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Judge Overturns City Council Rejection of Arbitrators’ Decision, Reinstates Order that Officer be Returned to Work

Posted on Tuesday, June 01, 2004 at 12:00PM
Posted by Corey Glave

Ontario Police Officer Josh Duke was terminated for the manner in which he disposed of confiscated identification cards and drivers’ licenses. He appealed. After an evidentiary hearing, an independent arbitrator overturned the termination and ordered that Duke be reinstated. Even though the personnel rules did not provide for it, the chief appealed to the city council. After a presentation by the city attorney and secret discussions with the personnel director, the council overruled the arbitrator’s decision. Believing that Duke’s rights had been egregiously violated, the Legal Defense Fund authorized Superior Court action. The court found the act of the council to be null and void.

This case began on July 10, 2000, when the Internal Affairs Division of the Ontario Police Department notified Duke that it was investigating allegations of misconduct. The notice was very specific about the nature of the investigation: to wit, “…regarding your contact with (three named persons)” and “two letters you sent to your wife around June 17, 2000,” and indicated that Sgt. Hopley would be present. No mention was made of any other investigator, or that Duke would be questioned about events that occurred in 1999, a year prior to the interrogation. Prior to the interview, the chief of police sent word to Duke that he did not like the representative that Duke had chosen. He indicated that if Duke switched attorneys and told the truth he would not be terminated, but would face some administrative sanction.

On August 1, 2000, Duke and I appeared. Duke answered all questions asked of him and was honest with the investigators. On August 17, 2000, Duke was interviewed a second time. At the second interview I requested “copies of all reports, memorandum, and other documents of your (IA’s) investigation up to this time.” In response, Duke was provided only a draft copy of what was purported to be a transcript of the first interview. Again, Duke was completely honest and forthright with the investigators.

Contrary to his earlier indication, the chief inflated the nature of the wrongdoing and terminated Duke. On September 28, 2000, Duke filed an appeal to the city manager. Even though the appeal letter was sent via facsimile and first class mail, neither Duke nor I heard from the city manager. In response to a call in April 2001, the city manager indicated that he remembered that the chief of police had recommended termination, and that Duke had requested an appeal, but could not offer an explanation as to why Duke had not yet been provided a hearing or received a response from his office.

A month later, the city’s contract attorney asserted that no one had seen the September 28, 2000, letter. This directly contradicted the city manager’s earlier comment that he was aware that Duke had requested an appeal. Then, as a result of the city attorney’s calendar, an administrative hearing was not scheduled until December 2001, nearly 15 months after the appeal was filed!

At the hearing, I presented uncontradicted evidence that Duke was an above average to exemplary police officer, had no prior disciplinary record with the department and had never been known to lie or falsify any report. On cross-examination, I elicited testimony from the internal affairs investigator that Duke was truthful and forthright and that there was no attempt on Duke’s part to conceal any facts. I finally got the investigator to admit that Duke was the most honest person the investigator had ever interviewed.

I then called as an expert witness, a city attorney and arbitrator from another jurisdiction. The expert contradicted almost every conclusion that the chief of police had reached and further testified that the penalty of termination was excessive under the circumstances of the case. I also moved to dismiss based on a violation of Duke’s right to due process and violations of the Public Safety Officers’ Procedural Bill of Rights (POBR).

At the close of the hearing the parties agreed to submit written briefs to the arbitrator. Then the fireworks began. The chief was irate that I had called the expert witness. He called me unethical and underhanded. He threatened to report me to the State Bar. Then the city attorney joined in. Prior to filing his brief, the city attorney sent partial copies of the administrative hearing transcripts to the League of California Cities and to the expert witness’ employer in an attempt to intimidate or retaliate against him for his supportive testimony. Those transcripts included information contained in the personnel files of a peace officer and which, under the Memorandum of Understanding, is considered confidential (The attorney general has opined that the disclosure of peace officer personnel records in violation of Penal Code § 832.7 may constitute a crime under Government Code § 1222). Clearly, the chief did like any representative that would have the audacity to challenge his decisions.

The opinion and award of the impartial arbitrator held that the city had denied Duke his right to due process and that consequently it was unnecessary to address the other motions or the merits of the discharge. The arbitrator found that the city delayed approximately eight months in initiating the arbitration process and offered no reason to explain or justify the long delay. The award ordered that Duke “be reinstated to his former position as a police officer and that he shall be paid back pay and contractual benefits during the period beginning with his discharge and continuing to his reinstatement.”

The chief “appealed” to the city council even though the personnel rules make no provision for a department head to do so after an arbitrator’s decision. There are no rules or guidelines for such a procedure and so the city attorney was leading a willing city council down a path created for the purpose of overturning the arbitrator’s award. When I objected and asked to be provided with written authority for such a review or the procedural guidelines that the council intended to follow, I was met with silence.

Without any notice, the city council considered the matter in closed session on September 17, 2002. The city attorney made a “presentation” and the personnel director provided input. Not only were we not given an opportunity to appear before the council, but Duke and I first learned of the council’s decision from a newspaper reporter seeking comment about the council upholding the termination.

The Legal Defense Fund authorized a petition for Writ of Mandate to overturn the city council’s action. In January 2004, the San Bernardino County Superior Court ruled that the city council’s action taken without notice and without the opportunity to present arguments was null and void.

As the city can not be counted on to do the right and just thing, this saga continues with the city immediately threatening to appeal the trial court’s decision and once again have the city council conduct a “review.” This case is a classic example of a chief and a city trying to outlast an employee by prolonging the inevitable. Duke looks forward to, someday, returning to work; hopefully to a department with a more reasonable and trustworthy chief of police.

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