HBPOA AWARDED SANCTIONS
AGAINST CHIEF OF POLICE AND CITY SETTLES CASE ALLEGING VIOLATION OF
OFFICER BILL OF RIGHTS
The Hermosa Beach Police
Officers Association and its President Bruce Phillips, with the support
of the PORAC Legal Defense Fund, filed suit in Superior Court against
the city of Hermosa Beach, the Hermosa Beach Police Department and the
chief of police. The POA contended that the defendants violated the
rights of the association and Phillips under Government Code §3300, et
seq. (Peace Officers Procedural Bill of Rights), Government Code §3500,
et seq. (Meyer-Milias-Brown Act), and the rules and regulations of the
city of Hermosa Beach and the Hermosa Beach Police Department.
The facts of the case
were uncontested. Phillips was charged with allegations of off-duty
misconduct. He was fueling his vehicle when a citizen contacted him. The
citizen noticed that Phillips was carrying a handgun in a holster on his
waist and asked if he was a police officer. Phillips responded that he
was. Thereafter, the citizen initiated a verbal exchange about Phillips
discarding a cigarette butt. The citizen contacted the department to
complain about inappropriate conduct by Phillips, whom she believed to
be an on-duty, plain clothes police officer from another department.
On June 14, 2000,
Phillips was ordered to appear for an internal affairs interview. The
internal affairs investigator initially said that the only thing being
investigated was his display of his weapon while off-duty. This was
confirmed during the interview.
On August 9, 2000,
Phillips was subjected to a second interview regarding the same incident
and complaint. The focus of the investigation changed. Phillips was
advised that while he was off-duty, he represented himself as a police
officer and now the issue was the verbal exchange with the complainant.
Phillips was not given prior notice of who would be attending the second
interview, but upon arrival found out that a lieutenant who openly
disliked Phillips, was now conducting the interview. Phillips was shown
a synopsis of his first statement and was provided a copy of the tape
recording of the first interview. When Phillips began to listen to the
tape, the investigators demanded that he hurry. Phillips clearly was not
given adequate time to fully review the tape recording.
On August 30, 2000, the
chief of police, who also did not like Phillips, found misconduct based
on Phillips’ comments made during the off-duty verbal exchange with
the complainant. Phillips was not, however, disciplined for having his
weapon visible to the public.
On September 1, Phillips,
via his attorney, LDF panel attorney Corey Glave of Goldwasser &
Glave, requested a hearing. Prior to the Skelly hearing Phillips
was given the Notice of Proposed Discipline, an Investigation
Summary/Recommendation, and the Personnel Complaint Investigation,
including a copy of the tape recordings. The materials did not include
the videotape of the complainant statement, the copy of the "photo
line up" shown to the complainant, or any notice of the granting of
an extension of time to conduct the investigation. (In Hermosa Beach,
the police department is provided 30 days to complete its internal
investigations or the investigator must ask for an extension of time).
On September 13, at the
time of the Skelly hearing, Glave asked the chief if he had
provided Phillips with all documents from the investigation and all
documents that he used to form his decision to discipline Phillips. The
chief indicated that Phillips had been provided all documentation with
one exception. The chief advised that in deciding the appropriate
discipline, he considered a document that was part of Phillips’
personnel file, but that he had not provided it to Phillips. Phillips
had not been told that the document was included in his personnel file
and had not been given the opportunity to file a response to said
document.
During the Skelly
hearing, Glave asserted that Phillips’ rights under Government Code
§3300, et seq. had been violated and that the department was in
violation of both city and departmental disciplinary rules and
regulations. Phillips also provided factual arguments against the
proposed disciplinary action. The chief was unmoved.
The POA and Phillips
filed suit. Phillips contended that his rights under Government Code
§3303(b) (prior notice of the rank, name, and command of the officer in
charge of the interrogation, the interrogating officers, and all other
persons to be present during the interrogation); §3303(c) (prior notice
of the nature of the investigation); and §3303(g) (if a tape recording
is made of the interrogation, the public safety officer shall have
access to the tape if any further proceedings are contemplated, or prior
to any further interrogation at a subsequent time, and that the officer
shall be entitled to a transcribed copy of any notes made by a
stenographer or to any reports or complaints made by investigators or
other persons, except those which are deemed by the investigating agency
to be confidential).
Glave asserted that the
California Supreme Court ruled that Government Code of section 3303(g)
generally provides for recording the interrogation of an officer who is
under administrative investigation. Although it grants the officer
access to tape recordings or transcribed notes of the interrogation
"if any further proceedings are contemplated or prior to any
further interrogation at a subsequent time," it does not specify
when that access must be given. The recordings and notes memorialize the
interrogation. It follows, therefore, that access to them would be after
the interrogation. Thus, with respect to recordings and notes,
subdivision (g) must be read to provide for their production after the
first interrogation.
Phillips further
contended that his rights under §3304(f) (employer must notify employee
in writing of the date that the discipline would be imposed, within 30
days of the decision to implement discipline); §3305 (no public safety
officer shall have any comment adverse to his interest entered in his
personnel file, or any other file used for any personnel purposes by his
employer, without the public safety officer having first read and signed
the instrument containing the adverse comment indicating he is aware of
such comment); and §3304(b) (no punitive action shall be undertaken by
any public agency against any public safety officer without providing
the public safety officer with an opportunity for administrative
appeal).
The POA contended that
the association’s rights under Government Code §3500 had been
violated. Government Code §3500. et seq., provides that public agencies
shall not interfere with, intimidate, restrain, coerce or discriminate
against public employees because of their exercise of their rights under
this section. By failing to properly notify Phillips and his
representative of the true nature of the investigation, the names and
identities of all persons to be present during the interviews, failing
to provide required materials, and failing to follow agreed upon
investigatory and disciplinary processes, the police department actions
had a negative impact on the HBPOA's ability to represent its members.
Consequently, these actions interfered with and restrained the ability
of the Hermosa Beach Police Officers’ Association to properly
represent one of its members
Glave aggressively
pursued discovery. The law firm representing the city employed at least
five attorneys to work on the case, but refused to produce witnesses for
deposition and to properly respond to Glave’s discovery requests.
Glave was forced to seek the court’s assistance. The court ordered
sanctions against the chief of police and against the city’s law firm.
With motions for
sanctions pending against the city and its attorney, and with the threat
of legal action against the city for retaliation, the city, via its new
chief of police, settled the case. The city agreed, in pertinent part,
to give Phillips a "clean slate" regarding his employment with
the city of Hermosa Beach. Specifically, the city agreed that Phillips’
recent disciplinary actions shall not be considered or taken into
account in the event Phillips is involved in any future disciplinary
actions resulting in any type of discipline being imposed at the present
time or in the future. Furthermore, the city agreed that any and all of
records of discipline or disciplinary actions against Phillips, that
occurred or may have occurred prior to September 1996 (which constituted
all actions not specifically part of the settlement agreement), will not
and shall not be considered or taken into account in the event Phillips
is involved in any future disciplinary actions. The city also agreed to
reimburse Phillips for 52 hours of lost wages due to the disciplinary
actions covered by the agreement.
The new chief of police
also agreed that he and his staff would meet with members of the board
of directors of the Hermosa Beach Police Officers’ Association in
order to review and re-write the Policy and Procedures for Personnel
Complaint Investigations. The parties agreed that the intent of these
meetings will be to develop a more effective and efficient procedure for
conducting personnel complaint investigations that is fair to all
parties and that is in accordance with current laws and industry
practices.
Both the HBPOA and Bruce
Phillips undertook this action to rectify what they perceived were
abusive practices that were occurring during the disciplinary processes
at the department. It is the sincere desire of the HBPOA that this case
will solve these problems and that the department will act in good faith
in restructuring and re-developing its investigatory processes.
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