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By PORAC | April 1, 1997 | Posted in PORAC LDF News

Police Officer Reinstated: Incomplete Investigation Led to Erroneous Findings of Untruthfulness

BART Police Officer L.A. Bush represented by LDF panel attorney Gail Kavanagh of Carroll, Burdick & McDonough, has been reinstated to her former position in a case that is not only a victory for the officer but also reconfirms the importance of a thorough and impartial investigation in establishing just cause.

Bush was terminated in February 1996 on the basis of two separate incidents. In one incident, Bush, while working in Dispatch, erroneously told a caller that her missing teenaged daughter had been located at a BART station. In fact, a girl matching the missing girl’s description – even down to a tattoo on her right ankle – was being held at the station, but the girl turned out not to be the woman’s daughter. Internal Affairs investigated the matter and found that Bush had violated Department regulations regarding “standard of conduct” and “conduct toward the public.” IA specifically declined to sustain any charge of untruthfulness in that case.

In the second case, which involved two juveniles who were drinking at the San Leandro BART Station, Bush was accused of intentionally misrepresenting the level of intoxication of one of the kids by telling her swing shift supervisor that the child had been drinking (“HBD”) but was not unable to care for himself (PC 647f). After the boy left her custody and was being transported home by a graveyard shift officer, he lost consciousness, had to be taken to a hospital and was later arrested under 647f and for assaulting a nurse.

Bush’s supervisor launched a “preliminary investigation” by requesting memos on the case from three sergeants who had been involved with the case and, several weeks later, interviewing Bush. Based on the “preliminary investigation,” her supervisor advised the Department that there seemed to be certain “discrepancies” between Bush’s recollection of the case and other witnesses’ statements, as well as his own recollection. Since he was a percipient witness, her supervisor recommended that Internal Affairs investigate further. No further investigation was undertaken.

The Department did not interview any of the officers who were at the San Leandro Station, either of the kids, or the station agent, nor did it give Bush an opportunity to respond to the alleged “discrepancies” in her interview.

Instead, based on the “preliminary investigation,” the Department determined that Bush had intentionally misrepresented the kids’ level of intoxication to her supervisor in order to “dump” the case in order to get off work on time, that she had falsely stated or suggested to the graveyard sergeant that she had permission to request a transport for the kids, that she failed to properly report the incident, and that she had recklessly endangered the kids’ safety by sending them home in an intoxicated state rather than have them medically cleared.

In its zeal to fault Bush, the Department ignored the fact that the decision to transport the kids home rather than to a hospital was ratified by the graveyard sergeant who had ample opportunity to observe and assess their apparent level of intoxication.

The decision to terminate Bush was purportedly based on these “findings” after the preliminary investigation, together with the charges sustained by IA regarding the Dispatch case. The Department admitted that neither of the two incidents by itself would have warranted Bush’s termination but that the “totality of the circumstances” of both incidents together constituted just cause.

At the hearing before Arbitrator Charles Askin, Kavanagh presented eyewitness and expert testimony disputing the Department’s conclusion that, because one of the juveniles was later deemed to be 647f, he must have been unable to care for himself while he was in Bush’s custody.

The evidence showed that the child’s condition deteriorated dramatically after Bush left him and that the Department had not taken into account the fact that his blood-alcohol level continued to rise after her initial contact with him. The arbitrator went on to find that the evidence disputed all but one of the ten alleged instances of untruthfulness claimed by the Department. Thus, Askin found that the “totality of the circumstances” upon which the Department claimed to rely, could not support the termination.

Askin also held that the investigation of the San Leandro incident “did not satisfy the due process component of the just cause requirement in at least two respects.” First, Bush’s supervisor admitted that he was a “preliminary investigation,” and that he made no effort to ascertain all of the facts, including exculpatory evidence. Second, he admittedly was not impartial: his own credibility was at issue as he was himself a material witness with respect to those areas of “discrepancy” relating to Bush’s communications with him on the evening in question. Although he noted the impropriety of his continuing with the investigation and recommended further investigation, “no independent, impartial investigation of that matter was ever undertaken.”

As a result, certain witnesses were never interviewed, and others were interviewed more than a year after the events and well after Bush had been terminated.

Askin’s decision, in this case, underscores the critical role that the investigation plays in establishing just cause for employee discipline. Where, as in this case, the employer cavalierly ignores its own internal investigations procedures, fails to investigate potentially exculpatory evidence, and even fails to heed the investigator’s advice that the matter be investigated further, the employer cannot meet its burden of proving that the employee has been afforded due process or that just cause supports the discipline imposed on the basis of such an investigation.