Commission Rules San Bernardino P.D. Violated Officer’s First Amendment Rights

You’ve heard the common admonishment: “Don’t discuss this investigation with anyone other than your representative, the Department’s administration or Internal Affairs.”

However, imagine the Department disciplining an officer for doing just that — consulting with his POA union representatives. This is a right you are constitutionally entitled to under the First Amendment, statutorily under the Peace Officer’s Bill of Rights, and now, pursuant to Carlos Perez v. L.A. Community College District, PERB Decision No. 2404, there should be no dispute. Yet this occurred recently in San Bernardino.

After a full evidentiary hearing before the San Bernardino City Civil Service Commission, San Bernardino Police Officer Ronald Whitmer was vindicated of insubordination and conduct unbecoming charges related to speaking with his union representative.

On January 8 and 9, 2014, Officer Ronald Whitmer and other SBPD officers were involved in the investigation and arrest of a 10-year-old juvenile for a violation of Penal Code Section 288. On April 8, 2014, during the course of a Professional Standards investigation of Officer Whitmer’s actions, he was interviewed. At the end of the interview, he was twice ordered “not to discuss the investigation with anyone other than your representative, the Chief, the Assistant Chief, or anyone in Professional Standards.”

The Department’s position was that the representative meant only one person — if you had a lawyer, you could not have a union representative. However, the term “your representative” was never defined by their policy. In fact, apparently no one in the Department knew what was meant by “your representative.” Did it mean a lawyer or a union rep? Could you have more than one lawyer or more than one union rep? No one knew, not even Professional Standards.

After Officer Whitmer had a follow-up interview with Professional Standards, he sought guidance from the first of two POA representatives. Prior to the first discussion, Officer Whitmer asked the first representative if he was a POA rep, who replied that he was.

Believing that he was speaking to “a” or “his” union rep, Officer Whitmer proceeded to discuss the investigation with the union rep. During this conversation, Officer Whitmer communicated that he did not trust a particular sergeant, and related that he would not be in his presence without having his tape recorder on. In Officer Whitmer’s IA interview, he stated that the sergeant always knew he was being recorded by Officer Whitmer, because Whitmer would pull the tape recorder out and turn it on in in front of him.

After briefly discussing the case, the POA rep no longer wanted to be involved and abruptly ended the conversation. After this conversation with Officer Whitmer, the rep immediately reported the content of the conversation to the sergeant himself.

After the conversation with the first POA rep where the conversation was abruptly terminated, Officer Whitmer sought out and spoke to another POA rep, this time the union vice president. In the civil service hearing, the union rep testified that he spoke to Officer Whitmer in the capacity of a union rep, that Officer Whitmer asked him if he was a union rep, and that a union rep should keep confidential those communications made during the course and scope of a union conversation.

The Department had alleged that Officer Whitmer violated San Bernardino Police Department Policy 450.5.1, surreptitious use of an audio recorder, when he had recorded the conversations of the sergeant he didn’t trust. However, Officer Whitmer stated that he would never record anyone without their permission, and because Officer Whitmer did it openly, the sergeant was quite aware he was being recorded. The Department attempted to hold him accountable for some future event that was never promised or acted on by Officer Whitmer.

The Civil Service Commission agreed, and held that the allegation of violation of Department work rules was not sustained, and the allegation of conduct unbecoming was not sustained. The original discipline of 40 hours suspension was overturned and rescinded.

Officer Whitmer’s attorney, partner Steve Sanchez, of Castillo Harper, APC, argued Carlos Perez v. L.A. Community College District, which resolved the issue of whether the district can order an employee not to contact faculty, staff or students about a current administrative investigation. The ALJ in that case determined that the directive could reasonably be construed to prohibit a variety of protected activities such as contacting members of the union, initiating a grievance, or enlisting the support of fellow employees. This directive closely resembled the type of overbroad, blanket employer rules prohibiting discussion of employment conditions which, under PERB precedent and private-sector cases, violate protected rights. The ALJ found that this directive was not necessary to prevent employees from tainting gathered evidence.

In the current case, SBPD, like the district, had to show how the integrity of the investigation could be jeopardized by employee participation in protected activities. The POA representatives whom Officer Whitmer reached out to were not part of the underlying investigation. There was no proof that talking to either representative compromised the integrity of the investigation, a point that was argued by the City. PERB does not favor broad, vague directives that might chill lawful speech or other protected conduct.

Employees should not have to decide at their own peril what information is not lawfully subject to such a prohibition. The Department determined that the conversation with the second POA rep was OK, but not the first conversation with the first union rep. Questions such as “how?” and “why?” were questions that the Department could not explain. This dilemma was exactly what PERB feared — and thus, it was also not clear to Officer Whitmer what communications, and to whom, were or were not protected. At San Bernardino P.D., it appeared the officer had to choose at his own peril.

Ultimately, the Civil Service Commission properly overturned the 40-hour suspension and held that the Department violated Officer Whitmer’s First Amendment right to discuss IA investigations with union representatives. Officer Whitmer is grateful to his attorney, Steve Sanchez, and the PORAC Legal Defense Fund for their assistance in getting these allegations and the suspension overturned in their entirety.