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By PORAC | October 1, 2000 | Posted in PORAC LDF News

Santa Monica Officer Wins Another Round

Posted by Ken Yuwiler

As our diligent readers will recall, in an earlier issue we chronicled the saga of Santa Monica Police Officer John Biel, who was successful in having a hearing officer overturn a 40-hour suspension. In that matter, Biel was suspended when he sought overtime after receiving approval by an immediate supervisor, only to have that supervisor deny that approval was given.

Upon appeal, the hearing officer found that there was highly credible evidence that Biel was given approval.

The ink had barely dried on the decision when the department instituted new proceedings to terminate Biel’s employment. The proposed termination was based on the claim that Biel was guilty of dishonesty and other unbecoming conduct stemming from his testimony on a traffic court matter. After a Skelly hearing, however, all of the charges against Biel were dismissed.

The Testimony: While testifying in traffic court, Biel was asked by the violator whether Biel was “investigated by internal affairs about the way you cite the residents of this city and the ethical way you do it”. Knowing that he was not investigated by internal affairs about the way he cited the city’s residents and that internal affairs only investigated alleged unethical behavior, Biel answered “no”.

The next question was: “Internal investigations has never conducted an investigation on you, is that correct in the last month or two”? Knowing that he had not been involved in an internal affairs investigation in the “last month or two”, Biel answered “that’s correct. No.”

Biel, a 12-year employee of the department, knew that all internal affairs investigations in Santa Monica were handled by the Internal Affairs Unit. Additionally, about a year before his testimony, Biel had been investigated (and later received a disposition of “unfounded”) in regard to a citizen’s claim that Biel was in a different police vehicle and at a separate location than the vehicle and officer who issued that citizen a citation.

To avoid possible complaints about whether Biel was the officer writing a citizen a citation, and without regard to officer safety, a supervisor recommended that Biel should make some contact with the violator, even if the contact was only visual through a window, rather than have his reserve officer make the citizen contacts.

A lieutenant reviewing Biel’s new personnel complaint concluded that because Biel was previously told to make contact with the violator, Biel must have lied in court when he testified that he was not “investigated by internal affairs about the way you cite the residents of this city and the ethical way you do it”. In order to support his erroneous conclusion, the lieutenant felt compelled to contort the facts.

He began by asserting that the supervisor’s training instructions to Biel constituted an “investigation” that “should be considered an internal investigation because it was conducted by a supervisor”. Obviously, that twisted logic would mean that any training conducted by a supervisor would be considered an “internal investigation”.

The supervisor next claimed that the previous investigation constituted an investigation regarding the manner in which Biel cited residents of the city, even though such was not the subject of the inquiry. Finally, the lieutenant ignored the actual questions posed to Biel, as to whether he was investigated by “internal affairs” and whether the investigation was “about the way you cite residents of this city”, neither of which was the case.

The lieutenant admitted that Biel’s answer was “correct”, yet his analysis concluded that a correct answer would not comply with Santa Monica’s Mission, Vision and Value statement! The lieutenant contended that even though Biel gave the “correct answer” he was somehow deceptive by not volunteering additional information.

This conclusion ignores the fact that every officer is routinely trained to give testimony only in response to the exact question asked and to otherwise volunteer nothing. It is ludicrous to contemplate a departmental order requiring officers to attempt to give narrative answers to every question for fear that they might be terminated for not being forthcoming with enough information. Judges, of course, refuse to allow witnesses to answer their own questions or to deliver narratives at will.

Although the lieutenant claimed Biel lied and was deceptive, he said that the allegation for perjury should be classified as “not sustained” and recommended a suspension for giving a false statement. Chief James Butts, Jr., initially recommended termination claiming that “it is clear to me that these responses, while not legally falling under the definition of perjury, were not complete and honest”.

The Conduct Unbecoming: In a vain attempt to bootstrap its vacuous assertions of dishonesty, the department next claimed that Biel failed to comply with the supervisor’s prior instructions to make contact with the traffic violator, rather than let his reserve officer do so.

Even though police departments routinely use one radar officer to observe the violation and have another cite the citizen, or have an air unit use a ground unit to write the citation, the department claimed that Biel did not contact the violator and that his failure to do so “gave the impression of impropriety and manipulation of the court justice system” and “brought a perception of deception and conduct unbecoming by you, your fellow law enforcement officers, and the Santa Monica Police Department”.

To arrive at this tortured and bizarre conclusion, the department had to work hard to ignore the simple facts screaming from the pages of its own investigation. There was no impropriety or perception of wrongdoing because the citizen, contrary to the department’s assertions, confirmed that she saw Biel writing the ticket and believed Biel signed the ticket. Moreover, Biel’s new supervisor had superseded the prior requirement of contacting the violator based on his own assessment of important officer safety considerations.

The Skelly Hearing: I emphatically dismembered the allegations against Biel at the Skelly hearing. There appeared no reason for the charges whatsoever, but for retaliation against Biel for the prior exercise of his lawful rights in pursuing his appeal and other matters. Butts took the matter under consideration and issued a written decision about a week later.

If there was any question about the department’s animus towards Biel, Butts’ final Notice of Disposition removed all doubt. Forced to find that all of the charges were either unfounded or not sustained, Butts could still not bring himself to acknowledge the obvious, namely that Biel was truthful and that the complaint had absolutely no merit. Instead, Butts claimed that his about-face was “in large part due to technical semantic constructions” although he professed to believe that Biel’s “pattern of actions reflected poorly on yourself, your fellow officers, on the Santa Monica Police Department, and the entire law enforcement profession”.

Rather than ridicule the department managers who developed a vicious but toothless disciplinary action, Butts also wrote that the manner in which Biel issued citations caused “citizens to be left with a perception of deception and impropriety”, notwithstanding the fact that Biel’s own supervisor approved Biel’s procedure and that other officers in the department, who were not investigated, utilized the same procedure.

In an amazing display of audacity, Butts, who was noted in our last story to have refused to investigate a lie perpetrated about Biel by one of Biel’s prior supervisors and who shortly thereafter promoted that supervisor, preached in the Notice of Disposition to Biel that “integrity is the cornerstone of the law enforcement profession”. Perhaps the management of the Santa Monica Police Department should be reminded that the best way to promote integrity is to practice it.