On July 26, 2010, Arbitrator Thomas Angelo cleared Sacramento Police Officer Craig Wetterer of accusations he had actual knowledge or reasonable suspicion of abuse of a juvenile and failed to report such knowledge or suspicion. In overturning the 160-hour suspension, the Arbitrator ruled the Department failed to establish any cause to discipline Wetterer, a 22-year veteran officer. The Arbitrator admonished the Department that “[j]ust cause requires legitimate, persuasive proof of wrongdoing, not a presentation of investigatory surmise and speculation.”
The Department charged that Wetterer knew or suspected an acquaintance had engaged in an inappropriate relationship with the minor victim, Mr. M, but failed to report the abuse in violation of Departmental Policies and Penal Code § 11166, which requires mandated reporters to report reasonable suspicion of abuse. The Department asserted Wetterer made statements evidencing knowledge of the abuse and should have suspected abuse from his limited interactions with Mr. M and Mr. H, the suspected abuser.
Wetterer knew Mr. H since 1997, but rarely interacted with him. In fact, they had no communication between 2000 and 2006. In 2006, Wetterer brokered a real-estate purchase. They communicated primarily through phone calls initiated by Mr. H. In 2007, Mr. H asked to meet with Wetterer to provide Mr. M a positive role model. Mr. H explained to Wetterer that the juvenile was having problems at home and that his parents allowed him to assist Mr. H with putting up movie posters at theaters.
On five to six occasions over an eight-month period in 2007, Mr. H and Mr. M met with Wetterer while he was on duty. The interactions were brief, lasting five to 10 minutes, and Wetterer, an FTO, was usually accompanied by a trainee. Wetterer and his Trainees testified that they never observed any inappropriate behavior or indication of abuse. The Arbitrator rejected the Department’s contention that these meetings created a reasonable suspicion of abuse.
The Department based its allegations in substantial part on contested hearsay statements from Mr. M asserting that Wetterer made comments indicating knowledge of the abuse. After discipline was proposed, Mr. M provided Wetterer with a declaration admitting he never heard Wetterer make the comments attributed to him, stating his belief that Wetterer was unaware of the abuse and explaining that he felt pressured to simply agree with the IA investigator’s leading questions. After reviewing the declaration, the Chief proceeded with the discipline, relying on the reports instead of calling Mr. M to testify. Mr. M’s father also provided a declaration in support of Wetterer’s innocence and even admonished the IA investigators, “I’m his dad. If I didn’t know it, how the hell is some Sac PD Officer going to know it?”
An additional charge alleged Wetterer failed to report information he received from Mr. H about possible abuse by a third party. During an off-duty telephone call, Mr. H informed Wetterer that Mr. M had received inappropriate e-mail communications through MySpace, and that Mr. H reported the communications to Fairfield police, who had jurisdiction. The Roseville PD Detective investigating Mr. H testified that Mr. H, in fact, reported the incident to law enforcement and CPS. The SPD nevertheless insisted Wetterer had a duty to make an additional report based on his limited, second-hand information about the incident. The Arbitrator held Wetterer did not possess information triggering a reporting requirement and agreed with the RPD Detective that no duty existed to re-report the information.
Finally, SPD disciplined Wetterer for not initiating contact with RPD when he discovered Mr. H was a suspect. In December 2007, Mr. H advised Wetterer that Mr. H’s house had been searched by the RPD and that Wetterer’s name had “come up” in the investigation. Mr. H never made any incriminating statements to Wetterer. Wetterer did not provide any assistance to Mr. H and, instead, deliberately distanced himself from
Wetterer voluntarily provided a statement to RPD officers. The RPD investigator confirmed Wetterer had no relevant information. Because Wetterer is a licensed attorney and bound by the confidentiality rules of the State Bar and the ABA, Wetterer independently contacted an ethics attorney to ensure that Mr. H could not claim confidentiality with regard to their conversations even though he was never a client. SPD unsuccessfully argued the consultation was evidence of culpability.
At the conclusion of the criminal investigation of Mr. H, SPD initiated an internal affairs investigation relying primarily on “retracing” the RPD investigation. Wetterer consistently denied any knowledge or suspicion of abuse and explained the limited nature of his interactions with Mr. H.
On December 4, 2008, SPD served Wetterer with a proposed suspension of 160 hours, alleging numerous factual allegations and violations of Penal Code Section 11166, SPD Orders regarding reporting, inefficiency, neglect of duty, disobedience and impairment, disruption and discredit to employment and the public service. After a Skelly hearing, SPD imposed the 160-hour suspension with no changes. An arbitration hearing was held in November and December 2009. In addition to the factual disputes, this appeal presented hotly contested legal issues involving: 1.) the agency’s burden of proof; 2.) consideration of hearsay statements in reports to prove disputed facts; 3.) the late amendment of new charges; and 4.) an officer’s right to management’s analysis and recommendations of the case.
1.) Burden of Proof
The City claimed the “preponderance of the evidence” standard applied to these charges, but that the Chief’s penalty should be reviewed only for abuse of discretion, a deferential standard that is rarely met. The Sacramento Police Officers’ Association (SPOA) argued a tougher “clear and convincing” standard should be applied to charges, considering the social “stigma” of allegedly condoning sexual abuse of a minor. The Arbitrator agreed with the SPOA, explaining that if the Department prevailed, the outcome would taint Wetterer’s entire career and the consequence would be too great to justify application of a lower standard of review. The Arbitrator also confirmed that Wetterer was entitled to a de novo proceeding on all issues.
2.) Hearsay Evidence
“‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” Hearsay is generally admissible in administrative appeals, but hearsay alone cannot establish a disputed fact and hearsay denies the other party the right to confront and cross-examine witnesses. SPD attempted to establish the disputed facts by submitting witness statement summaries in reports rather than calling the declarants as witnesses. Although admitted under the lenient arbitration standards, the Arbitrator concluded, “[t]he reliability of these statements for the truth of matters asserted therein is minimal.” The Arbitrator noted the reports were problematic on several fronts: multiple layers of hearsay existed; Wetterer was denied the ability to cross-examine the witnesses; and “a majority of the police reports were mere summaries of purported interview[s].”
3.) Late Amendment of New Charges
In addition, the Department attempted to add serious new charges at the end of the last business day before the hearing. At hearing, we sought to strike the new charges based on Government Code Section 3304(d), which precludes agencies from bringing charges against peace officers more than one year after discovery. Further, post-disciplinary additions to the charges violate Constitutional due process rights. Ultimately, the new charges were dropped.
4.) Refusal to Disclose All Documents Relied Upon
Finally, at the hearing, Wetterer discovered SPD concealed “disciplinary recommendations and analysis” relied upon by the Skelly Hearing Officer. This discovery was particularly troubling given that the SPOA has fought over access to these documents for years, eventually obtaining a Superior Court Judgment in 2002 requiring the disclosure of such documents. Despite the disclosure requirements of Government Code Sections 3303(g), 3305, 3306.5, Penal Code Section 135.5 and Skelly v. State Personnel Board, (1975) 15 Cal. 3d 194, SPD fought to conceal its investigation summaries that weighed the investigatory evidence and disciplinary recommendations, which have historically conflicted with many of the disciplinary actions imposed. In Aaron Wyley v. City of Sacramento, the Sacramento Superior Court ruled that the City must provide to the subject officers the personnel records relating to disciplinary investigations, including “opinions and analysis” and disciplinary “recommendations.” In response, the Police Chief at the time claimed to cease the creation of the “recommendations” reports rather than have to disclose them. At the arbitration, Wetterer inadvertently learned that the Department had not, in fact, ceased producing these recommendation reports. Rather, the Department continued to prepare the recommendations and then falsely claimed they did not exist and did not produce them.
Citing the improperly withheld recommendations, the Arbitrator noted “police officers are inherently suspicious creatures; apparently sometimes their suspicions lead them to the perpetrator, and sometimes it leads them astray.” Finding Wetterer candid and credible, he found no basis to suspect abuse of Mr. M given the information available to him. The City failed to prove any of the allegations set forth in the discipline letter. Arbitrator Angelo ordered Wetterer made whole and all references to the case removed from his personnel files. The Arbitrator summarized: “The City’s case rests on a nest of suspicions that were supported only by hearsay that was entitled to little, if any, weight. Not only did the City fail to bear its burden, but the Grievant’s denials were persuasive. Suffice to say, the City’s investigation was comprised of hearsay, surmise, and subjective analysis. That approach may be appropriate for investigative purposes, but it has no place in an evidentiary proceeding. Here the allegations against the Grievant lack support, and the Grievant is entitled to be made whole.”
The SPOA is confident that ultimately the Arbitrator’s award will be adopted and enforced, ending Wetterer’s long and arduous journey to vindication. The SPOA and Wetterer thank PORAC LDF for its unwavering support throughout this process.
ABOUT THE AUTHOR: David E. Mastagni is a senior associate at Mastagni, Holstedt, Amick, Miller and Johnsen. Martindale-Hubble has issued David the highest Peer Review Rating of “AV Preeminent,” which indicates that his peers rank him at the highest level of professional excellence. He is a PORAC LDF panel attorney and represents the SPOA in disciplinary matters, collective bargaining and grievance disputes.
PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.
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Although this incident was unfounded, it's still stressful. My LDF rep kept me informed and kept "work" at work.
- Omar Daza-Quiroz Oakland POA
I have had (2) two cases in which LDF represented me. Both lawyers were exceptionally professional, intelligent and caring for me. They were friendly and very helpful.
- Albert Contreas Imperial Co. DSA
Thank you for your services.
- Steven Moorehouse Redding POA
You guys are Great! Very professional and well informed. THANK YOU!
- Rich Stepper Montana PPA
[ My representative ] was very knowledgeable regarding dept & legal rules regarding officer involved shooting. Provided good legal advice & was very supportive.
- Ron Ruddy Riverside POA
- Anthony Gregori Sonoma Co Jr College P O A
Excellent work and well worth it.
- Kenneth Nelson Plumas Co SA
Good job. Thank you! [My representative] does an outstanding job representing the employees and seems to be very intimidating to the [County Management]. We like it this way!
- Jason Boust Sanger POA
My rep was very helpful in explaining the processes and stayed in contact throughout the ordeal.
- Keith Stiver Hayward POA
[My representative] brings a superlative reputation, a comforting and confidence building demeanor and a clear expertise to the table. In particular I appreciate her philosophy that she gives her total undivided attention to her clients during their appointments.
- Ronald J. Danison El Monte POA
The LDF is a tool available to me which I hope never goes away. It makes me feel that much more confident to do my job knowing LDF has my back when police work gets ugly. And it usually does..
- Kevin Hullquist Siskiyou Co. Correctional POA
[My representative] did a good job representing me. Kept me informed.
- Cherie Rye Lyon Co SEA
I am very happy with the service I received from LDF. I am grateful that our association includes LDF as part of our dues.
- John M. Laser Oceanside POA
[My representative] always took my calls or returned them within hours. Put my mind at ease and kept me well informed. LDF is well served by this law firm!
- James Hika Border Patrol Supervisors Association
They did a great job!
- Steven Mayorga Ventura County DSA
I was well represented and very glad to have LDF. Thank you.
- Rachael Van Sloten Oakland POA
LDF is absolutely essential to help make a system that is somewhat broken work more effectively. [My Representative] is excellent and takes a great deal of time to lisen and represent.
- Gregory Carbett Ontario POA
The attorney assigned to my case was GREAT! It's sad, but it's impossible to be an officer in today's world without a defense fund like PORAC LDF. I am now retired and signed up for the retired officers CCW LDF. Thanks!
- Paul Figueroa Oakland POA
LDF was there when I needed them!! In this litigious world, it's nice to know LDF has GREAT lawyers on our side who look out for us!! [My Representative] is a great attorney and a person I would trust in any circumstance!!!
- Christopher M. Fuzie Modesto POA
I was very impressed with the speed at which the case was handled. Thank you!
- James F. Beland Lake County SDA
- Rachel Tyner Transit EOA of San Diego
All the LDF representatives were very courteous and attentive with a punctual response to all of my concerns, inquiries and appointment scheduling. My representative was very informative about the legalities and kept in contact with me regularly. He was also very patient and straight forward. I would definitely want to use the LDF again and felt more confident through my proceedings because I had representation!
- Nestor Hernandez San Diego POA
This is a great program designed to protect LEO’s in need
- Stephanie Haas Lyon Co SEA
When I first contacted LDF re: my case I was unsure of how well/poor I'd actually be represented. I was impressed beyond belief. From the timely responses from my attorney, his knowledge in my case, advising me what my rights were and where I stood. I felt like I was genuinely being protected from unwarranted and unfounded accusations and believe, as long as I am in the right, I have someone fighting for me. Thank you, Thank you.
- John Tinder Chino POA
Having an LDF attorney who is experienced, knowledgeable and professional is an outstanding quality. [My representative ]exhibit all of these qualities and more. They are outstanding and I would not entrust my career to anyone else!
- Dwayne Sue Oakland POA
[My representative was] great! She kept me informed and was very professional. She would be my choice if I should need her services in the future! (But I hope I won't) Thanks!
- Christopher Walters Antioch POA
My LDF rep was very attentive, and courteous. She made every effort to keep me informed, and kept my best interests at the front of the process. I was very satisfied with my LDF rep, and the entire process.
- Rodd N. Joseph Clearlake MMA
I appreciate the fact that my representative met with me in a social setting prior to the interview, during which time she learned the facts of the case. She was prepared for the interview. She seemed to have a genuine interest in my case.
- Brad Young Oakland POA
[My representative] is an excellent attorney and I am very happy he picks up the phone and answers my questions whenever possible.
- Derwin Longmire Oakland POA
Outstanding [law firm] - incredible firm. And, LDF was easy to work and correspond with.
- Kristen Patterson Contra Costa Co Prob. Assn.
[My representative] was helpful and made me feel supported. I got the results I desired. Very pleased with the process.
- William Burdette Newport Beach PMA
26 years and I have never needed a LDF rep, but the one time you need one, it was worth the fee’s paid.”
- Jack Ellis Lompoc POA
An excellent plan. Very valuable to its members.
- Jurell Snyder Oakland POA
My LDF representative had a power point presentation, which was extremely professional.
- Roy Iler San Benito CO LEM
[My representative] always returned phone calls and let me know if he was contacted with information.
- Michael Kan Palo Alto POA
I have always been and will continue to be a strong supporter of LDF and would not work as a police officer without it. I am extremely happy with the service I have received both from LDF and [my representative].
- James Walker Yakima Police Patrolsman Assn
This attorney and her legal team were one of the best I’ve seen and interacted with. I was always in the loop and constantly updated on the case status. I would use (my attorney) again if the need came and recommend her to anyone.
- Richard Salcido Brea PA
LDF is a great organization that not only helps their clients but many of those around them such as coworkers and family members.
- Tamboura Nettingham Claremont Custody Center EA
My representative was an outstanding rep. I was very fortunate to be represented by her and the firm should be very proud to have her in it. She's courteous, smart and aggressive when needed. I would not ask for anyone else, if any other situation evolved, she's the best. Thanks.
- Micheal Chad Heiser Santa Rosa POA
LDF is a valuable resource that no law enforcement officer should be without.
- Joseph A. Henderson Merced POA
The firm I used was very valuable to my career and kept me updated as to status of the case. Thank you!
- Rick Stephens Alpine CO DSA
My representative was very good. I highly recommend my lawyer to anyone.
- Alvaro Ancheta Glendora POA
I felt I was represented in a thorough and professional manner.
- Clyde Williams San Diego Harbor POA
Thank you for all of the work related to my officer involved shooting case.
- Gina Reyes Broadmoor POA
[My representative] was wonderful! Even though my situation didn't end in my favor, he was very supportive, informative & patient. He always answered every email in a timely fashion and was very accessible. I appreciated everything he was able to do for me.
- Kelly K. Roe San Joaquin Co Corr Officers
[My representative] did a fantastic job at returning my phone calls and keeping me informed of any and all information pertaining to my case. I would recommend him to anyone.
- Byron Kies Santa Barbara Co DSA
Everything was great!
- Steven E. Lopez Santa Maria POA
Keep up the Good Work! Your service was extremely helpful to me. Thank you.
- Anthony Alonzo South Gate POA
Very pleased with the way the process was explained to me. Received updated info faster than I expected. Overall a good experience in a not so good situation. Thanks to LDF.
- James Stephenson Petaluma POA
Outstanding service. Thanks.
- Patrick Beggs Fresno Co DSA
Good service. Thank you.
- Jorge Garcia San Joaquin Co Corr Officers
No criticism to give. Very well.
- Miguel Masso Oakland POA
[I'm very satisfied and grateful] for LDF representing me. My attorney was professional, honest, and very knowledgeable of his profession. During these tough times my attorney would contact me on a regular basis to see how I was doing. This was obviously not part of his job description, but it kept me at ease and not losing my mind. I'm thankful that I was represented by LDF.
- Robert Hartman Contra Costa Co DSA
Quick response, experienced and knowledgeable attorney which assisted in every step. [My representative] kept me apprised through the process. Thank you.
- Gary Silva East Bay Region Parks POA
Thank you for providing this service. My experience with LDF was very much to my satisfaction.
- Craig Caches Fremont POA
I have only used LDF once for myself, which with the circumstance was great. I work with LDF in my assignment ( OIS investigator ) and after approximately 4-5 OIS's, I have great experiences with LDF.
- Toinie Lee Jackson Madera Co DSA
Unfortunately, I have been placed in the position to use LDF several times in my career. Without their valued services, I would not be here to write this. I and my family thank you.
- Roman Fernandez Inglewood POA
My representatives were always well-prepared and organized for hearings and meetings. Their efforts, hard work and full support is truly appreciated.
- Evelyn Hooks Shasta CO PPOA
Thank God for the L.D.F.
- Tai Pena-Hornung Oakland POA
Those who foolishly feel LDF is not a valuable resource, do so only because they have not yet needed legal representation.
- Robin Gonzalez Yolo Co. DSA
[My representative was] very quick to respond, helpful and professional. Thank you!
- Wendy Morrow Chico Public Safety Association
I had never been through an I.A. in my 21 years. I was scared and ashamed and humiliated. ( My attorney ) was excellent. He helped me through one of the worst times of my life. Had great outcome and I am grateful.
- George Fierro El Monte POA
I am a firm believer that LDF serves an essential part in the assistance to protect an officer's POBR & in the integrity of an investigation or complaint. I highly recommend the law office of [My Represenative].
- Scott King Ripon POA
[My representative] is the best LDF rep I have ever had. If I were to need an LDF rep again I would want it to be [my representative].
- Nicholas Ward Antioch POA
[ Representative ] did a great job. My case was extremely complicated and difficult. She did a great job.
- Gary J. Foppiano Oakland POA
[My representative] has been in my corner for 28 years. I have been represented by this firm probably 6 times in my career from minor to major discipline cases with a great outcome for me. They're batting 100%
- James Beckman Miracosta College POA
Highly recommend this program for any LEO!
- Dan McDow San Luis Obispo POA
[My representative] is the poster face representative of the greatest attorney (representative) that anyone could possibly ask for. She gets a 12 out of 10 star rating. Nobody works harder.
- Thomas E. Lorente III Bart POA
[My representative] did an excellent job! I would highly recommend him to any officer in need of LDF services.
- Andrew J. Brice Santa Maria POA
As always... an excellent result.
- Nancy Page Aurora PA
I didn't end up needing his service but he was awesome in what conversations we had before the matter was resolved. Very valuable - LDF!
- Robert Mickschl SAN DIEGO HARBOR P O A
From my initial call to LDF, to my "Thank You" email to (my attorney ) I had the best representation I could have hoped for. The "800" number call receptionists were very professional & understanding. (My Attorney's) office & staff kept me informed & updated. I am forever thankful to LDF & exceptional representation by ( my attorney ) & staff.
- Chris Lyon Tulare Co DSA
Very thorough group of sharp/smart government concerned [attorneys]. They understood what was happening and briefed me on everything. I was very impressed.
- Tyler Robins Pasadena City College POA
At a time when no one cares about you it's nice to have someone on your side who does. (My attorney ) made a stressful six months a lot more tolerable.