CITY RESCINDS TERMINATION OF POLICE SERVICES OFFICER

KIMBERLY D. RILEY
Attorney
DAWSON & RILEY, LLP

On the eve of hearing and after a nearly two-year battle, the Cypress Police Department reinstated a police services officer to her former position, withdrew all allegations of misconduct and awarded her full back pay after she was wrongfully accused of time card fraud.
The nightmare began in March 2017. The appellant, who had just been honored as employee of the year in 2016, was placed on administrative leave for allegations of time card fraud. The appellant was called in by the City to “discuss” her options before the City proceeded with an IA investigation, aka given an opportunity to resign. Thankfully, she was one of the few civilian police employees who had opted into paying for LDF coverage through the POA. Upon entering that meeting with her attorney from Dawson & Riley, the City’s attorney was surprised that the appellant had LDF coverage, which provided her legal representation. It is our understanding that this tactic had been utilized in prior civilian matters and civilians felt pressured to resign given their lack of legal coverage.
The City alleged that the appellant’s newly hired supervisor had reviewed video surveillance for the past three and a half years (July 2013 to February 2017) and allegedly found numerous discrepancies between the videos and the appellant’s time cards. The appellant advised that given her job duties in running the Department’s Property Division and managing fleet maintenance, she was required to be away from her office and that she often worked outside of her normal working hours; she would flex her time rather than take overtime. The City and its attorney claimed that flex time had been banned by the Department years prior, but that claim was not supported by the evidence. In fact, the appellant had previously been praised by her prior supervisor in his evaluation of her for her flexibility and willingness to work outside of her normal working hours due to the demands of her position. Knowing that she did not do anything wrong, the appellant refused to resign. As such, the City said it would move forward with an IA investigation.
The City hired an alleged “neutral” outside investigator. The investigator knew that flex time was an issue, but failed to investigate it; rather, he simply adopted the report prepared by the supervisor without reviewing all of the videos himself to see if the appellant worked outside of her normal working hours. The City relied primarily on the supervisor’s report and handpicked certain dates to accuse the appellant of time card fraud. The City failed to complete a thorough and complete investigation by investigating to see if she worked on other dates not listed on her time card. In fact, discrepancies between the supervisor’s report and the appellant’s training file were immediately noticeable, wherein the supervisor accused the appellant of time card fraud because she was not seen on video in her office on dates that she attended training, which were logged in her training file. The City also had access to the appellant’s emails, and numerous emails were sent during times that the City claimed the appellant was not working. The emails were discernible as to ones that were sent from her office versus ones sent from her mobile device, and this fact was confirmed once the appellant’s attorney was eventually able to review the videos. 
Upon receipt of the notice of intent to terminate, we requested copies of all of the videos reviewed by the supervisor. This request was refused. Given that the appellant did not receive the videos relied upon by the supervisor in her report and that the report was adopted by the City in its notice of intent, the appellant and her attorney refused to attend the Skelly hearing until she received the materials. The City went forward with the termination without producing the videos, arguably in violation of the appellant’s Skelly rights.
The matter was then sent to the Office of Administrative Hearings (OAH) for the termination appeal. The appellant’s attorney also filed an unfair labor practice with the Public Employment Relations Board for the City’s alleged violation of Government Code Section 3508.1, which required the City to investigate and issue a notice of intent within a year of knowing about the alleged misconduct. As all of the time cards were signed and approved by a supervisor at the time they were submitted, the Department should have known about any time card issues at the time of occurrence. As such, the appellant’s attorney argued that based on the one-year statute of limitations, the City was precluded from pursuing any allegations that predated October 2016, as the appellant was served her notice of intent in October 2017. This action was occurring simultaneously with the termination appeal at the OAH.
The appellant’s attorney filed a subpoena duces tecum with the OAH for production of all the videos for the period of three and a half years that was relied upon by the City, including the days reviewed by the appellant’s supervisor in her report and days that were not listed as work days on the appellant’s time cards. The City’s attorney once again attempted to prevent access to the videos by filing a motion to quash. During the hearing on the motion to quash, it eventually was disclosed by the City that the City had failed to preserve approximately one and a half years of videos and that the only remaining videos were from November 2014 through February 2017. The motion to quash was denied and the appellant’s attorney was granted access to the videos.
Upon initial review of the videos, the appellant’s attorney noticed that additional videos were missing since the hearing on the motion to quash. At that time, it came to light that the City’s system was continuing to write over the old videos and every day more evidence was being destroyed. Another motion was filed with the OAH for the City’s deliberate failure to preserve evidence and alleged violation of Government Code Section 34090.6. The appellant requested to either dismiss the case entirely or, at a minimum, to order the City to immediately preserve all remaining evidence. The OAH ordered the City to take steps to preserve the evidence and that the City would be precluded from pursuing any allegations of misconduct during periods of time where videos were missing.
The City came up with a temporary fix and preserved, for the most part, the videos from the end of January 2015 to February 2017. After months of reviewing the surveillance videos, the appellant’s attorney found numerous discrepancies in the appellant’s supervisor’s report. There were days that she worked that were never counted, times where the supervisor claimed she left but her office door was still open on the video, times where the supervisor said she left for the day but her car remained in the parking lot and she was seen on video returning to her office at a later time, and times where the supervisor said she came in late but yet her car was in the parking lot earlier in the day and she is seen on video working.
An initial review of the appellant’s emails also helped to narrow down times that it was believed she was working in her office. Once given access to the videos, it was confirmed that her office door was in fact open and she was working, even though her supervisor claimed that she was not working at that time. Her emails also helped to show that she notified her prior supervisors on days that she did not go to work because she worked on a different day outside of her normal work schedule. The videos were then reviewed to confirm the information outlined in certain emails. The emails would have probably exonerated her for a number of other days, but, unfortunately, they also were not preserved by the City for the entire time period that the appellant’s supervisor utilized.
After completing the review of the videos, the appellant’s attorney prepared a new report that showed the corrected times that the appellant was seen on video on City property at the start of the day and the end of the day. This report was submitted to the City’s attorney as a proposed stipulation of when the appellant is seen arriving and departing City property. Based on the revised times, arguably the appellant was actually owed money by the City for working over the hours that she reported on her time cards, contrary to the allegations made by her supervisor and adopted by the City that she owed the City money for time she did not work.
This now begs the question: Why did no one, especially the alleged “neutral” investigator, investigate the issue of flex time? And why did no one else from the City check the accuracy of the appellant’s supervisor’s report before taking the drastic action of terminating the appellant? The appellant had no prior discipline, was recently awarded employee of the year and had stellar evaluations. We may never know the answer to these questions, but what we do know is that the City eventually acknowledged the improper termination and rescinded it in its entirety, reinstated the appellant and issued her full back pay just prior to the start of the hearing. Hopefully, future disciplinary actions will be more fully vetted prior to causing such hardship on employees.
The appellant is grateful to be returning to her position fully vindicated from any wrongdoing and looks forward to continuing her career at the Cypress Police Department. She is forever beholden to Dawson & Riley for its zealous representation and to the Legal Defense Fund for its support during this difficult time.