Suspenion for Santa Monica Police Officer Overturned

Santa Monica Police Officer John Biel was vindicated and his 40-hour suspension was rescinded, after a lengthy hearing before Hearing Officer Michael Prihar. Biel was represented by Ken Yuwiler, of Silver, Hadden & Silver.

In March 1997, Biel had been a police officer for the City of Santa Monica for about 10 years. He had been told by a supervisor that he would be paid overtime for his attendance at an award’s ceremony during which he was to receive his five-year service pin.

Biel submitted an overtime request for his attendance. When the request was reviewed, this same supervisor denied giving approval for the overtime.

At the Skelly hearing, Police Chief James T. Butts was put on notice that another officer heard the supervisor give approval for the overtime and that the supervisor also told the department’s most senior sergeant that the supervisor “f—-d up,” because he gave Biel approval for the overtime.

After being told that neither of those witnesses was interviewed during the investigation, Chief Butts asked the name of the witness officer saying, “We can make sure that [the officer’s interview] happens, don’t worry about that, just give us his name.”

Nonetheless, Chief Butts failed to have either of those witnesses interviewed and failed to conduct an investigation into the supervisor’s conduct, saying there did not “form any questions in [his] mind” whether the supervisor lied.

The department also ignored its own Mission, Vision and Values Statement in its fervor to investigate and discipline Biel. For example, the department completely failed to interview both witnesses that the department knew would say that the supervisor gave Biel approval for the award’s ceremony overtime, failed to conduct a complete investigation, completely failed to investigate the supervisor’s apparent dishonesty, and investigated and disciplined Biel for conduct which occurred to numerous others, none of whom were investigated or disciplined.

Amazingly, the supervisor who approved the overtime was even allowed to have an active role in the disciplinary process, which included increasing the proposed discipline from a 24-hour suspension to a 40-hour suspension.

Chief Butts ultimately gave Biel the 40-hour suspension for submission of the overtime slip for the award’s ceremony, for claiming 3 hours of overtime, when he was only entitled to 1.5 hours, and for receiving overtime in the past to which he was not entitled, even though he did not submit a request for that overtime.

Among other things, the department claimed that Biel was dishonest, because of his claim that the supervisor gave him approval for submission of the award’s ceremony overtime.

A Notice of Suspension and Statement of Charges were provided to Biel. Each was signed by Butts, and prominently addressed the circumstances surrounding the award’s ceremony overtime. Biel appealed. Hearing officer Prihar conducted an evidentiary hearing.

At the hearing, the department, no doubt recognizing the significant flaws in its case, sought to change the focus of the discipline away from the award’s ceremony. Butts testified that he gave “[v]ery little” weight to the award’s ceremony issue. Then he testified that “the service award’s ceremony was not the main issue” of the discipline.

Still later, Butts testified that the award’s ceremony “was not part of my decision in implementing discipline,” insisting that had he read the Statement of Charges more closely, he “would have excised the section about the awards ceremony, “because I considered it irrelevant at the time” and that “it has no bearing on the punishment he received”.

As the award’s ceremony was obviously part of the discipline and the department declined to stipulate that the award’s ceremony issue was not a ground for the discipline, the issue was litigated. During the investigation and hearing, the supervisor denied he gave Biel approval for the award’s ceremony overtime.

During cross-examination, the supervisor contradicted himself, testifying that after he was told of the other officer’s knowledge about the overtime approval, the supervisor asked the officer about it “to refresh my memory if I missed something or whatever,” because “I thought maybe he could shed some light, and maybe it was something I did forget”.

The supervisor then emphatically denied that it was even “possible” that he forgot that he approved the overtime. The witnesses’ testimony was overwhelming.

The hearing officer concluded that the “evidence would not have sustained charges of dishonesty or improper conduct pertaining to the filing of the award ceremony overtime … [because there was] highly credible testimony to the effect that the appellant had been authorized by [the supervisor] to claim the award ceremony overtime”.

The department’s next volley at Biel was based on the department’s internal affairs investigator’s testimony that he conducted approximately a four-year audit of Biel’s payroll records, and located two times that Biel received overtime to which he was not entitled.

The department asserted Biel should have known of the alleged overpayments. However, even the department admitted Biel had not submitted a request for overtime on those two occasions. The investigator testified that during his audit of Biel’s payroll records, he only looked for overpayments, not underpayments.

The investigator admitted he did not conduct a similar audit on anyone else’s payroll records. Hence, there was no determination whether other employees had accidentally been paid overtime to which they were not entitled. The hearing officer concluded that the record “failed to provide any basis for disciplining the appellant” for one date and that it was “highly plausible that the appellant may not have realized that he was overpaid” on the other date.

Ironically, at the time Biel was being investigated, a detective had been assigned to determine the efficacy of the payroll system. To do so, the detective conducted a two-week audit of the entire department’s payroll system and reviewed over 400 employees’ payroll files. Incredibly, the detective found a 25 percent error rate.

Although pay adjustments were needed for numerous employees, only Biel was investigated and disciplined. The hearing officer also determined that there was “inconsistency in the manner in which overtime has been monitored” and concluded that the “absence of any discipline in those [other] cases was a patent unreasonable disparity in comparison to the appellant’s [Biel’s] 40-hour suspension”.

Finally, the department sought to discipline Biel for writing 3 hours on an overtime slip when he meant to write 1.5 hours. Biel admitted the error but said it was unintentional. The department asserted otherwise. The hearing officer agreed with Biel and concluded that it was an “unintentional error” that constituted a “minor level of inefficiency” for which Biel should receive a “written warning for inefficiency”.

The hearing officer’s decision was taken to the personnel board. The department did not dispute the hearing officer’s findings. Yet, the department now sought to have Biel receive a 24-hour suspension rather than the original 40-hour suspension. The personnel board sustained the hearing officer’s findings, ordering only a written warning as a discipline.

Epilogue: During the Biel hearing, the supervisor was promoted. Biel received a written reprimand for negligence, not inefficiency as ordered by the hearing officer. Further, although two supervisors and the chief all acknowledged that if Biel was given approval, it was appropriate for him to submit the request, the department still refuses to pay Biel for his attendance at the award’s ceremony.