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BART Police Officer Ordered Reinstated

Posted on Monday, February 01, 2016 at 12:00AM

JOSHUA A. OLANDER
Associate

JUDITH A. ODBERT
Senior Associate
Mastagni Holstedt, APC

On November 24, 2015, Arbitrator Nancy Hutt ordered Bay Area Rapid Transit (BART) Police Officer Ronald Rodriguez reinstated following his termination for misuse of the California Law Enforcement Telecommunications System (CLETS). Associate Joshua A. Olander and Senior Associate Judith A. Odbert represented Officer Rodriguez. Arbitrator Hutt found not only that BART’s punishment was excessive, but also that Chief Kenton Rainey’s decision to terminate Officer Rodriguez was based on allegations regarding gang involvement that were unsustained at the conclusion of the investigation. Two years after his November 7, 2013, termination, Arbitrator Hutt ordered Officer Rodriguez reinstated with a 30-day suspension.
BART began its Internal Affairs investigation of Officer Rodriguez on November 5, 2012, following the arrest of Officer Rodriguez’s daughter and her boyfriend for murder. Letters were intercepted from the incarcerated boyfriend stating that Officer Rodriguez had provided assistance to gang members, including purchasing firearms and ammunition, in addition to firearm training. These allegations were subsequently recanted. BART also received information from an alleged informant that Officer Rodriguez had used the Western States Identification Network to provide information to gang members. Ultimately, BART’s investigation was unable to substantiate any of these claims.
Represented by Ms. Odbert through his Skelly hearing, Officer Rodriguez received “not sustained” findings as to every allegation relating to providing assistance to gang members. Mr. Olander represented Officer Rodriguez during the arbitration.
As part of its investigation, however, BART conducted a CLETS audit revealing DMV database queries by Officer Rodriguez involving his sister in 2011 and his daughter in 2012. Officer Rodriguez admittedly accessed confidential DMV information for his family members on their request through CLETS, and subsequently disclosed that information to them. Arbitrator Hutt agreed with BART that Officer Rodriguez’s CLETS inquiries were in violation of BART’s CLETS and nepotism policies, but noted that CLETS policies and procedures by BART and the DOJ “neither mandates termination nor notifies users that termination is a mandatory penalty for misuse.” Furthermore, despite Officer Rodriguez’s policy violations, Arbitrator Hutt found that “BART’s arguments overemphasize both the seriousness of [Officer] Rodriguez’s conduct as well as the consequences.”
Despite BART’s inability to substantiate any allegations related to gang involvement, Chief Rainey nonetheless inappropriately attempted to terminate Officer Rodriguez based on the alleged yet unproven gang involvement. Chief Rainey repeatedly testified that the reasons for terminating Officer Rodriguez included the fact that the investigation began with a referral from another agency that Officer Rodriguez was accused of inappropriately using law enforcement databases to aid gang members. Arbitrator Hutt found that “[w]hile Chief Rainey claimed that he did not rely on any of the unsustained findings regarding gang activity in making the determination to terminate [Officer] Rodriguez’s employment, concerns about [Officer] Rodriguez’s possible association with gang-affiliated individuals and criminal activity permeated his explanation of the basis for the termination.”
The evidence presented by BART failed to substantiate its claims that Officer Rodriguez’s conduct created an impression with other law enforcement agencies that he aids gang members in any fashion, and was devoid of any evidence of harm to BART or its public image. The evidence presented at arbitration did, however, substantiate that Officer Rodriguez had performed well and without prior discipline throughout his 19-year career with BART. Officer Keith Garcia, President of the BART Police Officers Association, testified and corroborated Officer Rodriguez’s positive performance evaluations characterizing him as an ethical, dependable and reputable officer who could be relied upon to make good decisions in the field. BART could not present any evidence to rebut these facts, other than spurious allegations that it could not substantiate.
Officer Rodriguez is eager to return to BART and once again serve the community he loves. This exceptional outcome could not have been accomplished without the assistance of the PORAC Legal Defense Fund.

About the Authors
Joshua A. Olander, associate in the Labor Department of Mastagni Holstedt, APC, is an experienced criminal defense attorney and LDF panel attorney who represents labor associations and their members in disciplinary and criminal proceedings.
Judith A. Odbert, senior associate in the Labor Department of Mastagni Holstedt, APC, manages the criminal defense division of the firm and as an LDF panel attorney represents labor associations and their members in disciplinary matters, grievances and criminal proceedings. Ms. Odbert was previously the supervising assistant public defender for the Sacramento County Public Defender’s Office.
 

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