Adelanto is a small community along Highway 395 in
southern California's high desert. In April 1996, a recall election of
Adelanto's City Council created a new majority of council members who
were not happy with the way the police department was being managed.
The newly constituted council met in closed session
immediately after having been sworn in to discuss the fate of its police
department managers. It decided to get rid of Chief of Police Robert
Gardner, and his captain, David Gundersen.
Soon after the meeting, Chief Gardner and
Captain Gundersen were placed on administrative leave. Also put on leave
were Gundersen's wife, who was a police dispatcher at the time, and
Detective Doug Hubbard, a close friend of Gardner and the Gundersens.
Mrs. Gundersen and Detective Hubbard were apparently
placed on administrative leave out of concern that they would impede the
investigation, although they were never officially told of the reasons
for their placement on administrative leave.
The city embarked on what could charitably be
described as a "fishing expectation" by soliciting complaints
from dissident employees. However, no investigation took place - at
least not in the traditional sense.
No effort was made to follow up on any of the
information provided by the employees. In one instance, where Gundersen
was accused of stealing something from a seized vehicle, no effort was
made to locate the police report involved, the owner of the truck, or
identify the property in question.
Later it was determined that the incident never
occurred. Similar allegations with no factual basis were alleged against
the other suspended employees.
Later, most of the witnesses who had repeated the
rumors to the city attorneys recanted their stories, stating that they
were under pressure by the Interim chief of police to cooperate so as to
"guarantee the employees' termination ' " In the meantime, the
City Attorney's Office thought it might be a good idea to interrogate
the three employees to learn their side of the story.
Interrogations were set to be conducted at the law
offices of the employees' attorney, Michael D. Lackie. Upon arrival, the
city’s representatives announced that they wanted to settle the case
and a settlement was reached.
However, and for reasons that are not clear, the City
Council rejected the settlement and ordered the city attorney to
terminate the employees notwithstanding the complete lack of evidence to
do so.
At this stage, the allegations against Captain
Gundersen ranged from theft of a department weapon (although a
description of the weapon, its serial number, and date of
misappropriation were not alleged), to failure to supervise employees
(although those employees were, of course, his wife and Hubbard).
The allegations against Hubbard included using a
department vehicle to tow his boat to the river (although there were no
witnesses to this), to parking in a handicap zone and refusing to move
the vehicle when so ordered (even though the witnesses to this incident
indicated that he promptly moved his vehicle when asked).
The only allegations against Margaret Gundersen were
that she was occasionally rude to other employees when they had
"badmouthed" her husband. Essentially, she was being punished
for being married to the captain.
In the meantime, the city, in realizing that they no
case against these employees, decided to put together a criminal case
against Captain Gundersen.
The interim chief ordered one of his lieutenants to
prepare a search warrant for Gundersen's residence on the basis that he
had a suspicious looking vehicle in his backyard.
The theory was that this vehicle was believed to have
been seized during a search warrant and was not properly in Gundersen's
possession. However, the lieutenant knew that he might be liable for an
unlawful search, so he ordered one of his officers, whose credibility
was very high in the community, to write the search warrant.
That officer initially refused to do so but,
under threat of insubordination, prepared the search warrant. When the
search warrant was executed, Gundersen's house was thoroughly searched
with very little time being spent investigating the suspicious vehicle.
Documents, computers, boxes of paperwork and letters
between Lackie and Gundersen were seized from his residence. All kinds
of property completely unrelated to the search warrant and involving no
crime whatsoever were collected.
The officers at the scene decided, in light of
the fact there was no evidence of criminal misconduct at the time of the
search, to not place Gundersen under arrest and instead further
investigate the matter.
They wanted to have the District Attorney's Office
review the matter before making an arrest. However, they were ordered to
arrest Gundersen.
When it was time to transport Gundersen to the police
station, an officer radioed to the station that he was en route. The
local media was notified to get over to the station because David
Gundersen would arrive in handcuffs.
When the unit arrived at the station, the officer
parked directly in front of the station, pulled Gundersen out and the
strobe lights started flashing. He was kept outside the police
department for the exclusive photo opportunity.
While inside the station, he was chained to a railing
in the holding cell. One photographer wanted a photo of that scene and
the department obliged by allowing the photographer into the holding
cell so that a photo of Gundersen could be taken. Page One
headlines and photos were common-place for nearly a month.
Lackie immediately petitioned the court for
appointment of a special master to review the evidence claimed to be
protected by the attorney-client privilege. The special master
determined that Gundersen's computer contained documents protected by
the attorney-client privilege and ordered that the materials be secured
until they could be jointly reviewed by Lackie and the Deputy District
Attorney.
Eventually the computer was released to Gundersen as
being completely unrelated to the investigation.
The matter was eventually referred to the District
Attorneys Office. The Deputy District Attorney assigned to the case
quickly rejected all of the allegations, except for one involving the
suspicious-looking vehicle in Gundersen's backyard. An ensuing
investigation by San Bernardino County IA investigators resulted in
uncovering no evidence of wrongdoing and the complaint request was
rejected.
NEVERTHELESS THE CITY decided to go forward with
the termination of the employees, primarily for insubordination on the
basis of their refusal to answer questions until Lackie arrived during a
botched interrogation. Keep in mind that the employees appeared on three
separate occasions to be interrogated and each completed a full and
far-reaching interrogation one month after the sham interrogation.
The city also chose to allege other misconduct
against each of the employees, none of which had any evidentiary support
and were, in fact, false.
In Adelanto, the city council hears post-discipline
appeals. However, this particular city council had already made plain
its bias and prejudice against the employees, which in large part was
established when the city council gave direction to the investigators
that the only acceptable discipline would be termination of employment.
Lackie appeared before the city council and
successfully argued that independent hearing officers must be appointed
to hear the employees' post-termination appeals. Three sets of
evidentiary hearings were scheduled.
Margaret Gundersen's appeal hearing consisted
primarily of allegations that she was discourteous to superior officers.
However, the defense evidence strongly suggested that her only mistake
was being married to the police captain.
During the second day of testimony, the city
offered to end the dispute by suspending Mrs. Gundersen for eight hours
and reinstating her with full back pay and benefits. The offer was
accepted with the misconduct being that she accused a lieutenant of
lying.
Doug Hubbard's hearing went the full course,
resulting in a written decision. The defense argued that Hubbard's
situation was nothing less than political retribution. His misfortune
was being an ardent supporter of then-Chief Gardner and Captain
Gundersen.
The hearing officer found that none of the
allegations were sustainable except for a single misuse of a city
vehicle in which he allowed a civilian friend to accompany him on a trip
that otherwise would have been permissible under then-city policy. For
that transgression, Hubbard received a brief suspension. However, he was
reinstated to his prior position with full back pay and benefits.
Gundersen's hearing was a lengthy and tumultuous
affair. After several days of hearing, Mr. Corrado was removed as city
attorney and Richard Ewanszyck was installed as the new city attorney.
Ewanszyck reviewed the case against Gundersen
and concluded that there was no purpose in going forward on any of the
allegations.
Under pressure from Hearing Officer Doug Collins, the
parties negotiated a settlement covering both the administrative
proceedings and a threatened lawsuit.
Gundersen's attorney then applied to the city and the
District Attorney's Office for a determination of factual innocence,
which was granted and favorably acted upon by the Department of Justice.
The terms of Gundersen's settlement agreement are, for the most part,
confidential.
However, he is permitted to reveal to prospective
employers certain documents which demonstrate that he did nothing
wrong, in addition to being able to establish that he was factually
innocent of criminal wrong-doing. In addition, Gundersen received a six
figure settlement for back wages and to end the pending litigation.
With respect to the insubordination issue, the
hearing officer for Hubbard's evidentiary hearing remarked in her
opinion that "the principle that noncompliance with an employer's
orders may constitute insubordination amounting to misconduct [is
applicable] only if those orders are both lawful and reasonable ... It
is a puzzlement why the city insisted on proceeding with the
interrogation, particularly when informed that Lackie was on his way ...
The arbitrator agrees ... that the city should
not have proceeded with the [interrogation]. Hubbard was entitled to
counsel, and therefore the order to answer questions was in violation of
section 3303 of the Government Code as well as relevant case law.
Michael D. Lackie is a Legal Defense Fund panel
attorney with the law firm of Lackie & Dammeier LLP located in
Rancho Cucamonga, California, where he specializes in representing low
enforcement officers and their associations.
