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Two Officers Have Discipline Reversed After POBRA Violations

Posted on Sunday, July 01, 2012 at 03:51PM
Posted by COREY W. GLAVE

 

A judge has ordered that two more Hawthorne police officers are to have their files cleared of discipline and be paid back pay with interest based on violations of the Public Safety Officers’ Procedural Bill of Rights Act (POBRA).

In the first case, Officer Kim Iler was accused of being insubordinate to a new lieutenant. The supervisor gave Iler an improper order to kennel her K-9 and surrender her badge, gun and identification card, but then told Iler to drive home in a marked patrol unit. Iler sought the assistance of her Police Officers Association, but the lieutenant told her that she had no right to speak to anyone about the matter and again ordered her to leave the Department. Within minutes, a police captain rescinded all of the lieutenant’s orders, with the exception of the direction to go home. The Police Department investigated the matter and conducted approximately six recorded interviews of witnesses and of Iler. The Internal Affairs (IA) sergeant, not surprisingly, did not go against the lieutenant and sustained the allegations. When proposing discipline, the Department refused to give the audio recordings of the witnesses and Iler’s interviews to Iler or her Attorney (Corey Glave). Additionally, when Iler appealed her discipline to the Civil Service Commission, the City delayed the hearing for over two years.

In the second case, Officer Gustavo Rubio was part of an arrest team of two suspected armed robbers that took refuge in a Best Buy electronic store. When one of the handcuffed suspects tried to step behind and then pull away from Rubio, Rubio was forced to use force, in the form of a control hold, to control the suspect. A supervisor who was on scene, having observed only the latter part of the use of force and not what caused the officer’s action, believed that the force used was not reasonable and immediately contacted Rubio to see what occurred. Rubio explained what occurred, but the supervisor was not satisfied.

After the arrest scene was cleared, the supervisor initiated three additional contacts with Rubio to question him about his use of force. The sergeant ultimately ordered Rubio to go to the security office to watch the video with the sergeant. While watching the video of the arrest, the sergeant asked Rubio to explain his actions. The sergeant, though clearly conducting an investigation, did not provide Rubio with any POBRA rights or admonishments. The sergeant then filed a formal written complaint against Rubio.

The Police Department began a formal investigation of Rubio and assigned the matter to Internal Affairs (IA). The IA sergeant interviewed the complaining sergeant and then had the complainant assist in the IA investigation. At the time of IA’s interrogation, Rubio was shown a one-page written complaint authored by the complaining sergeant. All interviews were recorded and made part of the IA investigation file.

The Department sustained the sergeant’s allegations and served Rubio with a Notice of Intent to Discipline-Suspension. When the Notice of Intent was given to the officer, the Police Department withheld all the audio recordings and gave Rubio a copy of a purported complaint filed by the sergeant, but now the complaint was a two-page document (when earlier it was a one-page document). Finally, there were no references to any interviews of the complaining party in the investigation file.

Rubio immediately appealed the disciplinary action, but the City refused to provide him with a hearing for over two years. As it turned out, after the Commission ruled in favor of another of Attorney Glave’s clients, the city manager and the Civil Service Commission worked together to make sure other appeal cases would not result in vindication for an appealing officer and Rubio’s case was the next appeal to be heard.

PORAC LDF authorized litigation against the City and the Police Department for violation of the officers’ rights under the POBRA. The matter was taken to trial and the Superior Court ruled in the officers’ favor.

The court found that the officers’ right to a timely hearing had been violated without just cause and that the officers were not given essential documents in a timely manner. In fact, the recording of the interviews of the witnesses and focus officers was not provided until the City had concluded their case in chief before the Civil Service Commission. The court explained that any report, including the recordings of interviews, included in the IA investigation of officers is covered by Government Code §3303(g) and had to be turned over when further proceedings were contemplated.

The court also found that the complaining sergeant’s repeated questioning of Rubio after the arrest incident (but while still on scene) constituted an interrogation under POBRA and therefore triggered Rubio’s rights under the act. It is important to note that Rubio did not argue that the first questioning of him was in violation of the act, but after this preliminary questioning occurred, the other three planned contacts, without affording Rubio any rights, did violate the act.

Based on the POBRA violations found, the court ordered the following of the City of Hawthorne: (1) When providing an administrative appeal hearing to sworn peace officers, it shall adhere to Hawthorne Municipal Code §2.52.060 (which requires a hearing within twenty (20) days of an officer’s request) unless the aggrieved officer consents in writing to a delay; (2) the Police Department shall develop written policies and procedures to ensure that all documents, transcripts, recordings and other information necessary for the officer to prepare for the administrative appeal process are provided in a timely manner as contemplated by the POBRA Act and Government Code §3303(g), §3305 and/or §3306.5; (3) the City and Police Department are prohibited from taking any punitive action against the officers as a result of the conduct which gave rise to the subject discipline, and the City is required to restore to the officers all back pay and benefits that would have been received but for the disciplinary action (with 7% interest accruing from the date each paycheck or other pay item disbursement would have been received had the officers not been disciplined); and (4) the City and Police Department shall also permanently remove from the officers’ personnel file(s) or any other file used for personnel purposes all documentation and materials relating to the disciplinary investigation, discipline and appeals giving rise to this action and refrain from using the incident adjudicated herein in any way adverse to the officers.

The officers would like to thank PORAC LDF for its support in protecting their rights and their Attorney, Corey Glave, for his tireless pursuit of justice in this case.

About the Author

Corey W. Glave, Attorney at Law, specializes in representation of law enforcement and fire personnel, as well as general labor law and litigation. 

 

PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.