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City
of Fort Worth
and
Individual
Grievant
117
LA (BNA) 1621
AAA
Case No. 71-390-00207-2
November
27, 2002
Donald P. Goodman, Arbitrator.
Did the City have sufficient evidence to support the charges against
the Grievant? If not, what is the appropriate remedy? If so, was the discipline
imposed to the appropriate degree?
Dated February
5, 2002
In accordance
with the City of Fort Worth Firefighters' and Police Officers' Civil Service
Rules 13.004 and Regulations, the Texas Local Government Code, and the authority
contained therein to the head of the Police Department to effectuate
disciplinary action, I have indefinitely suspended Officer L__ ID # 2549. This
indefinite suspension is to take effect on February 05, 2002. The basis for
this suspension is my conclusion that a violation of the City of Fort Worth
Firefighter's and Police Officer's Civil Service Rules and Regulations has been
committed, as contained in 13.004, which states in part:
CAUSES FOR
REMOVAL OR SUSPENSION
13.004
The tenure of
every civil service employee shall only be during good behavior, and any such
employee may be suspended or indefinitely suspended from the civil service for
any actions or omission involving one or more of the following grounds:
d. Neglect of
duty;
f. Acts showing
a lack of good moral character;
g. Ingesting
intoxicants while on duty or intoxication while off duty;
I. Violation of
an applicable Fire or Police Department rule, directive, general or special
order.
The conduct
Officer L__ engaged in that shows neglect of duty, acts showing a lack of good
moral character, intoxication while off duty, and that violated an applicable
Police Department rule, directive, or general or special order, is as
follows:
On
September 2, 2001, at approximately 0130 hours, Officer L__, while off duty,
was involved in an altercation with his brother, M__, in the parking lot of the
Second Chances Bar, located at 3121 N. Main Street, Cleburne, Texas. During the
altercation, Officer L__ committed Assault—Family Violence when he struck his
brother in the face several times, including pressing his thumb into one of his
brother's eye sockets. Officer L__ stopped the assault when his brother's wife
kicked him in the head to stop the assault. Officer L__ was the aggressor in
this incident and admitted to hitting his brother and causing the bodily injury
to his brother during this continued assault.
These actions
constitute violations of the following:
FORT WORTH
POLICE DEPARTMENT GENERAL ORDERS/CODE OF CONDUCT
702.00
CONDITIONS OF EMPLOYMENT
C. All officers
and employees shall comply with the Code of Conduct, special orders,
directives, procedures of the department, orders and instructions of supervising officers,
federal law, state law, and city ordinances.
703.00
PROFESSIONAL CONDUCT
C. No officer
shall engage in any personal conduct which could result in justified
unfavorable criticism of that officer or the department.
TEXAS PENAL
CODE/CHAPTER 22: ASSAULTIVE OFFENSES §22.01. Assault.
(a) A person
commits an offense if the person:
(1)
intentionally, knowingly, or recklessly causes bodily injury to another,
including the person's spouse;
After the
physical assault ended, M__ rose to his feet and ran inside of the bar. Officer
L__ immediately followed, chased his brother into the bar while cursing in a
public place, “I'm going to kick your ass!” and threatened further assault upon
his brother. Patrons and employees at the bar had to physically restrain
Officer L__ to prevent further violence. While being restrained, Officer L__
was told that the Cleburne Police had been notified, and was advised to leave
the business. Officer L__ fled the establishment, accompanied by his girlfriend
and another acquaintance, and drove his personal vehicle away from the
scene.
These actions
constitute violations of the following:
702.00
CONDITIONS OF EMPLOYMENT
C. All officers
and employees shall comply with the Code of Conduct, special orders,
directives, procedures of the department, orders and instructions of
supervising officers, federal law, state law, and city ordinances.
E. Officers and
employees, whether on-duty or off-duty, shall follow the rules, special orders,
and directives of the Department regarding good conduct and behavior and shall
not commit any act in an official or private capacity that would be an
applicable violation of any department rule, special order, directive,
procedure, or general order.
703.00
PROFESSIONAL CONDUCT
C. No officer
shall engage in any personal conduct which could result in justified
unfavorable criticism of that officer or the department.
E. No officer
shall ridicule, mock, deride, taunt, or belittle any person. Neither shall the
officer knowingly embarrass, humiliate, or shame any person nor do anything
that might incite such person to violence.
TEXAS PENAL
CODE/CHAPTER 22: ASSAULTIVE OFFENSES §22.01. Assault.
(a) A person
commits an offense if the person:
(2)
intentionally or knowingly threatens another with imminent bodily injury,
including the person's spouse;
While fleeing
the scene in his vehicle, Officer L__ realized that he had not retrieved his
personal property from the bar, and stopped at a nearby cemetery. Officer L__
sent his girlfriend back to the bar while he and the acquaintance hid behind a
brick wall in the cemetery, out of view of police officers arriving at the
scene of the assault. At the bar, the police confronted Officer L__ 's
girlfriend, and she directed them to the cemetery where Officer L__ and the
acquaintance were hiding. Officer L__ was placed under arrest and charged with
criminal Assault-Bodily Injury of a Family Member by the Cleburne Police
Department.
Officer L__
admitted to Internal Affairs that during a period of some five hours
immediately preceding the altercation with his brother he had consumed two
mixed alcoholic beverages, three beers, an undetermined number of lemon
flavored alcoholic beverages, and three Vicodin tablets (a prescribed
controlled substance). Officer L__ also admitted driving his personal vehicle
away from the scene of the bar to the cemetery, where he and the acquaintance
attempted to avoid arrest and hid until located by the Cleburne Police officers,
thereby hindering the criminal justice investigative process. Officer L__ was,
therefore, intoxicated while off duty, including being intoxicated in a public
place, as exhibited by his actions and presenting a danger to himself or
others.
These actions
constitute violations of the following:
FORT WORTH
POLICE DEPARTMENT GENERAL ORDERS/CODE OF CONDUCT
702.00
CONDITIONS OF EMPLOYMENT
C. All officers
and employees shall comply with the Code of Conduct, special orders,
directives, procedures of the department, orders and instructions of
supervising officers, federal law, state law, and city ordinances.
703.00
PROFESSIONAL CONDUCT
B. Neglect of
duty on the part of any employee is cause for disciplinary action. The offender
shall be disciplined according to the severity of the violation, the
commensurate responsibility or accountability of their rank or position, the
results brought about by the action or inaction, and the effect it has upon the
discipline, good order, and best interest of the department. Neglect of duty
includes, but is not limited to, the following:
2. Failure to
observe and give effect to the policies of the department.
C. No officer
shall engage in any personal conduct which could result in justified
unfavorable criticism of that officer or the department.
705.00 CIVIL,
CRIMINAL, JUDICIAL, AND INVESTIGATIVE ACTIONS
B. Officers
shall not engage in any of the following conduct:
5. Taking any
other action which impedes the efficiency or integrity of the administration of
criminal justice.
TEXAS PENAL
CODE/CHAPTER 49: INTOXICATION AND ALCOHOLIC BEVERAGE OFFENSES
§49.02. Public
intoxication.
(a) A person
commits an offense if the person appears in a public place while intoxicated to
the degree that the person may endanger the person or another.
Officer L__ 's
conduct demonstrates serious criminal misconduct and clearly shows a lack of
good moral character. As an experienced Fort Worth Police officer, Officer L__
should have known his conduct was not only inappropriate, but also illegal.
Officer L__ has violated the Law Enforcement Code of Ethics which states, in
part, “I will keep my private life unsullied as an example to all; maintain
courageous calm in the face of danger, scorn or ridicule; develop
self-restraint; and be constantly mindful to the welfare of others. Honest in
thought and deed in both my personal and official life, I will be exemplary in
obeying the laws of the land and the regulations of my department.” Officer L__
's actions also brought justified unfavorable criticism on himself and the
police department.
Officer L__ was commissioned as a
Fort Worth police officer March 6, 1992. His previous disciplinary history
includes a 10-day suspension for Untruthfulness/Insubordination in May 1994,
and a 3-day suspension for an off-duty Criminal Violation in January 1995.
The facts as stated above
convince me the above-cited sections of the Firefighters' and Police
Officers'Civil Service Rules and Regulations of the City of Fort Worth, the
Fort Worth Police Department General Orders/Code of Conduct, and statutes of
the State of Texas Penal Code, were in fact violated by Officer L__. The facts
and allegations that gave rise to this disciplinary action were discussed with
Officer L__, at which time he was given the opportunity to respond to the
allegations prior to making a final determination.
Based upon Officer L__ 's
violations of General Orders and the Code of Conduct, it is my belief he has
failed to maintain the high standards expected of a Fort Worth police officer.
Therefore, I indefinitely suspend Officer L__ ID 2549, such suspension is
effective February 05, 2002 at 1700 hours.
A copy of the order of suspension
that informs Officer L__ of the appeal options available under Chapter 143 of
the Texas Local Government Code is attached to this letter, and, by this
reference, incorporated herein for all purposes.
The Charges may be summarized as follows:
·
Assault—Family Violence—striking and
kicking his brother
·
Chasing brother inside a bar and
threatening further assault
·
Cursing in a public place—neglect of
duty
·
Fleeing the scene of the assault
·
Hiding from police after fleeing the
scene
·
Intoxicated while off duty in a public
place
In his appeal the Grievant
claims:
·
The
facts are not true as alleged.
·
The
charges in the letter of Indefinite Suspension are not legally sufficient
·
Even
if the facts alleged were true Indefinite Suspension is not appropriate.
There is more than ample evidence
and testimony that the facts are true as alleged. These facts are:
1.
That L__, while off duty, was involved in an altercation with his brother in
the parking lot of the Second Chances Bar located at 3121 N. Main Street.
2.
That L__ struck his brother in the face several times and pressed his thumb
into one of his brother's eye sockets.
3.
That L__ was the aggressor during the altercation.
4.
That L__ committed assault/family violence.
5.
That, after the physical assault ended, L__ chased his brother into the bar
while cursing in a public place, saying “I'm going to kick you ass.”
6.
That L__ threatened further assault upon his brother.
7.
That L__ had to be physically restrained.
8. That L__ fled the scene by driving his truck away from the Second Chances Bar after being notified that the police had been called.
9.
That L__ attempted to hide from police by hiding behind a brick wall in a
cemetery.
10.
That L__ was intoxicated, including being intoxicated in a public place.
Certainly there was an
altercation between the Grievant and his brother, M__, at the Second Chance bar
in Cleburne, Texas on the night of September 2, 2001. In the investigation and
at the arbitration hearing the Grievant admitted he struck his brother several
times in the face. Further, while at the Cleburne jail he made several
telephone calls in which he stated he had kicked his brother's ass and beat the
shit out of him
During the altercation, the
Grievant stuck his thumb and forefinger in his brother's eye. This is
substantiated by the Grievant himself by his own words. Even though the
Grievant testified at the arbitration hearing that he could not recall putting
his fingers in M__ 's eyes his own words belie that. While in the Cleburne jail
the Grievant was video taped. The video shows the Grievant stating that during
the altercation “I don't know whether his eye came out or what”. In addition,
A__ (wife of M__ ) testified that when she came upon the altercation she heard
M__ yelling that L__ had his hand in his eyes.
Three of the witnesses testified
to the condition of M__ 's eye after the altercation. Gallop testified he saw
blood pooling in both eyes, Price testified M__ was bleeding out of the corner
of an eye, and Burris's police report indicated the eyes of M__ were red.
Burris also stated the hospital informed him M__ had severe swelling to his
face and a cornea abrasion.
The Grievant claims his actions
were defensive. That is not true. By his conduct the Grievant's actions were
intentional and met the elements of assault contained in the Texas Penal Code.
Even if M__ hit him first, the Grievant was only authorized to use that degree
of force he reasonably believed necessary to protect himself. His conduct
exceeded that degree. Who was the aggressor? Certainly it was the Grievant. The
Grievant claims M__ hit him first. M__ on the other hand remembers being struck
numerous times while the Grievant had him in a headlock M__ also recalls being
pinned to the ground by the Grievant as he was struck in the eyes by the
Grievant. These actions by the Grievant were not defensive. As a trained police
officer the Grievant was aware of the defensive techniques to stop any
threatened aggression.
Had it not been that A__ kicked
the Grievant it is highly likely that permanent injury would have resulted to
M__.
The testimony of others support
the fact that the Grievant was the aggressor. After the physical altercation
M__ ran into the bar, three witnesses stated the Grievant continued toward M__.
Two of those witnesses stated the Grievant used obscenities including the
Grievant was going to kick M__ 's ass. The Grievant had to be physically
restrained. At the jail the Grievant stated “I beat the shit out of M__ ”. This
confirms the Grievant was the aggressor.
When M__ ran back into the bar
after the physical altercation, witness Dixon advised the Grievant A__ was on
the phone with the police and he should leave. When so informed that the police
had been called the Grievant fled the scene accompanied by his girlfriend and
another friend driving to a nearby cemetery. He states he did so to avoid further
trouble with M__. Upon arrival at the cemetery, the Grievant got out of the car
with his other friend and hid sending his girlfriend back to the bar to
retrieve a cell phone he had left behind. The Grievant claims the reason he
sent his girlfriend for the phone instead of going himself was to avoid further
trouble with M__. That can not be true. The real reason is that he did not want
to be contacted by the Cleburne police.
When questioned upon her arrival
back at the bar, the Grievant's girlfriend, when questioned, informed Cleburne
police of the Grievant's whereabouts. The Grievant claims he was not hiding yet
Sergeant Ashton of the Cleburne police stated he did immediately see the
Grievant. He did see the Grievant's friend and heard a noise in some bushes.
Ashton did not see the Grievant until after he had told the Grievant to come
forward. Ashton stated at that time he detected a strong odor of alcohol and
that he believed the Grievant was intoxicated.
Witness Wray testified he
believed the Grievant was intoxicated. He also testified he had observed the
Grievant drinking “quite a bit” that night. The Grievant admitted he had two
strong drinks and some of his girlfriend's alcoholic beverage. In one interview
the Grievant admitted he had “maybe three beers”.
In addition, the Grievant
testified he had taken three Vicodin, two accidentally mistaking them for
ibuprofen. He had been on Vicodin for some time and should know the difference
between Vicodin and ibuprofen. He stated they were in the same container.
Mixing the two in the same container is reckless. If the Vicodin caused him to
be intoxicated that is the Grievant's own fault.
The observations of Ashton
coupled with the testimony of other witness and the Grievant's own testimony on
what alcohol he had consumed surely supports that the Grievant was intoxicated
in public in the Second Chance bar as well as at the cemetery and the Cleburne
jail.
Certainly the charges are true as
alleged. Since they are then it can not be concluded other than the actions of
the Grievant violated the Texas Penal Code in that he was guilty of (1) assault
by threat, (2) intoxicated in a public place, and (3) assault/bodily injury.
He, too, engaged in conduct impeding the efficiency of the administration of criminal
justice by fleeing the bar. The Grievant had to be physically restrained. By
struggling with those who restrained hem he could have incited those and others
to violence.
He showed neglect of duty and
criminal behavior. His conduct at the bar, at the cemetery and in the Cleburne
jail subjected the Fort Worth Police Department to unfavorable criticism.
The Grievant claims the charges
against him are not legally sufficient. He raises no specifics in that regard but
seems to imply the investigation was not conducted in an appropriate manner. He
points to the fact that one audiotape made during the investigation was not
included in the material provided to him. That tape was of an interview with
A__ and does nothing more than support M__. Since he raised no specifics it can
be concluded that the Grievant waived any claims of an improper or incomplete
investigation.
Certainly the charges are in
compliance with the City of Fort Worth Firefighters and police Officers Civil
Service Rules and Regulations and the Texas Local government Code.
Based on the circumstances the
Chief reasonably believed there was criminal misconduct by the Grievant's and
that conduct showed a lack of good moral character and the Grievant failed to
maintain the high standards expected of a Fort Worth police officer. The
Grievant can not be trusted to exhibit calm with citizens at large if he can
not do so to his own brother.
The only reasonable conclusion
reached by Chief Mendoza was that an indefinite suspension was the only
alternative.
The allegation that the Charges
were not legally sufficient is without merit.
Certainly the discipline imposed
of an Indefinite Suspension was appropriate.
The charges must be sustained and
the Grievant's appeal denied.
The appeal of the indefinite suspension is based on three grounds any
one of which, if sustained, is sufficient to cause the appeal to be granted.
Those three are (1) the facts are not true as alleged, (2) the action
recommended does not fit the alleged offense, and (3) the charges are not
legally sufficient.
Each of these will be
addressed.
The facts as alleged are not
true. The Grievant is charged with Neglect of Duty described as acts showing a
lack of good moral character, being intoxicated while off duty or ingesting
intoxicants while on duty and violation of General Orders.
The Letter of Indefinite
Suspension states the Grievant was the aggressor in a fight with his brother,
M__, and admitting to hitting his brother and causing bodily harm to his
brother. There were no witnesses to the start of the altercation between the
Grievant and M__. All the City presented to substantiate its version was the
testimony of M__. The Grievant testified he did hit his brother but that it was
in self defense to stop his brother's attack.
The Letter also states the
Grievant admitted he had consumed two mixed drinks, three beers and an
undetermined number of lemon favored alcoholic beverages in addition to three
Vicodin tablets. The City then concludes that he must have been intoxicated
while off duty. The Grievant made no such admission. The Grievant's statements
to Internal Affairs and his testimony at the hearing were that he had two mixed
drinks, one to three beers and an occasional sip of his fiance's lemon favored
drink. The testimony of Burris was that he conducted no field sobriety check
nor did he administer a Breathalyzer. Both the Grievant and W__, the Grievant's
fiance, testified that the Grievant was not intoxicated.
The Grievant is also charged with
resisting arrest by hiding at the cemetery. The Grievant, W__ and a friend did
drive from the bar to a cemetery. W__ did drive back to the bar. She led
officers of the Cleburne police department to the cemetery. The City says the
Grievant was hiding in the cemetery and attempted to evade the officers and to
avoid arrest. That simply is not true. He was at a wall at the cemetery. When
the officers called him he readily presented himself to the officers and was
cooperative.
The City further states the Grievant failed to show good moral conduct
and should have known his actions were inappropriate and illegal. It was not
illegal for the Grievant to defend himself. It was not illegal to consume
alcohol. Granted it would have been illegal for the Grievant to become or
appear in public intoxicated but the City failed to prove he was intoxicated.
It was not illegal for the Grievant to wait in the cemetery while W__ returned
to the bar to retrieve a phone.
The Grievant admits he was in a
fight with his brother and telephoned his brother later the date of the
incident expressing his regrets. Indefinite suspension is certainly not
appropriate. This is especially so when one looks at the discipline imposed on
others. There was disparate treatment.
Officer B__ was charged with
public intoxication and aggregated assault and received a 156 days suspension.
Officer R__ was suspended for 30 days for inappropriate sexual conduct while on
duty. Officers O__ and S__ were suspended for 30 days for DWI, discharge of a
weapon, leaving the scene of an accident and destruction of property. Officer
F__ received a 90 days suspension for obtaining a prescription by fraud and delivery
of a controlled substance and for being untruthful. Officer H__ received a 264
days suspension for theft, tampering with a government record and abuse of
official capacity. Officer P__ was suspended for 375 days for three separate
instances of public intoxication and for assault. Officer N__ was suspended for
188 days for DWI and public intoxication in uniform. Officer Y__ received a 189
day suspension for public intoxication and possession of a controlled
substance. Officer J__ received 123 day suspension for DWI, public intoxication
and an accident in which his private vehicle struck a parked car.
All these officers committed serious rule violations and criminal acts.
Certainly the Grievant should not receive any discipline more harsh than these
officers if he should any discipline at all. The Grievant was not convicted of
any criminal act.
Any discipline must be imposed
only for just cause. Here the City has not met its burden to prove there was
just cause to indefinitely suspend the Grievant.
Certainly any investigation must
be conducted fairly, completely, and objectively. Here it was not. Section
102.02 of the Department General Orders requires IAD to assure a complete and
impartial investigation as does the Standard operating Procedures of IAD. The
IAD SOP states a complainant shall fill out and swear to and sign a sworn
affidavit detailing the complaint. The complainant here was M__. Sergeant O__
was the chief IAD investigator. He did not obtain an affidavit from M__. The
SOP requires all interviews to be taped and transcribed. They were not. A
crucial interview of A__ was not transcribed and placed in the investigative
folder. That interview was crucial because in it she contradicted much of her
previous testimony. On that tape she states L__ is a crooked officer and that
M__ thinks all officers are crooked. She goes further and admits kicking L__ in
the head and wishes she had kicked him in the face. She gives further
statements about things she did not personally observe and makes inflammatory
remarks about L__ and his father, E__.
Sergeant O__ was tasked to gather
the facts not to make his own judgements. By excluding the transcription of the
A__ interview he deprived L__ of a fair, unbiased, complete investigation. Not
only that but O__ violated General Orders and possibly Section 37.09 of The
Texas Penal Code.
Clearly the indefinite suspension
should not be sustained. The Grievant should be reinstated with full back pay
and benefits. If any discipline is appropriate at all it should be consistent
with any charges or allegations, if any, of which the City did meets its burden
of proof.
Discussion
In preparation for his defense of the Charges the Grievant requested
certain documents be provided. Among those was a copy of the Memoranda the
chain of command prepared and submitted to the Chief commenting on the charges
and recommendations for discipline.
The Memoranda were provided the Grievant with certain portions
redacted.
The Hearing Examiner ruled that the Grievant was entitled to all those
documents the Chief relied on or reviewed in arriving at his decision to
discipline the Grievant.
The City claims the portions
redacted were related to those charges which were not sustained. The City
partially relies on Section 143.089(g) of the Texas Local Government Code to
justify providing only a redacted copy of the Memoranda.
Section 143.089(g) reads:
(g) A fire or police department may maintain a personnel file on a fire fighter or police officer employed by the department for the department's use, but the department may not release any information contained in the department file to any agency or person requesting information relating to a fire fighter or police officer. The department shall refer to the director or the director's designee a person or agency that requests information that is maintained in the fire fighter's or police officer's personnel file.
The Hearing Examiner ordered the City to provide him an un-redacted
copy of the Memoranda to be examined en camera. The City did so. The Hearing
Examiner then related to the Grievant those redacted portions he felt the
Grievant was entitled to know.
Section 143.089(g) does state
that information in the officer's personnel file may not be released to any
person or agency or person requesting the information. But Section 143.089(g)
may not be read in isolation. We must then look at all of Section 143.089,
particularly (e) and (f) which read:
(e)
The fire fighter or police officer is entitled, on request, to a copy of any
letter, memorandum, or document placed in the person's personnel file. The
municipality may charge the fire fighter or police officer a reasonable fee not
to exceed actual cost for any copies provided under this subsection.
(f)
The director or the director's designee may not release any information
contained in a fire fighter's or police officer's personnel file without first
obtaining the person's written permission, unless the release of the
information is required by law.
Section 143.089(e) provides that
the officer is entitled, on request, any matter in his personnel file. Here the
officer made such a request. Section 143.089(f) states information may not be
released without the officer's written permission. Here the officer gave that
permission.
If the officer is to prepare a defense of the charges against him he
MUST be provided with all those documents, including audio or video materials, relied
on or reviewed by the Department Head (Chief of Police) when that individual
made the decision to discipline. The Chief reviewed the Memoranda, unredacted,
provided by the chain of command. The Grievant is entitled to also have an
unredacted copy.
Too, by providing only a redacted copy a Grievant is then left with
doubts as to whether some redacted information was favorable or some
unsubstantiated allegations were reviewed by the chain of command. In other
words how is an appellant to know how to prepare a defense if certain
information is withheld from him in the form of what was redacted?
The Grievant has asked the
Hearing Examiner to take notice that he first joined the Department in 1988 as
a civilian employee and that he was commissioned as a police officer in
1992.
Further he notes that since 1992 he has received more than 60
commendations.
The Hearing Examiner also notes
that the Department performs Efficiency Ratings for police officers. Officers
are rated either Exceeds Standards, Standard, Below Standard or Unsatisfactory.
The last four ratings of the Grievant were introduced into evidence. On one of
the four he was rated Standard. On the other three he was rated Exceeds
Standard.
There is no question but that the Grievant was in a fight with his
brother in the parking lot of the Second Chance Bar. What caused the fight is
not known to this Hearing Examiner. Also is not clear who started the fight.
L__ claims his brother pushed, shoved or struck first. M__ claims the opposite.
We do know that on the night before the incident L__ and M__ were at the same
bar. On that earlier night neither W__ nor A__ were present. L__ and M__
engaged in what has been termed inappropriate conduct with others. A__ learned
of that conduct. One can speculate that A__ confronted M__ on that conduct. One
can also speculate that M__ blamed L__ for A__ finding out about the conduct
and that is what caused the fight. But as I said that is speculation.
One wonders about the motives of
A__. She testified she did not like L__ or his father, E__. She stated M__ did
not like crooked cops and that L__ was a crooked cop. She gave no evidence or
testimony as to why she believed L__ to be crooked. It should be remember that
E__ was a retired Fort Worth police officer.
The motives of A__ are also
called in to question by what Burris stated A__ told him when he arrived at the
bar. She told Burris that L__ would return to the bar to attack W__ when in
fact W__ was not at the bar at the time. She had voluntarily left with L__. The
Arrest Report by Burris states that A__ told him W__ had two guns on him. The
Arrest Report states that when L__ was arrested he was unarmed. One wonders why
A__ told Burris L__ was armed when he was not.
At least twice A__ stated she
would have M__ lose his job.
A__ and M__ gave several
statements to IAD. When one reads those statements and compares them with their
testimony at the arbitration hearing one finds inconsistencies and
contradictions.
There is an allegation that L__
deliberately attempted to gouge an eye of M__. The only proof of that is the
testimony and statement of A__. In a statement to O__ she says “Yeah, by God he
had his finger in his eye socket ready to rip it out”. That is the only proof
of that allegation. I have commented on the motives of A__. A__, again in her
statement to O__, claims kicking L__ in the head would not cause him to have a
concussion but that he had a concussion when he hit his head on cement when he
dropped M__ to the ground. She also testified that when she came upon the
scene, M__ was on the ground with L__ on top of him. How could she determine
L__ hit his head on cement? A__ further states the fight was started by L__.
She states she wasn't there when the fight started. How does she know how it
started?
A__ and M__ both stated they were
concerned for W__ as L__ had stated he was going to kill W__ and perhaps that
started the fight. Several persons who were interviewed said that also but
their knowledge of this was obtained from A__ and M__.
This contrasts sharply with what
W__ stated when she was interviewed by O__ on September 25, 2001. In that
interview she stated she was not afraid of L__ and was not threatened by him
and had she been she certainly would not have departed the bar with him. This
impinges on the credibility of M__ and A__.
All that has been determined for
sure is that there was a fight. Who started the fight has not been determined.
There were no witnesses who saw the beginning of the fight. L__ claims the
fight was started by M__ and L__ was only defending himself.
There was some indication that
M__ got between L__ and W__ to keep L__ from attacking W__ and that is when the
fight started. That is contradicted by W__. She stated she was not even present
when the fight started but was rather in L__ 's truck with her friend I__. W__
stated she got out of the truck only after a bar security guard came and got
her. She then helped L__ find his glasses and then she, L__ and I left the bar
with L__ driving.
L__ is accused of causing serious
injury to M__. It should be remembered that M__ is taller than L__. It should
also be remembered that M__ spent six years in the United States Marine Corp.
We do know that at one time L__ had M__ on the ground. That is when A__ came
upon the scene. A__, trained in marital arts, kicked L__ in the head while
wearing boots. She later stated she wished she had kicked L__ in the face.
M__ claims that when he saw that
A__ was there he yelled at her to call 911. If that is true we do not know
whether that was to summon police or for paramedics. We do know A__ did call
911 and both police and an ambulance arrived on the scene.
After A__ kicked L__, M__ ran
into the bar. When the police arrived A__ was still on the phone. Supposedly
A__ was concerned of M__ 's injuries. If she was so concerned why was she still
on the phone and not administering to M__ ?
M__ refused treatment by
paramedics at the scene.
L__ 's testimony is that upon advice of an employee of the bar, he left the scene with his fiance, W__ and a female friend. After traveling a short distance L__ realized he did not have his cell phone. He stopped at a cemetery near a car dealership whereupon he and the friend exited his vehicle and sat next to a wall. W__ drove back to the bar alone to retrieve the phone. He elected not to return to the bar as he did not want to get into another altercation with his brother.
Upon returning to the bar W__
found police had arrived. She cooperated with the police and advised them of
L__ 's location and led them to that location. When the police arrived at the
cemetery L__ claims he cooperated with the police at that and at all other
times. L__ was arrested and taken to the Cleburne jail.
M__ also went to the Cleburne
jail with A__ and W__. There was testimony that photographs were taken at the
jail of M__ 's injuries. If so, those photographs were not in the investigatory
package nor produced as evidence. Photographs were produced supposedly taken
later by A__. Those photographs are of little value. There was no proof as to
when the photographs were taken. Injuries indicated on those photographs could
have been taken of injuries suffered through other than the fight with L__.
M__, again, was supposedly
injured yet he refused treatment at the scene and did not seek treatment until
after he saw that L__ had been taken to the Cleburne jail and later transported
to the County jail. As L__ was leaving the Cleburne jail for the County jail M__
was outside the Cleburne jail laughing over L__ 's predicament.
M__ left the Cleburne jail for a
hospital and was to return to the Cleburne jail to give a statement. He did not
do so.
Much of the support for the charges
is based on information obtained by O__ and Jones from IAD in interviews. The
investigation by IAD was not pristine. That does make the investigation fatally
flawed but it does raise questions. Some interviews were not taped. In one
interview he informed A__ that he was taping the taping but did not. Some
interviews were by phone. Apparently the identity of those on the phone was
taken at face value.
It is important to note that
although several persons were interviewed none gave written statements except
the Grievant. None of those interviewed were under oath.
In the chain of command Sergeant
D. W. Gill made certain conclusions of fact and made recommendations to
Lieutenant S.B. Carpenter. Gill's information and conclusions were largely based
on information provided by O__ and videotape taken of the Grievant at the
Cleburne Jail. In his report Gill states M__ and A__ “have been less than
cooperative”. I would draw the same conclusion.
Gill also writes “Officer L__
drove his personal vehicle from the scene with W__ and I__ riding with him. At
some point, Officer L__ realized that he had left his cell phone at the bar...
He returned to the bar and went to his brother's pick-up. W__ and I__, who both
admitted to being intoxicated, stayed in Officer L__ 's vehicle”. The fight
then took place. That is not supported in any of the interviews or in
testimony. The Grievant did not drive away from the bar until after the fight.
The Grievant's vehicle did return to the bar but it was driven by W__ who was
alone.
Gill goes on to write “By all
witness accounts, M__ struck Officer L__ only one time or not at all”. He
writes that witnesses stated M__ simply kept his hands on the ground as the
Grievant pummeled him. He also writes the Grievant attempted to force M__ 's
eye. How does he know what the Grievant attempted or the intent of the
Grievant? Who were those witnesses? No evidence or testimony available to the
Hearing Examiner indicates there were any witnesses as to how the fight
started. We do have a statement from A__ that when she arrived at the scene the
Grievant was on top of M__. No one knows how many blows M__ struck, if any. No
witness came forth stating he witnessed the beginning of the fight. All we have
is what A__ observed.
Gill states that between 2100
hours and 0100 hours the Grievant consumed three Vicodin tablets, two strong
mixed drinks, an undetermined number of alcoholic lemon drinks at least three
beers. We do not know how “strong” the mixed drinks were. The Grievant admits having
one to three beers. He also admits to sipping the lemon favored drinks ordered
by W__. Gill gathers then that the Grievant was intoxicated. He relies also on
the findings of Ashton and Burris that the Grievant affects of alcohol. But
certainly in the five hours between 2000 and 0100 some of the alcohol consumed
would have been metabolized.
The consumption of alcohol certainly reflects poor judgement on the
part of the Grievant since he was due to report for duty at 0530.
Gill also concludes that the
Grievant “fled” the scene. The Grievant did drive away. There was no indication
that he did so at a high rate of speed nor that he “peeled rubber”. If he fled
to avoid an encounter with police that pre-disposes that he knew police were on
the way. He did send W__ back to the bar driving his personal vehicle to
retrieve his cell phone. Certainly he knew his vehicle and W__ would be
recognized and that W__ had been seen leaving with him.
It has been concluded that the
Grievant was hiding at the cemetery. Why would he hide unless he knew police
were searching for him? That had not been established.
Gill also states that after M__
was freed he ran into the bar and that the Grievant chased him into the bar to
further attack M__. That is not supported by the credible testimony or
statements. The credible testimony is that after M__ ran back into the bar the
Grievant and W__ spent some time searching for the Grievant's glasses. Neither
M__, A__ nor W__ stated the Grievant was back inside the bar after the
fight.
Captain Cook, also in the chain
of command, wrote Deputy Chief Kneblick making certain conclusions and
recommendations. Captain Cook also relied on information provided by O__ and
the video tape. He also referred to Sergeant Gill's findings, conclusions and
recommendations. His findings are substantially the same as Sergeant Gill's.
Thus I need not comment on them.
The Grievant asserts that the
charges are not legally sufficient.
Section 143.052 of the Texas
Local Government Code reads, in part:
(e)
The written statement filed by the department head with the commission must
point out each civil service rule alleged to have been violated by the
suspended fire fighter or police officer and must describe the alleged acts of the
person that the department head contends are in violation of the civil service
rules. It is not sufficient for the department head merely to refer to the
provisions of the rules alleged to have been violated.
The charges clearly state which
City of Fort Worth Firefighters and Police Officers Civil Service Rules and
regulations are alleged to have been violated. Too, the actions alleged to have
been committed which violate those rules are contained in the charges in
detail.
Obviously the purpose of Section 143.052(e) is so that the charged officer may prepare an adequate defense. That here has been met.
There appears to be some
allegation that the investigation leading to those charges was not conducted
adequately or completely. All identifiable witnesses were interviewed. The
investigation followed the acceptable internal police department procedures and
the conclusions and recommendations followed the established chain of command.
I have previously commented on what I perceive were the deficiencies in the
investigation.
But those deficiencies are not of
such a magnitude as to fatally flaw.
It may be true that an audiotape
of an interview with A__ was not provided to the Grievant prior to the hearing.
That is not enough to fatally taint the investigation or to inhibit the
Grievant from preparing for the arbitration. A copy of that tape was provided
the Grievant during the hearing and sufficient time was allowed the Grievant
during the hearing to listen to that tape.
The allegation that the Charges
were not legally sufficient is without merit.
The Grievant also alleges the
charges were not true.
I will now comment on each of the
charges.
A. Assault—family violence—striking and kicking his brother. By his own admission the Grievant was in a fight with his brother. He
admits on the video tape that he “beat the shit” out of his brother. The
Grievant claims he struck his brother in self-defense. The City claims the
Grievant was the aggressor. What we have is the Grievant claiming M__ was the
aggressor and M__ claiming the opposite. There were no witnesses who came forth
who saw the beginning of the fight. It is thus not possible to accurately
determine the aggressor.
Even A__ in her interview with
Investigator Jones said that when she arrived at the scene she heard the
Grievant say “Are you going to stop? Are you going to stop? If you stop I will
let you up.” That hardly supports a conclusion that the Grievant was the
aggressor.
Regardless of who started the fight the simple fact was there was an
assault.
Certainly, no one, including M__
who supports a claim that the Grievant kicked M__. A__ does admit she kicked
the Grievant in the head.
B. Cursing in a public place. The City claims the
Grievant re-entered the bar after the fight cursing and attempting to renew the
attack. I have previously commented that there is no convincing testimony or
evidence that the Grievant re-entered the bar after the attack. The videotape
shows the Grievant cursing at the Cleburne jail. The jail is a public place.
C. Fleeing the scene of the assault. My earlier comments
are appropriate here. Nothing convinces me he “fled”.
D. Hiding from police after fleeing the scene. I have previously stated the claim of “hiding” is not convincingly
supported.
E. Intoxicated while off duty in a public place. By his own admission the Grievant stated that between 2000 and 0130 he
consumed two mixed drinks, sipped some of W__ 's lemon flavored drinks,
consumed one to three beers and took as many as three Vicodin. Officers Ashton
and Burris smelled alcohol on the Grievant's breath. The video shows him
swaggering and talking loudly. Although Cleburne police gave neither a field
sobriety test nor a Breathalyzer that does not rule out intoxication. Perhaps a
more definite finding would be possible had either of the tests been made. The
Grievant was intoxicated.
I have always found the Chief to
be a highly honorable man who strives to do what his best for the public, the
Department and his officers. Yet the Chief must rely on his subordinates to
supply accurate, reliable and proven information. Here not all the information
upon which the Chief relied to make his decision was supportable by the facts,
as I have commented on above.
The Chief testified that it was not any one single charge which led him
to indefinitely suspend the Grievant but rather their totality.
Although I have commented on
these factors they must now be commented on again. The Chief stated he based
his decision in part because after the fight the Grievant chased M__ back into
the bar in an attempt to continue the assault. W__ testified that after M__ got
up from the ground and ran into the bar she helped the Grievant find his
glasses and then they left the scene. Neither M__ nor A__ stated the Grievant
re-entered the bar. The only ones who stated the Grievant re-entered the bar
were Thomas Wray and Tim Walker neither of whom signed any statement.
Wray and Walker are the same two
who stated W__ was afraid the Grievant was going to kill her. W__ denies she
was afraid of the Grievant. She voluntarily left the scene with the Grievant.
It is interesting that when O__ interviewed Wray on September 11, 2001 O__
begins with “We talked about an incident”. When did he previously talk to Wray?
Was that conversation recorded? If so, where is the transcript of that
conversation? There is no sworn statement by Wray.
Apparently Walker was interviewed
by telephone. Walker did not make a sworn statement.
In O__ 's interview with Chris
Gallop, Gallop stated the Grievant did not re-enter the bar. He, too, did not
make a sworn statement.
The Chief also testified that he
read statements from witnesses he saw the assault. That information provided
him was incorrect. The only one who testified they saw the assault was A__ who
came upon the scene after M__ was on the ground.
The Chief was also informed that
the Grievant attempted to gouge the eyes out of M__. That was supported only by
A__. M__ did have injury to the eyes but that does not support the allegation
that the Grievant intended to “rip the eyeball out” nor that he had his finger
in M__ 's eye socket.
I need not here repeat my
comments regarding the allegations that the Grievant “fled” the scene or was
“hiding” from the police.
· The Grievant did neglect his duty by cursing in a public place, the Cleburne jail.
Indefinite suspension is too harsh under the circumstances and
considering the discipline imposed on other officers.
The Grievant will be reinstated without undue delay. The period between
February 5, 2002 and the date of reinstatement will be classed as a
disciplinary suspension.
Award
The Charges are legally
sufficient.
There was no disparate
treatment.
Three of the charges are true as
alleged.
The Grievant neglected his
duty.
The Grievant was
intoxicated.
The Grievant was engaged in an
assault.
The indefinite suspension is too
harsh. The Grievant will be reinstated without undue delay. The period between
February 5, 2002 and the date of reinstatement will be classed as a
disciplinary suspension.
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