Terminated Montebello Officer Reinstated by Civil Service Commission

Posted on Saturday, October 01, 2011 at 12:00PM
Posted by Peter Horton, ESQ.

I met Officer Francisco (Paco) Avila in April 2010 regarding a routine administrative investigation alleging that Avila had made a clerical error on a subpoena he issued to a juvenile by writing the victim’s information on the citation issued to the suspect. Avila admitted to the clerical error, stating that he simply mixed up the two girls’ names. Upon learning of his error, Avila re-contacted the suspect and issued a new citation. Avila and I believed that his conduct warranted a written reprimand at worst.

A month later, Avila’s sergeant placed him on a Performance Improvement Plan (PIP) that alleged lack of productivity. I was stunned by the specificity of the language in the PIP. It said that Avila had written the fewest citations on his shift and was below the Department’s “average” of “twenty-two” citations per month. Avila’s sergeant told him that his performance was unacceptable and that he needed to meet or exceed the citation average of his peers. When Avila relayed these events to me, I was less shocked by the existence of the citation quota than by the fact that the Department had stated in writing that a quota existed.

I forwarded the document to another Attorney in my office, Michael McGill, who had been dealing with other “quota” issues at other agencies. McGill contacted the Montebello Police Department and informed them that what the Department referred to as an “average” was, in fact, a quota placed on Officer Avila in violation of the law (California Vehicle Code § 41602). The Department refused to remove the PIP language, and McGill filed a tort claim on Avila’s behalf.

Shortly after Avila complained about the imposed quota, Avila was named as a subject in two more internally generated administrative investigations. One alleged that Avila misappropriated funds by receiving overtime pay for four court appearances at which he claimed no recall. Another investigation alleged that Avila failed to immediately respond as a backing officer on a call for service. Avila was placed on administrative leave and later received a Notice of Intent to Terminate.

The notice sustained all three investigations and found 25 allegations of misconduct, including allegations of Avila making false statements during the investigations. The dishonesty charge perplexed both Avila and me, as he had admitted to the alleged acts. In preparation for the Skelly hearing, I scoured the investigation reports created by the Internal Affairs investigators and found that none of them alleged Avila made false statements. When I inquired about the basis for the false statement findings, opposing counsel stated that he found inconsistencies in the statements made by Avila when he reviewed the investigation in preparation for drafting the Notice of Intent. Avila received the Notice of Termination a week later, sustaining all 25 allegations of misconduct, including opposing counsel’s finding that Avila had made false statements during the investigation.

The case was set for hearing in front of the Montebello Civil Service Commission. The Department’s case asked the Commission to believe that Avila was dishonest and a thief, and while Avila’s actions did not actually result in any harm, that his actions could have
been tragic.

The Department’s case fell apart from the outset. The Department’s witnesses were more beneficial to Avila’s defense than to the Department. It became apparent to the Commission that Avila’s actions were not violations of policy but rather the standard practice of other officers at the Department. For instance, when arguing that Avila failed to immediately respond to a call for service, the Department tried to convince the Commission that it was a violation of policy for officers to eat while remaining in service without informing dispatch. The Department’s argument became unsustainable when every Department witness admitted that they violated that policy on a daily basis because officers were too busy to take a formalized
Code 7.

The misappropriation of funds allegation was the most serious against Avila. The Department alleged that Avila devised a scheme to fail to prepare for court, then attended court and claimed no recall to the bailiff in an effort to bilk the City out of four hours of overtime. The Department argued that Avila failed to take notes on citations and failed to adequately prepare. Avila would then appear in traffic court and inform the bailiff that he would claim no recall when called to testify. The bailiff would dismiss Avila, and he would receive four hours of overtime for 10 minutes of actual work.

The Commission was not convinced: No policy existed at the Department requiring officers to make notes on the backs of citations; the overtime that Avila submitted was reviewed and approved by his lieutenant; Avila testified in court five other times during this same period; and investigators testified on cross-examination that the bailiff admitted that the claim of no recall was a common practice among officers. In fact, the most egregious act of the case was the Department’s refusal or delay in turning over documents from the court proving that other officers in the Department also claimed no recall and had not been
subject to discipline. After more than a month of delay on the part of the Department and one of its captains, I personally contacted the court, paid $20 in copying fees and obtained the documents in less than an hour.

The next hearing day, opposing counsel once again explained the difficulty the Department was having in obtaining the court documents. I pulled the “unattainable records” from my briefcase and proved that Montebello officers claimed no recall in 55 cases in the last year alone. Of course, none of these officers had been terminated for misappropriation of funds.

Acting Chief Wilsey’s testimony was the coup de grâce  to  the Department’s case. During his tenure as Acting Chief, Wilsey had terminated only one employee: Avila. On direct examination, Wilsey claimed Avila’s actions were incompetent and lazy. He asserted that Avila was not entitled to overtime because he had failed to prepare for court and that an officer should be able to recall a citation issued as far back as 10 months. Wilsey did not include the term “dishonesty” in describing Avila’s actions. When I asked the reasons for terminating Avila during my cross-examination, Wilsey continued to focus on Avila’s incompetence. I then asked Wilsey if making false or misleading statements was a basis for his decision to terminate Avila. “I don’t recall,” Wilsey responded. Moments before, he had stated his expectation that an officer should remember a 10-month-old traffic citation, but now he could not recall a dishonesty allegation against the only employee he had ever fired less than four months after terminating him. It became clear that even the Chief did not think Avila was dishonest, but opposing counsel, in an effort to bolster their weak case, added the allegation.

On July 18, 2011, after a unanimous vote, the Montebello Civil Service Commission found that the Department had failed to prove any part of its case and returned Officer Avila to his position with the City of Montebello Police Department. The Commission’s decision resulted in full back pay and no sustained findings of misconduct.

On behalf of Officer Avila, I would like to thank everyone who supported him through this ordeal — first and most importantly, his wife, Monique, and son, Antonio. Also, thanks to PORAC and the LDF for providing Avila with the resources to clear his name and return to the position that was unjustly taken from him. Finally, Officer Avila would like to thank the Montebello Police Officers Association for its unwavering support throughout his appeal process.

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