Retaliatory Termination Squashed at Skelly

KYLE A. WENDE, ESQ.
Labor Associate
Mastagni, Holstedt, Amick, Miller & Johnsen

January 2, 2014, marked the first good news in several months for Seaside Police Officer Devin Church. Chief Vicki Myers backed off of her proposed termination, thanks to the representation of the Mastagni law firm. The Chief’s New Year’s settlement proposal was the result of a tense Skelly hearing and several rounds of settlement negotiations. The surprise twist in this story is not how it ended, but how it began. This termination case started as a garden-variety citizen complaint, and only escalated after Officer Church became heavily involved in his union.

Officer Church got an Internal Affairs notice in May 2013 for a citizen complaint. Church had responded to a call for service from security guards at an apartment complex who got spooked by a visitor’s erratic behavior. Officer Church explained to the security guards that the basis for their 9-1-1 call did not include any information the police would need to take action. He counseled them that they worked in a dangerous area, and they needed to take their jobs more seriously. The guards did not like being told they were exaggerating a situation and complained.

 Kyle A. Wende of the Mastagni law firm represented Officer Church against accusations that he was discourteous to the guards, used profanity and even was racist. After the IA interrogation, Officer Church walked out expecting no major discipline. After three months it appeared that the complaint was not a priority for the Department.

Things changed in September, when Officer Church was served with a notice of proposed discipline — termination. The charges were discourteous treatment of the public, conduct unbecoming of an officer, conduct discrediting the public service, failure to take reasonable action, failure to perform job duties, and dishonesty. The charges were absurd. The story begins to make sense only when one accounts for what the Seaside Police Officers’ Association was doing during the time between the IA and the proposed discipline. In August 2013, the POA held a vote of no confidence in Chief Myers’ leadership of the Department. Officer Church was the POA member who made the motion for that vote, and was one of its most outspoken proponents. The timing between the no-confidence vote and the September 9, 2013, proposed termination revealed the Chief’s motives.

 Attorney Wende continued to represent Officer Church in the pre-disciplinary Skelly hearing. The City of Seaside hired an outside attorney to act as independent counsel for Chief Myers — an unusual arrangement. Wende presented Officer Church’s case by focusing on the evidence. This was a he-said, she-said case. The Chief’s only evidence that Officer Church did anything wrong was one guard’s statement. The other guard initially agreed with his partner’s story, but later renounced parts of the original complaint. The Chief therefore had no corroborating evidence, and she completely ignored the evidence that the guard’s statement was at least inaccurate, if not an outright fabrication. Wende reminded the Chief that a dishonesty allegation requires genuine proof, and pointed to Officer Church’s excellent reputation among his peers and the citizens of Seaside. The Chief’s decision would never stand up in an evidentiary hearing.

The Chief initially tried to strong-arm Officer Church with a lengthy suspension. She even wanted to include a last-chance agreement, allowing her to terminate him if he had any further complaints about rudeness. Wende called the Chief’s bluff and held out for several weeks. The Mastagni law firm takes an aggressive approach to discipline cases, recognizing that the language of a letter in the officer’s personnel file can often be as important as the level of discipline imposed. In negotiating the final discipline, Wende focused on protecting Officer Church’s reputation. He successfully demanded that the Chief remove all references to dishonesty, profanity or racism, and all assertions that Officer Church made any particular statements at all.

Officer Church fought back against unfair treatment and won. It should come as no surprise that he is now the Vice President of the Seaside POA, and is committed to using the lessons from his own harrowing experience to fight on the front lines for the interests of his fellow officers.

About the Author

Kyle A. Wende is a labor associate in the Sacramento office of Mastagni, Holstedt, Amick, Miller & Johnsen. His practice focuses on administrative discipline defense, grievance prosecution, unfair practice litigation and nonprofit corporate law.