SAN MARINO SERGEANT’S
DEMOTION OVERTURNED
by Dieter C. Dammeier
Lackie & Dammeier LLP
Mark Harvey, a 14-year
veteran of the San Marino Police Department, was demoted from sergeant
to police officer for what the department claimed was "bad
performance" as a sergeant for eight years. Since the department
could not be specific on what conduct was justification for the
demotion, it raised a traffic incident where no damage occurred as the
"catalyst" for the demotion. To support its position, the
department utilized eight years worth of Harvey’s performance
evaluations to somehow portray Harvey as a "bad sergeant."
Supported by the Legal Defense Fund and this author, Harvey immediately
attacked the allegations.
The department attempting
to show that Harvey was a bad performing sergeant during his eight
years, dug out some "out of context" quotes from Harvey’s
performance evaluations. These unsupported factual allegations were
attacked on several fronts. Since the "bad performance" quotes
from evaluations spanned an eight-year period, we argued that the
one-year statute of limitations under the Public Safety Officers
Procedural Bill of Rights Act (Government Code §3304(d)) and the common
law principle of laches should preclude the department from utilizing
any material older than one year in justifying the demotion.
Additionally, we pointed out that progressive discipline was not
imposed. Chief of Police Arl Farris admitted in the hearing that Harvey
never received any discipline for "any performance in his capacity
as a sergeant." Farris could not provide reasons why, after eight
years of being "a bad sergeant", the department needed to
start on the discipline ladder at the level of demotion. The chief also
had problems explaining why he refused to listen to all of the other
sergeants in the department who went to his office to talk him out of
demoting Harvey who, in their opinions, had been a "good
sergeant."
Failing to overcome the
hurdles in showing Harvey as a "bad sergeant" the department
next turned to the traffic incident, what they deemed was the
"catalyst" for the demotion. Here also, the department was
confronted with numerous pitfalls, which proved fatal to its case.
First, a disparate treatment defense was produced at the hearing. I
demonstrated through reports and testimony the historical treatment of
minor traffic mishaps involving San Marino police officers and
sergeants. Even before the hearing started, the department attempted to
thwart this effort by refusing to deliver subpoenas to the officers
involved, claiming the statutory fee for peace officer subpoenas was not
submitted. After conclusively showing that the statutory subpoena fee
for peace officers was not applicable in administrative cases in which
the officers are employed by one of the parties, the department
reluctantly produced the witness officers. We established that, in the
few years proceeding Harvey’s incident, there were at least eight
other traffic collisions involving San Marino officers or sergeants. In
most of the incidents, a traffic collision report was not even taken,
and the harshest discipline imposed was a written reprimand. In fact, we
conclusively demonstrated that, in the entire history of the department,
no officer or sergeant had received discipline greater than a written
reprimand for being involved in an at fault traffic collision.
Most importantly, and
what ended up being the final blow to the department’s case, we showed
that the traffic incident involving Harvey did not even amount to a
"traffic collision." Expert testimony established that
pursuant to CHP guidelines, which San Marino follows, when there is no
injury or damage, there is no "traffic collision." The
incident involved Harvey, when attempting to respond to a "child
not breathing" call, slowly backing his patrol unit up in a school
parking lot and bumping a pole. This caused a minor paint transfer onto
the bumper, which was later buffed out by city maintenance mechanics.
The lieutenant who ordered a "traffic collision" report taken,
first testified that he did not authorize Harvey to have the bumper
buffed out, but when confronted with his own memorandum describing his
authorization to Harvey, he "corrected" his testimony. One of
the mechanics who buffed out the paint transfer, testified that there
were no scratches or dents on the bumper. The officer, who was ordered
to take a report indicated there was no damage to the pole that was
bumped. Even the school principal, who was present when the bump
occurred, indicated there was no damage and that she did not want
anything done.
The lieutenant could not
adequately explain why he ordered a "traffic collision" report
in this matter when he let other officers, who were in collisions where
actual damage occurred, get by without such a report or discipline. To
clarify the lieutenant’s motivation in this matter, former officers
and sergeants of the department were brought in to establish the
lieutenant’s propensity for bias toward Harvey. Harvey was the POA
president for several years and complained about this lieutenant on
numerous occasions. Testimony by several former officers and sergeants
established that this lieutenant was very vindictive when one voiced an
opinion contrary to his. Evidence established that the same lieutenant
was caught backdating memos issued to Harvey and later chastising him
for not timely completing work. It was also shown that the
vindictiveness became so disruptive that all of the sergeants got
together and went to the former chief of police to complain about this
lieutenant’s conduct toward Harvey. Why this lieutenant ordered the
"traffic collision" report taken, resulting in the discipline
in this matter, became very apparent.
The hearing officer held that the
appellant was not demoted for good cause and that he should be
reinstated to the rank of sergeant with full back pay and should receive
no discipline.
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