The Seven-Year Saga of San Benito County Deputy Sheriff Dave Zander, Part 2

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

In the last issue of PORAC LE News, we introduced you to a case involving San Benito County Deputy Sheriff Dave Zander, who was placed on administrative leave in August 2016 over allegations of sexual misconduct on duty (made by a drug addict named “Jill”) that surfaced during an FBI investigation of Zander in July 2016. We last left off with the federal government concluding its almost two-year criminal investigation in November 2018, which resulted in no charges being filed against Zander.

The Administrative Investigation of Zander Begins and Concludes With a Recommendation for Termination

After the federal government closed its investigation but before the administrative investigation of Zander started, I received a telephone call from a longtime management lawyer with whom I have had many cases. He told me that he had been hired by “the County” to contact me and that he had “reviewed the FBI investigation of Zander” and that I should advise Zander to submit a voluntary resignation before “all of the dirt and crap gathered by the FBI led to his certain termination.”

I told the lawyer that I would have no problem telling Zander to submit a resignation, but I would never make such a recommendation unless I was given the opportunity to personally read the entire FBI investigation report and study any and all evidence gathered against Zander and make my own independent determination of whether it supported his termination. I told him to contact the sheriff and/or county counsel and I would set up a date to drive down to Hollister and review the FBI report. I received a call from the lawyer 10 days later, stating that the County had declined my offer to personally examine the FBI investigation but suggesting once again that I resign my client. I told him to tell his client that would not happen.

Thus, in February 2019, the County hired an “outside” investigative team to conduct an administrative investigation of Zander. In June 2019, I accompanied Zander to an administrative interview in Hollister conducted by two of the County’s “outside” investigators. During his administrative interview, Zander was asked about a traffic stop made more than three years earlier, on February 5, 2016, of a woman named “Jennifer,” whether he had “signed” her up as an informant and if he had later convinced the DA to dismiss the traffic citation he issued to her. Zander recalled few details of the stop, was certain she was not a “signed” informant and recalled telling a female DA who had called him “out of the blue” to inquire if Jennifer was his informant that Jennifer had told him she could provide him with information on some “wanted” people but had never done so.

During the interview, Zander was also asked if he had forged the “witness” deputy’s name to the informant agreement. Zander insisted he did not sign the deputy’s name but could not recall if the witness deputy had signed it in the jail when Jill and he signed it, or if Zander had presented it to him to sign later that day. Zander was also asked if Jill’s signature on the agreement made her a confidential informant. Zander said she never became a confidential informant because his supervisor did not approve the informant agreement.

The “outside” administrative investigation of Zander took around eight months. On November 1, 2019, Zander and I received from the sheriff an initial notice of intent to terminate. The sheriff was terminating Zander for three separate allegations: (1) his forgery of the signature of the “witness” deputy on the informant agreement he completed in February 2016 concerning Jill; (2) his failure to advise his superiors that Jill and Jennifer were confidential informants; and (3) he improperly caused the citation against Jennifer to be dismissed by telling the DA she was his informant. The Skelly notice stated that Zander’s forgery of a fellow deputy’s signature as a “witness” on the informant agreement signed by Jill and Zander was “clearly the most serious of the three allegations.”

After we got the initial notice of intent to terminate and the substantial administrative investigation report and supporting documents, we saw countless references by the administrative investigators to findings and/or determinations made by the FBI in its criminal investigation of Zander, leading to our determination that the County had provided the administrative investigators a copy of the entirety of the FBI investigation report, while simultaneously telling me that we could not review it. After I threatened to sue the County to obtain a copy of the FBI report, I received two large binders containing some 700 documents, which I was told constituted the entire FBI investigation report and supporting documentation.

The FBI investigation report disclosed that, after the deputy whose name appeared on the informant agreement signed by Jill and Zander told the FBI he did not sign his name as a “witness,” the FBI had forwarded that agreement, along with several other signatures of the same deputy and known handwriting of Zander, to the National Crime Laboratory in Quantico, Virginia. There was a report from the National Crime Laboratory that the deputy’s signature that appeared on the informant agreement had “similarities” to the deputy’s signature they found on other reports. The lab requested additional known signatures of that deputy and additional handwriting of Zander so a “positive” conclusion could be made. Despite that request, the FBI did not provide the crime lab with any additional requested and known signatures of the deputy, and hence there was no conclusive determination whether the deputy had, in fact, signed his name as a witness to the informant agreement and then had lied about it to the FBI.

The forgery allegation against Zander led to my calling the “outside” attorney now representing the County (a different firm than the attorney who had initially tried to convince me to have Zander sign a resignation). That resulted in my agreement with the more recent “outside” attorney firm to jointly retain a questioned document examiner whom we could both agree had suitable credentials to conduct a handwriting examination of the informant agreement and to compare the “witness” deputy’s signature on that agreement to known handwriting samples of both Zander and the other deputy. We were able to come to an agreement concerning a suitable questioned document examiner who had been doing this type of work for many years and retained her to do an analysis of the witness deputy’s signature on the informant agreement.

In mid-May 2020, the handwriting analysis report was submitted by the questioned document examiner to the County and to me. The examiner determined that the deputy whose name appeared on the informant agreement had, in fact, signed his own name to the informant agreement, despite his denial of doing so to both the FBI and to the County’s “outside” administrative investigators. The questioned document examiner said the signature of the witness deputy was not written by Zander.

With the most serious allegation against Zander having been disproven by an agreed-upon expert from both sides, we received an amended notice of intent to terminate Zander from the sheriff on June 1, 2020, which contained three new and different allegations in addition to the original three allegations (including the forgery allegation, which had not been dismissed).

The three additional allegations that were added to the amended notice of intent to terminate Zander all involved allegations of dishonesty: (1) for falsely stating during his administrative interview that he did not recall interactions with Jennifer more than three years earlier; (2) for falsely stating that he had recorded his interview with Jill at the jail when he met her and had her sign the confidential informant agreement; and (3) for falsely stating that he never met alone with Jill when he had any contacts with her.

We attended a lengthy Skelly hearing on the six allegations on June 30, 2020, and presented the sheriff and his attorneys an extensive written pre-disciplinary response in addition to questioning how the County came to charge Zander with forging the other deputy’s name to the informant agreement after the agreed-upon questioned document examiner stated Zander did not forge the deputy’s signature to the agreement. The pre-disciplinary response also addressed the claim that Zander had falsely stated during his interview that he had recorded his conversation with Jill in the jail in February 2016 before she signed the informant agreement. The County claimed to have sent his personal hard drive from his computer and the hard drive from his work computer to a forensic laboratory for analysis as to whether his conversation with Jill in the jail was contained on either of the computers where Zander said he had downloaded it. The County’s review of the data on both hard drives did not produce a recording of an interview between Zander and Jill in the jail on that date.

However, the County’s own computer expert, and an expert then retained by us to examine the computer hard drives, disclosed that the hard drives had been accessed by the FBI, the County’s “outside” administrative investigators and other unknown County employees between August 2016 (after Zander had been placed on administrative leave and had no further access to the computers or the hard drives) and the date the administrative investigation was concluded. The experts also disclosed that the hard drives of both computers had been accessed by unknown individuals in a “forensically unsound manner,” which resulted in destruction of some of the information and corruption of much of the data that would have ordinarily been found on the computers.

Ultimately, none of anything we had to say or to provide in writing or through our expert in computer forensics made any difference to the former sheriff or the County, and Zander was fired for the six separate allegations on June 4, 2021.

Zander’s Appeal Results in Arbitration and Reinstatement

We filed an immediate appeal on behalf of Zander and requested arbitration under the collective bargaining agreement. Pursuant to our appeal, the County’s lawyers and I agreed to the selection of arbitrator Jonathan Monat, Ph.D., to hear the case and make a decision.

Pursuant to our appeal, arbitration of Zander’s termination case started on April 25, 2022, and concluded on April 28. Following the conclusion of the arbitration, the lawyers for the County and for Zander submitted their respective post-arbitration briefs and, thereafter, reply briefs. It did not take Monat long to reinstate Zander with full backpay and seniority.

Monat stated in his July 25, 2022, opinion that “the most significant charge is the charge that grievant falsified the Confidential Informant paperwork by forging [a fellow deputy’s] signature as a witness, since [the deputy] was not present when grievant met with Jill in the attorney’s room at the jail.” The arbitrator noted that “both the grievant and [the other deputy, who testified in the arbitration] were adamant in their positions.” Nevertheless, he wrote, “the arbitrator accepts the conclusion that [the other deputy’s] signature is genuine, and must conclude that, Zander did not forge [the other deputy’s] signature, and therefore did not falsify the document in Question.”

After hearing the testimony of the questioned document examiner at the arbitration, Monat said: “She is clearly an expert in forensic document analysis. Her testimony was highly credible, acknowledged the exactness and explained systematically how she reached her conclusions. She studied a substantial number of documents from various sources and described in her extensive and carefully worded laboratory report … There is no reason to doubt her analysis and conclusions.”

As to the allegation that Zander had violated policy concerning handling confidential informants and had withheld the identities of both Jill and Jennifer from his superiors after they became his informants, Monat found that “Jill and [Jennifer] were not confidential informants subject to the rules and admonitions applying to CIs and deputies.” The arbitrator also stated, “There is concern about the misrepresentation of fact [by the County] that [Jennifer] and Jill were signed CIs. The finding in this case is that neither [Jennifer] nor Jill were signed confidential informants, whatever informal terminology the County chose to use.”

As to the charge that Zander improperly caused a citation he had issued to Jennifer on February 5, 2016, to be dismissed by the DA, the arbitrator stated: “The record shows that Zander had a cellphone conversation with Deputy DA Walls about the citation [initiated by her] but appeared to have made no specific request to dismiss. He was indifferent because, as he told Walls, Jennifer ‘was too goofy.’ Walls noted on her own in the official court record that ‘she is working as a CI, okay to dismiss.’ The Sheriff decided to charge grievant with improperly causing a citation to be dismissed because the request was not written. At worst, this is a de minimis violation, as cross-examination of [the former sheriff] established the request by the DA to dismiss came on the day the matter was set for court.”

As to the allegation that Zander was dishonest in stating during his administrative interview that he did not recall the February 5, 2016, traffic stop and citation issuance to Jennifer, the arbitrator stated, “There is no dishonesty to be found here … It is doubtful that anyone could have perfect recall of events over three years prior. It is well established that memories fade and recall is not perfect. [The former sheriff] admitted as much about that in his own testimony.”

Monat also dismissed the allegation that Zander had been dishonest in his claim that he recorded his conversation with Jill in the jail in February 2016 when he had her sign the confidential informant agreement. He noted that the hard drive from Zander’s work computer and his personal computer had been provided to the County’s “outside” administrative investigator who, by his own admission at arbitration, “is not sophisticated in handling computers forensically.” The arbitrator credited testimony of a computer forensic expert we had retained, Ben Rose. The arbitrator wrote, “Rose’s testimony was consistent with his forensic findings that audio files and data files had been corrupted. The expert forensic examinations of the computer and hard/flash drives established that the data on them had been corrupted or altered in earlier examinations by investigators lacking the skills to conduct a proper forensic analysis without corrupting data … All of this occurred after Zander no longer had access to the computer, hard drives, flash-drive, and personal cellphone.”

Finally, Monat dismissed the allegation that Zander lied when he told the IA investigators that he “had never met alone with Jill” during any of their contacts. He noted that the sheriff was forced to concede the falsity of this allegation when he was shown an excerpt from Zander’s IA interview stating he had met with her alone.

Monat, in his concluding summary, stated that it took over five years for the FBI investigation and the administrative investigation to conclude. His summary stated that once the questioned document examiner had determined that Zander had not forged the other deputy’s signature to the informant agreement, “this evidence should have ended the investigation.” He noted that the County nevertheless elected to amend the notice of intent to terminate, adding the three new dishonesty allegations. He concluded, “The County failed to meet its burden of proof that the grievant was guilty of the offenses for which he is charged. Credible evidence and witnesses are required to meet this burden. Allegations and assumptions unsupported by evidence have no weight. The County’s brief made for compelling reading but did not meet the burden of proof.”

 The County Board of Supervisors Refuses to Allow Zander to Return to Work and Vows to Review and Possibly Reconsider the Case Entirely

Both the lawyer for the County and I thought that Monat’s ruling would result in Zander’s return to duty as a deputy sheriff within a week or so of its issuance. But consistent with the way this case had gone from its outset, future protracted fights were looming. Although the lawyers for both sides had believed Monat’s decision was a “final and binding award” on both sides, we were surprised that there was a provision buried in a lengthy collective bargaining agreement between the DSA and the County that if an arbitration award resulted in the cost of more than $1,000 to the County, the decision would be advisory, and the Board of Supervisors had the right to review the decision and reconsider it altogether.

Thus, the lawyer for the County and I were both “invited” to address the Board of Supervisors on whether the decision of Monat should be implemented as written or whether the Board should review not only the decision itself but the entirety of the evidence, and even take testimony of additional witnesses who the County’s lawyers said would “shore up” some of the evidentiary weaknesses that had been described by Monat in his decision.

Following a hearing in which the lawyers for both sides argued that the Board of Supervisors adopt their respective positions, it voted unanimously to conduct a further review and even possibly additional hearings to reconsider the decision of Monat.

Fortunately for Zander, within a short time of the Board’s vote to reconsider the matter, as a result of an election, the composition of the Board of Supervisors changed, and, following a number of discussions I had with the chief county counsel at the time and our looming threat of civil litigation, there was an agreement that parties would participate in a mediation to see if the matter could be settled to the satisfaction of both sides.

Pursuant to that agreement, a mediation took place before a mediator jointly selected by the County and us in which both sides argued their respective positions on both the “merits” of the termination of Zander to begin with, the state of the evidence presented at the arbitration before Monat and the type of settlement that we believed should occur following the mediation.

As would normally happen in a mediation conducted by a capable and effective mediator, both sides were convinced to alter their positions on settlement slightly, but ultimately an agreement was reached that was suitable to the County, its legal advisors and its Board of Supervisors, and to Zander and me. Needless to say, it took us 10 additional months to settle this case and receive “justice” for Zander following his reinstatement and the dismissal of all of the allegations against him by Monat.

 Conclusion

Protracted and hard-fought criminal and administrative battles like this one involve the devotion of a great deal of time and effort by lawyers who represent police officers, and who must call upon the assistance of capable investigators, paralegals and experts. Like so many cases I have handled for my clients who are members of LDF, when I have had to contact LDF to obtain authorization for use of additional personnel to properly represent the interest of my client in a serious matter, LDF has never failed my client by refusing my request or even questioning my reasoning or rationale for needing the additional assistance/resources. I am thrilled for Zander and his family that this saga has finally come to a suitable ending, and this seven-year ordeal of an undeserved federal criminal investigation and unsupported termination is over.

 About the Author

Michael L. 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. Michael 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.