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Officer Exonerated at Civil Service Hearing

Posted on Saturday, March 01, 1997 at 12:00PM

San Diego County Welfare Fraud Investigator Ernestine Bentley was recently exonerated of all charges by the San Diego County Civil Service Commission. Ms. Bentley was represented by LDF Panel Attorney Everett L. Bobbitt of San Diego. Her case raised some interesting factual and legal issues that resulted in her exoneration.

The District Attorney alleged that Bentley was guilty of incompetency, inefficiency and conduct unbecoming an officer. The District Attorney (appointing authority) imposed a one day suspension. Prior to her “Skelly” hearing Bentley was also charged with dishonesty. This allegation was dismissed after information was provided to the “Skelly” hearing officer that disproved the allegation.

The District Attorney tried to prove the allegations of incompetency and inefficiency by producing evidence of alleged deficiencies in investigations over an 11 month period. The Civil Commission ruled that not only did the D.A. not prove that the investigations were inefficient but that Bentley had received a performance report at the end of this period marking her above standard in areas that evaluated her work performance.

More interesting is the allegation of incompetency. This type of allegation is frequently made by employers but can rarely be proven. Not performing at a competent level is not the same as being incompetent. The Courts have ruled in public employment discipline cases that to be found incompetent the agency must prove that the employee lacks a present ability to perform the job Pollak v. Kinder (1978) 85 C.A. 3d 833 and that the agency has published ascertainable standards for a level of competency in a given job classification Wheeler v. State Board of Forestry (1983) 144 C.A. 3d 522. When the D.A. evaluated Bentley as “above standard” it is easy to see why the legal standard for incompetency would be impossible to meet.

Bentley was also exonerated on an allegation of conduct unbecoming an officer. When she was served with her “advance notice of discipline” alleging dishonesty she responded to her supervisor “this is a bunch of bulls–t.” Bentley defended this allegation by asserting a “human reaction” to an unfair and untrue allegation of dishonesty. All law enforcement officers know the impact an allegation of dishonesty could have on an officer’s reputation. Without credibility an officer has little to offer to their profession. The Commission agreed that her reaction “did not seem so unusual under the circumstance as to warrant discipline.” In other words it is acceptable to have human reactions including anger.

Investigator Bentley has successfully caused all references to this discipline removed from her file.

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