Sacramento City Civil Service Board Reinstates Officer With Full Back Pay

DAVID E. MASTAGNI
Partner
Mastagni Holstedt, A.P.C

On August 21, 2023, a Sacramento police officer prevailed in the appeal of his termination from the Sacramento Police Department (SPD) related to his handling of a June 21, 2021, call for service involving an alleged assault. SPD terminated the officer on August 2, 2022, based on charges that he failed to perform an adequate investigation and was dishonest because he willfully omitted relevant information in his radio broadcast to his superior officer when he cleared the call.

The decision reinstating the officer not only found that the City failed to establish the alleged misconduct, but also that bias and disparate treatment had infected the investigatory process. The officer was not only awarded full back wages, but also backpay for lost overtime opportunities. The unwavering support from the PORAC Legal Defense Fund is greatly appreciated by the officer and his attorneys at Mastagni Holstedt, A.P.C.

Facts

The officer’s troubles began on June 21, 2021 — two weeks past his probationary status — when, at approximately 2:04 a.m., a man with a visible, bloody cut above his eye hailed down the officer for assistance. The man reported being assaulted by two Black males who rushed him and his friend while pumping gas but was unsure about the location where it occurred and what he was hit with. The other officer on scene did not locate the man’s friend or the suspects and reported that no witnesses observed the altercation. The alleged victim reported having lost consciousness, failed to provide a detailed description of the suspects and appeared incoherent, as evidenced further by his slurred speech.

The officer asked the victim if he “wanted to press charges,” to which the man turned, looked away, shrugged his shoulders, and said, “Well, if you can find them.” The officer interpreted this equivocal response to mean that the victim remained unsure if he wanted to press charges. His partner interpreted the response as conditional, meaning if the officers could find the suspects, then the victim wanted to press charges. Based on the victim’s history of seizures and that the man takes seizure medication, fire medics on scene indicated that a seizure may have caused the man’s injury. The medics transported the victim to the hospital for further evaluation.

The officer cleared the call and updated his sergeant, characterizing the incident as a “medical issue” and noting that the victim “didn’t want to prosecute.” The sergeant instructed him to write a casualty report instead of a crime report due to the medical nature of the circumstances.

The officer further advised that the victim appeared unsure about what happened and acted all over the place. He also expressed his uncertainty over whether the victim sustained injuries from an altercation or from a separate, unrelated medical issue. After reviewing the report, the sergeant advised that the report needed to match the body cam footage and needed to clarify the size of the victim’s laceration.

A separate officer then conducted a follow-up investigation of the incident, which included obtaining surveillance tape from the gas station and interviewing the victim, who again relayed a disjointed story involving three different versions of events. The surveillance video contradicted these statements and revealed that the victim actually instigated the incident. The video showed the “victim’s” friend approach and punch another man, who then punched the “victim.” This officer’s follow-up report also noted that the “victim refused to prosecute.”

The accused officer revised his report to include this additional information, including that an assault occurred. His sergeant later told internal affairs that he did not know those facts, and if he had known earlier, he would have initiated a felony assault investigation instead of a casualty report.

The officer’s report indicated that the victim stated, “I do not know if I want anything done.” At arbitration, the officer explained this slight discrepancy with the exact statement of the victim, testifying that he wrote the report in summary based on recollection and that he “didn’t go watch every second of [his] body cam.”

Eleven days later, a watch commander reviewing the call, report and videos found that the “officers were neglectful in thoroughly investigating the crime” and that discrepancies existed between what was documented, how the call was cleared and what the victim actually reported to officers. As a result, an internal affairs (IA) investigation was initiated against the officer and the other involved officer with the same watch commander assigned as the IA investigator.

 SPD’s Termination Case

SPD placed the officer on administrative leave immediately on July 2, 2021, the same day that the watch commander issued his written findings. The IA allegations included conduct unbecoming, dishonesty and neglect of duty, service. Internal affairs interrogated the officers about two months later. The officer acknowledged mistakes in the handling of the call, but was adamant that any inaccuracies in his radio broadcast and report were not intentional and did not constitute dishonesty.

Nine months later, in June 2022, SPD finally issued its intent to terminate letter, which sustained allegations for inexcusable neglect of duty, dishonesty, discourteous treatment of any member of the public, and causing impairment and discredit to service. After a Skelly hearing, the City imposed the termination, effective August 2022.

The termination notice alleged the officer acted dishonestly when he (1) authored a report writing that the victim did not know if he wanted anything done and (2) when he radio broadcasted that the call appeared to be some sort of medical issue and the victim did not want anything done. SPD further alleged he failed to conduct a thorough investigation as he failed to respond to the hospital to obtain a clarifying statement from the victim and conduct further follow-up, like determining the extent of the victim’s injuries or other elements of the crime.

SPD clung to the dishonesty charge, arguing the officer willfully omitted pertinent facts that affected the trajectory of the investigation. At arbitration, SPD maintained that a sustained dishonesty allegation is an inevitable termination case because dishonesty is “a continuing trait of character” and “false statements … and omissions of material facts, if repeated, would result in continued harm to the public service.”

However, the charge of dishonesty is a specific intent violation, requiring the City to prove far more than a mistake or discrepancy. Dishonesty requires proving that the accused officer intentionally misrepresented material information with the intent to deceive. Here, the department cherry-picked evidence it presented while ignoring exculpatory evidence that the discrepancies were not dishonest. Mere inaccuracy does not constitute dishonesty nor justify termination. The department attempted to avoid the fact that at no point after the call for service was the officer allowed to conduct further follow-up. Moreover, the hearing officer noted that no superior officer ever directed the officer to write a crime report or conduct any follow-up. The department created a catch-22 by penalizing the officer for not responding to the hospital when he was given a lawful order by a superior officer to only write a casualty report.

Even if the officer should have conducted further follow-up, termination was excessive and unjustified, given the totality of the circumstances and the lack of progressive discipline. At the time of the incident, the officer had only been a Sacramento police officer for about a year and a half, and there had been no progressive discipline.

The Civil Service Board found that the officer reasonably concluded that the victim was unsure if he wanted to press charges. Any reasonable person would have interpreted the victim’s response as expressing doubt. The City’s narrow focus on the exact language of “Well, if you can find them” fails to account for the totality of the circumstances, including (1) the victim’s uncertain tone, (2) his body language communicating uncertainty and (3) his overall ambiguous demeanor.

Ultimately, the officer’s impression was correct, as the victim advised SPD that he did not want to press charges. SPD also attempted to rely on issues that occurred during the academy, but this attempt to bootstrap was rejected. How can uncharged conduct support dismissal when it was not an issue at the hiring stage? As the hearing officer noted, “to raise [this] now is an attempt to attach a condition after the fact and in a self-serving manner.”

The City’s Civil Service Board Rules also direct that the City bears the burden of proof of all facts necessary to support the discipline. This burden includes establishing just cause for disciplinary action and the discipline imposed.

 On Bias and the Arbitrator’s Opinion

The appeal decision recognized that, on multiple occasions, the department evidenced its predisposition to uphold dishonesty without a full and fair investigation. From the outset, the appointment of the watch commander as the lead IA investigator presented a conflict of interest. When the watch commander first reviewed the call, he acted in his capacity as acting lieutenant. An IA investigator should operate as an independent and impartial fact-finder.

By rendering an initial determination as an acting lieutenant, he remained partial to his own analysis even when acting as lead investigator. This bias became widely apparent by the watch commander’s continued insistence that the officer was dishonest. Ironically, the watch commander inaccurately testified that the officer had admitted to being dishonest when the officer had actually only admitted he had violated policy by mistakenly submitting a report with inaccuracies.   

We also successfully argued that SPD subjected the officer to disparate treatment. The other officer on scene received only minor discipline for similar conduct and was not even charged with dishonesty.

Relying on Carroll Daughtery’s Seven Tests of Just Cause, the hearing officer ultimately found that (1) SPD’s investigation was not conducted fairly and objectively, (2) the investigation did not obtain substantial evidence of the officer’s misconduct and (3) the rules, orders and penalties were not applied evenhandedly and without discrimination.

The hearing officer recognized that SPD’s objectivity was in peril from the start with the appointment of the watch commander as the IA investigator. The decision emphasized the notion of an anchoring bias, which occurs when one depends too heavily on an initial piece of information or first impression when making decisions, which was at play here. 

An actual review of the watch commander’s pre-IA investigator role never happened, and that portion of events was conspicuous by its absence from the IA investigation. No one was interviewed to cover that base. This rendered the investigation incomplete, which in turn established an actual conflict of interest equating to a lack of objectivity.

Other than the watch commander’s opinion steeped in implicit bias, there “does not appear to be any other supporting information” to the dishonesty charge. In short, the investigation presumed guilt from the beginning and attempted to force the accused to prove his innocence. Thankfully, he did just that.

The hearing officer also emphasized the nine-month delay in sustaining the charges presented a “denial of due process” and a disadvantage to the officer due to the effect of time on memories. The department asserted an overriding responsibility to the public yet kept the officer on paid administrative leave for an extra nine months, imposing unnecessary costs on the public. The decision noted delays can be a “special” brand of punishment alone. The delays elevated the termination to impose an additional and secondary form of discipline, constituting double jeopardy, and by that standard, the termination should not be sustained.

Thankfully, the Civil Service Board adopted the recommended decision reversing the termination. The termination was reduced to a written warning for all charges minus dishonesty. The written warning is to mimic the written warning given to the other officer who was on scene and also investigated (but not for dishonesty). Additionally, the arbitrator recommended that the officer be made 100% whole in all ways, as if he were never terminated, including, but not limited to, wages, any lost overtime possibilities
and benefits.

The officer and I join in thanking the Legal Defense Fund for making this well-deserved result possible and for the continued support we received in combating these baseless charges.

 About the Author

David E. Mastagni is a partner with the Labor Department of Mastagni Holstedt, A.P.C. He specializes in labor and employment law representation, including trial and appellate litigation in California and federal courts. David is an experienced Legal Defense Fund panel attorney and is admitted in U.S. District Court, Southern, Eastern, Northern and Central Districts of California, the Ninth Circuit Court of Appeals, and the U.S. Supreme Court. He has also provided legal analysis on legislation and testimony before the Legislature on behalf of PORAC. He is experienced in collective bargaining and interest arbitration to establish terms and conditions of employment.