Officer’s Termination Overturned

A hearing officer recently concluded that Police Officer Brian Adair was guilty of one thing and one thing only – bad timing!! Adair was a 15-year veteran of the city of Orange Police Department when he was terminated for allegedly tipping off a vendor of fake watches about his department’s investigation and the vendor’s pending arrest. Following a three-day hearing, at which he was represented by attorney Michael Schwartz of Silver, Hadden & Silver, Adair was fully exonerated of having committed any misconduct and ordered reinstated with full back pay and benefits.

Adair had been assigned to the department’s substation at “The Block”, a large, outdoor mall/entertainment complex within the city, for about two years. During that time, Adair became acquainted with many of the patrons and vendors, including a merchant who sold watches from one of the “push carts” that populated the outdoor mall. Throughout Adair’s tenure at “The Block”, it was common knowledge among officers that the merchant sold “fake” watches. Another officer had previously notified his supervisors about the fake watches. They told him “not to rock the boat”. Adair would, however, occasionally tell the vendor to get rid of the knock-off watches when he noticed that the inventory of fake timepieces was high.

On January 25, 2001, at about 2:00 p.m., Adair and his partner conducted their routine patrol of the mall. During that patrol, Adair noticed an abundance of counterfeit merchandise on the watch cart. Adair and his partner returned to the substation around 2:30 p.m. Unbeknownst to Adair, the new supervisor of “The Block” substation had begun an investigation of the watch vendor. At about 2:00 p.m. on that same date, the supervisor held a closed-door meeting with a fellow supervisor, during which they discussed the illegal sale of “fake” watches and their plan to arrest the watch vendor the following week. Adair was not included in that meeting and was unaware that an investigation had been started. At about 2:45 p.m., Adair left the substation and notified the watch merchant to get rid of the fake watches on his cart.

Two days later, the supervisor arrived at “The Block” and noticed that the watch vendor had rid the cart of its counterfeit merchandise. Alarmed that the vendor had been tipped off, the supervisor began an investigation and reviewed the mall’s surveillance video of that area. He noticed that at about the same time as the closed-door meeting on January 25th, the video shows Adair speaking briefly with the watch vendor and, thereafter, the watch vendor immediately begins unloading the counterfeit goods.

The department was convinced, even before talking to Adair, that he must have tipped off the vendor. The department’s investigation immediately focused on proving Adair guilty. As the hearing officer ultimately determined, “certain assumptions were accepted as fact at the outset…and no serious investigative effort was devoted to providing support for one of the most significant issues of the investigation: whether Adair knew or learned about the investigation and the planned arrest prior to his conversation with the watch vendor.” For his part, Adair never denied his conversation with the vendor, but did deny any knowledge of the pending investigation or the planned arrest.

The department leapt to the conclusion that Adair must have overheard the closed-door meeting and, for reasons unknown, decided to tip off the merchant about the investigation and his pending arrest. The investigators, however, failed to interview the participants in the closed-door meeting. They also did not thoroughly interview two other people who were in the substation during the closed-door meeting. Those two individuals testified they were unaware of the closed-door meeting, much less what was discussed. The two supervisors who spearheaded the complaint against Adair contradicted one another to the point where they could not even agree on who was present during the closed-door conference. Although both testified they discussed a plan to arrest the watch vendor, neither person bothered to document that fact in their memos of the meeting.

Attorney Schwartz exploited the conflicting testimony, took advantage of the generally inept investigation, and highlighted the lack of significant evidence showing that Adair knew about the closed-door meeting, let alone the plan to arrest the vendor. After three days of hearing, the hearing officer determined that “the city failed to prove by a preponderance of the evidence that Adair learned of the investigation of the watch vendor or of any plan of the department to arrest him…” The hearing officer noted Adair’s “outstanding reputation for honesty” and concluded that the evidence did not sustain the charges and that “termination of Adair’s employment was not warranted.” A vindicated and very happy Brian Adair was awarded full back pay plus benefits.