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

Huntington Beach Detention Officer Ordered Reinstated, 80 Hour Suspension Reduced to 10 Hours

Arbitrator Louis M. Zigman reduced a Huntington Beach detention officer’s 80—hour suspension to 10 hours and recommended reinstatement to the Reserve Officer program. At the hearing, the officer was represented by Gregory Petersen of the Petersen Law Firm, Costa Mesa, California.

The Appellant was employed as a Detention Officer at the Huntington Beach City Jail beginning on July 1989. He was also employed as a Reserve Officer for the Huntington Beach Police Department. As a Police Reserve Officer, Appellant was required to qualify with his service revolver on a monthly basis. Furthermore, the Huntington Beach Police Department requires that all police officers, including reserves, maintain all equipment, including service weapons, in a clean and polished manner.

On September 7, 1993, the Appellant was working the night shift at the Huntington Beach City Jail. At that time, he decided to take his weapon and leather gear home to clean. During his lunch break, Appellant retrieved his weapon and leather gear from his reserve officer’s locker.

Appellant had parked his own vehicle on a residential street adjacent to the jail facility and did not want to walk through the neighborhood with a gun. To avoid that situation he placed the gun in a vehicle used by the Huntington Beach Jail for jail business. He intended to drive that vehicle to his own to transfer the gun and gear. However, at that time, a number of arrestees were brought to the station for various offenses based on Labor Day weekend revelry.

Appellant, seeing the crush at the intake of the jail, returned to his post to assist his fellow jailers, leaving the weapon in the vehicle. The jail activity remained at a high level until the end of the Appellant’s shift, causing him to forget the weapon.

The next day, the weapon was discovered in the jail vehicle by a fellow city employee. The weapon was turned into the department.

Upon his return to work the following evening, Appellant was illegally called in by a sergeant for questioning regarding the weapon. Appellant tried to explain the scenario involving the inadvertent leaving of his weapon in the jail vehicle. For a long period afterward, Appellant heard nothing from the Department on this matter.

Coincidentally, prior to November 2, 1993, the Appellant had filed a grievance against the Department for having been denied promotion/employment as a police officer. On November 2, 1993, a hearing was held on that grievance. The same sergeant who made the initial complaint against Appellant relative to the gun and who performed the investigation was present at that grievance.

Additionally, Appellant testified that, whereas his employee evaluations as both a jailer and reserve officer were satisfactory or above prior to the grievance for failure to hire, the evaluations now turned negative.

The very next day after Appellant’s grievance hearing on the failure to promote, he was accused of misconduct for allegedly violating various sections of the Huntington Beach Police Department Manual. The activities came after the matter had sat dormant for nearly two months, but immediately after the Appellant’s initial grievance hearing.

On November 6, 1993, Appellant was again interviewed by the same sergeant who initially spoke to him the day the weapon was discovered. On November 10, 1993, the allegations against the Appellant were changed. One allegation was dropped. The Department now alleged that Appellant lied to the investigating sergeant concerning the circumstances surrounding the weapon found in the jail vehicle.

Appellant, on his part, never denied leaving the weapon in the vehicle. He explained that the occurrence was simply an accident.

Upon completing his investigation, the sergeant wrote a report and recommended a 50—hour suspension. The investigating sergeant’s recommendations were subsequently reviewed by a lieutenant who increased the recommendation to an 80—hour suspension and removal from the Reserve Program.

After hearing testimony from numerous witnesses and reviewing all the evidence, the arbitrator recommended that the charge of untruthfulness not be sustained. The arbitrator found many inconsistencies in the police department’s assertions regarding any mistruths told by Appellant relative to the left of his weapon in the jail vehicle. The main factor in the arbitrator’s decision as to untruthfulness was the fact that the Appellant, at all times, had admitted to leaving the weapon in the vehicle.

Therefore, reasoned the arbitrator, there was no reason for the Appellant to lie regarding the incident. Why reasoned the arbitrator, would the Appellant lie concerning minor details of the misplacement of the weapon when he readily admitted to the corrupt of the act?

The arbitrator further found relevant other factors, including the length of time it took the department to investigate the incident and the fact that the investigating sergeant, who was the alleged recipient of the untrue statements from Appellant, did not initially charge Appellant with “untruthfulness.” This is so in spite of the fact that the sergeant testified at the arbitration that “he knew immediately that Appellant was not telling the truth” when he initially questioned Appellant concerning the weapon left in the jail vehicle.

The hearing officer also found suspect the timing of the charges, having been field the day after Appellant’s hearing on a previously filed grievance. This was after the matter laid relatively dormant for nearly two months.

Further, the hearing officer took note of the fact that it was the Appellant’s chief accuser who was selected by the Department to investigate the allegations. This was a potential conflict of interest.

Based on all of the issues raised by Appellant’s defense and the facts as found by the hearing officer, the hearing officer found that the Department failed to satisfy its burden of persuasion that Appellant was culpable of the charge of untruthfulness.

In conclusion, the hearing officer recommended that the disciplinary action be reduced from an 80-hour suspension and removal from the Reserve Officer program to a 10—hour disciplinary suspension. The hearing officer further recommended that the Appellant be compensated and reimbursed for any loss of wages and benefits for the 70 hours difference in suspension and, further, that Appellant be reinstated to the Reserve Officer program.