News
>BACK

Court Upholds Reinstatement of South Lake Tahoe Police Officer

Posted on Sunday, January 10, 2010 at 12:00PM
Posted by Steven W. Welty

Veteran South Lake Tahoe Police Officer Johnny Poland is back to work after the El Dorado County Superior Court upheld a Civil Service decision reinstating him after he was fired for allegedly mishandling a weapons call at a local high school. Officer Poland was reinstated two and a half years after the Department dismissed him.

On November 20, 2006, a Code 3 call went out to all police agencies in South Lake Tahoe of a large fight at the South Lake Tahoe High School. There were reports of “student with a gun at school” and “possible shots fired.” Officers from the South Lake Tahoe Police Department, El Dorado County Sheriff’s Department, California Highway Patrol, and El Dorado Probation Department responded and set up a perimeter, placing the school on lockdown while the incident was investigated. Officer Poland, a ten-year veteran of the South Lake Tahoe PD, had prior experience as a School Resource Officer at the High School. The present SRO was sick, so Poland was placed in charge of the investigation because he had familiarity with the campus, students, and faculty there.

That morning, Officer Poland interviewed more than twenty-five students, made eight arrests, seized a pair of brass knuckles. None of the students interviewed by Officer Poland observed a gun or a knife during the fight. Officer Poland determined that six students were involved in the altercation and a seventh admitted to possession of brass knuckles on campus but was not involved in the altercation. Each of the students was given a citation. The involved parties denied any guns or knives being present during the fight.

Officer Poland also conducted a vehicle search of another student’s vehicle (the only vehicle at the school that was connected to one of the participants in the altercation) and confirmed he had an inoperable “BB” gun under the seat. That student denied having the weapon but claimed he did not use it during the altercation. Officer Poland did not seize the item because he was under the belief that it was not used in the fight. Officer Poland made numerous statements to co-workers and school staff that no guns or knives were involved in the fight. During the next few days, Officer Poland received additional information that the student had in fact brandished the “BB” gun during the fight. Officer Poland cited the student for the possession of a dangerous weapon on campus and he was successfully prosecuted.

An internal complaint was filed by the SRO Wilson, against Officer Poland, arising out of this incident. An Internal Affairs investigation was conducted. Thereafter, on June 11, 2007, the South Lake Tahoe Police Department terminated the employment of Officer Johnny Poland, based on the conclusion that he had committed numerous rule violations in regard to his handling of a call of “shots fired” at the local high school. The allegations included dishonesty, failure to seize evidence, and failure to properly investigate. A pre-disciplinary due process hearing was held by the City wherein the termination was upheld.

I appealed the termination to an evidentiary hearing before a Hearing Board consisting of the retired Mayor, the retired Chief of Police, and a mutually-selected arbitrator. Witnesses and other evidence were produced by both sides during two days of hearing.

At the hearing, we were able to establish Officer Poland conducted a thorough and effective investigation and assisted in the successful prosecution of the offenders involved in the fight.

At the hearing, written briefs were submitted to the Hearing Board for consideration. On December 11, 2008 the Board issued a thirty-one page written decision unanimously overturning the termination and reducing the discipline to a six-week suspension without pay. The suspension was based on findings Officer Poland violated procedure in his original handling and documenting of the “BB” gun, and his failure to inform superiors of the discovery. The decision required the City to reinstate Officer Poland and to make him whole regarding back pay and benefits.

The City appealed to the El Dorado Superior Court pursuant to a Writ of Mandate on the ground the Hearing Board had abused their discretion. However, case law requires an arbitrary, capricious, or patently abusive exercise of discretion before a court will intervene regarding an administrative board’s decision. The City’s argument focused on cases where the courts have found an abuse of discretion because the underlying facts involved intentional and deliberate dishonesty. I successfully argued to the court these cases were distinguishable from Officer Poland’s circumstances. In Officer Poland’s case, the Hearing Board did not make any findings that he was dishonest. The El Dorado Superior Court considered written arguments and allowed oral argument before making a decision. On October 28, 2009 the Honorable Steven C. Bailey issued a nine-page decision agreeing with my arguments and denying the City’s appeal. The Court held that the Hearing Board had concluded only that Officer Poland had committed violations of the Department’s rules, with no findings of lying or dishonesty. Thus, the Court concluded, the Hearing Board’s decision to reduce the discipline and reinstate Officer Poland was not arbitrary, capricious, nor patently abusive and upheld the Board’s decision.

I am currently assisting Officer Poland with his integration back into the Department. He is looking forward to continuing his service to the citizens of South Lake Tahoe.

Steven W. Welty is a senior associate attorney in the Labor Department of Mastagni, Holstedt, Amick, Miller & Johnson. He has represented peace officers throughout California in disciplinary issues, employment law and disability retirement appeals for over 10 years.

PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.