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By PORAC | November 1, 2010 | Posted in PORAC LDF News

Arbitrator Overturns 160-Hour Suspension of Sacramento Officer

Posted by David E. Mastagni, ESQ.

On July 26, 2010, Arbitrator Thomas Angelo cleared Sacramento Police Officer Craig Wetterer of accusations he had actual knowledge or reasonable suspicion of abuse of a juvenile and failed to report such knowledge or suspicion. In overturning the 160-hour suspension, the Arbitrator ruled the Department failed to establish any cause to discipline Wetterer, a 22-year veteran officer. The Arbitrator admonished the Department that “[j]ust cause requires legitimate, persuasive proof of wrongdoing, not a presentation of investigatory surmise and speculation.”

Factual Background

The Department charged that Wetterer knew or suspected an acquaintance had engaged in an inappropriate relationship with the minor victim, Mr. M, but failed to report the abuse in violation of Departmental Policies and Penal Code § 11166, which requires mandated reporters to report reasonable suspicion of abuse. The Department asserted Wetterer made statements evidencing knowledge of the abuse and should have suspected abuse from his limited interactions with Mr. M and Mr. H, the suspected abuser.

Wetterer knew Mr. H since 1997, but rarely interacted with him. In fact, they had no communication between 2000 and 2006. In 2006, Wetterer brokered a real-estate purchase. They communicated primarily through phone calls initiated by Mr. H. In 2007, Mr. H asked to meet with Wetterer to provide Mr. M a positive role model. Mr. H explained to Wetterer that the juvenile was having problems at home and that his parents allowed him to assist Mr. H with putting up movie posters at theaters.

On five to six occasions over an eight-month period in 2007, Mr. H and Mr. M met with Wetterer while he was on duty. The interactions were brief, lasting five to 10 minutes, and Wetterer, an FTO, was usually accompanied by a trainee. Wetterer and his Trainees testified that they never observed any inappropriate behavior or indication of abuse. The Arbitrator rejected the Department’s contention that these meetings created a reasonable suspicion of abuse.

The Department based its allegations in substantial part on contested hearsay statements from Mr. M asserting that Wetterer made comments indicating knowledge of the abuse. After discipline was proposed, Mr. M provided Wetterer with a declaration admitting he never heard Wetterer make the comments attributed to him, stating his belief that Wetterer was unaware of the abuse and explaining that he felt pressured to simply agree with the IA investigator’s leading questions. After reviewing the declaration, the Chief proceeded with the discipline, relying on the reports instead of calling Mr. M to testify. Mr. M’s father also provided a declaration in support of Wetterer’s innocence and even admonished the IA investigators, “I’m his dad. If I didn’t know it, how the hell is some Sac PD Officer going to know it?”

An additional charge alleged Wetterer failed to report information he received from Mr. H about possible abuse by a third party. During an off-duty telephone call, Mr. H informed Wetterer that Mr. M had received inappropriate e-mail communications through MySpace, and that Mr. H reported the communications to Fairfield police, who had jurisdiction. The Roseville PD Detective investigating Mr. H testified that Mr. H, in fact, reported the incident to law enforcement and CPS. The SPD nevertheless insisted Wetterer had a duty to make an additional report based on his limited, second-hand information about the incident. The Arbitrator held Wetterer did not possess information triggering a reporting requirement and agreed with the RPD Detective that no duty existed to re-report the information.

Finally, SPD disciplined Wetterer for not initiating contact with RPD when he discovered Mr. H was a suspect. In December 2007, Mr. H advised Wetterer that Mr. H’s house had been searched by the RPD and that Wetterer’s name had “come up” in the investigation. Mr. H never made any incriminating statements to Wetterer. Wetterer did not provide any assistance to Mr. H and, instead, deliberately distanced himself from
Mr. H.

Wetterer voluntarily provided a statement to RPD officers. The RPD investigator confirmed Wetterer had no relevant information. Because Wetterer is a licensed attorney and bound by the confidentiality rules of the State Bar and the ABA, Wetterer independently contacted an ethics attorney to ensure that Mr. H could not claim confidentiality with regard to their conversations even though he was never a client. SPD unsuccessfully argued the consultation was evidence of culpability.

At the conclusion of the criminal investigation of Mr. H, SPD initiated an internal affairs investigation relying primarily on “retracing” the RPD investigation. Wetterer consistently denied any knowledge or suspicion of abuse and explained the limited nature of his interactions with Mr. H.

On December 4, 2008, SPD served Wetterer with a proposed suspension of 160 hours, alleging numerous factual allegations and violations of Penal Code Section 11166, SPD Orders regarding reporting, inefficiency, neglect of duty, disobedience and impairment, disruption and discredit to employment and the public service. After a Skelly hearing, SPD imposed the 160-hour suspension with no changes. An arbitration hearing was held in November and December 2009. In addition to the factual disputes, this appeal presented hotly contested legal issues involving: 1.) the agency’s burden of proof; 2.) consideration of hearsay statements in reports to prove disputed facts; 3.) the late amendment of new charges; and 4.) an officer’s right to management’s analysis and recommendations of the case.

Legal Issues

  1. Burden of Proof
    The City claimed the “preponderance of the evidence” standard applied to these charges, but that the Chief’s penalty should be reviewed only for abuse of discretion, a deferential standard that is rarely met. The Sacramento Police Officers’ Association (SPOA) argued a tougher “clear and convincing” standard should be applied to charges, considering the social “stigma” of allegedly condoning sexual abuse of a minor. The Arbitrator agreed with the SPOA, explaining that if the Department prevailed, the outcome would taint Wetterer’s entire career and the consequence would be too great to justify application of a lower standard of review. The Arbitrator also confirmed that Wetterer was entitled to a de novo proceeding on all issues.
  2. Hearsay Evidence
    “‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” Hearsay is generally admissible in administrative appeals, but hearsay alone cannot establish a disputed fact and hearsay denies the other party the right to confront and cross-examine witnesses. SPD attempted to establish the disputed facts by submitting witness statement summaries in reports rather than calling the declarants as witnesses. Although admitted under the lenient arbitration standards, the Arbitrator concluded, “[t]he reliability of these statements for the truth of matters asserted therein is minimal.” The Arbitrator noted the reports were problematic on several fronts: multiple layers of hearsay existed; Wetterer was denied the ability to cross-examine the witnesses; and “a majority of the police reports were mere summaries of purported interview[s].”
  3. Late Amendment of New Charges
    In addition, the Department attempted to add serious new charges at the end of the last business day before the hearing. At hearing, we sought to strike the new charges based on Government Code Section 3304(d), which precludes agencies from bringing charges against peace officers more than one year after discovery. Further, post-disciplinary additions to the charges violate Constitutional due process rights. Ultimately, the new charges were dropped.
  4. Refusal to Disclose All Documents Relied Upon
    Finally, at the hearing, Wetterer discovered SPD concealed “disciplinary recommendations and analysis” relied upon by the Skelly Hearing Officer. This discovery was particularly troubling given that the SPOA has fought over access to these documents for years, eventually obtaining a Superior Court Judgment in 2002 requiring the disclosure of such documents. Despite the disclosure requirements of Government Code Sections 3303(g), 3305, 3306.5, Penal Code Section 135.5 and Skelly v. State Personnel Board, (1975) 15 Cal. 3d 194, SPD fought to conceal its investigation summaries that weighed the investigatory evidence and disciplinary recommendations, which have historically conflicted with many of the disciplinary actions imposed. In Aaron Wyley v. City of Sacramento, the Sacramento Superior Court ruled that the City must provide to the subject officers the personnel records relating to disciplinary investigations, including “opinions and analysis” and disciplinary “recommendations.” In response, the Police Chief at the time claimed to cease the creation of the “recommendations” reports rather than have to disclose them. At the arbitration, Wetterer inadvertently learned that the Department had not, in fact, ceased producing these recommendation reports. Rather, the Department continued to prepare the recommendations and then falsely claimed they did not exist and did not produce them.

Arbitrator’s Decision

Citing the improperly withheld recommendations, the Arbitrator noted “police officers are inherently suspicious creatures; apparently sometimes their suspicions lead them to the perpetrator, and sometimes it leads them astray.” Finding Wetterer candid and credible, he found no basis to suspect abuse of Mr. M given the information available to him. The City failed to prove any of the allegations set forth in the discipline letter. Arbitrator Angelo ordered Wetterer made whole and all references to the case removed from his personnel files. The Arbitrator summarized: “The City’s case rests on a nest of suspicions that were supported only by hearsay that was entitled to little, if any, weight. Not only did the City fail to bear its burden, but the Grievant’s denials were persuasive. Suffice to say, the City’s investigation was comprised of hearsay, surmise, and subjective analysis. That approach may be appropriate for investigative purposes, but it has no place in an evidentiary proceeding. Here the allegations against the Grievant lack support, and the Grievant is entitled to be made whole.”

The SPOA is confident that ultimately the Arbitrator’s award will be adopted and enforced, ending Wetterer’s long and arduous journey to vindication. The SPOA and Wetterer thank PORAC LDF for its unwavering support throughout this process.

About The Author

David E. Mastagni is a senior associate at Mastagni, Holstedt, Amick, Miller and Johnsen. Martindale-Hubble has issued David the highest Peer Review Rating of “AV Preeminent,” which indicates that his peers rank him at the highest level of professional excellence. He is a PORAC LDF panel attorney and represents the SPOA in disciplinary matters, collective bargaining and grievance disputes.