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Hearing Officer Reinstates 25 Year Veteran Deputy; Civil Service Board Agrees-Department Vows to Fight On

Posted on Wednesday, October 02, 2002 at 12:00PM
Posted by Bob Krause

Background: The incident prompting this termination occurred on April 19, 2000, following an all-day narcotics surveillance action. Deputy [A] and Carrasco exchanged unprofessional comments over the radio towards the end of the shift. At the end of the shift, all of the deputies reported to a parking lot adjacent to a McDonalds for debriefing. While waiting for the sergeant who was to conduct the debriefing to finish a telephone call, several of the deputies were standing around talking near Deputy [B]’s vehicle. Carrasco was one of the last to arrive. He parked his car some distance away from the other cars and walked toward the group. He approached Deputy [A] from behind and tapped him on the shoulder or arm to get his attention and asked [A] something like, “Do you have something to say to my face?” [A] moved his other arm and removed Carrasco’s hand from his arm as he [A] was turning around. [A] ended with something like, “Ya, I have something to say.” As [A] was turning around to face Carrasco, Carrasco’s flat, open hand made contact with [A’s] cheek and chin. The whole incident reportedly occurred in 2-to-5 seconds. An Internal Affairs investigation was initiated and Carrasco was ultimately terminated.

The Appeal and Hearing: In spite of my vigorous attempts to convince the department at the Deputy Chief’s Board and Skelly hearing that this was a “low level” incident requiring minimal (if any) discipline to both Carrasco and Deputy [A]. Only Carrasco was terminated. Indeed, only Carrasco received any form of discipline whatsoever. The steadfast and unwavering position of the department to terminate Carrasco necessitated an appeal to the Civil Service Commission through the services of a neutral hearing officer.

The hearing was held over a three-day period in late 2001 after numerous unavoidable delays. Hearing officer Judy A. Gust was selected. Sixteen or more witnesses were called and dozens of exhibits were entered into the record principally on behalf of Carrasco.

The hearing officer in her decision, which will be cited further below, best summed up this case when she wrote, “Consequently, it appears that this April 19, 2000 incident was seized upon as a way to get rid of a loyal and dedicated employee who has high standards, productivity and performance and who also exhibits some impatience when trying to get others to meet the high standards he sets for himself. The accuracy and sufficiency of the facts simply do not support the act of termination of employment.”

Gust was able to come to such a conclusion because of the tone and tenor of the case the department brought. The problem the department had with its case is that we were able to rebut virtually every point proposed by the department. Most troublesome was the department’s vehement position that this “striking” of another employee by a peer was simply intolerable. The department’s own rebuttal witness, Lt. (now captain) Richard Beemer, testified that there were two other cases (1991 and 1993) were physical altercations resulted in termination. On cross-examination however, he had to testify about two recent cases where physical contact was made and the principles were not terminated. Gust commented “It is clear from the record and the testimony that the department does not have a ‘zero-tolerance’ policy . . . .”

Gust was then left with the issue of inappropriate statements made over the radio by Carrasco and Deputy [A]. She stated, “Being unable to sustain the respondent’s charge that Carrasco intentionally struck [A], the one remaining issue that was charged against Carrasco concerns the verbal exchange over the radio between [A] and Carrasco. Carrasco admitted he told [A], ‘If you get your head out of your ass, you’d know’ in response to a similar statement made by [A]. Because the accuracy of whether or not [A] used the word ‘ass’ first is not at issue here. The admission by Carrasco using that language over the radio sustains a charge of discourteous treatment of a fellow officer. However, again, the appropriateness of the penalty must be reviewed.”

Thereafter Gust, in a very thorough and well-reasoned decision stated that “the appellant’s representative (Krause) argued that the severity of this penalty, under the totality of the circumstances, ‘shocks the conscience’ and ‘reaches too far’. This hearing officer would agree. Carrasco’s recent performance evaluations are compelling as to the overreaching of this discipline, although there is one area of concern relating to how effectively or not Carrasco shares his vast knowledge and experience with others. This deficiency is noted only in the comments section on areas for development. Nowhere in the performance factors themselves is he ever marked below job standards or unsatisfactory. Rather, his many “exceeds job standards” rating far exceed even the “meet standard” ratings and the comments on his exemplary performance track accordingly. In 1996, 1997 and 1998, Carrasco rated 7 or 8 out of a possible 9 on judgment and stability (as well as others) with stability being defined as “is emotionally well-balanced shows good self-control and poise and can be relied upon to perform under pressure.” It was then that Gust made her most telling of statements, referencing seizure upon this April 19, 2000 incident to simply get rid of Ray Carrasco. It didn’t work.

The Decision: In her findings of fact, Gust states, “As to the first charge, ‘discourteous treatment of the public or other employees’, it is found that Carrasco did treat Deputy [A] discourteously when he responded in kind to an offensive remark made by Deputy [A] over the radio.”

“Regarding the second charge, there is no evidence presented that Carrasco neglected his duties on April 19, 2000 or at any other time.” Gust went on to point out that the third and fourth charges cited against Carrasco were pile-ons and duplicative charges. She summarily treated them as such. Gust concludes, “As noted above, the preponderance of the evidence supports only a finding of discourteous treatment of a co-worker in violation of department rule I-215.40. The evidence was insufficient to find that Carrasco intentionally struck Deputy [A] on April 19, 2000, or that his behavior under the circumstances was excessive, unwarranted, or unjustified, or that it brought discredit to the department. That he spoke disrespectfully to a fellow officer is the only charge that can be sustained”.

Conclusion: It is the conclusion of this hearing officer that the termination of Carrasco was unwarranted and not supported by either the accuracy or sufficiency of the evidence.

The Department’s First Appeal Fails: Not at all happy with Gust’s decision, the sheriff’s department appealed to the full Civil Service Commission for a new hearing. Actually, they first sought to have the commission review De-Novo the transcripts and overturn the hearing officer. It turns out the commission cannot do this under local rules. The commission did read the record, and both sides had to brief their positions and argue before the commission for or against a new hearing. In a four-to-one vote, the commission denied the department’s appeal, commenting favorably on the well-reasoned decision of Gust. The order became final subject only to C.C.P. §1094.5 judicial review.

Some observations: Way back during the administrative process and particularly during the Skelly level hearings, I had argued, and Ray Carrasco had agreed, that some discipline for the use of the words over the radio was probably warranted and that he would be willing to accept reasonable discipline. Ironically enough, and without any access to this evidence, the hearing officer imposed a reasonable discipline of a five-day suspension, overturning the termination and ordering full back pay and benefits to Ray Carrasco. The moral of the story; we are right where we started, only now we have to convince a judge as well.

About the Author: Bob Krause is a former (now retired) sergeant with the Oceanside Police Department where he served many years as president and negotiator with the OPOA. While with OPD he worked in patrol, traffic, vice-narcotics and violent crimes (homicide) assignments. As a sergeant and detective-sergeant he supervised patrol, violent crimes (homicide) and special operation units. Krause is a partner in the Law Office of Castle & Krause, Temecula, CA, and has been representing the interest of public safety officers for the past 17 years throughout southern California.

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