A Santa Maria Police Dispatcher, who was employed with the Department for over ten years with no prior discipline, was terminated based on pure speculation that she whited out another dispatcher’s schedule and signed up for the overtime in her place. After a 5-day hearing litigated by Andrew M. Dawson, the Arbitrator overturned the entire discipline and ordered her reinstated.
On June 18, 2009, the August 1-14 schedule was posted listing three dates for overtime and the available overtime was also sent to all dispatchers in an email. On June 19, 2009, a dispatcher signed up for overtime on August 11 by writing her name on the paper schedule and recording the same in her personal datebook. On June 22, 2009, Appellant returned from vacation, saw the email regarding the available overtime and signed up for the overtime on August 11. At the time Appellant signed up for the overtime, the other dispatcher’s name was not on the paper schedule.
On July 19, 2009, the dispatcher went back to the schedule and noticed that Appellant had signed up for the overtime on August 11th and that her name had been whited out. That dispatcher contacted one of the lead dispatchers, whose primary duties it was to handle the schedule, to find out who had whited out her name. The lead scheduling dispatcher then reported the concern to the Records Manager Jeanne Enberg.
On July 28, 2009, Records Manager Enberg called Appellant into her office along with the other dispatcher and accused Appellant of whiting out the dispatcher’s name and signing up for the overtime. At the time of the meeting, the final schedule for August 1-14 had been issued and Appellant knew that she had not been assigned any overtime. As such, during the meeting, Appellant told them she signed up for the overtime but did not have any overtime. The dispatcher and Records Manager Enberg interpreted Appellant’s statement that she did not have any overtime as her denying signing up on the draft schedule for the overtime, which is not what she said.
Later that day, Appellant sent the dispatcher two text messages apologizing for the confusion and stated that if she knew that the dispatcher had signed up previously, she would not have signed up for the overtime. The dispatcher took that to Records Manager Enberg, and they believed they had proof of dishonesty by Appellant.
Records Manager Enberg then consulted with Commander Greene regarding the matter, and he suggested another meeting with Appellant. Records Manager Enberg then met with Appellant alone on August 5th, and Appellant reiterated that she had signed up for the overtime but that she was not assigned the overtime. She apologized for any miscommunication during the July 28th meeting. Appellant also provided a copy of the email that was sent out in June announcing the overtime to show Records Manager Enberg that she signed up for the overtime in response to that. The email that Appellant gave to Records Manager Enberg had the recipient’s name and date whited out on the email, as Appellant did not want to get the person who gave it to her involved in the matter and Appellant no longer had her own copy of the email.
The Department alleged Appellant was dishonest in the July 28 and August 5 meetings as it related to her signing up for the overtime and whiting out the dispatcher’s name. The Department also alleged she tampered with evidence by whiting out the name and date of the email she gave to Records Manager Enberg, even though she gave them the email with the white out clearly shown on the email and that the information had no relevance to the matter at hand. The Arbitrator ruled that there was “no showing at arbitration the substance of the document had been altered or misrepresented in any way.”
Lastly, the Department also alleged Appellant tried to cover up her actions, because they alleged she updated the schedule in the computer, which they claim was not her job duty. The only evidence of this is that the Lead Dispatcher, whose primary job duties was to manage the schedule, allegedly noticed that the cursor was not left in the same spot that she had left it when she had closed out the electronic document previously.
Upon notification of termination, Appellant’s attorneys immediately requested copies of all videos of the Communications Center during the dates in question. The Department refused to produce it absent payment of a $5,000 deposit, the estimated cost of recovering the video, as it treated the request as a Public Records Act request. As the $5,000 deposit was clearly unreasonable, Appellant’s attorneys instead served on the City a notice to preserve the videos until the hearing. All of the dispatcher desks are viewable from the surveillance video that is located in the Communications Center, and should have captured the alleged whiting out incident. At the time of the hearing, Appellant demanded production of the videos based on the notification to preserve the videos and the obligation to preserve the videos pursuant to Government Code section 34090.6(a). Not surprising, Appellant received notification from the City that the videos were destroyed. What is even more shocking is the City’s continual pursuit of the ridiculous allegation of evidence tampering when Appellant whited out irrelevant information, which could have been scraped off, on the email she gave to Enberg, even after City destroyed the videos that were irrefutably relevant and would have shown who actually whited out the schedule.
At the hearing, it was also shown that the personal day planner of the dispatcher had white out on the August 11th date. The Department failed to preserve that day planner page and rather just took a copy of it; once again, the Department’s failure to preserve evidence limited Appellant’s ability to prove or disprove the allegation that she had whited out the schedule. It is certainly questionable as to who actually whited out the schedule given that the dispatcher who signed up for the overtime also had her day planner whited out for the same date. The Arbitrator held that there was no direct or indirect evidence presented to support the Department’s contention that Appellant was the one who whited out the dispatcher’s name from the schedule. The Arbitrator further held: “mere speculation about white out on the schedule is not sufficient to conclude Appellant committed an intentionally dishonest act.”
In order to build their conspiracy theory, the Department also alleged Appellant must have been the one who updated the schedule in the computer, based on the fact that the cursor was moved. Appellant admitted that she updates the schedule at times ever since she was promoted to Lead Dispatcher in 2007, but could not say for certain that she made updates for that particular schedule. At the hearing, Appellant presented a list of her job duties provided to her by the Department, which clearly outlined that she had back-up scheduling duties, despite the Department’s witnesses testifying that she had no right to access the computer schedule.
Additionally, testimony was shown that the schedule was accessible to everyone in the Communications Center, as it was an unsecured document located on a shared drive. The Department’s fallacious conspiracy theory clearly showed the Department’s desperate attempt to justify the termination of Appellant.
Overall, the Arbitrator held that “the apologies first to [the dispatcher] immediately following the meeting on July 28, 2009, and then to Enberg at the outset of their meeting on August 5, 2009, are entirely in accord with honest conduct not meant to mislead anyone about the underlying events.” “Instead of accepting her apology, management transformed a simple misunderstanding over an overtime assignment into a case of dischargeable misconduct. As a Lead Dispatcher with ten years of service and a clean record, Appellant deserved better.” As such, the termination was overturned, and the Department was ordered to make Appellant whole.
Rather than minimize the damages faced by the City and accept the Arbitrator’s award, the City refuses to admit that the Department’s accusations are baseless, as determined by the Arbitrator, and as such overturned the Arbitrator’s decision. One would hope the City would focus more on the clear Government Code violations by the City and destruction of evidence that the City is aware of rather than trying to uphold baseless allegations against Appellant that are wholly unsupported by the evidence. This matter is now pending before the Superior Court.