Allegations and Demotion Overturned by Neutral Arbitrator

KASEY A. CASTILLO, ESQ.
Principal Attorney
KC Law Group

The importance of de novo review cannot be overstated. De novo review occurs when a neutral party conducts a hearing as though there had been no previous ruling or findings. An independent decision-maker must make factual findings subject to judicial review. “[T]he independent fact finding implicit in the concept of an administrative appeal requires at a minimum that the hearing be treated as a de novo proceeding at which no facts are taken as established and the proponent of any given fact bears the burden of establishing it” (Caloca v. County of San Diego, [2002] 102 Cal.App.4th 433). It is for this reason the decision of the chief of police doesn’t just stand; the department has to prove both the allegations and that the penalty imposed is not excessive.

In this case, the appellant had been a lieutenant for approximately four years and was an almost 24-year employee of his Inland Empire police department, with no prior discipline whatsoever. The event that led to the allegations and disciplinary action took place immediately upon the appellant’s assignment to the Investigations Division in July of 2021, and during an approximate two-month period from July of 2021 through September of 2021.

The Culture in the Department Related to Photos/Memes

As far back as everyone could remember, the Investigations Trailer, and occasionally the main police department building, had silly photos, jokes or memes posted of employees of the police department. It was a part of the culture of the police department, especially in the Investigations Trailer. These displays were designed to lighten the often-serious nature of the work facing the police officer co-workers and were posted without any ill will.

This practice of posting photos had gone on in the police department for decades, and under the supervision of multiple managers, including an assistant chief and the then-chief of police. Memes and other superimposed photos were in the cubicles and were done for humorous purposes. The photos with the altered pictures predated July of 2021, when the appellant himself was assigned to the Investigations Trailer as a detective, then later as a sergeant and then when he returned as a lieutenant. The silly photos had also been posted in the main stations of the police department, specifically in the patrol report writing room off and on, on the briefing board, on the report writing board, etc.

In 2021, after the retirement of a lieutenant was announced, the police department solicited interest memos from sergeants for the acting lieutenant spot. It would be the first time an acting lieutenant spot lasted more than three months. Whomever was chosen would be taking on the full-time responsibilities of a lieutenant, rather than just acting as a short-term stand-in.

One sergeant decided to apply for the acting lieutenant spot and, according to witnesses, boasted to his detective subordinates in a meeting that he was a shoo-in, bragging to everyone that he would beat out the competition. He did not, however, get the spot; another sergeant did. As a result, and in good humor, his subordinate detectives superimposed lieutenant bars on the photo of the selected sergeant and posted the photo throughout the Investigations Trailer, including in the other sergeant’s office. The intent of the photo was a little humble pie to the bragging sergeant. When the photos were put up, the appellant was not at work.

None of the detectives or sergeants or civilian staff in the Investigations Trailer reported the photograph. Only one other lieutenant saw the photos of superimposed lieutenant bars on the sergeant posted in and around the main area of the trailer. At some point, and after the photos had been removed from the main area in the Investigations Trailer, the appellant first saw a handful of the photos in the sergeant’s office and understood their purpose was razzing the sergeant who didn’t get the position. He did not believe, in any way, that it was done to make fun of the sergeant who was hired for the acting lieutenant position. The appellant did not request that the sergeant take them down, but the photos were all subsequently removed.

The Allegations Against the Appellant

Although he did not edit the photo, post the photo or even work when the photos were posted, the appellant was charged with allegations amounting to failure to supervise and discriminatory harassment. Ultimately, after an evidentiary hearing that lasted over three days, during which multiple witnesses were called by each side, the allegations were overturned by the neutral arbitrator. The arbitrator reviewed the evidence de novo, treating no facts as established and holding the department to their burden of proof.

Additionally, witnesses were able to give the arbitrator important feedback on the type of supervisor the appellant was, his work ethic, his passion for the position and his overall character. Four years of great evaluations as a lieutenant corroborated their testimony. Although the appellant, who was a supervisor, didn’t demand the photos immediately be taken down, the arbitrator saw that as an isolated decision on the part of the appellant for the purpose of a penalty recommendation. The appellant, a friend of the selected sergeant, owned his actions and never wanted to hurt any feelings. Ultimately, the arbitrator recommended the appellant be returned to his lieutenant position and be made whole.

What Happened Next

The disciplinary decision from the arbitrator was advisory to the city manager. Before it went to that next step, the appellant and the City settled the matter, resulting in an acceptable outcome to both sides. It took a while, but the appellant is proudly now back as a lieutenant.

Two big takeaways from this case: Hold the department to their burden of proof, and remind the arbitrator that the standard is not deference to the chief’s decision, but de novo review. Secondly, the accused officer should assist as their own investigating officer! The appellant was a great help in obtaining documents, comparison photos and evaluations that were used in his defense. No one knows their case better than the person who lived it.

About the Author

Kasey A. Castillo, Esq., is the principal attorney of KC Law Group, where she handles first responder criminal and administrative defense, general counsel matters and police foundation/nonprofit compliance.