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By Rains, Lucia, Stern, St. Phalle & Silver | May 5, 2023 | Posted in PORAC LDF News

Suspension and Termination of Vallejo POA President Set Aside in Arbitration

Principal Attorney
Rains Lucia Stern St. Phalle & Silver, PC

I have represented police clients for the last four decades in some pretty crazy disciplinary cases, but my recent representation of Vallejo Police Lieutenant Michael Nichelini, who is also the president of the Vallejo Police Officers Association (VPOA), has to rank as one of the top four or five in the “crazy” category.

Following a four-day arbitration before Arbitrator Martin Gran, Mike is back at work both in his role as a Vallejo police lieutenant and as the president of the VPOA, an outcome that delights me as much as having learned, while we were waiting for the arbitrator’s ruling, that the former Vallejo police chief who fired him and ordered the 40-hour suspension had worked out some type of “exit strategy” with the City of Vallejo and would not be waiting at the front door of the police station when Mike returned, to try to contrive/fabricate new allegations that could never be proven.

After working as an Oakland police officer for 10 years, Mike joined the Vallejo Police Department in 2006 and had been employed there for 15 years when he was terminated by (then) Vallejo Police Chief Shawny Williams on March 31, 2021. He had been a lieutenant for six years when terminated by Williams.

Mike had never suffered the imposition of any disciplinary action while employed at Vallejo for the 13 years prior to Williams’s arrival. He had played an active role in the VPOA for much of his career at Vallejo, and was a member of the VPOA Board of Directors for 11 years when Williams took office in December 2019. He became president shortly after Williams arrived, and it did not take long for the “war” to start.

Needless to say, Vallejo was Williams’s first position as a municipal police chief, and soon after his arrival, command staff members were complaining about his management style to anyone in City government who would listen, and oftentimes to me. The Chief started making unilateral appointments of friends or others he wanted to include in his inner circle to do functions in the Department that had previously been performed by sworn employees, resulting in the filing of grievances and other complaints by the VPOA. The relationship between the Chief and the VPOA deteriorated both seriously and quickly, and the Chief began making public statements criticizing the position taken by the VPOA on recommendations made by an outside consultant for policy changes or other “reforms” of the Department.

Meanwhile, members of the previous command staff started retiring or leaving for other agencies, while police officers sensed that the Department was a “rudderless ship” and started seeking employment elsewhere, creating internal morale problems and staffing shortages.

All of that served as a backdrop to the Chief’s campaign to find some basis to get rid of one of his most vocal critics, VPOA President Mike Nichelini.

The Chief had some allies in his quest to find a basis to discipline Nichelini. A local civil rights lawyer — who made a living trying to sue the police, posted highly critical comments about the Vallejo police on social media, was a frequent vocal critic of the police at City Council meetings and frequently disrupted such meetings — generated some personnel complaints against Nichelini, which Williams enthusiastically accepted and assigned for investigation.

Williams had only been at the Department for roughly six months when the barrage of formal Internal Affairs complaint investigations against Nichelini began. The civil rights lawyer had made an allegation against Nichelini that he intimidated and harassed her and some of her other police critics when they were standing in front of City Hall prior to a City Council meeting, by walking by them and glaring at them. In a separate complaint, the civil rights lawyer claimed that Nichelini — who was assigned to a security detail at a City Council meeting in September 2019 — had “harassed and intimidated” her by filming her as she walked to the front of the Council chambers, screamed at one of the Council members and extended her middle finger in the direction of Nichelini, who was standing at the side of the City Council chambers.

I got a call from Mike when he was suddenly placed on administrative leave by the Chief in July 2020 for allegedly “destroying evidence” of alleged police misconduct. As it turns out, this allegation was also made by the civil rights lawyer, who was representing the family of an individual who had been shot and killed by a Vallejo police officer during a George Floyd–related protest. The officer, as it turns out, had fired several rounds through the front windshield of a police vehicle. After the available evidence from the officer’s body camera was examined, measurements were taken of the bullet holes through the front windshield and extensive photographs were also taken, the front windshield of the vehicle was replaced several days later so the vehicle could be returned to service, consistent with practices engaged in by police department managers numerous times before this occasion.

Yet Williams put Nichelini on administrative leave for his “approval” of replacing the windshield, which was characterized as “destruction of evidence.” As would be demonstrated later, Mike took no role whatsoever in the decision to replace the windshield. That occurred under the direction of another lieutenant who supervised investigations. When one of the command staff members advised Williams that he had placed the “wrong person” on administrative leave, Williams left Mike on administrative leave for the allegation (which was reported in the local media) and then placed the other lieutenant on administrative leave, as well.

But Williams was not done in his effort to bury Nichelini under a host of internal investigations — he was accused of improperly issuing a press release on a traffic safety issue in his capacity as the commander of the Traffic Bureau, when Williams claimed the press release should have been done by the Chief’s newly hired press information officer. Then, after the Internal Affairs investigator who had completed the investigation of his filming of the civil rights lawyer at the City Council meeting essentially exonerated him of any wrongdoing, Nichelini was investigated for dishonesty, accused of falsely claiming during his interview that the (then) acting Chief was aware that Nichelini was filming the lawyer because he was standing “right next” to Nichelini at the time.

Then there was the investigation of “conduct unbecoming” and “discourtesy” as a result of remarks Mike made at a grievance hearing with City officials about Williams’s public “communication skills,” which was based on the Chief’s widely known reliance on a select group of buzzwords and occasional other remarks, the latter of which were usually devoid of any substance whatsoever.

Many of the matters investigated, which are described above, were assigned to the Internal Affairs investigators at the Vallejo Police Department, and most, appropriately, fell by the wayside as not sustained or unfounded. The Chief requested that the Attorney General conduct a criminal investigation of Nichelini and the other lieutenant for destruction of the windshield of the police vehicle, and that went nowhere. The administrative investigation of the replacement of the windshield was done by an outside investigator who found that Nichelini had no role whatsoever in the decision, and that the decision by the other lieutenant was appropriate and was consistent with prior decisions in very similar circumstances.

With the relationship between the VPOA and Williams continuing to deteriorate, the Chief decided he would ignore the finding of his own Internal Affairs investigator, who had exonerated Mike for allegedly harassing the civil rights lawyer by filming her at a City Council meeting, and would, instead, sustain him for the violation. About the same time, Mike, acting solely and entirely in his capacity as president of the VPOA, gave Williams two additional “reasons” (at least in the Chief’s mind) to punish him.

The 40-Hour Suspension for Harassing the Civil Rights Lawyer by Filming Her at the City Council Meeting

As stated above, the allegation made by the civil rights lawyer resulted in the Internal Affairs lieutenant exonerating Mike on the underlying allegation that he was harassing and intimidating the attorney. The Internal Affairs Lieutenant found that the only violation committed with regard to the filming of the City Council meeting was Mike’s failure to download the video at the end of his shift, which was described as a “technical violation.”

Despite that, the Chief ignored his Internal Affairs lieutenant’s findings and imposed a 40-hour suspension on Nichelini for using his body camera and, at one point, his cellphone, to record the City Council meeting and the attorney’s behavior, claiming that Nichelini had done so to “harass and intimidate” the attorney.

The Termination Case Against Nichelini

Ultimately, when the Chief recommended the 40-hour suspension on Mike for “harassing and intimidating” the civil rights lawyer by filming her at the City Council meeting, he also made two separate allegations as a basis to terminate his employment. Both of the allegations related solely and exclusively to actions undertaken by Mike in his capacity as president of the VPOA.

The first incident related to a one-page email he sent to VPOA members at their private email addresses, which was entitled “President’s Message.” The email discussed “several unresolved issues/projects we (the VPOA) are working on.” When Mike drafted the email at home late at night, he decided that, rather than imposing it on paper with the usual VPOA logo, he would pull up the photograph of a Vallejo police badge and use that as a background for the memo. He conducted a Google search of the words “Vallejo police badge,” which resulted in a display of badges going back to the early 1900s, and saw one badge with the number “6,” which was a number on his badge, and imposed that badge on the document. Unbeknownst to Mike at that time, the 1906 badge that had been worn by a Vallejo police officer contained a small and faint image similar to that of a swastika. As it turned out, at the time the symbol was a native American symbol for peace and prosperity, and it appeared on jewelry, pottery and many other articles made back then.

The day after Mike sent the email to his members, he received a telephone call from another lieutenant who told him about the faint image of the swastika on the 1906 badge, to which Mike immediately responded that he had not seen it and would not have put that badge on the VPOA newsletter if he would have seen it. Mike then removed the email from further circulation. He explained to several other people, including command staff and the Chief himself, that he had not seen the faint image of the swastika on the Google image, and that had he seen the symbol, even though he did not know of its historical significance, he would not have put it on the VPOA newsletter.

A second basis for the Chief to terminate Mike resulted from an email he sent to former San Francisco Chronicle columnist Otis Taylor from his VPOA email. Mike sent the email to Taylor after Taylor had written a public message saying he was leaving the Chronicle to move to Georgia to pursue other journalistic opportunities. Prior to that date, Taylor had written a series of columns containing scathing criticisms against Vallejo police officers, many of which were entirely unsupported or distorted, but all of which placed Vallejo police officers in a negative light. Needless to say, none of the rank-and-file officers at the Vallejo Police Department, nor those on the VPOA Board of Directors, credited Taylor as being a fair-minded, objective reporter (he wasn’t a reporter — he was a columnist), and all viewed him as one who had a singular view of all police officers, which was hateful and distorted.

Mike, having that in mind, and speaking on behalf of his membership, wrote an email to Taylor. The email came from “VPOA President” and said, “looks like 2021 will be a little bit better not having your biased and uninformed articles printed in the newspaper that only inflame the public … you have never looked for the truth in any of your writings — we will warn our Georgia colleagues of your impending arrival.”

Although Taylor, after receiving the email, did not contact Williams or the Police Department to make a complaint against the VPOA president who wrote it, he did write other emails to individuals he communicated with, referring to the VPOA message as “a threat.”

Williams enthusiastically retained the same outside investigator who had already sustained Mike for discriminatory conduct by putting the badge with a “Nazi” symbol on his newsletter to conduct this new investigation as to whether Nichelini’s email to Taylor was, in fact, a “threat.”

Significantly, Taylor, when contacted by the investigator, refused to give a statement. Nichelini, when interviewed, denied that he threatened him at all and also stated he never contacted anyone at the Atlanta Police Department and had no intention to do so, but had he contacted them, he would have told them simply not to talk to Taylor because he is not to be trusted when it comes to reporting about police. In short, there was no threat.

Despite the fact that Taylor refused to be interviewed and there was no other evidence to indicate that Nichelini had made any type of physical “threat” against Taylor, the investigator retained by the Chief concluded it was a “threat,” which the Chief quickly sustained and relied on as the second allegation (with the badge posting) to terminate Nichelini’s employment.

The Arbitration

The arbitration of these allegations lasted four days. The Chief and the City were represented by two capable attorneys from a well-established and respected management-side labor firm. However, one of their biggest problems in proving their “case” against Nichelini for either the 40-hour suspension or termination was their “star witness” — Williams.

On direct examination, Williams provided pitifully little support for overturning his Internal Affairs lieutenant’s “exonerated” finding of Nichelini with respect to his filming of the civil rights lawyer at the City Council meeting. While he was quick to condemn Nichelini for discrimination and racism for “intentionally” posting on the newsletter the badge with an alleged Nazi symbol on it, he did not even address the issue that the event occurred within Nichelini’s role as the VPOA president, and did not address the fact that he had been told by a number of individuals in the Department, including Nichelini himself and members of his command staff who had talked to Nichelini, that Nichelini never saw the symbol on the badge when he put it on the document and it was a mistake and an accident.

With respect to the email Mike sent to columnist Taylor, the Chief testified that, much like Taylor himself, if he would have received that message under the same circumstances, he would have felt “threatened” by the message.

My cross-examination of the Chief started with a very important and pivotal question: I asked him to explain what “just cause for discipline” means. At the commencement of this arbitration, the lawyers for both sides had stipulated that the arbitrator had to decide whether there is “just cause” for the 40-hour suspension as well as the termination of Nichelini. It made sense that the Chief would have a reasonable understanding of the concept of “just cause for discipline” when he made the decision to fire Mike.

But, when I asked the Chief if he understood and could explain to the arbitrator what “just cause for discipline” meant, his response was “No — why don’t you tell me.” Needless to say, the arbitrator advised the Chief that I was asking questions, not him, and we never got a responsive answer from the Chief concerning his understanding of “just cause for discipline.”

I took that as an opportunity to remind the Chief that the first disciplinary action he took after arriving at the Vallejo Police Department was to fire a lieutenant who had worked there for over four decades and who appealed his termination to arbitration using RLS Partner Julia Fox. I reminded the Chief that the arbitrator in that case told him exactly what “just cause for discipline” meant by telling him that he had no “just cause” to terminate the lieutenant and ordering the lieutenant reinstated with full back pay and benefits. Needless to say, the Chief had not learned anything about a “just cause” analysis from his staggering loss in the previous case.

During the course of this arbitration, it became clear that the Chief had either entirely ignored, or not even sought, the opinion of others on City staff, including the City Attorney’s Office, concerning whether he could either suspend Nichelini for 40 hours or terminate him. With respect to the termination case, I showed the Chief a document written by the City’s Human Resources Director prior to Nichelini’s termination and sent to the City Council, with a copy to the Chief. That document explained that, while individuals on the Council or in management positions may not like what Nichelini or other union leaders say when they are engaging in actions or speech as union officers, such speech and/or actions are “protected activity” under Government Code section 3502.1, and the union president could not be disciplined if the conduct or speech occurred uniquely in the person’s role as a union officer. The City was not aware that we had obtained that memorandum, nor was the Chief, and it proved to be a substantial factor in the arbitrator’s decision to overturn Mike’s termination.

Much of our case involved calling witnesses who established that Mike’s filming of the civil rights lawyer at the City Council meeting did not constitute an attempt to harass or intimidate her, and that he was both authorized, as the lieutenant in charge of the security detail, and expected to record the City Council meeting, which was a public meeting and could be recorded by anyone in attendance.

The evidence we put on in support of Nichelini’s “case” included, of course, Mike’s testimony for a substantial amount of time, explaining his background as a lieutenant and VPOA president, his relationship with the Chief, and his actions and reasoning for filming the civil rights lawyer at the City Council meeting, posting the badge on the VPOA newsletter and sending the email to columnist Taylor.

We called a number of other witnesses, including Department members who had talked to Mike immediately after seeing the badge on the VPOA newsletter and had discussed it with Mike, who explained it was a mistake and that he had not seen the symbol. We called a captain who has since left (along with most of the command staff under Williams), who testified that he had told Williams not to put Nichelini on administrative leave for destruction of the police vehicle windshield because Nichelini had nothing to with it, but that the Chief had ignored him. We called another captain who was in the process of retiring who testified that Williams had told him to “find a violation” of a policy related to Nichelini’s posting of the 1906 badge on the VPOA newsletter after the captain told the Chief it was an accident. Yet another recently retired captain testified that he told Williams that if he was trying to terminate Nichelini for “the badge posting, there was no basis to do that, and I did not support that.” We also elicited testimony of the Internal Affairs Division lieutenant, who had spent almost three decades at the police department and who testified that he had told the City’s lawyers when they interviewed him concerning this case that Williams’s discipline of Nichelini was “something to the effect of one of the most clear-cut instances of retaliation that I personally have ever seen in my career.”

 The Arbitration Decision

Needless to say, Arbitrator Gran wrote a 45-page opinion and award that set aside the 40-hour suspension for the filming of the civil rights lawyer at the City Council meeting. He found that Nichelini had, in fact, committed a technical violation by not downloading the video at the end of his shift and by utilizing his personal cellphone at one point to capture some events at the Council that he did not believe he could capture on his body camera due to its limited field of view. He set aside the termination in its entirety, finding there was no “just cause” for the termination or for any other discipline, in light of the fact that the newsletter that was sent out and the comments that were delivered to Taylor were sent by Mike entirely in his capacity as president of the VPOA.

As I said at the outset of this article, I have had some pretty crazy disciplinary cases through the years, and this one ranks within the top five or six of that category of cases. One reviewing the history of the saga of Mike Nichelini might smirk about the Chief’s unjustifiable basis to impose any of this discipline to begin with. The more important issue in my mind is why and how the Chief was able to impose this discipline without any apparent constraint by other City officials or City attorneys, who, unlike the Chief, knew about “just cause for discipline” and understood the protection given to union officers undertaking activities for their members in that capacity.

In the final analysis, Mike has walked away from this arbitration with a sizeable amount of money in his bank account, which certainly should have been paid by the City, and stands to get more through a pending civil action for the unjustified discipline imposed by the former Chief. But this grotesquely unfair and unjustified discipline could have and should have been avoided altogether, and Mike Nichelini and his wife and family should not have had to suffer from the indignity of this unjustified discipline for the lengthy period of time it took to right this wrong.

This well-deserved result was made possible by the Legal Defense Fund, which readily responded to and authorized requests I made for investigative work or paralegal support to properly prepare the case for arbitration, and to enable me to call a number of witnesses on Mike’s behalf who individually and collectively destroyed every facet of the Chief’s “case” for discipline. Mike and I join in thanking LDF and its legal administrator and staff for making it possible for officers throughout the state to combat baseless, politically driven charges, which seem to be happening more frequently today in both administrative and criminal cases than I have ever seen in the last four decades of doing this work.

About the Author

Mike Rains is a principal and founding member of Rains Lucia Stern St. Phalle & Silver, PC. He heads the firm’s Criminal Defense and Legal Defense of Peace Officers practice groups. Mike is one of California’s top trial attorneys. He has over 40 years of experience representing peace officers and other high-profile clients in civil and criminal litigation.