Arbitrator Reinstates Wrongfully Terminated Detective, Part 2

ROGER D. WILSON
Attorney
Rains Lucia Stern, PC

For Part 1 of this article, please see the September issue of PORAC Law Enforcement News

The Arbitration

Detective Peterson’s termination appeal was presented to the arbitrator over four days in January 2016. During the arbitration, the Department’s counsel attempted to present new allegations of misconduct by Detective Peterson related to his handling of confidential informants (CIs). The arbitrator ruled that the information was inadmissible and was given no weight, because no such accusations formed the basis of Detective Peterson’s termination and they were therefore a violation of his POBRA rights (Public Safety Officers Procedural Bill of Rights Act; Government Code §§ 3300 et seq.). Ironically, Detective Peterson had received an abundance of training in handling CIs and, at the time of his termination, actually handled more CIs than anyone in the Department’s narcotics unit.

The lead Internal Affairs (IA) investigator testified that he believed the federal agents when they told him Detective Peterson was guilty of a crime, even though the U.S. attorney refused to file a criminal complaint against him. This misguided belief by the IA investigators clouded their entire investigation; indeed, despite the fact that no concrete evidence was ever provided by the federal agents to support their beliefs about Detective Peterson, the IA investigator sustained two accusations against Detective Peterson based almost entirely on the statements by the federal agents.

Detective Peterson learned for the first time during the arbitration that his supervisors had received updates on the federal agents’ investigations of Detectives Peterson and Crawford from the very beginning. Further, during the arbitration hearing, one of Detective Peterson’s supervisors testified that he consulted with federal agents following Detective Peterson’s Skelly meeting — and before making a decision to terminate Detective Peterson — about what the agents knew about Detectives Crawford and Peterson and the CI referred to as “PF.”

Counsel for Detective Peterson served subpoenas on the federal agents, their respective agencies and PF. The federal agents, through the U.S. Attorney’s Office (USAO), refused to honor the subpoenas and informed Detective Peterson’s counsel that no federal agent would be permitted to testify at the arbitration hearing. Moreover, the USAO informed Detective Peterson’s counsel that they “would not permit” PF to testify at the hearing either. This was outrageous conduct by the USAO, given the fact that they did not represent PF; the local attorney that did represent PF agreed to permit his client to testify at the hearing. Apparently, the CI contract between the federal agencies and PF trumped the attorney–client relationship.

As a result of the federal agencies’ refusal to cooperate, the only evidence presented by the Department from the federal agencies’ investigation was heavily redacted transcripts of the clandestine recordings made by PF during his meetings with the drug dealer referred to as “OT” and Detectives Peterson and Crawford, and the hearsay statements made by the agents to IA investigators. (The federal agents refused to permit recording of their statements during their IA investigation interviews.)

Detective Peterson testified that the entire IA and federal investigations were “like a movie…. Everyone was lying to me: my friends, Detective Crawford and Officer Harris, PF, and the federal agents that permitted me to work with PF…. Every time I [sought] the truth, somebody would give me the runaround. They would not tell me the truth. They would make up a ruse or just blatantly lie to my face when I [was] trying to seek the truth to figure out what I [was] supposed to do. Who [was] I supposed to believe? We all work together, you know, when we do entries, serving high-risk search warrants, we have to have each other’s back and protect one another, you know, even if it means our life. We’ll take a bullet for another officer. So there’s a camaraderie there that you trust the people you work with to be honest, to hold the highest integrity. And with that, I trusted another officer’s word over a so-called crook informant.”

Following Detective Peterson’s testimony, the arbitrator commented, “It was like a movie.”
An important key to the case was the statement made by one of Detective Peterson’s top supervisors: “Detective Crawford’s arrest was an embarrassment that not only our department, but the law enforcement profession suffered as a result of that arrest…. Due to Detective Peterson’s conduct, we did not get the opportunity to discover that, investigate it, make the arrest and terminate the individual, so we suffered all the embarrassment.”

It was apparent that the Department considered the arrest of Detective Crawford an embarrassment and made the decision to terminate Detective Peterson because of his perceived connection to Detective Crawford and PF. In short, Detective Peterson, despite his impeccable record, was guilty by association.

That same supervisor went on to state, “We were waiting for someone to report [the bribe], but no one ever did.” This statement proved to be complete fiction because the supervisor would later admit that he knew about the federal investigation all along and could have intervened at any time with Detective Peterson, who he knew had rejected the bribe from PF.

By the time of Detective Peterson’s arbitration, Detective Crawford and OT had been convicted of soliciting a bribe and sent to federal prison. To the Department’s surprise, Detective Crawford agreed to testify on behalf of Detective Peterson from a federal penitentiary. Detective Crawford explained that Detective Peterson was never involved in the bribery scheme and that he was implicated only by PF and the federal agents. Most striking, however, was Detective Crawford’s testimony that he reached out to the federal agents on at least two occasions to explain that Detective Peterson was not involved in the bribery scheme, but the agents refused to interview him.

Detective Peterson produced many character witnesses at the arbitration, all of whom reported that he was an exceptional detective and investigator, and an officer committed to the Department.

At the conclusion of the arbitration, it was clear that Detective Peterson was not terminated because of poor performance — by all accounts, he was an exemplary police officer and detective. Further, Detective Peterson was not terminated because he failed to report misconduct by a fellow officer. Finally, it was apparent that the IA investigators failed to consider that the federal agents were controlling all of PF’s actions and all of his communications with Detective Peterson, with a design toward entrapping Detective Peterson.

The Arbitrator’s Ruling

The arbitrator agreed with Detective Peterson’s assessment of the facts of the case. Essentially, the arbitrator determined that the Department failed to show that Detective Peterson knowingly violated the Department’s policy on reporting misconduct by a fellow officer. Further, the arbitrator ruled that the Department provided no substantive evidence that Detective Peterson violated any rule or law as asserted by the federal agents; indeed, the arbitrator determined that the federal agencies provided no proof of any wrongdoing by Detective Peterson.

Consequently, the arbitrator ordered the Department to train the entire Department on the policy of reporting misconduct by a fellow officer, and to ensure that each officer understood the Department’s expectations about reporting officer misconduct. (The Department offered testimony showing that all officers are “trained in the Department’s policies and procedures” by reviewing documents on the Department’s intranet. The policy at issue is not a “perishable skill” and therefore is only told to the officers “one time.” However, the policy at issue is long, convoluted and not fully understood or uniformly applied, yet a violation of one of the components of the policy — whether intentional or unintentional — could lead to an officer’s termination.)
Importantly, the arbitrator ordered the Department to reinstate Detective Peterson within 10 days of her order.

The Civil Service Board Ruling

Because the arbitrator’s decision was a recommendation only, and not binding on the parties, Detective Peterson had to present the arbitrator’s award to the City’s Civil Service Board (CSB). The CSB modified the arbitrator’s decision based on the City’s municipal code that limited employee discipline, short of termination, to a 30-day suspension without pay. Therefore, the CSB ordered that Detective Peterson be reinstated following a 30-day suspension that began in November 2014, and that he receive all back pay and benefits computed from the day following his suspension.

After a two-year, very stressful ordeal, Detective Peterson finally succeeded in getting his wrongful termination overturned. He knows he could never have achieved his success without the generosity and guidance of the Fresno Police Officers’ Association and his LDF plan.

About the Author

Roger D. Wilson is an attorney with Rains Lucia Stern, PC, who practices in the firm’s Collective Bargaining and Legal Defense Practice Groups. He represents peace officers in administrative, disciplinary, critical incidents and criminal defense matters.