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Judge Grants Temporary Restraining Order Against City Attorney

Posted on Sunday, August 01, 2004 at 12:00PM
Posted by Terry Lynn Bowman

While David Ryan was awaiting the arbitration hearing to fight his termination from the City of Concord Police Department, the police department did something very interesting – they tried to fire David Ryan again.

The First Firing- Internal Affairs Case Number 03-31

Ryan enjoyed working as a peace officer for the city of Concord Police Department. He considered himself a pro-active officer and he even received a commendation for his work in retrieving stolen vehicles.

However, an incident that occurred on June 24, 2003 led to Ryan’s termination from the police department. Ryan was accused of threatening a suspect; specifically, it was alleged that Ryan said something similar to, “One of these days we are going to find you in a dark alley and beat the shit out of you.” This incident was assigned Internal Affairs case number 03-31.

Ryan was placed on paid administrative leave on September 11, 2003 while the investigation continued. Ryan was represented by an excellent attorney, Todd Simonson, at his September 23, 2003 Internal Affairs interview. During the interview, Ryan explained that he did not intend to threaten the suspect, but rather stated, “One of these days you’re going to get your ass kicked.”

The department then issued a “Notice of Intent to Discipline – Termination” and the matter was set for a Skelly hearing with the chief of police. Following the October 30, 2003 Skelly hearing, Ryan was served with the Final Notice of Discipline in which the chief stated that Ryan would be terminated, effective November 7, 2003. Ryan’s termination was based solely on the June 24, 2003 (case number 03-31) incident.

After Ryan’s November 7, 2003 termination, he immediately filed an appeal. Like the presentation at the Skelly hearing, the appeal was based on the argument that the underlying facts of case number 03-31 were insufficient to support termination of employment.

An arbitrator was selected in February 2003 and the hearing was initially scheduled for May 19, 2004. However, the city attorney continued the matter and set the arbitration hearing for June 17, 2004.

Post Termination Investigation of Pre-Termination Misconduct

Following his November 2003 termination, Ryan began working for a company in Pleasanton while he awaited completion of the appellate process. Although he was now a private citizen, the police department initiated Internal Affairs investigations regarding two other matters that involved pre-termination misconduct. Both incidents occurred while Ryan was still employed at the police department but neither incident was contained in the Final Notice of Discipline. In other words, the department began to conduct an investigation of someone they had already fired.

DUI Arrest – Internal Affairs Case Number 03-49

On October 10, 2003, while on administrative leave, but prior to his termination from the police department, Ryan was arrested for driving under the influence. (Vehicle Code § 23152). The police department immediately became aware of the arrest, but made no attempt to initiate any formal disciplinary proceeding.

On February 26, 2004, 4 months after his termination, Ryan was sent a notice advising him of the investigation and advising him of the opportunity to be interviewed regarding the matter. Ryan did not participate in an interview.

Driver’s Licenses Left In Locker – Internal Affairs Case Number 03-54

On November 6, 2003, the day before his termination, Ryan cleaned out his locker at the police department in the presence of his supervisor. Inside his locker were several California driver’s licenses and identification cards that he had placed in his duty belt during contacts with people. However, Ryan frequently forgot to hand the licenses back and held on to them.

On March 9, 2004, Ryan was notified of the investigation into this matter and he was advised of the opportunity to be interviewed. Ryan did not participate in an interview.

Now, the police department could have chosen to investigate theses matters while Ryan was still employed as a police officer and include these incidents as basis for his termination. However, the department did not do so. Instead, the department relied solely on the underlying facts of case number 03-31 to justify Ryan’s termination.

May 19, 2004 – Amended Notice of Intent to Discipline – Termination

Then, 6 months after he was fired and on the eve of arbitration, the city of Concord police department issued a notice entitled, “Amended Notice of Intent to Discipline – Termination from Employment.” This document contained the allegations of the original termination notice pertaining to Internal Affairs case number 03-31 as well as Internal Affairs case numbers 03-49 and 03-54.

The chief wrote, “As you know, I had previously directed that you be terminated for the misconduct identified in Internal Affairs Case #03-31, and I maintain that direction. In addition, I have concluded that the misconduct identified in Internal Affairs Cases #03-49 and 03-54 provide further and additional reason for the termination of your employment with the city of Concord.”

The chief also stated, “If you wish to discuss this matter further or appeal this action, please contact…” In other words, Ryan was being offered a Skelly hearing 6 months after his termination and less than one month before the arbitration hearing.

Plan of Attack

As Ryan’s attorney, I spoke and exchanged letters with the city attorney regarding the “Amended Notice of Termination.” She made it clear that the city had every intention of presenting evidence related to case numbers 03-49 and 03-54 at the June 17, 2004 arbitration.

It was clear to me that what the city attorney was trying to do was not only in violation of the act –it just wasn’t right. Fortunately, I work with really smart people who not only agreed with me, they did everything they could to help figure out the best way to handle the situation. The decision was made to file a request for a temporary restraining order and a complaint (pre-cursor to a lawsuit). The goal was to get a judge to issue a temporary restraining order that would prevent the city attorney from presenting evidence of Internal Affairs Cases 03-49 and 03-54 at the June 17, 2004 arbitration.

One of the main brains at RLW, Alison Berry Wilkinson, was instrumental in finalizing the necessary motions and paperwork. Together we went to Contra Costa County Superior Court on Wednesday, June 9, 2004 and appeared in front of Commissioner Judith Sanders.

Matters related to admissibility of evidence at an arbitration hearing are normally decided by an arbitrator. Therefore, the first thing the judge wanted to know was why we were in court when we were one week away from our arbitration hearing.

First, Government Code section 3309.5 allowed us to get in the door at Superior Court. The California legislature chose to impose specific procedural requirements on peace officer disciplinary proceedings when it enacted the Bill of Rights Act. When those mandates are violated, the California Legislature permits direct court enforcement of the Act’s provisions. Section 3309.5 (c) states:

In any case where the superior court finds that a public safety department has violated any of the provisions of this chapter, the court shall render appropriate injunctive or other extraordinary relief to remedy the violation and to prevent future violations of a like or similar nature, including, but not limited to, the granting of a temporary restraining order, preliminary, or permanent injunction prohibiting the public safety department from taking any punitive action against the public safety officer.

Second, having an arbitrator decide issues of evidence admissibility is similar to doing in limine motions in front of the jury. Even if the arbitrator ruled that case numbers 03-49 and 03-54 were inadmissible, he would still be aware of their existence. We did not want to have the arbitrator’s decision regarding case number 03-31 affected by the mere presence of other allegations.

More importantly, we argued that an arbitrator does not have the power to prevent future violations of this nature. What was happening in this case did not affect Ryan alone; rather, it had the earmarking of a terrible precedent for all officers facing future discipline. Practically, an officer could be terminated and never really know why he was terminated. An officer could initiate an appeal and never really know what the appeal was based on. He would effectively have to wait until the eve of arbitration to find out all the reasons upon which his termination was based.

Violations of the Public Safety Officer Bill of Rights Act

We argued that two main provisions of the Act were violated by the city: the right to an administrative appeal, and the prohibition against retaliation for exercising rights provided by the Act.

1. Right to Administrative Appeal – Section 3304(b)

One of the basic protections of the Public Safety Officers Bill of Rights Act is that the employing public entity must provide public safety officers the right to an administrative appeal of punitive actions. That provision states:

No punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency…without providing the public safety officer with an opportunity for administrative appeal. Gov’t Code Section 3304(b).

Basically, Ryan’s right to a fair appeal under Government Code section 3304(b) was obliterated by the city’s last minute attempt to supplement the original termination with evidence related to Internal Affairs case numbers 03-49 and 03-54.

Ryan’s November 7, 2003 termination was based solely on the underlying facts contained in Internal Affairs Case number 03-31. The alleged conduct occurred while Ryan was employed with the police Department, and the matter was investigated while he was still employed with the Police department. Additionally, Ryan was provided all of the documents upon which that action was based, and he was provided a pre-termination opportunity to respond (Skelly hearing).

However, with regards to the new grounds for termination, Internal Affairs Case numbers 03-49 and 03-54, the department knew about this conduct before Ryan was terminated but waited until the eve of arbitration to reveal that they investigated and sustained the allegations. Ryan was never provided with any materials related to those investigations and was never afforded a Skelly hearing while he was employed. Indeed, the strategy of the initial Skelly hearing was chosen based on the allegation of case number 03-31. Ryan’s attorney would have likely planned a different presentation if the disciplinary action had involved case numbers 03-49 and 03-54.

2. Retaliation For Exercising Right to Appeal

The act affords officers the right to appeal any disciplinary action and be free from retaliation by the department. Government Code section 3304(a) states:

No public safety officer shall be subjected to punitive action, or denied promotion, or be threatened with any such treatment, because of the lawful exercise of the rights granted under this chapter, or the exercise of any rights under any existing administrative grievance procedure.

Here, after Ryan was fired and filed an appeal, the department responded by conducting further investigation. Of course, there was no legitimate reason to conduct investigations on Ryan once he became an ex-employee. Rather, the purpose of conducting post-termination investigations was to buttress a weak case. The attempt to augment the justification for Ryan’s termination had been done in fear of losing at arbitration and having Ryan reinstated as a city of Concord police officer. In other words, the police department was essentially attempting to fire someone who had already been fired, and proceed directly to arbitration without providing any of the evidence supporting the allegations, or providing any opportunity to adequately respond.

Certainly, if Ryan had not appealed his termination, there would be no pending arbitration and therefore, no reason to amend the “Final Notice of Discipline.”

Temporary Restraining Order Granted

Temporary Restraining Orders are sought far more often than they are granted. One of the obstacles is that the plaintiff must show that “irreparable harm” will result if the TRO is not granted.

Here, we argued that Ryan will be harmed because he will be insufficiently prepared to defend himself of the allegations contained in case numbers 03-49 and 03-54. His defense would be further hampered as he must face the allegations of case numbers 03-49 and 03-54 without any benefit of the rights and privileges afforded peace officers in disciplinary proceedings under the Act.

Moreover, we argued that the actions of the city attorney violate the integrity of the disciplinary process. Just as a prosecutor cannot present new allegations at trial if they were not proven at the preliminary hearing, a peace officer deserves to know all the reasons upon which his termination is based at the time he is terminated. To do otherwise would make the Act useless and negatively affect officers confronted with future disciplinary proceedings.

The Temporary Restraining Order was granted on June 9, 2004. This means that on June 17, 2004, the city attorney may only present evidence related to Internal Affairs case number 03-31 as justification for the termination of Ryan.

Although this was a terrific victory, the war is not over. The restraining order only temporarily prevents the city attorney from presenting evidence of case numbers 03-49 and 03-54. On July 12, 2004 we will return to court in hopes of gaining a preliminary injunction which will confine the current arbitration solely to the facts of case number 03-31.

Ultimately, we are not saying that the department could not have disciplined Ryan for 03-49 and 03-54 while he was still employed. Moreover, the department may re-instate Ryan (with full back pay) and then initiate a cumulative disciplinary action that includes all three cases. The point is that whenever a department seeks to discipline an employee they must do it the right way. The rights and procedures afforded officers under the act mean something – they are not just words that can be ignored by a department anxious to get rid of an employee.

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