Retired Judge Recommendation of Fired Irvine Sergeant

After an 11-day hearing and a lengthy briefing process, retired Superior Court Judge Richard J. Beacom has recommended to Irvine city manager Allison Hart that terminated police Sergeant Brian Clifton be reinstated without discipline. Bill Hadden, of Silver, Hadden & Silver, represented Clifton was represented at all stages of the proceedings.

The police department had fired Clifton in October 1999, based on a laundry list of 84 charges, the most serious involving allegations of falsification of overtime, accepting pay for hours not worked, and making dishonest statements in the internal affairs investigation. Clifton, a nine-year sergeant and 23-year law enforcement veteran who had received excellent performance evaluations and no prior discipline, just happened to be the president of the Irvine Police Officers’ Association.

As soon as he assumed the presidency of the IPOA in 1996, Clifton became a relentless and formidable spokesman for association issues, some that resonated to the very wallets of management personnel. For instance, Clifton complained to the chief, as well as management, about a certain lieutenant, who in his off-duty business employed department members above, equal to and below his rank.

He complained when the same lieutenant was being evaluated for promotion by a commander who was employed by the lieutenant off duty. He complained when that same commander sought to refer department legal business to a law firm that employed the commander’s own wife, a firm that also employed another lieutenant at the police department. He complained when the same commander was continuously noticed to be working out in the city gym for almost two hours per day.

By the latter part of 1998, according to the unrebutted testimony of several witnesses, management personnel was openly and continually berating Clifton, stating that he was “out of control” as association president and that “he better watch his step.” The chief of police (who has since retired) called the association board the “most dysfunctional” he had ever seen, and openly ridiculed board members for their political endorsements.

In November 1998, almost 1 ½ years after Clifton took over the special enforcement team of the police department, a member complained about certain practices of the unit. Even though the main issue complained of had been resolved over a year before, the department feverishly embarked on a “management audit” of Clifton’s unit, which was quickly scrapped in favor of a formal internal affairs investigation in which Clifton was made the premier target. In January 1999, without any reasonable cause, Clifton’s briefcase was searched (which produced absolutely nothing), after which he was sent home on administrative leave.

The Clifton investigation was handled like no other in the history of the department. The department’s internal affairs lieutenant was removed from the process altogether, as management deemed him a “friend” of Clifton. While otherwise trumpeting his own concern for “fairness,” the chief shamelessly delivered the investigation task to Clifton’s most rabid detractors. The commander about whom Clifton complained headed the investigation for three months.

The lieutenant who employed him – before becoming a commander himself – assisted in the direction of the investigations, before taking it over altogether for the investigator’s final months. Like the chief, the two commanders were particularly vehement in their denunciations of Clifton’s police association activities. Other major participants in the investigation included a lieutenant who was quoted as having said, “I hate Brian Clifton,” and a sergeant who unsuccessfully competed for Clifton’s position as head of the SET, bitterly maintaining that he had been better qualified than Clifton. Overseeing it all was an attorney from the same law firm that was the object of Clifton’s complaints.

In February 1999, a month before Clifton was interviewed in the internal affairs process, the commander initially in charge of the investigation proclaimed, according to testimony, that “the facts are in, and Clifton will be fired.” It was thus hardly any surprise that the investigators emerged from their months-long witch-hunt with a voluminous charge letter sated with real and imagined minutiae alleged to have occurred over the previous 21 months, together with a demand for Clifton’s termination. The chief later fired Clifton although, as he later testified, he read virtually none of the investigative materials.

Judge Beacom emphatically rejected all assertions that Clifton had been dishonest in any way. The evidence, he said, “showed that the department practices allowed an appellant to retain banks of ‘memory bank time’ and ‘flex time’ that were not required to be exhausted at any particular time, and that appellant actually worked far more hours of overtime than that for which he was ever compensated.” Judge Beacom additionally found that the department’s allegations that Clifton was late for duty and did not work full shifts were completely unsupportable.

The judge noted that Clifton’s own supervising lieutenant testified that Clifton had no specific starting time and that, therefore, he could not be considered late under any circumstances. Moreover, Clifton was given, according to the standard procedures of the unit, tremendous flexibility in the manner in which he recorded his time, and any short workday could be duly compensated for on another day. The evidence, Judge Beacom also found, showed that Clifton worked numerous hours for which he was never compensated, and that the city was never shorted for any of his work hours.

In regard to the six seemingly contrived allegations that Clifton made untruthful statements during the internal affairs investigation, Judge Beacom wrote, “The department failed to prove that any of the responses by appellant were knowingly false at the time that he gave them, or even that they were false at all.”

The judge summarily dismissed the seemingly interminable list of trivialities with which the department filed its charge letter stating, “While there were certainly many issues raised in relation to Sergeant Clifton’s supervision of the unit, many of them were petty, and virtually none of them were brought to his attention in a timely manner so as to make him appear as a recalcitrant or non-correctable employee. To the contrary, Sergeant Clifton apparently showed himself to be a more than competent supervisor for nine years before this disciplinary action was initiated.”

Judge Beacom’s Decision Left No Doubt That He Felt That Clifton Was Fired For The Exercise Of His Association Activities

“Given the clear and unrebutted trail of testimony showing that management was tremendously dissatisfied with Sergeant Clifton’s police association activities, and in light of the numerous instances cited in which other employees were treated differently than Sergeant Clifton, it is apparent that but for those activities Sergeant Clifton would not have received the discipline imposed…The department’s counsel was severely handicapped in meeting the burden of proof in most instances by two factors; one, the flawed procedures under which the department operates, and two, the obvious animosity of departmental management toward the appellant.”

Judge Beacom concluded that there was no cause to fire or demote Clifton and that any errors attributable to him “should be appropriately remedied by counseling and/or training.”

The judge’s recommendation will be reviewed by the city manager, who has the final authority to act on Clifton’s appeal pursuant to the Memorandum of Understanding between the city and the IPOA. We will keep you posted on any future developments.