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Lengthy Suspension Set Aside with a Single E-mail

Posted on Tuesday, May 01, 2012 at 03:42PM
Posted by Corey Glave

Hawthorne Police Officer Robert Shay is one of those hard-working, no-nonsense officers that has never been in trouble. That is until a newly promoted sergeant did not think he responded to a call for service in a timely manner.

In June 2011, Shay was assigned to back up another officer on a simple disturbance call. The newly promoted sergeant, who wanted to show off her stripes, decided to monitor the call and responded to the scene. Officer Shay received the call and responded from the other side of the City. The sergeant did not believe Shay’s response was a timely response, even though he arrived before her.

The sergeant decided to investigate the matter. She returned to the station, pulled the call histories, highlighted the response times and then ordered Shay to come in from the field to her office. The sergeant later admitted that her intent was to question Shay about his response time and handling of the call.

Shay arrived at the station and went to the sergeant’s office. When the sergeant began interrogating Shay, he invoked his POBRA right to representation and went to seek a representative. The sergeant followed Shay and ordered him back to her office. The sergeant only then indicated that no disciplinary action would be taken and that she was ordering Shay to return to her office. Shay complied with the sergeant’s orders. The two engaged in a discussion regarding the call for service and both parties’ handling of the call. The conversation ended, and Shay went about his duties.

A week later, the sergeant filed a formal complaint against Shay alleging that he had been insubordinate and the police department, two months later, notified Shay of the investigation. The investigation took approximately four months to complete, but only included two IA interviews (Shay’s and the sergeant’s). The IA report was dated October 2011.

In January 2012, the department notified Shay’s attorney, Corey Glave, that the investigation was completed and that the lieutenant and captain were proposing a lengthy suspension based on the sustained allegation of insubordination. Interestingly, the captain asked Glave if he, the captain, could conduct the pre-disciplinary Skelly hearing instead of the chief of police.

Knowing the facts of the case, Glave was taken aback by both the sustained finding and the recommended discipline. Attorney Glave decided to ask the captain to e-mail him a copy of the investigation for his review. The captain agreed and e-mailed the entire packet to Glave before it was served on the officer.

Glave immediately reviewed the entire IA packet and noticed that the captain’s recommendation for discipline was based on a lieutenant’s review of the IA and recommendation for discipline. A review of the lieutenant’s memorandum revealed that the captain had directed that the lieutenant make a recommendation based on the sustained IA finding, and that the lieutenant’s memorandum also referred to the sustained IA findings. Glave then reviewed the IA report. It was discovered that the IA report provided to Glave had a finding of “Not Sustained.”

Given the content of the captain’s and lieutenant’s memoranda, Glave believed that he had not been provided the full investigatory packet and immediately e-mailed the captain. Glave explained the discrepancies in the documents including the “Not Sustained” finding in the IA report and requested a copy of the report that included a “Sustained” finding.

Within an hour, the captain admitted that he had sent the wrong version of the IA report to Glave and claimed that he was unaware of the “Not Sustained” version. The police department immediately rescinded the Notice of Intent to Discipline and indicated that the matter would be resolved with the “Not Sustained” finding.

While the questions of how many versions of the IA report existed and who ordered the change in findings may never be answered, the wrongful disciplinary action was stopped with just a single e-mail.

Officer Shay would like to thank Mr. Glave and PORAC LDF for providing representation that was aggressive, professional and thorough.

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