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Deputy Sheriff Exonerated of Sexual Misconduct Charges

Posted on Thursday, May 01, 2014 at 12:00AM

CHRISTOPHER W. MILLER
Partner
Mastagni, Holstedt, Amick, Miller & Johnsen

A San Joaquin County deputy sheriff, charged with making sexual comments to female inmates, was exonerated by an arbitrator last month after three days of hearing. Deputy Brian McElwain was accused by several inmates of making inappropriate remarks, but Arbitrator John LaRocco rejected the employer’s “very grave and serious charges” as uncorroborated hearsay and ordered the deputy made whole.
Any peace officer experienced with custody and corrections knows incarcerated felons frequently circulate rumors, innuendo and false accusations against their victims, jailers and fellow inmates. In August 2011, while assigned to the Manteca Courthouse as a bailiff, Deputy McElwain fell victim to such false complaints.

Deputy Accused Despite Evidence of False Claims
McElwain’s duties in 2011 included supervising inmates in the courthouse holding cells. One of those inmates claimed McElwain had solicited her for sex while she was in custody. When contacted by investigators, other inmates and former inmates complained the deputy had also made inappropriate remarks to them.
The resulting investigation found no corroboration for the inmates’ claims. McElwain’s sergeant told investigators he had witnessed no inappropriate conduct. The investigation even showed at least two of the inmates conspired to make a false complaint against McElwain. The deputy refuted another inmate’s ridiculous claim he had made a telephone call for her by volunteering his cellphone records.
Despite overwhelming evidence in the deputy’s favor, his captain, who was later appointed assistant sheriff, insisted on bringing disciplinary charges against McElwain. Captain David Souza went so far as to escort one of the complainants to Internal Affairs investigators and ignored obvious signs that the complaints were false. The Sheriff’s Office ultimately accused McElwain of inappropriate behavior toward six female inmates.

County Fails to Produce Witnesses at Arbitration
Confident the support of the PORAC Legal Defense Fund and his deputy sheriffs’ association attorney would help exonerate him, Deputy McElwain appealed the resulting heavy suspension to binding arbitration. At arbitration before Mr. LaRocco, the Sheriff’s Office produced but one witness, the original complainant. Dressed in a jumpsuit and best described as a permanent resident of the county jail, the woman admitted some of the remarks she attributed to McElwain were innocuous. She could not remember the dates on which she claimed his conduct occurred and admitted she made no complaint to other deputies or inmates until several days later.
On cross-examination, we introduced evidence the inmate had some 41 separate incidents of misconduct while she was incarcerated, in addition to her felony and misdemeanor charges and convictions. Her history demonstrated she was an unreliable witness lacking credibility and unable to even follow the simple rules of a jail, let alone the laws of civilized society.
The Sheriff’s Office alleged a “pattern” of behavior by Deputy McElwain, yet offered no other witnesses to support that theory. The investigator admitted on cross-examination that he was unable to find any evidence corroborating the inmates’ allegations; instead, the evidence he found specifically refuted or contradicted those claims. As the arbitrator pointed out, “the pattern of misbehavior vanishe[d]” since the employer failed to prove any charge based on the allegations involving the other inmates. “Uncorroborated hearsay,” he said, “cannot constitute sufficient evidence to prove a finding of fact related to the charges.”
More compelling to the arbitrator was the testimony of McElwain’s co-workers, who included a retired undersheriff and other veteran peace officers. Each testified to McElwain’s excellent work record, his positive interaction with inmates, and the lack of any evidence or information supporting the inmates’ claims. The arbitrator found it significant that in a case where the employer claimed a “pattern” of behavior by its deputy, no one working with McElwain had seen anything to suggest the allegations were true.

Inmate Testifies on Deputy’s Behalf
A former inmate who had been solicited by other inmates to make a false complaint against McElwain “for the money” agreed to testify on his behalf at the hearing. She testified other inmates had approached her while she was in custody, asking her to claim McElwain had made various inappropriate comments to her. The inmate, who described McElwain as a good officer, reported the conspiracy to make bogus claims to other deputies, as well as to the Department’s investigator.
The inmate provided true insight into the nature of this case when she testified that female inmates commonly fabricate rumors about male officers. She testified officers who were friendlier toward the inmates also were more likely to be targeted.

Arbitrator Rejects County’s Case
After three days of hearing over the course of several months, Arbitrator LaRocco rejected Assistant Sheriff Souza’s efforts to mark Deputy McElwain as a perpetrator. He declared Deputy McElwain “exonerated” and ordered the Sheriff’s Department to pay Deputy McElwain all back compensation and benefits, with interest. This result could not have been accomplished without the unfailing assistance of the PORAC Legal Defense Fund and the San Joaquin County Deputy Sheriffs’ Association.

About the Author
Christopher W. Miller is a partner at Mastagni, Holstedt, Amick, Miller & Johnsen. He represented Brian McElwain throughout the arbitration proceeding in this case.

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