Third Irvine Officer Is Reinstated: Officer’s Credibility Is Heads Above His Accusers

Posted on Friday, March 01, 2002 at 12:00PM

The faithful readership of PORAC News will recall articles in recent issues about two Irvine officers who were ordered reinstated after former Police Chief Charles Brobeck terminated them in a purge of the department’s Special Enforcement Team (SET). The third officer terminated in that purge, 17-year veteran Gerald Head, received an order for reinstatement with full back pay, benefits and interest by retired Orange County Superior Court Judge John Flynn. On January 13, 2002, nearly two years from the day after he was fired, Head was officially reinstated to duty, his reputation vindicated. Attorney Robert M. Wexler, a partner in the Santa Monica firm of Silver, Hadden & Silver, represented Head in all phases of his case.

Head began his career as a police officer with Irvine in July 1983, after serving as a reserve police officer with the City of Tustin. He served as a patrol officer, narcotics detective, field-training officer, auto theft detective, burglary suppression officer, and finally, as one of the original members of SET. Head is a skilled officer who was twice selected by the department’s management (from among 160 sworn officers) to receive the Meritorious Service award, Irvine’s equivalent to the Officer-Of-The-Year Award, including for the year he was fired.

On January 27, 1999, SET was shut down and an audit was conducted after a complaint by one member about the unit’s supervisor, Sergeant Brian Clifton. Clifton was, for many years, the outspoken president of the police officers’ union and a vocal critic of Brobeck’s regime. When the complaint against Clifton was made, Brobeck and his staff must have been salivating at the opportunity to get Clifton. An investigative team that could only be described as “overkill” was assembled. Under the leadership of Commander Jim Blaylock, a lieutenant, a sergeant and one senior officer were relieved from all duties and assigned full-time to conduct the investigation of the unit. Numerous other investigators were also assigned to the case, including the chief’s personal attorney and two captains from other agencies who were hired on a contact basis. These people participated in the questioning of employees and in the oversight, management and deliberative aspects of the investigation. It became clear to Head that the chief’s handpicked hit squad either expected him to provide information concerning Clifton’s alleged misdeeds or they would target him for “protecting” Clifton. Head chose to side with the truth.

The evidence showed that officers assigned to the SET unit were permitted tremendous flexibility in the accounting and utilization of their work time. Their workweek consisted of four 10-hour days each week, but the nature and demands of the job required officers to work unorthodox schedules. As a result, the department’s management permitted two significant practices to endure. First, officers in SET were allowed to conduct a reasonable amount of personal business during working hours, without having to make adjustments to their time slips (a practice that continues to this day). Second, officers were permitted to accumulate “memory bank time”, also referred to interchangeably as “black book time” or “flex time”. Under this practices officers would work without compensation on one day, “bank” those hours in their memory, and utilize those banked hours for paid leave on another day.

Many of the witnesses, including the lieutenant and the two sergeants in charge of the SET unit, testified that Commander Blaylock, the same individual that had initial oversight of the investigation, knew about, and condoned, the memory bank time practice. The testimony also showed that this practice was used outside SET, including in the detective bureau and in internal affairs. Even one of the leaders of the investigative team knew about, and employed, the practice in the auto theft unit. Why the investigative team ignored this fact and concluded that “memory bank” overtime did not exist, when they availed themselves of it, is unexplainable.

The conduct of the investigation ranged from inexcusably sloppy to downright disingenuous. As an example, the city charged Head with having taught officer survival courses for his secondary employer on March 24 and 31, 1998 while receiving compensation from the City of Irvine. Head never denied teaching on those dates, nor that the payroll records show that he was compensated by the city for those dates. What the city inexplicably omitted from the charges, however, is that the investigation determined that Head worked without compensation on March 28, 1998, making up for either the 24th or the 31st. The evidence that exonerated Head for the second date was also in the investigator’s possession throughout their investigation, and they either overlooked it or they purposely concealed it. Specifically, the records for March 10, 1998, showed that Head worked 10.5 hours that day without compensation, thus making up the time away from work on the second of the charged dates.

Another example of the city’s single-minded attempt to get Head was their imposition of discipline for submitting slips for compensatory time off (CTO) when, in the department’s interpretation, overtime should have been appropriately paid. There was no dispute that Head did the work and was entitled to be paid; the only issue was whether he should get cash or CTO. The investigative team ignored the fact that Head’s supervisor signed the CTO slips and/or the corresponding time sheet, in each instance except one. As the sergeant assigned to the investigative team conceded on cross-examination, in his 18-plus years as a supervisor he has examined thousands of overtime request forms as part of his supervisory responsibilities and would correct errors by simply telling the officer it was incorrect, having the officer make the modification, or make the modification himself. No one form the city could point to a single instance where it initiated any kind of disciplinary action against any employee for mistakenly completing a CTO request form.

Ultimately, the judge determined that the city failed to prove that Head submitted requests for CTO that were knowingly in violation of the MOU, or that such action would even constitute a disciplinary offense. In fact, the judge methodically and completely overturned each and every charge against Head. He concluded that there was no misconduct committed by Head and that no discipline should be imposed. He recommended full reinstatement, awarded back pay, benefits and interest and determined that Head’s file should be purged of all negative references to the allegations. The new city manager, who was not associated with this debacle, agreed and adopted the judge’s recommendation as her decision. Head was elated. “I am looking forward to resuming my career under the new police chief (that replaced Brobeck),” he said.

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