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Hearing Officer Exonerates Terminated Fontana K 9 Officer

HEARING OFFICER FINDS POBR AND SKELLY VIOLATIONS AND EXONERATES TERMINATED FONTANA K-9 OFFICER

What one officer learned: You never think it will happen to you. And then it does.

After a full evidentiary hearing before a neutral Hearing Officer, a Fontana Officer was exonerated of dishonesty charges, ordered returned to work, his removed K-9 partner ordered returned to him, and any potential mention of him on the county Brady list was recommended removed. The  four-day hearing took place with numerous witnesses called on both sides, and afterwards, the Hearing Officer found that a sergeant had intentionally violated the officer’s POBR rights by conducting an investigation without informing him that he was under investigation and his rights applied. Additionally, the Hearing Officer found that the Department failed to provide the officer with all of the materials upon which the matter was based, in violation of the tenants of Skelly v. Personnel Board.

While the Hearing Officer found the above violations, they were not the basis of the exoneration. After the very thorough hearing, it was clear the officer did not lie, and had no motivation to do so.

In this case, the officer went in on a different shift to assist with a search for another department.  After the search, the officer went with another K-9 officer to breakfast, and then to the K-9 training field. While at the K-9 field, he made the decision to get his patrol unit washed. He pushed the CAR WASH button to indicate to dispatch his intention, and shortly thereafter, was asked to return to the search site. As such, he never made it to the car wash. According to the Department, because he pushed the CAR WASH button while at the K-9 field, he was dishonest.

While in route to the search site, the shift sergeant decided to begin his investigation, asking dispatch to locate the officer via AVL. He then began to unlawfully interrogate him, asking him via MDC if he was at the car wash. He indicated he was not, and was en route to the search. Then the officer, tired from having worked 7+ hours on a shift he wasn’t accustomed to, apparently made a grave mistake. He misstated his cross-streets. Although the Department was aware this is a common occurrence (indeed, the supervising dispatcher testified it occurs more than twice a shift), the Department found this to be another example of dishonesty. He also attempted to convey which car wash he’d be going to, the one with the activation code. However, because as he was driving he typed the wrong tense, the Department found dishonesty. Throughout it all, the sergeant continued to interrogate of the officer as to his whereabouts, without ever advising of his rights.

The apparent final instance of dishonesty was that the officer had written the incorrect time on the car wash log (one that wasn’t even close to the time he pushed the CAR WASH button, and thus obviously a mistake). Due to the incorrect time, he was charged with falsifying documents.

Despite the ridiculousness of the allegations and easy common sense explanations (provided during his IA interview), and the POBR violations raised (also noticed to the Department during the IA interview) the officer was terminated.

After a review of the evidence against the officer, the neutral Hearing Officer found the officer deserved the benefit of the doubt, was not dishonest but made honest mistakes, and had no motive to be dishonest, as he was not even aware the sergeant was investigating him when he was being questioned. Additionally, the Hearing Officer found that the biased sergeant intentionally violated the officer’s POBR rights, and that the Department violated his Skellyrights.

The evidence presented to the Hearing Officer in the officer’s defense was shocking. While the Department accosted the officer for his mistakes, its own investigation was rife with bias and inaccuracies. For example, through cross-examination, it was learned a photo show-up was conducted with a civilian witness (the car wash clerk), who identified the wrong officer. While the officer in question never denied signing the log, the credibility and recollection of the civilian witness was relevant to the timing issue. However, the lead Internal Affairs investigator never mentioned the mis-ID of the other officer in his report. The other IA investigator who obtained the mis-ID never even wrote a report. Further, the lead investigator used AVL data that he was awarehad inaccuracies. IT specialists were interviewed by that investigator, but the information or witness statement was never included in the investigation packet, despite the logistics of the AVL not being common knowledge. The Hearing Officer also found that the Department violated the POBR rights of another officer during the course of the investigation.

In his almost 8 year career, the officer had no prior discipline, and was blindsided by the over-reaching and presumptive nature of the investigation. Indeed, the officer’s K-9 partner was of four years was permanently removed and reassigned the very day he was placed on administrative leave, before any investigation was undertaken. Thankfully, the Hearing Officer saw through to the truth and ordered this officer be made whole, and exonerated him of all charges.  The decision was advisory to the City Council, and the Council upheld his recommendation, albeit with the decision not to return the K-9 partner (on the basis that he served in that assignment at the discretion of the Chief). The officer has been returned to work and is grateful to his CASTILLO HARPER, APC attorneys for his vindication. Partner Kasey Castillo handled his administrative appeal, and attorney Joe Bolander worked with the City on on the issue of the officer’s back pay interest. However, this officer would like to thank all of his friends at CASTILLO HARPER, APC for their support and advocacy during this trying time in his life.

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