s house, Department officials were already waiting and placed Appellant and his friend on administrative leave. Six months later, the Appellant was contacted by the Department of Justice regarding the criminal matter and the transportation of misbranded goods across the US‐Mexico border. The Appellant’s prior attorney contacted Chief Linden and was told that the proposed plea would not be a terminable offense, so to avoid a costly criminal trial, Appellant pled to a strict liability misdemeanor of transporting misbranded goods across the border.

After the completion of the criminal matter, Chief Linden moved forward with termination. Not only did the Department try to terminate his employment, they also fought to avoid giving him a hearing at all and also contested his unemployment benefits, both of which they lost.

The City contested Appellant was not entitled to an appeal hearing, because he allegedly could no longer serve as a peace officer in California pursuant to Government Code section 1029. The City’s inaccurate logic assumed that the Appellant was guilty of criminal charges that he never pled to. The City argued that his pleading to a strict liability misdemeanor regarding the introduction of misbranded goods, was the same as possession and importation of a controlled substance under California law, which would be a felony and therefore he would be disqualified as a peace officer under Government Code section 1029(a)(2). That is not what the law states. Rather, it is whether the charge he pled to, not the charges that the City thinks he should have been charged with, could be charged as a felony under California law. The charge the Appellant pled to does not have a California equivalent. After months of going back and forth with the City and once the City was informed that their legal analysis was inaccurate and would lose in litigating the issue, Appellant finally received his appeal hearing.

However, the City’s reprehensible tactics did not stop there. At the hearing, the City once again tried to argue before the arbitrator that Appellant’s actions, as evidenced by his plea to a strict liability federal crime for misbranded goods, constituted a violation of California state law for possession of a controlled substance. Once again the City’s fallacious argument was exposed. The City ignored that under California law, the charge of possession of a controlled substance requires knowledge that the substance is in fact a controlled substance. Appellant’s counsel questioned Captains De Priest and Staley, who handled the IA investigation and recommended termination of Appellant, about mens rea and the requisite mental element for a criminal conviction; however, both did not know what mens rea was. What was even more surprising is that Chief Linden also did not know what mens rea is, nor did she know that mens rea was not required for a strict liability crime. One must question how the San Luis Obispo Police Department is run when their command staff is unaware about the mental element that is needed for criminal convictions. The Arbitrator held that there was insufficient evidence to prove Appellant knew that he was transporting prescription drugs across the border. He further held “[p]roving by the preponderance of evidence that the Appellant intended to commit a crime requires more than arguments, conjecture or theories that he must have known he was transporting prescription drugs across the border. There was no evidentiary testimony by any witness to corroborate the City’s allegations.”

The Department also charged Appellant with failing to report the criminal activity, even though Appellant was aware that the Border Patrol contacted his Department to advise them of the same, he was not accused of committing a crime by ICE, and the Department was at Appellant’s friend’s house to place him on administrative leave upon his arrival from the US‐Mexico border. The Arbitrator held the Department had notice and Appellant was not required to report anything, since he was not charged or accused of a crime at that time.

Overall, the Arbitrator held that Appellant did not violate California state law (the Department’s policy does not reference a violation of federal law) and did not fail to report criminal activity; however, the Arbitrator did find that Appellant was absent from duty when he did not report to work on September 16th and Appellant’s plea to the transportation of misbranded goods was unbecoming of an officer and reflected poorly on the Department. Regardless, the Arbitrator held the termination by the Department was excessive and should be overturned, especially given Appellant’s 7 years of service and no prior discipline.

The Officer was relieved with the positive arbitration award after this lengthy battle and is grateful for the support he received from PORAC LDF and his attorneys.

 

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