Murrieta Sergeant Gets Stripes and 30 Suspension Days Back

Sergeant Scott Attebery was recently reinstated to his position as a police sergeant and received back pay and payment for 30-days suspension (over $20,000, plus interest), after being cleared of the biased, and unsupported charges made by the Murrieta Police department.

Attebery (a two-time recipient of the distinguished service award for his projects and DARE fundraising and coordination) had been demoted and given a 30-day suspension. Attebery was accused of allowing and encouraging personnel to watch video movies during working hours, abandoning his post on multiple occasions and going home for hours at a time (despite previous warnings). He was also accused of being untruthful during the internal affairs interview about conversations with ranking members of the department and about allegations of sleeping on duty.

Attebery requested a Skelly hearing, and despite the fact that the Skelly package showed that there was no evidence that Attebery had ever slept on duty, the same charges were used to support the imposed demotion and suspension. Attebery maintained that the watching of videos was a department practice on slow nights during the holidays, and were only watched when the officers were taking code 7, writing reports or performing other desk duties. Attebery also maintained that the time spent at home was spent working on his home computer on department projects.

Attebery appealed and received an administrative hearing on the suspension and demotion. At the beginning of the hearing, panel attorney Sylvia Kellison, of Kellison & Vasquez, LLP, issued a subpoena duces tecum requesting documents relating to Attebery, including e-mail, computer directories at the department and memos and computer directories from the home computer of a police official who had allegedly given an order to Attebery to not work at home.

These records allowed Attebery to establish not only that the official had been maintaining secret personnel files on Attebery in violation of Government Code section 3305, but had backdated the very documents which the department intended to use to establish that an order was given. A calendar of the communications and actions taken by the official not only caused the official’s credibility to be called into serious question but also established a pattern of reprisal against Attebery for the exercise of his protected rights.

Using these records in cross-examination, the official reluctantly admitted to the backdating of at least three official documents (including his notes to the file of that meeting) and to personally maintaining a 111-page secret personnel file on Attebery. The secret file also established that all of the other sergeants allowed the watching of movies on their shift.

In addition to the movie issue, the issue of working at home was the subject of significant testimony. Attebery maintained that the hours he was at home while on-duty were spent working on the DARE golf tournament, and on projects for the chief’s secretary and dispatch supervisor. He asserted that the chief knew that he was doing that work and that he made it no secret that he was doing it on his home computer.

Attebery also pointed out that the department computer was constantly down, that it regularly destroyed documents, it could not do mailing labels, newsletters, scan or do complicated printing jobs and that it had no access to the internet, where items for the DARE silent auction were purchased. The former chief of police admitted that he allowed Attebery to conduct business at his home (less than a mile from the station) because Attebery had a computer system which could run more sophisticated programs than the department’s system.

The chief’s secretary, dispatch supervisor and other employees testified that Attebery brought hundreds of documents (prepared on his computer) into the station for mailing or use, and the department newsletter and State of the Department reports were prepared on Attebery’s computer.

In fact, over 400 mailers and a number of sports memorabilia for the silent auction were turned over to the investigator on the day of Attebery’s interview. Finally, a leading citizen testified to the efforts that Attebery put into the DARE golf tournament including the large number of uncompensated hours spent in bringing in over $50,000 per year for the DARE program.

Attebery also was accused of making false statements in his internal affairs interview, and about allegedly sleeping in the station. The department presented no evidence that Attebery ever slept in the station, and the former chief admitted that he never gave Attebery an order not to work at home.

A further issue was the form of the question raised by the interrogator. The hearing officer found that Attebery’s answer to the actual question asked was not untruthful because the question was vague and subject to significant interpretation. In addition to the question, the issue of the unlawfulness of the interrogation was raised both at the interrogation and at the hearing.

Attorney Kellison asserted that the interrogator could not conduct the interrogation because he was not a member of the employing public safety department as required by Calif. Government Code section 3303 (he was a contract investigator) and also that his conduct of the investigation was improper because he committed a criminal act by conducting the investigation when he was not licensed as a private investigator.

The hearing officer found that Attebery had not made a false statement, had not disobeyed a direct order and that while he did allow officers to watch videos while on-duty, no discipline was appropriate because all of the other sergeants also allowed such a practice and received no discipline.

The hearing officer recommended that Attebery be reinstated to sergeant, with full back pay and benefits, and receive back his 30-day suspension. The city manager (after violating the MOU by giving the department an opportunity to file exceptions to the hearing officer report and extending the time to decide) upheld the hearing officer’s decision. He also unilaterally and immediately retired Attebery on a work-related disability (at the sergeant rank).

Attebery is now in the process of using the documents gained by the subpoena, the hearing officer’s decision, and the testimony to sue the city for violation of his civil rights under color of authority, for actions including the forgery, antedated documents, numerous violations of AB301, and for the early retirement.