Colton Pd Officer Vindicated After Binding Arbitration Overturns His Termination

On March 25, 2001, the City of Colton fired PORAC member Officer Mark Schultehenrich from his position as a patrol officer. After an internal affairs investigation led by the patrol lieutenant, the decision to terminate Schultehenrich’s employment was based on his conduct in two distinct incidents. He was charged with not responding promptly to a 911 “baby not breathing” call and the mishandling of bloody evidence in an attempted murder case.

After binding arbitration, Schultehenrich was exonerated of these charges on February 18, 2003, when arbitrator Charles Askin of Walnut Creek, ruled that Colton terminated Schultehenrich without just cause.

Schultehenrich was born and reared in Redlands, California. In 1985 he embarked on a lifelong dream of a career in law enforcement. He started as a non-sworn parking control officer in the city of Redlands, disbursing parking tickets and towing violators. From there he moved on to work at the San Bernardino County Sheriffs Scientific Investigations Division (Crime Lab), processing, cataloging and collecting evidence.

In February 1989, he was hired by the city of Colton as a police officer and attended the San Bernardino Sheriff’s Academy. After successfully completing the field-training program, he started patrolling the streets of Colton. There he gained valuable experience working in patrol, SET (Street Enforcement Team), ID (CSI) and as an FTO.

On February 12, 2002, Schultehenrich was called into the patrol lieutenant’s office near the completion of his shift. He was handed his copy of the paperwork informing him of the department’s intent to terminate him. He was stripped of his badge, gun, and ID, and escorted out of the station by the watch commander.

The situation certainly looked bleak after the City Manager rubber-stamped the Chief’s decision to fire Schultehenrich. It turned out that the Skelly materials produced in support of the decision certainly did not paint a particularly convincing picture of the grievous misconduct that was being alleged. Nevertheless, it appeared that the department’s brass had made up their mind to get rid of this veteran officer, and was not going to be dissuaded by lack of objective evidence to support these charges.

911 “baby not breathing”: On September 8, 2001, at 5:01 a.m., Schultehenrich was dispatched to a call of a baby not breathing. The shift corporal and ID officer also advised over the radio that they would be responding to this call. The corporal arrived at the location within three-to-four minutes. He advised over the radio that the baby was breathing. The ID officer arrived shortly thereafter.

Schultehenrich did not arrive until 5:10 a.m., behind the ambulance. Schultehenrich was three miles from the call but had to drive up the canyon road to get to the housing tract where the baby lived. The corporal inquired as to the delay in arrival to the scene. Schultehenrich responded that he had followed the ambulance to the scene and they had missed the turn into the housing tract. The lieutenant who was heading up the internal affairs investigation contacted the ambulance crew on November 28, 2001, nearly two months after the incident, to interview them about the events of that morning.

In this non-recorded conversation, the lieutenant claimed that both members of the crew denied seeing an officer behind them on the drive to the call and that they had no problem locating the residence. He concluded that not only was Schultehenrich “late” in his response to this call but that his explanation for his lateness was dishonest.

During the first day of the arbitration, the ambulance driver testified that she had no recollection one way or another if there was a police car following directly behind them. She stated she was concentrating on the traffic to the front, and could not recall if they got lost, but in her own words stated, “I get lost a lot.” The corporal and ID officer both testified that Schultehenrich should have arrived two-to-three minutes after the call came out. Both officers did admit to driving well above the speed limit to the call without their lights and siren on.

In fact, the lieutenant called to testify in support of the termination decision had to admit that he had no idea how long it should have taken for Schultehenrich to arrive on the scene. The ID officer also stated that he remembered the ambulance arriving with Schultehenrich directly behind it.

Schultehenrich testified that the claim of failing to respond to a baby in distress call was quite disturbing, is the father of three children. He received that call and took the time to check his map book before responding into the canyon area. It was his discretion to respond with lights and sirens to this type of call. But as soon as the corporal arrived and broadcast that the baby was breathing this method of response was no longer permissible.

At the same time, an ambulance was approaching him Code 3. He yielded to the ambulance and followed at a safe distance to the call. In his testimony, he stated that the ambulance missed the turn into the housing tract not once but twice, and had to make a U-turn back toward the housing tract to gain access to the residence.

Mishandling of bloody evidence: These allegations of misconduct surrounded an attempted murder case, which occurred on October 26, 2001. A stabbing victim was transported by ambulance to Arrowhead Regional Medical Center located in Colton. By coincidence, Schultehenrich was at the hospital on an unrelated matter. Schultehenrich went to the ER, where he checked on the status of the victim, and proceeded to collect the victim’s bloody clothes and belongings.

He then responded back to the scene of the stabbing to turn the items collected at the hospital over to the assigned ID officer. He was intercepted by the sergeant on the scene and redirected to the station. Schultehenrich returned to the station and hung the bloody clothes in the evidence locker to dry. He identified the property with a note providing the case number, date and initials, to be held for the ID officer to process once they were dry. Schultehenrich then produced a supplemental report describing his actions as per policy.

The department’s allegations of misconduct were based on what they believed were three issues of dishonesty. First, it was concluded that Schultehenrich reported untruthfully that he had a conversation with the ID officer about the fact that he hung the bloody clothing in the locker. Second, it was found that he dishonestly denied that the sergeant instructed him to tag the property.

Finally, it was determined that he omitted from his supplemental report the fact that he visited the crime scene on the way to the station (although this latter matter was viewed more as an omission than purposeful dishonesty). The record established that Schultehenrich’s purported dishonesty regarding October 26, 2001, lies at the heart of the matter as opposed to any claim that he mishandled the evidence in the issue.

During the arbitration, the sergeant testified that he radioed Schultehenrich at the hospital, and directed him to check on the stabbing victim. The sergeant also believed that he had instructed Schultehenrich to collect the bloody clothing and to go to the station to tag it. The ID officer testified that Schultehenrich never spoke to him about placing any evidence in the evidence locker that night and that he never asked Schultehenrich to put the property on hold so he could tag it later.

He stated that he had no recollection of even seeing Schultehenrich at the station that night, and only found the evidence on the following night by coincidence in the locker with the note to hold for processing. The sergeant testified that he questioned Schultehenrich as to why he had not tagged the evidence and was told by Schultehenrich that he must have misunderstood the instructions. This was not accepted as a reasonable explanation and considered to be dishonest.

Schultehenrich testified that he was not contacted on the radio and ordered by the sergeant to check on the stabbing victim’s status, collect the bloody clothing, nor to tag the property. Instead, Schultehenrich testified that he volunteered to go the ER and check on the victim’s status. While there, he took the initiative to collect the victims bloody clothing. He advised the sergeant over the radio of the victim’s status and that he had collected the clothing.

He stated that he then took the items to the location of the stabbing in order to turn them over to the assigned ID officer so he would not have to track them down later. Prior to entering the crime scene Schultehenrich was approached by the sergeant and told to take the belonging to the station, and hang them up to dry so they could be tagged later. Schultehenrich stated later that night he ran into the ID officer in the parking lot of the station and briefly passed on the information as to where he could find the victim’s clothing.

Digital recording for that evening’s radio traffic was located and found to be consistent with Schultehenrich’s testimony. It revealed that in fact, Schultehenrich had volunteered to go to the ER for the stabbing victim. Per radio transcript, Schultehenrich subsequently asked if anything besides collecting the victim’s clothes should be done. He was told no, and that he could go 10-8 (back in service).

The arbitrator’s decision: Arbitrator Charles Askin found that the factual allegations against Schultehenrich concerning the incident of the 911 “baby not breathing” call to suffer from a serious lack of proof. He believed the expectation of a response time of two-to-three minutes to be unrealistic and believed the test drive estimates of eight-to-10 minutes to be more accurate. He found that there was no direct or reliable evidence to rebut Schultehenrich’s location and that it was undisputed that Schultehenrich arrived virtually the same time as another emergency vehicle – the ambulance.

It was also undisputed that five minutes after the initial call, it was reported that an officer was on scene and that the baby was breathing, facts that presumably reduced the emergency need to drive “Code 3” or other excessive speeds. Askin also felt that there was no reliable evidence that Schultehenrich intentionally or consciously lied when he reported he followed the ambulance to the baby’s location.

He felt that the ambulance driver’s testimony was too much in doubt and too lacking in recollection to base a finding of dishonesty against Schultehenrich. It was the arbitrator’s opinion that the city of Colton failed to prove that Schultehenrich’s conduct on September 8, 2001, warranted termination, or any discipline.

The issue of insubordination and dishonesty surrounding the case of the stabbing on October 26, 2001, was by far more complicated, but again Askin was not persuaded that there was sufficient, reliable evidence to support the allegations brought against Schultehenrich. It appeared that the primary factor in the decision to terminate Schultehenrich was the determination that he acted dishonestly with respect to the sergeant’s instructions of him to take the stabbing victim’s belongings to the station, hang the bloody clothes for drying, and to tag them, as well as his lying about having the conversation with the ID officer to relay the information about the evidence.

Based on testimony and evidence provided over the three days of arbitration, it was concluded that the claim made by Schultehenrich that he was never given the order to tag the property immediately was significantly consistent with the sergeant’s own written account of the incident in which he wrote that he instructed Schultehenrich “to take the property to the station, hang the bloody clothing up to dry and to later tag the property.”

This was also consistent with what was determined during the arbitration to be “appropriate” handling of bloody evidence. Askin felt that it would have been premature to issue individual tags, photograph, and properly bag the items in view of their wet, bloody nature, as well as the fact that Schultehenrich was not the ID officer, nor had he been provided with any then-pending investigatory details.

Lastly, Askin felt it was not at all impossible to believe that the ID officer may have forgotten such a brief conversation with Schultehenrich, in view of the fact it had been a very busy night. But, he found it difficult to understand why Schultehenrich would have fabricated such a claim and could not entirely dismiss the possibility that this ID officer may have had an agenda, especially in light of the rather unlikely testimony offered about how long it should have taken Schultehenrich to respond to the 911 “baby not breathing” scene. Askin was not persuaded that there was sufficient and reliable evidence to support a finding that Schultehenrich fabricated this conversation.

Askin concluded that “in this case, sufficient evidence in support of the specific charges relied upon in the decision to terminate is not present” and that “there was no just cause for the termination”. Askin awarded Schultehenrich reinstatement with the restoration of seniority, and full back pay, including benefits.

Schultehenrich and his family are extremely grateful for the support of the Legal Defense Fund. Without LDF’s support and backing, this victory would not have been possible. They also wished to thank publicly his attorney Russell Cole of the law firm DePasquale & Cole. Cole’s hard work, dedication, supportive phone calls and long hours were greatly appreciated by Schultehenrich and his family.

Schultehenrich also wished to thank his family and friends for their continued support through this past year. As often as the bosses get their wishlist fulfilled, it was a privilege and a pleasure to fight back with reason, the truth, and win one fair and square. Justice prevails…this time!