Former Truckee Peace Officer Successfully Challenges Pobra Violation

JUDITH A. ODBERT
Senior Associate Attorney
Mastagni, Holstedt, Amick, Miller
& Johnsen

Former Town of Truckee Police Officer Arthur Munoz achieved a favorable settlement after the Department violated his rights under the Police Officers Bill of Rights Act (POBRA). The Truckee Police Department accused Munoz of drinking while volunteering at a cook-off fundraiser and attempted to terminate his employment. He hired Judith Odbert of Mastagni, Holstedt, Amick, Miller & Johnsen. She litigated his case in Nevada County Superior Court and in an administrative hearing. Facing a prejudicial discipline review process, Judith Odbert established the Truckee Police Department illegally interrogated Munoz in violation of his POBRA rights. She also negotiated a favorable settlement that overturned Munoz’s termination and awarded him $40,000 in back pay.

Arthur Munoz Participates in Community Fundraising Event

The Rotary Club sponsored a chili cook-off fundraiser on June 24, 2012. Munoz was off duty that day and graciously volunteered. Participants were required to wear some kind of costume to identify with the theme of each booth. Munoz wore a decommissioned Truckee Police Department polo shirt. He also sported khaki shorts, tennis shoes and an old duty belt to hang his barbecue utensils on. To top it off, he had a bright orange toy gun in a holster and broken handcuffs to hang his towel on while he cooked.

 Munoz invited another officer from the Department to come to the cook-off. During the cook-off, the officer claimed Munoz took one sip from a beer after using it as an ingredient in the chili. The officer went back to the station and told other officers he saw Munoz drinking in uniform. Word of Munoz’ “drinking” quickly traveled up the ranks to the chief. The chief sent a sergeant to investigate.

The Department Illegally Interrogates Munoz

When the sergeant arrived at the event, he surveilled Munoz but did not observe Munoz drinking. After the initial observation, the sergeant approached Munoz and told him he needed to talk to him. The sergeant led Munoz to a secluded area outside of the booth. The sergeant stated he came to the event because somebody had called the captain and told him Munoz had been drinking at the event. Munoz understood the statement to be a question, and the sergeant later testified he intended to elicit a response from Munoz. Munoz responded that the accusation was ridiculous and he had not been drinking. Munoz even pulled off his sunglasses to show the sergeant his eyes to prove he wasn’t drunk, and he took a PAS in the sergeant’s presence: The results were 0.00 BAC.

Miscommunication Leads to Dishonesty Allegations

The Department charged Munoz with dishonesty for denying he had been drinking at the event. Sustained dishonesty allegations can be fatal to a police officer’s career. Munoz truthfully denied intoxication, but he and the investigating sergeant had a miscommunication. The sergeant used the word “drinking” to question whether Munoz had consumed any alcohol at the event. Munoz believed the sergeant intended to ask whether he was intoxicated, as the word is commonly used. The sergeant’s intended meaning of “drinking” was vague and easily misinterpreted. Consequently, the Truckee Police Department used this as a basis to claim Munoz was dishonest. The Department brought five allegations of policy violations against him.

Munoz Successfully Litigates His Case

Judith Odbert litigated Munoz’s case in Nevada County Superior Court and took the case to an advisory hearing before a hearing officer. PORAC provided funding for the writ. In a deposition, the sergeant admitted being an expert at eliciting Miranda waivers. A common tactic in eliciting a Miranda waiver is to make a statement that would typically elicit a response from the individual being interrogated. That way, the interrogator gets the individual to talk without asking any direct questions. The superior court found the sergeant’s statement to Munoz was designed to elicit a response and constituted an illegal interrogation. Since the sergeant’s interrogation had the potential to lead to punitive action, the Department was required to provide notice of the interrogation, the opportunity to have a representative present, and the opportunity to tape record the interrogation. However, the Department deprived Munoz of these rights. Therefore, the superior court found the Department had illegally interrogated Munoz in violation of his rights under POBRA.

Munoz faced a biased review procedure in challenging his discipline. The Town of Truckee’s personnel rules require the Town manager and the officer’s representative to mutually select a hearing officer. However, if the Town manager and the officer’s representative cannot agree on a hearing officer, the Town manager decides who hears the case. Further, the hearing officer’s decision is merely a recommendation to the Town manager. The Town manager is free to accept, reject, modify or remand the recommendation for further proceedings. The Town manager’s decision is final and binding.

The Town’s attorney proposed to have Jeff Sloan hear the case. Sloan is a prominent labor attorney who has represented numerous public entities in disputes against peace officers. The other proposed hearing officers had similar backgrounds. In the end, Wendy Rouder was chosen as the hearing officer. She is also a labor attorney who specializes in representing public entities against employees, and worked for the same law firm as Jeff Sloan.

Despite the Town of Truckee’s skewed discipline review procedure, Judith Odbert established that the evidence did not support four of the five allegations against Munoz. The hearing officer reasonably found Munoz had not been dishonest at any time during the investigation. Rather, Munoz was professional and truthful in the face of frustrating circumstances.

These victories saved Munoz’s career and helped Mastagni, Holstedt, Amick, Miller & Johnsen negotiate a favorable settlement for Munoz. The settlement replaced his termination with only a letter of reprimand and the Town of Truckee compensated Munoz with $40,000 back pay. Munoz overcame substantial obstacles to successfully challenge his discipline with help from the PORAC Legal Defense Fund and attorneys of Mastagni, Holstedt, Amick, Miller & Johnsen.

About the Author

Senior Associate Attorney Judith Odbert represented Arthur Munoz in his advisory hearing and in superior court. She holds a J.D. from the Lincoln Law School and was previously the supervising assistant public defender in the Sacramento County Public Defender’s office. There, she handled litigation and trials including homicides, sexual assaults, gang enhancements, aggravated assaults, domestic violence and general felony practice.