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Hearing Officer Exonerates Terminated Fontana K-9 Officer

Posted on Tuesday, April 01, 2014 at 12:00AM

NICOLE QUINTANA-WINTER
Partner
Gaspard Castillo Winter Harper, APC

     What one officer learned: You never think it will happen to you. And then it does.
     After a full evidentiary hearing before a neutral hearing officer, a Fontana officer was exonerated of dishonesty charges and ordered returned to work. His removed K-9 partner was ordered returned to him and any potential mention of him on the County Brady list was recommended removed. The four-day hearing took place with numerous witnesses called on both sides, and afterward, the hearing officer found that a sergeant had intentionally violated the officer’s POBR rights by conducting an investigation without informing him that he was under investigation and his rights applied. Additionally, the hearing officer found that the Department failed to provide the officer with all of the materials upon which the matter was based, in violation of the tenets of Skelly v. Personnel Board.
     While the hearing officer found the above violations, they were not the basis of the exoneration. After the very thorough hearing, it was clear that the officer had not lied and had no motivation to do so. At the heart of this case is a sergeant who disliked this particular officer and went after him. No less than four other officers testified to this known and observed bias in the hearing. Further, the Department only charged the officer with violations of portions of the actual policy, narrowly tailoring the language to fit its agenda. (It was quite embarrassing for the Department when this was exposed to the hearing officer during the hearing.)
     In this case, the officer had gone in on a different shift to assist with a search for another department. After the search, the officer went with another K-9 officer to breakfast, and then to the K-9 training field. While at the K-9 field, he made the decision to get his patrol unit washed. He pushed the “car wash” button to indicate to dispatch his intention, and shortly thereafter, he was asked to return to the search site. Thus, he never made it to the car wash. According to the Department, because he pushed the “car wash” button, he was dishonest.
     While en route to the search site, the shift sergeant decided to begin his investigation, asking dispatch to locate the officer via AVL. He then began to unlawfully interrogate him, asking him via MDC if he was at the car wash. He indicated that he was not, and was en route to the search. Then the officer, tired from having worked seven-plus hours on a shift he wasn’t accustomed to, apparently made a grave mistake: He misstated his cross-streets. Although the Department was aware that this is a common occurrence (indeed, the supervising dispatcher testified that it occurs more than twice per shift), the Department found this to be another example of dishonesty. He also attempted to convey which car wash he’d be going to, the one with the activation code. However, because as he was driving he typed the wrong tense, the Department again found dishonesty. Through it all, the sergeant continued to interrogate the officer as to his whereabouts, without ever advising of his rights.
     The final allegation of dishonesty was that the officer had written the incorrect time on the car wash log (one that wasn’t even close to the time when he pushed the “car wash” button, and thus, obviously a mistake). Due to the incorrect time, he was charged with falsifying documents.
     And that’s it. Despite the ridiculousness of the allegations, the easy, commonsense explanations (provided during his IA interview), and the POBR violations raised (of which the Department was also provided notice during the IA interview), the officer was terminated. (Note: He wasn’t charged with any type of dishonesty stemming from his IA interview.)
     After a review of the evidence against the officer, the neutral hearing officer found the officer deserved the benefit of the doubt, was not dishonest but made honest mistakes, and had no motive to be dishonest, as he was not even aware that the sergeant was investigating him when he was being questioned. Additionally, the hearing officer found that the biased sergeant intentionally violated the officer’s POBR rights, and that the Department violated his Skelly rights.
     The evidence presented to the hearing officer was shocking. The Department’s investigation was rife with bias and inaccuracies. For example, through cross-examination, it was learned that a photo show-up was conducted with a civilian witness (the car wash clerk), who identified the wrong officer. While the officer in question never denied signing the log, the credibility and recollection of the civilian witness was relevant to the timing issue. However, the IA investigator never mentioned the misidentification in his report. The other IA investigator who obtained the misidentification never even wrote a report. Further, the lead investigator used inaccurate AVL data that he was aware was inaccurate. IT specialists were interviewed by that investigator, but the information was never included in the investigation packet, despite the AVL logistics not being common knowledge. The hearing officer also found that the Department violated the POBR rights of another officer during the course of the investigation. Additionally, the chief called over to the DA’s office with this “potential” Brady information the day the sergeant made the complaint, before anyone had even been interviewed. And if that were not enough, the officer’s K-9 partner of four years was permanently removed and reassigned the very day the officer was placed on administrative leave, before any investigation was undertaken. The list of wrongs against this officer should horrify any police officer and police association.
     In his almost eight-year career, the officer had no prior discipline. He was never dishonest, and was blindsided by the lengths the members of the Department went to in order to work backward to make a termination decision stick. Thankfully, the hearing officer saw through to the truth and ordered that this officer be made whole. The decision was advisory to the City Council, and the Council upheld his recommendation, albeit with the decision not to return the K-9 partner (as he served in that assignment at the discretion of the chief). The officer has been returned to work and is grateful to his GCWH attorneys and the support of LDF for his vindication.

About the Author
Nicole Quintana-Winter is one of the founding partners of Gaspard Castillo Winter Harper. Quintana-Winter graduated from the University of Southern California Law School. In 2001, Quintana-Winter joined the San Bernardino County District Attorney’s Office as a deputy district attorney, where she worked for 12 years.
Quintana-Winter has handled all phases of administrative disciplinary cases to include interrogations, Skelly hearings, Board of Chiefs and administrative appeals. She has also handled federal criminal grand jury matters. Quintana-Winter is outspoken and passionate about protecting law enforcement officers’ and law enforcement agencies’ rights. 

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