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By PORAC | May 1, 2016 | Posted in PORAC LDF News

Detective Reinstated; City Forced to Remove Misleading Documents from Personnel File

Stone Busailah, LLP

In a lesson to be learned on just why an officer might not want to be supervised by a sergeant he had previously complained about, and who was disciplined as a result of that complaint, our client, a Carlsbad police detective with more than 18 years’ experience in law enforcement, was terminated for his alleged dishonesty and unsatisfactory work performance. The sergeant in question (and others) complained that the detective had engaged in acts of dishonesty by making false and misleading statements to law enforcement personnel regarding a purported confidential informant who had conveyed information to him about a homicide suspect’s whereabouts.

At a meeting held to discuss the known information regarding a murder suspect, the detective reported that the suspect might be “in Ensenada with his father.” When asked by the sergeant how he knew this information, the detective allegedly stated that he had received the information within the last 30 days from a confidential informant (or CI) who had overheard a cellphone conversation between the suspect and a gang member. The detective repeated this same information to other peace officers several more times on that day and the next.

The Department alleged that the detective was dishonest because he knew that the informant was not a confidential informant, i.e., an individual who is “signed up” to assist law enforcement by providing information in exchange for some benefit. The Department alleged the detective’s work performance was not satisfactory because he did not immediately report the information he had received about the location of a suspect accused of committing a heinous crime.

The detective argued that he was not dishonest because he did not use the terms “confidential informant” or “CI” when discussing the person from whom he had obtained the information — but that if he had, the term itself is not always used by Department members in the technical sense and is commonly used to describe any informant.

At the administrative hearing, to demonstrate that the detective would have known at the time he reported the information about the suspect that the informant in question was not technically a CI, the Department presented evidence that the detective had attempted to sign up the informant as a CI with the Department, but had failed to do so — twice. However, it also came out during the hearing that the same individual had once, long before, been a CI for the Department, and it was documented that the detective had actually used his information on one occasion. It was also noted by the hearing officer that the Department witnesses commonly interchanged the use of the terms “confidential informant” and “informant.” In fact, the sergeant who made the complaint against the detective for his misleading statements interchanged the terms himself several times during testimony at the hearing. Finally, it was discovered that the detective actually did immediately report the information he had received from the informant to another member of the Department, and that individual, in turn, had promptly reported the information to the same sergeant who had complained that the information had not been reported to him by the detective. The detective explained to the hearing officer that he had forgotten about this earlier reporting of the information because of the stress he was under during the investigation process. The hearing officer assumed that the sergeant must likewise have forgotten, because the sergeant did not testify that he had heard the same information about the suspect weeks earlier. It would be speculation to comment on why the sergeant, who was not under such stress, might have forgotten this important event.

The hearing officer commented that “in the midst of what appears to be a series of miscommunications, [the detective] made a good faith effort to provide information requested from superiors” and found that he was not terminated for just cause. The detective was reinstated with back pay and all benefits. The hearing officer also ordered the detective’s personnel records “be modified in a manner not inconsistent with this award.” Understandably, considering the evidence presented during the hearing, the Department did not challenge the hearing officer’s opinion and award.

In an action that smacked of vindictiveness and retaliation, instead of placing accurate information into the detective’s personnel file, the Department placed a form in the file stating that the detective had been terminated and another stating he had been rehired. On behalf of the detective, our firm requested that the Department comply with the decision of the hearing officer and have the detective’s personnel file reflect what had actually occurred — that he had been terminated without just cause and then reinstated with back pay and all benefits. The Department refused to do so, stating that the decision of the hearing officer was merely an advisory recommendation and not a court ruling.

In response, we filed a petition for a writ of mandate in the Superior Court, requesting that the court order the Department to follow statutory mandates and comply with the hearing officer’s decision and award. An officer’s general personnel file is the one “maintained by the agency, containing the primary records specific to each peace or custodial officer’s employment, including evaluations, assignments, status changes and imposed discipline.” (Penal Code § 832.5[d][1], emphasis added.) Penal Code § 832.5(c) requires that complaints found to be unfounded or exonerated shall not be kept in the general personnel files. Punitive action under the Public Safety Officers Procedural Bill of Rights Act (POBRA) may consist of placing any document describing misconduct in an officer’s personnel file. (See Otto v. Los Angeles Unified School Dist. [2001] 89 Cal.App.4th 985, 998; Hopson v. City of Los Angeles [1983] 139 Cal.App.3d 347, 349-350 [“potential impact on career opportunities”]; and Calcoa v. County of San Diego [1999] 72 Cal.App.4th 1209, 1222 [such actions “may lead to adverse employment consequences”].)

At the trial on the writ, the court indicated to the parties that it was inclined to issue the writ and order any document related to the detective’s termination be removed from his personnel file. The parties then met before the court issued its final ruling in the matter and, to the detective’s satisfaction, all documents related to the complaint and termination were removed from his personnel file.

What this case means for you: Formal reinstatement following a reversed termination may not be your only remedy. This firm seeks to make whole, in any way possible, law enforcement members who have been damaged by their employers.
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About the Author

Michael Williamson is an attorney with Stone Busailah, LLP. He is an accomplished litigator with over a decade of experience in police practices and is a retired LAPD sergeant. He specializes in police defense litigation, criminal law and family law.

Stone Busailah, LLP specializes in the defense of law enforcement officers in disciplinary matters and state and federal litigation matters, and provides advice and representation in criminal law and family law matters.