Hbpoa Awarded Sanctions Against Chief of Police and City Settles Case Alleging Violation of Officer Bill of Rights

The Hermosa Beach Police Officers Association and its President Bruce Phillips, with the support of the PORAC Legal Defense Fund, filed suit in Superior Court against the city of Hermosa Beach, the Hermosa Beach Police Department and the chief of police.

The POA contended that the defendants violated the rights of the association and Phillips under Government Code §3300, et seq. (Peace Officers Procedural Bill of Rights), Government Code §3500, et seq. (Meyer-Milias-Brown Act), and the rules and regulations of the city of Hermosa Beach and the Hermosa Beach Police Department.

The facts of the case were uncontested. Phillips was charged with allegations of off-duty misconduct. He was fueling his vehicle when a citizen contacted him. The citizen noticed that Phillips was carrying a handgun in a holster on his waist and asked if he was a police officer.

Phillips responded that he was. Thereafter, the citizen initiated a verbal exchange about Phillips discarding a cigarette butt. The citizen contacted the department to complain about inappropriate conduct by Phillips, whom she believed to be an on-duty, plain clothes police officer from another department.

On June 14, 2000, Phillips was ordered to appear for an internal affairs interview. The internal affairs investigator initially said that the only thing being investigated was his display of his weapon while off-duty. This was confirmed during the interview.

On August 9, 2000, Phillips was subjected to a second interview regarding the same incident and complaint. The focus of the investigation changed. Phillips was advised that while he was off-duty, he represented himself as a police officer and now the issue was the verbal exchange with the complainant. Phillips was not given prior notice of who would be attending the second interview, but upon arrival found out that a lieutenant who openly disliked Phillips, was now conducting the interview.

Phillips was shown a synopsis of his first statement and was provided a copy of the tape recording of the first interview. When Phillips began to listen to the tape, the investigators demanded that he hurry. Phillips clearly was not given adequate time to fully review the tape recording.

On August 30, 2000, the chief of police, who also did not like Phillips, found misconduct based on Phillips’ comments made during the off-duty verbal exchange with the complainant. Phillips was not, however, disciplined for having his weapon visible to the public.

On September 1, Phillips, via his attorney, LDF panel attorney Corey Glave of Goldwasser & Glave, requested a hearing. Prior to the Skelly hearing Phillips was given the Notice of Proposed Discipline, an Investigation Summary/Recommendation, and the Personnel Complaint Investigation, including a copy of the tape recordings.

The materials did not include the videotape of the complainant statement, the copy of the “photo line up” shown to the complainant, or any notice of the granting of an extension of time to conduct the investigation. (In Hermosa Beach, the police department is provided 30 days to complete its internal investigations or the investigator must ask for an extension of time).

On September 13, at the time of the Skelly hearing, Glave asked the chief if he had provided Phillips with all documents from the investigation and all documents that he used to form his decision to discipline Phillips. The chief indicated that Phillips had been provided all documentation with one exception.

The chief advised that in deciding the appropriate discipline, he considered a document that was part of Phillips’ personnel file, but that he had not provided it to Phillips. Phillips had not been told that the document was included in his personnel file and had not been given the opportunity to file a response to said document.

During the Skelly hearing, Glave asserted that Phillips’ rights under Government Code §3300, et seq. had been violated and that the department was in violation of both city and departmental disciplinary rules and regulations. Phillips also provided factual arguments against the proposed disciplinary action. The chief was unmoved.

The POA and Phillips filed suit. Phillips contended that his rights under Government Code §3303(b) (prior notice of the rank, name, and command of the officer in charge of the interrogation, the interrogating officers, and all other persons to be present during the interrogation); §3303(c) (prior notice of the nature of the investigation); and §3303(g) (if a tape recording is made of the interrogation, the public safety officer shall have access to the tape if any further proceedings are contemplated, or prior to any further interrogation at a subsequent time, and that the officer shall be entitled to a transcribed copy of any notes made by a stenographer or to any reports or complaints made by investigators or other persons, except those which are deemed by the investigating agency to be confidential).

Glave asserted that the California Supreme Court ruled that the Government Code of section 3303(g) generally provides for recording the interrogation of an officer who is under administrative investigation. Although it grants the officer access to tape recordings or transcribed notes of the interrogation “if any further proceedings are contemplated or prior to any further interrogation at a subsequent time,” it does not specify when that access must be given.

The recordings and notes memorialize the interrogation. It follows, therefore, that access to them would be after the interrogation. Thus, with respect to recordings and notes, subdivision (g) must be read to provide for their production after the first interrogation.

Phillips further contended that his rights under §3304(f) (employer must notify employee in writing of the date that the discipline would be imposed, within 30 days of the decision to implement discipline); §3305 (no public safety officer shall have any comment adverse to his interest entered in his personnel file, or any other file used for any personnel purposes by his employer, without the public safety officer having first read and signed the instrument containing the adverse comment indicating he is aware of such comment); and §3304(b) (no punitive action shall be undertaken by any public agency against any public safety officer without providing the public safety officer with an opportunity for administrative appeal).

The POA contended that the association’s rights under Government Code §3500 had been violated. Government Code §3500. et seq. provides that public agencies shall not interfere with, intimidate, restrain, coerce or discriminate against public employees because of the exercise of their rights under this section. By failing to properly notify Phillips and his representative of the true nature of the investigation, the names and identities of all persons to be present during the interviews, failing to provide required materials, and failing to follow agreed-upon investigatory and disciplinary processes, the police department actions had a negative impact on the HBPOA’s ability to represent its members.

Consequently, these actions interfered with and restrained the ability of the Hermosa Beach Police Officers’ Association to properly represent one of its members

Glave aggressively pursued discovery. The law firm representing the city employed at least five attorneys to work on the case, but refused to produce witnesses for deposition and to properly respond to Glave’s discovery requests. Glave was forced to seek the court’s assistance. The court ordered sanctions against the chief of police and against the city’s law firm.

With motions for sanctions pending against the city and its attorney, and with the threat of legal action against the city for retaliation, the city, via its new chief of police, settled the case. The city agreed, in pertinent part, to give Phillips a “clean slate” regarding his employment with the city of Hermosa Beach. Specifically, the city agreed that Phillips’ recent disciplinary actions shall not be considered or taken into account in the event Phillips is involved in any future disciplinary actions resulting in any type of discipline being imposed at the present time or in the future.

Furthermore, the city agreed that any and all of the records of discipline or disciplinary actions against Phillips, that occurred or may have occurred prior to September 1996 (which constituted all actions not specifically part of the settlement agreement), will not and shall not be considered or taken into account in the event Phillips is involved in any future disciplinary actions. The city also agreed to reimburse Phillips for 52 hours of lost wages due to the disciplinary actions covered by the agreement.

The new chief of police also agreed that he and his staff would meet with members of the board of directors of the Hermosa Beach Police Officers’ Association in order to review and re-write the Policy and Procedures for Personnel Complaint Investigations. The parties agreed that the intent of these meetings will be to develop a more effective and efficient procedure for conducting personnel complaint investigations that is fair to all parties and that is in accordance with current laws and industry practices.

Both the HBPOA and Bruce Phillips undertook this action to rectify what they perceived were abusive practices that were occurring during the disciplinary processes at the department. It is the sincere desire of the HBPOA that this case will solve these problems and that the department will act in good faith in restructuring and re-developing its investigatory processes.