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Failure to Pass FTO Program

Posted on Sunday, October 01, 2006 at 12:00PM
Posted by Edward Marc Fishman

In late 2003, then-Mendocino County Sheriff’s Deputy Blaine Johnson knew that his days as a law enforcement officer were numbered. Despite his long and successful career that spanned decades at various agencies, he knew that the “fix was in”, and that his then-employer would stop at nothing to terminate him. Following months of unsuccessful attempts to destroy his career, he steadfastly attempted to take all that the department would dish out to him, but eventually, despite his efforts, his career came to an abrupt end.

When Johnson was finally terminated in December 2003, he knew it was wrong, unlawful, unsupported, and patently unfair. After a hard-fought appeal by this author, Johnson finally proved his termination was improper and established his right to reinstatement of his employment.

Johnson’s Law Enforcement Background:

Johnson began his long and productive law enforcement career when he served with the United States Army as a military police officer from 1971 through 1977. After being honorably discharged, Johnson began work as a civilian police officer. Over a span of 20 years, Johnson had the opportunity to work with several different police agencies in a wide range of environments – from the high-pressure, intensive and dangerous streets of the city of Oakland, to the more serene setting patrolled by the officers of the Willits Police Department. Johnson was routinely recognized for his commendable police work, receiving two Medals of Valor and several Distinguished Service awards. He enjoyed serving as a patrol officer, and had the rewards of training new recruits as a Field Training Officer (FTO).

Toward his later years, Johnson sought a change of employment which would not require the late hours of shift work ordinarily associated with patrol duties. He applied for a position as a courtroom bailiff for the county of Mendocino. He was interviewed, passed the background check, and was quickly hired as a deputy sheriff. He was assigned to a courtroom and soon began performing his duties as a bailiff. At first, Johnson performed admirably and was recognized as such by receiving good performance evaluations. He was also commended for his quick and brave action when he intercepted an in-custody defendant who was attempting to take a handgun away from a transportation deputy in a crowded courtroom.

However, in 2002, Johnson’s troubles began. A new sergeant came onto the scene. This sergeant advised Johnson that he was sent to the Courthouse to “clean house” and make it more professional. He further warned that Johnson, in particular, should know that he was being “watched.” When Johnson asked the sergeant about the basis for the concern, the sergeant replied, “I am not at liberty to say.”

Soon after this warning, Johnson was on duty while suffering from a sinus infection that caused his eyes to tear. The sergeant ordered Johnson to the captain’s office where he was questioned as to why he was crying in the courtroom. Johnson explained his temporary medical condition. Dissatisfied with the response, the captain “ordered” Johnson to seek a prescription for anti-depressant medication, and to get counseling.

About one month later, Johnson and other deputies were ordered to review all of the General Orders. While doing so, in the bailiff’s office, Johnson joked about how some of these orders haven’t been changed in 30 years. Overhearing this comment, the sergeant stormed in and demanded, “Who are you to question my orders?” The sergeant further threatened Johnson: “I could put you back on probation, and get you fired.”

Soon thereafter, the sergeant escorted Johnson to the captain’s office, where he was told that he was being relieved of his duty due to “mental instability.” Johnson was placed on Administrative Leave. They confiscated his badge, firearm, and ID, and ordered him to submit to a psychological fitness-for-duty evaluation. Complying with these orders, the psychologist ultimately determined that Johnson was fit for duty.

When Johnson then returned to the courthouse to report for duty, he was advised that he would first have to be assigned to the transportation unit for a 90 days for a “cooling off” period. Although Johnson questioned the need for such treatment, the captain would give no reason or explanation for the transfer. After Johnson expressed his concern, the captain gave Johnson his “word” that Johnson would return to his work as a bailiff after the 90 days. (Unbeknownst to Johnson, the 90 days were used to secretly evaluate him, perhaps in an attempt to terminate him at that point.)

After the 90 days, Johnson expected to return to his bailiff’s duties. However, the captain refused, citing numerous “complaints.” Johnson asked for some details of the complaints so that he could correct his behavior or otherwise respond to the allegations. The captain refused to provide him with any further information about the complaints and remained adamant that Johnson could not return to his duties as a bailiff.

Back to Field Training

The captain then offered a choice between two options: Johnson could either accept a lower-paying, non-peace-officer-status position as a civilian corrections officer, or he could maintain his level of pay and be sent to patrol. Johnson elected to pursue patrol duties. The captain then explained that Johnson would have to be sent through the Field Training Program. Although Johnson protested the need for such training, and eventually questioned whether the program would just be a guise to terminate him, the captain remained adamant that Johnson must participate in the program. The captain concluded the meeting by telling Johnson that he would advise the trainers to watch Johnson closely on all officer safety issues.

From the first days of the Field Training program, it was apparent that there was little-to-no true or actual training. Instead, Johnson’s FTOs used the opportunity to “pencil whip” him into failure. As expected, one of the first lines of attack was on officer safety issues. The FTOs even went so far as to try to “set Johnson up” by using tactics decried by POST, such as engaging in “mock” scenarios without first disclosing it to the trainee (e.g. planting a weapon in the passenger area of the patrol car).

They did not stop there. The FTOs also engaged in nefarious tactics such as refusing to provide him with the basic equipment, and then negatively rating him for not being properly prepared for duty. It seemed that no matter how well Johnson could perform, they would figure out a way to criticize and downgrade him. On one occasion, Johnson was involved with the investigation of a minor female who was making an allegation of sexual assault. Having extensive training in that area, Johnson re-interviewed the “victim.” During this interview, the subject admitted to falsifying the complaint. For this accomplishment, Johnson was criticized for having poor peer relations, and was rated below standards.

Johnson’s FTOs would also complain and make negative comments about his age (being 49 years old). They would tell him that he was too slow and too old to be on patrol, and suggested that he just retire.

Growing more and more concerned that the entire “training” process was just a front, Johnson began documenting his concerns in memorandums to his superiors. He asked to meet with the sergeant in charge of the Field Training program to discuss the matter. That request was summarily denied. None of his supervisors took any action in response to Johnson’s numerous written concerns. Correct in his belief that the process was a farce, at the conclusion of the Field Training program, Johnson was advised that he had failed the program, and he was then immediately (i.e. the same day) terminated from his employment.

Of course, Johnson appealed his termination.

Appeal of the Termination

Immediately following the Skelly hearing, I demanded a civil service appeal hearing, and requested that the county counsel agree to a hearing officer to preside over the matter. Eventually, on December 5, 2005, the arbitration began before Mr. Frank Silver. With the help and support of the PORAC Legal Defense Fund, Johnson was able to prove the unfair treatment he endured.

At the hearing, under extensive cross-examination by myself, the lieutenant for the Field Training program admitted he could not understand the basis of many of the “below standard” evaluations given to Johnson by his FTOs. It also became apparent that this lieutenant did not oversee Johnson’s training, did not give Johnson’s FTOs any substantive recommendations or guidance on how to train Johnson, and did not consider or address Johnson’s memorandums expressing concern about how the process was going.

The then-captain, now acting-sheriff, also testified under cross-examination that prior to Johnson commencing the Field Training process, he had a special “meeting” – something that he had never done before – with the field training sergeant and FTOs, during which the sheriff supposedly stressed that Johnson should be treated “fairly.”

The county paraded witnesses before the arbitrator in an attempt to justify Johnson’s termination, but under cross-examination, their pre-determined goal to terminate Johnson was becoming apparent. Ultimately, a never-before-seen internal memorandum surfaced which spoke about the captains’ earlier attempts to terminate Johnson (something which Johnson had previously known nothing about). This internal memo, dated two months prior to the termination, stated: “You should have an additional folder with more information when you attempted to terminate him the first time.”

Johnson then put on his case.

First, a highly-experienced and knowledgeable expert regarding Field Training programs, David Gneiting, testified that the Field Training program, as administered to Johnson, was fatally flawed from the beginning. He presented a detailed analysis showing that despite the absence of training, Johnson’s performance was improving over the course of the program. Gneiting opined that given the improvements, Johnson was trainable, and should have been granted an extension of the program. Gneiting further showed that the FTOs seemed biased in their daily observation reports, were unfair and inaccurate in their evaluations, and failed to comply with the Sheriff’s Office’s own rules, procedures and guidelines. Finally, he concluded that the training program as administered to Johnson did not comply with POST standards.

Second, in response to the allegations that Johnson presented with numerous officer safety issues, another expert testified on Johnson’s behalf. Michael Amaral has taught officer safety and other subjects at numerous police academies, colleges, and governmental agencies for over 30 years. After reviewing the Daily Training Notes, Amaral vehemently opposed the suggestion set forth by Johnson’s FTOs that he was inadequate in officer safety issues. Amaral explained that Johnson’s manner of handling several situations – for which Johnson was criticized in the performance evaluations – were in fact superior to the procedures suggested by Johnson’s FTOs. Amaral illustrated that many, if not most, of Johnson’s below-standard evaluations were wrong or unsupported by the evidence.

Third, Johnson presented an investigator, Jesus Zuniga, who personally visited many of the scenes at issue. Zuniga refuted the conclusions of the FTOs that Johnson committed driving violations and other acts of misconduct through photographic portrayals of the various scenes.

Finally, Johnson was given the opportunity to present his side of the story, explaining his extensive experience as a police officer, his work as a bailiff, and how the Field Training program progressed.

After Johnson rested his case, the county again called the captain (now acting sheriff) to rebut the e-mail about his prior attempt to fire Johnson. His only explanation was that he could not recall the e-mail and did not know what the personnel sergeant meant by making such a statement. The captain also testified that he investigated the recommendation to terminate Johnson, finding the recommendation proper. However, on cross-examination, the captain had to admit he could not recall what he did to investigate the recommendation.

The entire arbitration took four full days, over the course of six weeks. It then took several months before the arbitrator issued his decision. The wait was well worth it for Johnson. Mr. Silver concluded that the county did not establish good cause for Johnson’s termination. The primary basis for his decision was that a permanent, non-probationary employee was entitled to a fairly-administered FTO program, and the county had the burden of proving that it was, in fact, fair – a burden the county failed to meet. Silver explained that the county also had the duty to investigate Johnson’s concerns about the FTO program – which were raised in Johnson’s memorandums to his superiors – and the county failed to do so adequately. Finally, Silver concluded that Johnson was entitled to reinstatement of his position as a sheriff’s deputy, with full seniority, back pay and benefits.

The Civil Service Commission thereafter adopted the arbitrator’s ruling.

Based upon the ruling and recommendations, the county and Johnson were able to negotiate a settlement agreement whereby Johnson was reinstated with full back pay and benefits, and his retirement was brought current. Unwilling to continue working for the Mendocino County Sheriff’s Office, Johnson resigned from his position effective immediately. Having his name cleared and his reputation hopefully restored, Johnson now has the opportunity to obtain employment as a peace officer in another department, with a clean record that accurately reflects the hard work and dedication that he has committed to his career.

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