San Marino Sergeant’s Demotion Overturned

Mark Harvey, a 14-year veteran of the San Marino Police Department, was demoted from sergeant to police officer for what the department claimed was “bad performance” as a sergeant for eight years. Since the department could not be specific on what conduct was justification for the demotion, it raised a traffic incident where no damage occurred as the “catalyst” for the demotion. To support its position, the department utilized eight years worth of Harvey’s performance evaluations to somehow portray Harvey as a “bad sergeant.” Supported by the Legal Defense Fund and this author, Harvey immediately attacked the allegations.

The department attempts to show that Harvey was a bad performing sergeant during his eight years, dug out some “out of context” quotes from Harvey’s performance evaluations. These unsupported factual allegations were attacked on several fronts. Since the “bad performance” quotes from evaluations spanned an eight-year period, we argued that the one-year statute of limitations under the Public Safety Officers Procedural Bill of Rights Act (Government Code §3304(d)) and the common law principle of laches should preclude the department from utilizing any material older than one year in justifying the demotion.

Additionally, we pointed out that progressive discipline was not imposed. Chief of Police Arl Farris admitted in the hearing that Harvey never received any discipline for “any performance in his capacity as a sergeant.” Farris could not provide reasons why, after eight years of being “a bad sergeant”, the department needed to start on the discipline ladder at the level of demotion. The chief also had problems explaining why he refused to listen to all of the other sergeants in the department who went to his office to talk him out of demoting Harvey who, in their opinions, had been a “good sergeant.”

Failing to overcome the hurdles in showing Harvey as a “bad sergeant” the department next turned to the traffic incident, what they deemed was the “catalyst” for the demotion. Here also, the department was confronted with numerous pitfalls, which proved fatal to its case. First, a disparate treatment defense was produced at the hearing. I demonstrated through reports and testimony the historical treatment of minor traffic mishaps involving San Marino police officers and sergeants.

Even before the hearing started, the department attempted to thwart this effort by refusing to deliver subpoenas to the officers involved, claiming the statutory fee for peace officer subpoenas was not submitted. After conclusively showing that the statutory subpoena fee for peace officers was not applicable in administrative cases in which the officers are employed by one of the parties, the department reluctantly produced the witness officers.

We established that, in the few years proceeding Harvey’s incident, there were at least eight other traffic collisions involving San Marino officers or sergeants. In most of the incidents, a traffic collision report was not even taken, and the harshest discipline imposed was a written reprimand. In fact, we conclusively demonstrated that, in the entire history of the department, no officer or sergeant had received discipline greater than a written reprimand for being involved in an at-fault traffic collision.

Most importantly, and what ended up being the final blow to the department’s case, we showed that the traffic incident involving Harvey did not even amount to a “traffic collision.” Expert testimony established that pursuant to CHP guidelines, which San Marino follows when there is no injury or damage, there is no “traffic collision.” The incident involved Harvey when attempting to respond to a “child not breathing” call, slowly backing his patrol unit up in a school parking lot and bumping a pole.

This caused a minor paint transfer onto the bumper, which was later buffed out by city maintenance mechanics. The lieutenant who ordered a “traffic collision” report taken, first testified that he did not authorize Harvey to have the bumper buffed out, but when confronted with his own memorandum describing his authorization to Harvey, he “corrected” his testimony.

One of the mechanics who buffed out the paint transfer testified that there were no scratches or dents on the bumper. The officer, who was ordered to take a report indicated there was no damage to the pole that was bumped. Even the school principal, who was present when the bump occurred, indicated there was no damage and that she did not want anything done.

The lieutenant could not adequately explain why he ordered a “traffic collision” report in this matter when he let other officers, who were in collisions where actual damage occurred, get by without such a report or discipline. To clarify the lieutenant’s motivation in this matter, former officers and sergeants of the department were brought in to establish the lieutenant’s propensity for bias toward Harvey. Harvey was the POA president for several years and complained about this lieutenant on numerous occasions.

Testimony by several former officers and sergeants established that this lieutenant was very vindictive when one voiced an opinion contrary to his. Evidence established that the same lieutenant was caught backdating memos issued to Harvey and later chastising him for not timely completing work. It was also shown that the vindictiveness became so disruptive that all of the sergeants got together and went to the former chief of police to complain about this lieutenant’s conduct toward Harvey.

Why this lieutenant ordered the “traffic collision” report taken, resulting in the discipline in this matter, became very apparent.

The hearing officer held that the appellant was not demoted for good cause and that he should be reinstated to the rank of sergeant with full back pay and should receive no discipline.