Court Order Reinstatement of East Palo Alto Sergeant

Posted on Monday, September 01, 2003 at 12:00PM
Posted by Rains, Lucia & Wilkinson LLP

A chance encounter and an exchange of small talk resulted in a three-year battle to overturn a termination. Thanks to the support of the PORAC Legal Defense Fund and the persistence of LDF panel attorney Alison Berry Wilkinson, the San Mateo County Superior Court has ordered the city of East Palo Alto to reinstate John Chalmers to the position of police sergeant.

It all began one-half hour before the end of his shift on July 6, 1999, while Chalmers was driving his patrol car through commute traffic to a position where he could write traffic citations as people entered the freeway. While stopped at a traffic light, the woman occupying the car next to Chalmers made eye contact and smiled. The two exchanged “good morning” greetings. Chalmers then commented on the bright yellow color of her watch. She responded “Yeah. I got it to match my Jeep.”

When the light turned green, the congested traffic caused both cars to proceed slowly up the freeway overpass. Chalmers passed the woman, traveled the loop leading to the freeway, pulled to the side of the road, and got his citation book out to prepare for writing traffic violations. Chalmers then looked in his rearview mirror, noticed the same Jeep right behind him, and waved “to say good-bye” as she “seemed like a nice person.”

After the wave, Chalmers got out of his vehicle, and saw the woman pull her car into a parking spot about two spaces from where Chalmers parked his patrol vehicle. She then waved her arms indicating that she wanted Chalmers to come over to where she was parked.

As Chalmers walked towards the vehicle, he noticed that her license plate referred to a “fathom” and so he asked the woman “what is that?” The woman responded, “A fathom is six feet and that’s how tall I am.” A casual, friendly conversation then ensued, during which Chalmers revealed that he was over six feet tall, and also included information about the fact that the woman was on her way to work, as well as the fact that Chalmers had an ex-wife and kids living in Southern California.

Later, the woman told her boyfriend about the encounter, and he thereafter complained to the East Palo Alto Police Department that Chalmers had been trying to ask his girlfriend on a date. The department conducted an investigation, which concluded in the recommendation that Chalmers should be terminated for “conduct unbecoming” and “poor judgment.” Uncertain whether that incident standing alone was sufficient to justify the termination recommendation, the department later supplemented its recommendation with multiple allegations of time sheet falsification.

The appeal of the termination then proceeded to advisory arbitration wherein all the time sheet falsification allegations were dismissed, and Chalmers was exonerated because the evidence overwhelmingly proved that he had properly recorded his time entries. However, although the advisory arbitration concluded that the termination should be set aside, the arbitrator also found that Chalmers should suffer a lesser discipline because he did not “politely close off the conversation when he realized the [female civilian] had no viable reason for speaking with him.”

Although the city accepted the factual findings of the arbitrator, it nevertheless rejected the lesser recommended discipline and instead sustained the termination on the single incident of “conduct unbecoming” and “poor judgment.” At that point, the PORAC Legal Defense Fund authorized LDF Panel Attorney Alison Berry Wilkinson to continue challenging the termination in San Mateo County Superior Court.

After reviewing the evidence and exercising its independent judgment, the court set aside the termination and ordered that Chalmers be reinstated. The court found that there was no evidence that Chalmers “did anything that would constitute even an ‘invitation’ [to the female citizen] to engage in a social exchange.” The court further held that Chalmers’ conduct did not amount to an “abuse of authority” or any other form of misconduct. The court stated that, “Nothing in the evidence or in case law suggests that Chalmers’ conduct was so extreme that any reasonable officer must necessarily know such conduct would be cause for discipline or dismissal.” The court heavily relied on the fact that the chief acknowledged that there was no rule or regulation governing the exchange of personal information between an officer and a citizen.

After a three year battle, the court ordered that the city set aside the termination and reinstate Chalmers to the position of sergeant with full back pay, and ordered that the city pay all the attorneys fees accumulated in challenging the termination. Thanks to the financial support of the PORAC Legal Defense Fund in extending coverage to include this court challenge, and due to the determination and tenacity of attorney Wilkinson, the long and arduous battle over a chance encounter has finally concluded.

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