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Concord Sergeant Beats Termination

Posted on Tuesday, November 01, 2005 at 12:00PM
Posted by William R. Rapoport 

In a February 2004 issue of PORAC Law Enforcement News article regarding this matter, we detailed the history of Concord Police Sergeant Matthew Morrissey who, up to the date of his termination on April 29, 2003, had a 23-year spotless and outstanding career with that department. It was known to all in the department that Sergeant Morrissey had, for over a decade, participated in outside teaching assignments in both the local community college district (teaching various aspects of criminal justice) and at the Contra Costa County Sheriff’s Office Police Academy. He also participated in the in-service training at the Concord Police Department on a number of specialized courses. After a three-month assignment as acting lieutenant from July to August 2002, Morrissey was assigned to the Financial Crimes Unit and during the first 10 weeks of his assignment to that unit he ran afoul of his subordinates for his style of accountability. The subordinates complained to upper management, resulting in charges of fraud, embezzlement, theft, and dishonesty relating to Morrissey’s outside teaching activities. These baseless charges resulted in Morrissey’s termination on April 29, 2003. Morrissey’s counsel had to resort, successfully, to the Contra Costa County Superior Court by the filing of a Petition to Compel Arbitration of this matter in the face of the city’s refusal to sign an “Agreement for Arbitration” required by the M.O.U. between the Concord Police Officers Association and the city of Concord. The granting of this motion by the Superior Court, strenuously opposed by the attorney for the city, began the 17-day arbitration process, which started on March 26, 2004, and ended on October 16, 2004, followed by the city’s closing oral argument and Morrissey’s written closing brief on January 22, 2005, with reply briefs finally submitted March 10, 2005, nearly a year after the arbitration finally started, and two years after Morrissey’s termination.

This extremely complicated case involved numerous time accounting issues and extensive computer technology matters relating to the Concord Police Department’s Case Management System computer records. At every turn, Morrissey’s counsel had to force the city, through the arbitrator, to reveal records and documents which he felt, and as it turned out, correctly, were essential to Morrissey’s ability to reconstruct on nearly a minute-by-minute basis, six months of activities in order to prove he did not commit the offenses charged. Obviously, the charge of dishonesty, in whatever form, would have been the death penalty to his career.

With the outstanding assistance of private investigator, Michael G. Schott of Fort Jones, CA, Morrissey and his counsel were able to reconstruct nearly every critical time frame from every date in question, and prove that, despite other records of questionable reliability used by the city, Morrissey could account for all relevant time periods in question. One exhibit alone, prepared by Morrissey, his counsel, and Schott, was over a 1,000 pages long detailing each date, what happened at certain times on that date, and citing documents (most of which were sought by the city, only to be withheld over and over again) proving Morrissey’s activities. These documents included over 1,500 e-mails, dozens of police reports, patrol vehicle unit histories, dispatch CADs, and the Case Management System computer logs. Many records that would have added to this proof, which were in the hands of the city, the city denied having.

The city presented numerous police witnesses whose testimony was shown to be false. One witness, a subordinate whose accountability on a particular Friday was questioned by Morrissey shortly after Morrissey arrived at the Financial Crimes Unit, claimed he had driven to Reno, NV to serve a search warrant with his counterpart at the Reno Police Department. The counterpart was contacted by Morrissey’s investigator, Schott, and eventually testified for Morrissey that no such meeting occurred. This subordinate then said he had driven to the Reno area, contacted this particular Reno Police Department officer via cell phone, and was advised that the officer could not meet with him that day, and therefore, he turned around and came back to Concord. Through Schott’s investigative efforts, he was able to locate one particular bed and breakfast location (out of over 300 in the Reno-Tahoe area) whose records revealed that this particular officer had made a reservation for he and his wife a week before the Friday in question, and had, in fact, stayed at that B&B on that Friday, and the following Saturday. The city never recalled this witness to explain his prior false testimony. This was but one of a number of witnesses who were proven to have given false testimony at the arbitration.

The arbitrator eventually found that the evidence did not support the charges that Morrissey falsified time records, committed fraud, nor was dishonest in any matter about which he was charged. In the arbitrator’s June 13, 2005 decision & award, the arbitrator noted that “…Clear and convincing evidence is required to sustain a charge of dishonesty, proving that the grievant had an intent to be dishonest and undertook actions or made statements that he knew were dishonest…. It is equally important that any charge of dishonesty that is not sustained be dismissed, based on clear and convincing evidence. No implication should remain as a result of this proceeding that the grievant was dishonest….” The arbitrator further found that “… It is critical to note that there is no evidence he (Sergeant Morrissey) lied about or misrepresented what he was doing….” As a result of the Arbitrator’s findings, Morrissey was reinstated to his prior position as sergeant with the Concord Police Department effective as of the date of termination with no loss of seniority. It is only because of the LDF’s unwavering support for Morrissey, his counsel, and private investigator, that this result was possible. It is because of that support that Morrissey was able to return to his here-to-fore unblemished career, and all of us are sincerely grateful for that support.

Sergeant Morrissey has been represented from the outset by myself, an LDF panel attorney, from Redwood City. I have been an LDF panel attorney since 1975, and recently successfully completed representation of the lead defendant in the “Oakland Riders” case in Alameda County Superior Court.

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