La Verne Police Officer Deemed Not Dishonest and Ordered Reinstated

ANDREW M. DAWSON
Partner
Dawson & Riley, LLP

Chief Scott Pickwith’s decision to terminate a La Verne police officer for unsubstantiated dishonesty allegations was overturned. With the assistance of Dawson & Riley, LLP, the appellant was able to convince the hearing officer that his termination must be overturned, since there was no intent to deceive by his misstatements.

The appellant was terminated primarily for an incident involving a sexual assault investigation that occurred in September 2014. The appellant was initially assigned to take care of the victim during the sexual assault investigation and accompany her to the hospital for a SART examination. While the appellant was at the hospital, the Department’s sexual assault investigator came to the hospital to relieve him and take over the investigation. According to the appellant, he spoke with the sexual assault investigator and explained that he did not have the 293 PC form with him, and she said she would take care of issuing it to the victim. The sexual assault investigator, when questioned about why she did not do the form, claimed that it was never discussed with the appellant. In fact, she claimed that when she went to the hospital to relieve the appellant, she did not discuss the status of the investigation with him at all. The sexual assault investigator’s version of the conversation is highly unlikely, given that a prudent investigator would have inquired as to the status of what had been done prior to taking over for the appellant. Based on his conversation with the sexual assault investigator, the appellant checkmarked on the police report that the victim was provided with a PC 293 form.

Shortly after the incident, the Department’s records manager received a Public Records Act request regarding the sexual assault investigation. The manager noticed that the police report indicated that a PC 293 form was issued, but she could not locate the form. The manager had conversations with the City attorney and consulted with upper management regarding the issue. Pursuant to discussions she had with upper management regarding the discrepancy, she called the appellant on a recorded line and questioned him about the form, arguably in violation of his Peace Officers’ Bill of Rights. At that time, it became apparent that the sexual assault investigator had never issued the form as the appellant thought she would. However, in the end, the Department made sure the victim was served with the form, and the report was never publicly released.

The Department alleged that the appellant was dishonest when he marked that the 293 form was issued, and that he violated PC 293 by not issuing the form. As the appellant explained during his IA interview and testimony, he checked the box indicating that the form was issued based on his belief that the sexual assault investigator was going to take care of it. However, the Department accused him of lying about the conversation with the sexual assault investigator and chose to believe her version of events, which, as outlined above, was not believable.

Additionally, as to a violation of PC 293, the appellant was not the only one who was responsible for issuance of the form. PC 293 also mandates investigating officers — the sexual assault investigator and her partner, who also met with the victim — to issue the form. However, the Department never disciplined either of them, much less noticed them as subjects in the investigation. Not surprising was that the IA investigator for this case was the Detective Bureau sergeant and was the one ultimately responsible for any alleged misconduct by his subordinate detectives.

Moreover, when the Department contacted the victim regarding the IA investigation, she praised the appellant’s actions and empathy toward her during a very difficult time. She also tried to discuss how discourteous and unprofessional the sexual assault investigator was during the investigation. The IA investigator told the victim that they would discuss it after they finished the interview regarding the appellant’s actions. The recording stopped, and supposedly a new recording was made of the complaint by the victim regarding the sexual assault investigator. The appellant’s counsel made numerous requests for the complete interview of the victim. However, the Department’s counsel stated that the interview of the victim complaining about the sexual assault investigator was never recorded and thus did not exist. During the hearing, testimony proved that it was recorded, but that the Department destroyed the recording, arguably in violation of Penal Code Section 135.5. Not only did the Department destroy evidence of the victim’s complaint about the sexual assault investigator, but it also chose never to conduct a full investigation into the alleged misconduct of the sexual assault investigator, which was far more egregious than the appellant’s marking of the checkbox relating to the PC 293 form.

A number of issues came out during the hearing regarding the sexual assault investigator’s mishandling of the investigation. She signed the probable cause declaration, which contained inaccurate information, under the penalty of perjury but was never accused of dishonesty, much less questioned about it. She planned on questioning the suspect without first having spoken to the victim, until she was corrected by a supervisor. She failed to record her field contacts with the suspect or the victim. When she conducted the follow-up interview with the victim, she forgot a notepad, a recorder and her business cards. Due to her unpreparedness, she wrote her contact information on the victim’s morning-after prescription, which appalled the victim. Overall, prior to being questioned as a witness in the appellant’s investigation, she knew that the victim had already voiced dissatisfaction regarding her actions and arguably had a motive to try to minimize any additional accusations of her mishandling the investigation.

In addition to the alleged dishonesty regarding the PC 293 form, the Department also accused the appellant of lying about being directed to turn off his recorder when the SART nurse arrived to begin the SART exam of the victim. This was based on one statement by the nurse wherein she stated that she would not normally make a physical gesture toward the officer. This was the only statement by the nurse that was provided to the appellant. During the course of the hearing, evidence came to light that the nurse was actually interviewed by the Department three times — not once — and the Department failed to disclose this information to the appellant or his counsel. In fact, in the second interview that was never disclosed, the nurse admitted that she might be confusing this incident with another SART exam she had done on a different date.

In a last, desperate attempt to throw the book at the appellant, the Department accused him of dishonesty for a battery investigation he conducted in March 2014, nearly one year after the incident. The Department had received multiple requests for the photos that were taken during the incident and that the appellant had referenced in his report. However, the Department never questioned him until nearly a year later and after the third request was received. By that time, the appellant did not have a specific recollection regarding that particular investigation. The photos were not booked into the Department’s database and could not be located; thus, the Department accused the appellant of dishonesty for stating in his report that he took pictures and booked them. However, there was one key fact that the Department chose to ignore — the one page of the report that it claimed the appellant made a false statement on was unsigned. That is not a mere coincidence. Unfortunately, since the Department did not ask the appellant about it when they received the first or second request for the photos, he could not remember specifically what happened. He did say that he remembered one report that he wrote had to be amended because when he went to download the photos, the files were corrupted. He said it was possible that this might have been the report, but could not say for certain. Regardless, there was no intent to deceive by the appellant in stating that photos were taken if they were not. It was a mistake. Moreover, the Department was not that concerned about it for nearly a year, and only once it wanted to bolster its intent to terminate the appellant by trying to show a pattern of alleged dishonesty.

The hearing produced evidence that the chief was quick to rush to judgment of the appellant for his alleged misstatements, while ignoring the misstatements of numerous other personnel, including him. If the same standard that had been used for the appellant was used for everyone else, a handful of Department personnel should also have been terminated. In fact, in his Notice of Discipline, the chief claimed inaccurately that the appellant had certain sustained allegations in a prior IA, which was proved to be inaccurate, and also accused him of having a written reprimand for an investigation that he was never notified of, which was arguably in violation of the appellant’s Peace Officers’ Bill of Rights. Thus, not only were there multiple personnel making misstatements during this investigation, but there was also admitted destruction of evidence by the Department; however, the only one disciplined was the appellant.

Thankfully, the hearing officer was able to see through the Department’s biased and unsubstantiated investigation. The hearing officer agreed with the appellant’s counsel that the appellant had no intent to deceive. Granted, the statements were inaccurate, but they were not dishonest. Thus, the termination was excessive and should be overturned. The appellant is grateful to the Legal Defense Fund and his attorneys at Dawson & Riley for clearing his reputation, and he hopes to be able to return to work as a police officer.