PORAC Law Enforcement News

2013-04 (April 2013)

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LEGAL DEFENSE REPORT Due Process Violations Result in Reinstatement and $188,000 Back–Pay Award for Menlo Park Police Detective SEAN D. HOWELL Associate Attorney Mastagni, Holstedt, Amick, Miller & Johnsen Detective Jeffrey Vasquez of the Menlo Park Police Department was reinstated and awarded full back pay by an arbitrator recently after a termination battle that lasted over a year. After a hearing in which we exposed numerous due process violations committed by former Police Chief Bryan Roberts, a commander, and the lead Internal Affairs investigator, Arbitrator James Margolin issued findings that the Department violated Vasquez's right to due process and the misconduct alleged was not supported by the evidence. Department Commits Skelly Violation The widely understood requirement that the Skelly hearing officer is not to be part of the investigation itself or embroiled in any way in the investigation of the employee is an axiomatic principle rarely violated to the extent seen in this case. The Department's commander oversaw, directed and was responsible for the investigation, received regular updates about the investigation from the lead Internal Affairs investigator, and in turn, briefed Chief Roberts before issuing the notice of proposed discipline. The commander briefed Roberts again before the Skelly hearing. To make matters worse, the Department acknowledged the same commander acted as the co-Skelly hearing officer with Chief Roberts during the pre-disciplinary hearing. The commander sat in on the Skelly hearing with Chief Roberts and participated in the decision to terminate Vasquez's 21-year employment after the hearing. Additionally, Chief Roberts directly embroiled himself in the investigation by contacting the chief of a neighboring department to generate further evidence against Detective Vasquez. At arbitration, the primary investigating officer from the neighboring department testified he was not planning on completing a crime report until he was ordered to do so by his supervisor nearly two weeks later. The officer stated his supervisor informed him the reason for the report at such a late date was because Menlo Park Chief Roberts made a request to the neighboring department's chief to do so. Chief Roberts' actions to request another police department generate a crime report to use as evidence against Vasquez in his administrative hearing, and then sit as the Skelly hearing officer, is in violation of the Skelly decision and Vasquez's right to predisciplinary due process. Arbitrator Finds Investigator Broke the Law During the investigation, the lead investigator surreptitiously recorded two witness interviews. The law enforcement exception to Penal Code Section 632, making it illegal to record a confidential conversation without permission or knowledge, does not extend to internal affairs investigators conducting a purely administrative investigation. The Department acknowledged it was only conducting an administrative investigation and went so far as to state as much on each of the illegally recorded interviews with the two witnesses. The lead investigator also violated Penal Code Section 832.7, which protects the confidentiality of peace officer personnel records. Violation of this section can be a misdemeanor. During the course of the investigation, the investigator disclosed Detective Vasquez's confidential information to at least one witness in an attempt to prompt the witness to provide specific information the investigators sought, rather than to provide a statement including exculpatory evidence. The lead investigator told a witness he was investigating Vasquez internally and described the subject matter of the investigation, which served to direct the witness to evidence useful to the predetermined outcome the Department sought: termination. More importantly, the investigator disclosed the name of the peace officer and the allegations against him, all of which were part of Vasquez's personnel file and could not be disseminated without proper authority, consent or court order. At the arbitration hearing, Chief Roberts admitted his lead investigator surreptitiously recorded witness statements, but only counseled the investigator and gave him further training. Arbitrator Margolin Finds No Just Cause for Discipline Arbitrator James Margolin issued his findings and ruling on August 30, 2012. He found the Department failed to prove the allegations against Vasquez by a "clear and convincing" standard, as well as by a "preponderance of evidence." Arbitrator Margolin further ordered full back pay, which amounted to approximately $188,000.00. The City is currently searching for a permanent replacement for Chief Bryan Roberts, who resigned shortly after the conclusion of the arbitration proceeding. The City of Menlo Park hired an interim police chief, who took the appropriate steps to return Vasquez to work. Vasquez is grateful to the PORAC Legal Defense Fund for its support and is happy to have his career back and to begin working with the new chief as well as all of his friends and co-workers at the Department. About the Author Sean D. Howell is an associate attorney with Mastagni, Holstedt, Amick, Miller & Johnsen. He represented Jeffrey Vasquez in his administrative appeal. APRIL 2013 27

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