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HomeMy WebLinkAboutAdministrative Record Part 7ARBITRATION, VOL. 9, 10-2-15 10/2/2015 McDANIEL REPORTING Page: 1899 1 A. Yes. 2 Q. What were your stats like? 3 A. Um, I think I pride myself on being active. 4 That's what the community expects. So I think, by far, 5 we had one of the more active units for a patrol, slash, 6 specialty unit for proactivity. We enjoyed our job. We 7 liked it. 8 Q. Would you be surprised that it would be the 9 opinion of Sergeant Pfarr that Officer Waddell was not 10 proactive while he was on the downtown bike patrol? 11 MR. PALMER: Objection. Relevance. This 12 witness talked about the bike patrol, not the CAT shift. 13 They're two different types of shifts. 14 THE HEARING OFFICER: I'm going to allow that. 15 I'm not sure if you can tie that up, but I'm going to 16 allow it in this case. Go ahead. You can answer. 17 THE WITNESS: I would be surprised by that, 18 yeah. I think we were pretty active. 19 BY MS. CASTILLO: 20 Q. Would you also work CAT? 21 A. Yes. 22 Q. So when you worked with CAT with an officer and 23 Sergeant Pfarr was the supervisor, would you -- would 24 you be surprised if you heard that that was the opinion, 25 that there was no proactivity going on with Officer Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 2996 ARBITRATION, VOL. 9, 10-2-15 10/2/2015 McDANIEL REPORTING Page: 1900 1 Waddell? 2 A. Would I be surprised? I wasn't working with 3 Officer Waddell every CAT shift. So I don't know that, 4 specifically. I can't say, but on the shifts that I 5 worked with him, the couple that I did work, we were 6 very proactive and we had a lot of contacts during our 7 shift. 8 Q. Would all those contacts be reflected over the 9 radio? 10 A. Not all of them, no. 11 Q. Is that indicative of how busy you are? 12 A. It just depends, yeah. So, I mean, yes and no. 13 It just depends. 14 Q. Did you turn in all of your statistics? 15 A. I believe so, yeah. We usually send an e-mail 16 to the lieutenant at the end of our shift the 17 proactivity and what our results were that day in 18 regards to the shift. 19 Q. Did everyone do that? 20 A. I believe so. It was part of the requirement, 21 but I'm not 100 percent sure on that. 22 Q. Do you know what the lieutenant did with it? 23 A. I do not know. 24 Q. Did you work as much overtime as Officer 25 Waddell did, roughly, in 2013, if you know? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 2997 ARBITRATION, VOL. 9, 10-2-15 10/2/2015 McDANIEL REPORTING Page: 1901 1 A. No, I did not. 2 Q. Did anyone work as much overtime as 3 Officer Waddell? 4 A. I don't know if they did, but I didn't, for 5 sure. 6 MS. CASTILLO: Nothing further. 7 THE HEARING OFFICER: Anything on cross? 8 MR. PALMER: Nothing. 9 THE HEARING OFFICER: Can we excuse Officer 10 Inglehart? 11 MS. CASTILLO: Yes. 12 THE HEARING OFFICER: You're excused, Officer. 13 Thanks so much for joining us. Appreciate your time. 14 THE WITNESS: Thanks. 15 THE HEARING OFFICER: Off the record. 16 (Discussion off the record.) 17 THE HEARING OFFICER: We are marking, as our 18 next exhibit, Appellant's NN. It's a memorandum dated 19 July 22nd, 2014, to Sergeant Pfarr from Chief Gesell. 20 It's regarding reprimand for failure to supervise. I 21 take it, there's no objection to the admission of this 22 document? 23 MR. PALMER: No objection. 24 THE HEARING OFFICER: Without objection, NN is 25 admitted. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 2998 ARBITRATION, VOL. 9, 10-2-15 10/2/2015 McDANIEL REPORTING Page: 1902 1 It looks like we're done for today. We're 2 going to stand in recess until our scheduled date on 3 Tuesday. Upon reflection, the parties agree that they 4 will not need Sunday's date, after all, but we do 5 appreciate Ms. Castillo making herself available for 6 that. It looks like we can finish on Tuesday, October 7 6th, and we're going to plan to do so, and that will be 8 it for today. Anything else? 9 MR. PALMER: No. 10 THE HEARING OFFICER: Thank you. 11 (The proceedings adjourned at 4:07 p.m.) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 2999 ARBITRATION, VOL. 9, 10-2-15 10/2/2015 McDANIEL REPORTING Page: 1903 1 REPORTER'S CERTIFICATE 2 3 STATE OF CALIFORNIA) SS. 4 5 I, MELISSA PLOOY, Certified Shorthand Reporter, 6 court reporter pro tem for the State of California, 7 County of San Luis Obispo, holding Certified Shorthand 8 Reporter License No. 13068, do hereby certify: 9 That the aforementioned court proceedings was 10 reported by me by the use of computer shorthand at the 11 time and place herein stated and thereafter transcribed 12 into writing under my direction. 13 I further certify that I am neither financially 14 interested in this action nor a relative or employee of 15 any attorney or any of the parties hereto. 16 In compliance with Section 8016 of the Business and 17 Professions Code, I certify under penalty of perjury 18 that I am a Certified Shorthand Reporter with California 19 CSR License No. 13068 in full force and effect. 20 Witness my hand this 19th day of October, 2015. 21 22 _____________________________________ 23 MELISSA PLOOY, CSR NO. 13068 24 25 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3000 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1904 BEFORE THE CITY COUNCIL OF THE CITY OF SAN LUIS OBISPO In the Matter of the Appeal ) of the Dismissal of ) OFFICER KEVIN WADDELL, ) Appellant, ) and ) CSMCS Case No. ARB-14-0209 POLICE DEPARTMENT OF THE ) CITY OF SAN LUIS OBISPO, ) VOLUME X PAGES 1904- 2005 Hiring Authority. ) TRANSCRIPT OF PROCEEDINGS SAN LUIS OBISPO, CALIFORNIA TUESDAY, OCTOBER 6, 2015 8:19 A.M. - 11: 34 A.M. REPORTED BY MELISSA PLOOY, CSR #13068 MCDANIEL REPORTING Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3001 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1905 1 THE TRANSCRIPT OF PROCEEDINGS WAS TAKEN AT THE 2 COMMUNITY DEVELOPMENT DEPARTMENT, 919 PALM STREET, 3 CONFERENCE ROOM ONE, SAN LUIS OBISPO, CALIFORNIA, BEFORE 4 MELISSA PLOOY, A CERTIFIED SHORTHAND REPORTER IN AND FOR 5 THE STATE OF CALIFORNIA, ON TUESDAY, OCTOBER 6, 2015, 6 COMMENCING AT THE HOUR OF 8:19 A.M. 7 8 APPEARANCES OF COUNSEL 9 HEARING OFFICER: 10 SOUTHWESTERN LAW SCHOOL BY: CHRISTOPHER DAVID RUIZ CAMERON 11 PROFESSOR OF LAW 3050 WILSHIRE BOULEVARD 12 LOS ANGELES, CALIFORNIA 90010 213) 738-6749 13 CCAMERON@SWLAW.EDU 14 FOR THE APPELLANT: 15 CASTILLO HARPER, APC BY: KASEY A. CASTILLO, ESQ. 16 3333 CONCOURS STREET BUILDING 4, SUITE 4100 17 ONTARIO, CALIFORNIA 91764 909) 466-5600 18 KASEY@CASTILLOHARPER.COM 19 FOR THE HIRING AUTHORITY: 20 JONES & MAYER BY: GREGORY P. PALMER, ESQ. 21 3777 NORTH HARBOR BOULEVARD FULLERTON, CALIFORNIA 92835 22 (714) 446-1400 GPP@JONES-MAYER.COM 23 24 ALSO PRESENT: LAURA WADDELL, CAPTAIN CHRIS STALEY, CHRISTINE DIETRICK 25 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3002 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1906 1 I N D E X 2 WITNESS DIRECT CROSS REDIRECT RECROSS 3 LT. JOHN BLEDSOE 1909 1926 1928 -- 4 KEVIN WADDELL 1930 1940 1957 -- 5 6 REBUTTAL WITNESS DIRECT CROSS REDIRECT RECROSS 7 LT. JEFF SMITH 1958 1960 -- -- 8 CAPTAIN CHRIS STALEY 1966 1972 -- -- 9 CHRISTINE DIETRICK 1980 1982 1997 -- 10 11 SURREBUTTAL WITNESS DIRECT CROSS REDIRECT RECROSS 12 KEVIN WADDELL 1999 -- -- -- 13 CHRISTINE DIETRICK 2001 2002 -- -- 14 15 I N D E X T O E X H I B I T S 16 APPELLANT'S MARKED ADMITTED 17 EXHIBIT CC -- 1908 18 EXHIBIT OO 1921 1929 19 EXHIBIT PP 1928 1929 20 EXHIBIT QQ 1934 1940 21 EXHIBIT RR 1938 1940 22 23 24 25 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3003 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1907 1 INDEX TO EXHIBITS, CONTINUED 2 DEPARTMENT'S MARKED ADMITTED 3 EXHIBIT 4 -- 1908 4 EXHIBIT 5 -- 1908 5 EXHIBIT 6 -- 1908 6 EXHIBIT 24 1966 1977 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3004 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1908 1 THE HEARING OFFICER: Good morning, everybody. 2 It's -- what's today -- Tuesday, October 6, 2015. We're 3 here for day 11 of the appeal of the termination of 4 Officer Waddell. This is CSMCS Case Number ARB-14-0209. 5 One item of preliminary business before we get 6 to our first witness. We had a discussion about three 7 outstanding documents offered by the department, 8 Department's 4, 5 and 6. Without objection, those are 9 admitted into the record. 10 And with respect to Appellant's CC, that's also 11 admitted, and I think that takes care of all the 12 outstanding exhibits, at least, what has been offered so 13 far. 14 Is that everyone's understanding? 15 MR. PALMER: Yes. 16 MS. CASTILLO: Yes. 17 THE HEARING OFFICER: Very good. Thank you. 18 All right. I think we're ready for the 19 appellant's first witness today; is that right, 20 Ms. Castillo? 21 MS. CASTILLO: Yes. Thank you. 22 THE HEARING OFFICER: Very good. 23 Lieutenant Bledsoe, you testified earlier. So 24 you realize you're still under oath? 25 THE WITNESS: Yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3005 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1909 1 THE HEARING OFFICER: Thank you very much. You 2 may proceed. 3 MS. CASTILLO: Thank you. 4 5 DIRECT EXAMINATION 6 BY MS. CASTILLO: 7 Q. Good morning. 8 A. Good morning. 9 Q. I have just a couple of follow-up questions 10 from the last time you were here. 11 Your internal affairs investigation of my 12 client was completed on December 16th; is that right? 13 A. Yes. 14 Q. Okay. And what have you reviewed since last 15 time you testified? 16 A. I reviewed my report that I completed and I 17 reviewed the transcripts of the interview with Officer 18 Waddell and my interview with Lieutenant Proll, or, 19 rather, his interview with me, Lieutenant Proll's 20 interview with me. 21 Q. Okay. And, originally, your internal affairs 22 investigation was addressed to Captain Storton, correct? 23 A. I believe so, yes. 24 Q. And then, at some point, it was changed to 25 Captain Staley? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3006 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1910 1 A. Yes. 2 Q. Do you know at what point that was? 3 A. I don't recall, specifically, no. 4 Q. Do you know why? 5 A. Because Captain Staley was in charge of 6 operations, which is where Officer Waddell was working 7 at that time under that umbrella of operations. 8 Q. Okay. Did you have any drafts of your 9 investigation that were returned to you or reviewed by 10 the command staff? 11 A. I think -- not that I remember, no. I think my 12 final draft went in and did not come back for any 13 approvals or additions. 14 Q. Okay. Were you ever contacted to do any 15 additional work on your investigation? 16 A. Since when? 17 Q. Well, since it was submitted. 18 A. I conducted investigations on my own. I wasn't 19 given direction to do further investigation. 20 Q. Okay. After Sergeant Pfarr came to you at 21 detective promotion time about the Bentley incident, did 22 you talk to Sergeant Amoroso about your negative opinion 23 about Officer Waddell? 24 A. I don't remember having a conversation with 25 Sergeant Amoroso. I may have, but I don't remember a Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3007 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1911 1 specific conversation with him about that. 2 Q. You don't remember having a conversation with 3 him in September about believing that Officer Waddell 4 was untrustworthy or dishonest around the time of 5 detective selection or promotion time in September? 6 A. I don't remember that conversation, no. 7 Q. Do you remember having the conversation with 8 Sergeant Pfarr about Officer Waddell and the Bentley 9 incident around September? 10 A. It was in my office just prior to this 11 investigation, yes. 12 Q. In September? 13 A. It was probably somewhere before this 14 investigation. I'm not sure what -- what month it was, 15 but it was just prior to... 16 Q. So prior to -- 17 A. I don't remember what the time frame of that 18 investigation or that conversation was. It was prior to 19 the testing process for detectives. 20 Q. Okay. And then it was prior to you being 21 assigned the CAT investigation, correct? 22 A. Yes. 23 Q. Is there a reason, then, that you didn't recuse 24 yourself from being assigned the CAT investigation with 25 that information in your head? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3008 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1912 1 A. I didn't know that there was another 2 investigation going on with the Bentley. 3 Q. Right. So once you then -- well, but you 4 knew -- but you had that information, so then once you 5 were assigned the CAT investigation, even though there 6 was not a formal Bentley investigation at that time? 7 A. Yeah. I didn't understand the question. 8 Q. Okay. You obtained information from Sergeant 9 Pfarr about the Bentley incident, right? 10 A. Yes. 11 Q. Okay. Then you were assigned the CAT 12 investigation, right? 13 A. Yes. 14 Q. Okay. And so you already had this idea about 15 Officer Waddell in your head from Sergeant Pfarr, right? 16 A. I didn't have any opinion of that case. I 17 didn't know anything about it, other than what Sergeant 18 Pfarr had told me, and he was unsure at that time, too. 19 Q. So your testimony today is that you had not 20 developed an opinion? 21 A. I did not. If I had -- no, I did not. That's 22 why I informed him to bring it to Lieutenant Smith. 23 Q. You don't remember what you testified last time 24 you were here -- 25 A. No. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3009 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1913 1 Q. -- about your opinions? 2 A. Not exactly -- 3 Q. Okay. 4 A. -- about that case, no. 5 Q. Okay. Or about Officer Waddell? 6 A. Not about that case. 7 Q. Okay. No. I'm saying or about Officer 8 Waddell? 9 A. In which case? 10 Q. Nevermind. 11 Do you remember being given a Lexipol policy 12 format or template to follow for constructing findings 13 and recommendations at the time that you drafted your 14 internal affairs investigation? 15 A. No. 16 Q. Prior to investigation that you were assigned 17 for the CAT incident, when was the last time you had 18 conducted an internal affairs investigation? 19 A. Without going back and reviewing my IA files, 20 I'd have to -- I couldn't give you a specific time. A 21 few months probably, several months. 22 Q. Have there been any changes to the policy, that 23 you're aware of? 24 A. Not the policy, that I'm aware of. 25 Q. Or the protocol or the formatting? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3010 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1914 1 A. Just the format of the report, itself. 2 Q. There have been? 3 A. I believe so. 4 Q. And what was it? 5 A. It was just the way that the report, itself, 6 was formatted. 7 Q. Okay. And can you describe that? 8 A. It was a different format. They had different 9 headings, the headings were different, and -- not the 10 content or the investigation, but I think it was more so 11 the headings is what was different in that. 12 Q. And how so? 13 A. They were just organized differently and had 14 different verbiage, I believe. 15 Q. Okay. And so -- and it had changed your -- 16 your testimony is it had changed in the last month? 17 A. I don't -- I can't give you a time. I don't 18 know. 19 Q. Last year? 20 A. Probably within a year, yeah, I'd say so. 21 Q. At the time of your internal affairs 22 investigation of Officer Waddell, were you assisting 23 Lieutenant Proll with his writing of his investigation 24 of Officer Waddell? 25 A. No. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3011 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1915 1 Q. Were you assisting him with his formatting of 2 his investigation of Officer Waddell? 3 A. I was not assisting him with it, no. 4 Q. Were you aware that, as part of Officer 5 Waddell's -- or the investigation into Officer Waddell, 6 the department was looking into his assignment as the -- 7 an individual who was in charge of the DRMO inventory? 8 A. Was I aware that the department -- I'm sorry. 9 Could you repeat that? 10 Q. Were you aware that, during the investigation 11 into Officer Waddell, the department looked into Officer 12 Waddell and his participation in the DRMO program? 13 A. I was not aware of that. I knew he was 14 involved in that, but I wasn't aware that the department 15 was looking into that. 16 Q. What was your understanding of Officer 17 Waddell's role in the DRMO program? 18 A. I knew that him and Officer Berrios were 19 working together as far as obtaining equipment from the 20 military and they'd make frequent trips down to Southern 21 California to obtain some of the equipment that was 22 given out for that program. I don't know much more 23 about it, other than that. He'd be lent our van -- the 24 department's van to go down and receive the property. I 25 believe it was from Camp Pendleton area. Other than Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3012 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1916 1 that, I don't know too much about the program, itself. 2 Q. Were you aware that it was Officer Waddell's 3 responsibility to inventory the DRMO property? 4 A. I'm not sure what his responsibilities were 5 with that program. I was somewhat unfamiliar with how 6 the program operated. 7 Q. Throughout the course of the investigation into 8 Officer Waddell's two instances, he was asked multiple 9 questions about DRMO and it was alleged that, 10 potentially, some of the items that he was taking were, 11 maybe, stored in the DRMO lockers or storage area. 12 On the day that you served him the notice for 13 his CAT IA, he was shown a photograph that you were 14 taking boots from the DRMO locker area, but that, at the 15 time that you served him with his notice, you never 16 mentioned that you were taking these boots. 17 My question for you is, after an e-mail went 18 out indicating that it was important that these things 19 be inventoried and that was echoed by Lieutenant Smith, 20 why wouldn't that be something that you let Officer 21 Waddell know during the course of the investigation if, 22 in fact, these things are important and you are in 23 communication with the other IA investigator in this 24 conjoined internal affairs investigation? You're, 25 obviously, reading each other's internal affairs Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3013 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1917 1 investigations. 2 MR. PALMER: Objection. Relevance, compound, 3 unintelligible as stated. 4 THE HEARING OFFICER: I'm going to sustain just 5 as to the compound part. It's got many, many questions 6 there. I don't know if you expect him to comment on 7 your preface. You need to break it down a little bit. 8 BY MS. CASTILLO: 9 Q. Okay. Well, do you understand the background 10 of what I just stated? 11 A. I'm not sure what your question was. 12 THE HEARING OFFICER: The question is do you 13 understand what she's talking about. 14 THE WITNESS: I understand the boots and where 15 the equipment was stored in the shed. 16 BY MS. CASTILLO: 17 Q. Okay. So do you understand the background? 18 A. What -- 19 Q. Did you ever read Lieutenant Proll's IA? 20 A. On Officer Waddell? 21 Q. Yes. 22 A. No, I did not. 23 Q. Okay. He read your IA, right? 24 A. I'm sure he probably did. I sent it to him. 25 Q. Okay. And, again, why did you do that? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3014 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1918 1 A. So that he could get the new format. 2 Q. Okay. And, again, you found that out when? 3 A. Found what out? 4 Q. That he needed the format. 5 A. He asked me for it. 6 Q. And, again, you found out that he needed the 7 format that was only available in your IA and not in the 8 policy manual when? 9 A. I'm not understanding. 10 Q. Well, you do have a policy manual available, 11 right? 12 A. Yes. 13 Q. Okay. And so he needed your IA to see the 14 format, why? 15 A. I sent him the IA so that he had the format. 16 Q. Did you ever compare your two IAs? 17 A. I did not. 18 Q. You know that your two IAs look nothing alike, 19 right? 20 A. I don't know. 21 Q. When did you say the policies changed? 22 A. I didn't. 23 Q. Well, you said that the policies changed, the 24 format changed, right? 25 A. I said the format changed probably within that Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3015 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1919 1 year time span -- 2 Q. Okay. 3 A. -- since I had done a previous IA. 4 Q. Okay. And you said the headings changed? 5 A. I believe it was the format of the report. I'm 6 not sure, exactly -- what, exactly, the changes were, 7 but I believe there were headings and how they were 8 organized and arranged. 9 Q. Okay. I'll pull out the policy and you can 10 show me where they changed. Okay? 11 A. And I don't know if the policy changed or not. 12 I'm saying that the format of the report had changed. 13 At least, that's what was given to me. 14 Q. Okay. Let's go through it and you can show me 15 where, and then we'll get back to my original question, 16 too. 17 So you have no idea why anyone would be asking 18 Officer Waddell about DRMO for any reason; is that your 19 testimony? 20 A. Not relevant to my case, no. 21 Q. Do you have any idea why DRMO would be relevant 22 to the Bentley IA? 23 A. I don't know much about that investigation, no. 24 Q. Okay. So when you took stuff from the DRMO and 25 you did not let Officer Waddell know so he could Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3016 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1920 1 inventory it, was that part of the normal procedure and 2 protocol? 3 A. I didn't know what the protocol or procedure 4 was. I didn't know how it was inventoried. 5 Q. Okay. So when Officer Waddell sent out the 6 e-mail that said, hey, anyone who took stuff, you better 7 let me know, did you send him an e-mail? 8 A. I don't believe -- I don't remember if I did or 9 not. 10 Q. Okay. And when Lieutenant Smith echoed that 11 sentiment in an e-mail, did you respond to his e-mail? 12 A. I don't believe I responded. I might have, but 13 I -- I returned the boots. 14 Q. Oh, you did? 15 A. Yes. 16 Q. To who? 17 A. I put them back into the room where I got them. 18 Q. Okay. When did you do that? 19 A. The day the e-mail came out from Lieutenant 20 Smith. 21 THE HEARING OFFICER: Do we need to take five 22 while you're looking for it? 23 MS. CASTILLO: That would probably be good. 24 THE HEARING OFFICER: Why don't we do that, 25 stretch our legs a little bit. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3017 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1921 1 (Recess.) 2 THE HEARING OFFICER: Okay. We're back on the 3 record. 4 BY MS. CASTILLO: 5 Q. Okay. So can you look at Appellant's DD, which 6 is the department's Lexipol policy that was adopted in 7 2014? And I'm going to refer you to Section 1020.6. 2, 8 the administrative investigative format, right? That's 9 what you're referring to? 10 THE HEARING OFFICER: I'm sorry. I need to 11 catch up with you here. You said DD. Oh, there it is. 12 Okay. Is it this? 13 MS. CASTILLO: Correct. 14 THE HEARING OFFICER: Okay. 15 THE WITNESS: Yeah. That's the format I was 16 discussing. 17 BY MS. CASTILLO: 18 Q. Okay. And then here's the policy from before 19 that from 2013, Line 2, which I'll have marked as 20 Appellant's OO. 21 THE HEARING OFFICER: So OO is a different 22 document than DD; is that right? 23 Oh, let's see. For the record, DD says at the 24 bottom, adopted 2014 01/ 08, and OO says adopted 2013 25 09/ 02. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3018 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1922 1 BY MS. CASTILLO: 2 Q. Are you aware of any policy that was in between 3 this? 4 A. No. 5 Q. Okay. Are you aware of any difference in those 6 two formats? 7 A. No. 8 THE HEARING OFFICER: Okay. Well, the record 9 will reflect that the documents speak for themselves. 10 If the witness remembers anything, in particular, he can 11 testify about that, but you can certainly point out or 12 argue what the differences are. 13 MS. CASTILLO: Okay. 14 THE HEARING OFFICER: If any. 15 BY MS. CASTILLO: 16 Q. You said that your administrative investigation 17 was completed on December 16th, correct? 18 A. That sounds about right, yes. 19 Q. Okay. But you went to the dance studio and had 20 an interview with Shannon Freeby in February of 2014, 21 correct? 22 A. I'd have to refer to my notes on that, or the 23 report, to confirm that. 24 THE HEARING OFFICER: If you know, that's fine. 25 She will direct you to documents necessary or Mr. Palmer Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3019 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1923 1 can do that. 2 THE WITNESS: I don't remember the specific 3 page. 4 BY MS. CASTILLO: 5 Q. You did go to the dance studio and interview 6 the manager of the dance studio? 7 A. I interviewed an employee there, yes. 8 Q. Okay. Was that at the direction of someone or 9 was that of your own accord? 10 A. No. I believe that was my own accord. 11 Q. Okay. So why wait so long to accomplish that 12 then? 13 A. Just in the course of my investigation, I 14 thought that it might come as an important item down the 15 road. 16 Q. And was that to see what time dance class ended 17 or -- I mean, what was the point of determining what all 18 the special needs of the children in attendance were? 19 A. It was just to confirm Officer Waddell's story, 20 that he had dropped his children off there and that he 21 stayed there. It was just part of the investigation. 22 Q. Okay. So, essentially, you were able to 23 corroborate what Officer Waddell said? 24 A. Yes. 25 Q. Okay. So you were able to give Captain Storton Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3020 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1924 1 a completed internal affairs investigation, right? 2 A. Yes. Yeah. 3 Q. Your testimony is that you were not aware of 4 the process for the DRMO equipment release? 5 A. Correct. 6 Q. Okay. And what room did you return the boots 7 to? 8 A. I returned them back to where I originally got 9 them, I believe. I don't remember. I just remember 10 returning a pair of boots. 11 Q. Only one? 12 A. Yes. 13 Q. Not three? 14 A. No. 15 Q. So if you were not finished with your internal 16 affairs investigation, you sent him your internal 17 affairs investigation the day you were interviewed, 18 right? 19 A. I sent who? 20 Q. Proll. 21 A. I don't remember when I sent him -- he asked me 22 to send him a format. I don't remember what date that 23 was. 24 Q. Well, you sent it to him the 5th, right? 25 A. Of? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3021 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1925 1 Q. February. 2 A. It's possible. 3 Q. But you didn't complete the dance interview 4 until February 28th. 5 So you sent him an in-progress internal affairs 6 investigation? 7 A. Apparently so. 8 Q. Okay. If you had completed internal affairs 9 investigations a couple months prior, like you testified 10 today, why didn't you send him ones on people you had 11 already completed, not in-progress one on the same 12 individual he was also completing an IA on, so as not to 13 taint him in the investigation he was doing? 14 A. Because I didn't believe that I had the newer 15 format for any of the prior investigations that I had 16 done. This is the first one that I had done that I 17 believed was on the new format. 18 Q. The new format is dated January 8th, 2014. 19 A. Okay. 20 Q. Aren't you doing an investigation in October? 21 A. October, yes. 22 Q. Or the new format is -- we're looking at 23 Appellant's OO, 9 of 2013, right? 24 A. I can't read that from there. Yes. 25 MS. CASTILLO: Okay. I don't have anything Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3022 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1926 1 else. 2 MR. PALMER: May I inquire? 3 THE HEARING OFFICER: Yes. 4 MR. PALMER: Thank you. 5 6 CROSS-EXAMINATION 7 BY MR. PALMER: 8 Q. Lieutenant, can you give us a 20- to 25-word 9 summary of what Lexipol is? 10 A. It's a policy that was, basically, written by a 11 California Highway Patrol retired captain, that's also 12 an attorney, that is generated statewide to departments, 13 maybe nationwide, and we implement that into our own 14 policies and create our own policy based on the format 15 of Lexipol. It's a department policy. 16 Q. Is it kind of a standardized department manual 17 for police departments to adopt, if they wish? 18 A. That would be a better way of putting it, yes. 19 Q. And then individual departments can modify it 20 based upon their individual needs? 21 A. Correct. 22 Q. When did San Luis Obispo Police Department 23 originally adopt a Lexipol-style policy, if you know? 24 A. I'm not sure of the exact year. 25 Q. Was it a long time ago? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3023 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1927 1 A. No. It was probably within the last five or 2 six years, if that. 3 Q. Prior to that, I assume San Luis Obispo Police 4 Department had some sort of policy manual? 5 A. Yes. 6 Q. Was it very different from the Lexipol policy 7 manual? 8 A. No. It was very similar. 9 Q. The old policy manual before San Luis Obispo 10 Police Department adopted Lexipol, do you recall if it 11 had any sort of guidelines as to headnotes and the 12 structure and formatting of an AI report? 13 A. I'm not sure. 14 Q. Okay. When you sent -- excuse me. 15 When you sent Lieutenant Proll the draft of 16 your AI investigation, did you send it to him for 17 content? 18 A. No. 19 Q. Did you send it to him for formatting and 20 structure? 21 A. Yes. 22 Q. Was the fact that it was an apparent 23 in-progress administrative investigative report 24 relevant? 25 A. Not to me, no. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3024 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1928 1 Q. Were there other employees of the San Luis 2 Obispo Police Department, to your knowledge, also taking 3 DRMO equipment? 4 A. Yes. 5 Q. Was it fairly widespread, to your knowledge? 6 A. Yes, it was. 7 THE HEARING OFFICER: Anything else? 8 MR. PALMER: No. Thank you. 9 THE HEARING OFFICER: Anything on redirect? 10 MS. CASTILLO: Yes. 11 THE HEARING OFFICER: This is -- oh. PP. All 12 right. And we're looking at a one-page e-mail from 13 Jeffrey Smith to Kevin Waddell. 14 MS. CASTILLO: Or from Kevin Waddell and from 15 Jeffrey Smith. 16 17 REDIRECT EXAMINATION 18 BY MS. CASTILLO: 19 Q. Mr. Palmer just asked you about the widespread 20 taking of DRMO equipment. 21 Is this what he was talking about when quite a 22 few people were taking the DRMO equipment? 23 A. This and every other time it would show up. 24 Q. Oh. So this was lots of people taking things 25 that didn't belong to them? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3025 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1929 1 A. That wasn't the impression that we were given, 2 no. It was, actually, left open and available many 3 times until it ended up getting put in the 4 locked facility -- in a locked area in the back of the 5 shed. 6 MS. CASTILLO: Okay. I have nothing further. 7 THE HEARING OFFICER: Anything on recross? 8 MR. PALMER: No. 9 THE HEARING OFFICER: Okay. Do you want to 10 move the admission of these documents? 11 MS. CASTILLO: I'd like to move OO and PP in. 12 THE HEARING OFFICER: Any objection to OO and 13 PP? 14 MR. PALMER: No. 15 THE HEARING OFFICER: Without objection, 16 they're admitted. 17 Anything else from Lieutenant Bledsoe? 18 MS. CASTILLO: No. 19 THE HEARING OFFICER: I think you're excused, 20 sir. Thank you very much. 21 Do you need a sec? 22 MS. CASTILLO: No. 23 THE HEARING OFFICER: Okay. So who's next? 24 MS. CASTILLO: Appellant. 25 THE HEARING OFFICER: Oh, okay. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3026 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1930 1 (Discussion off the record.) 2 THE HEARING OFFICER: So we're back on the 3 record and the appellant is recalling himself. 4 Officer Waddell, you recall that you're under 5 oath; is that correct? 6 THE WITNESS: Yes. 7 THE HEARING OFFICER: Very good. Go ahead, 8 Ms. Castillo. 9 10 DIRECT EXAMINATION 11 BY MS. CASTILLO: 12 Q. Good morning. 13 A. Good morning. 14 Q. Okay. So, um, hi. 15 THE HEARING OFFICER: Okay. 16 MS. CASTILLO: It's been a long 10 days. 17 MR. PALMER: Object to the form of the 18 question. 19 BY MS. CASTILLO: 20 Q. When you were at the San Luis Obispo Police 21 Department, did you ever attend Lexipol training? 22 A. Yes. 23 Q. Describe the Lexipol training you attended. 24 A. It was a PowerPoint presentation given by 25 represented members of the department that were formally Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3027 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1931 1 trained in what important policies were going to be 2 noted. It was a several-hour training wherein, at the 3 end, we had to sign something that said that we were 4 aware of certain policies that were in place for that 5 training. 6 Q. How often did you attend Lexipol training? 7 A. The formal training like that was only at the 8 Lexipol implementation, and as Lexipol went forward with 9 more modifications, we were given e-mails that we had to 10 log in to Lexipol, view changes and then note that we 11 were aware of these changes in Lexipol. 12 Q. So did you have to click that you had read them 13 and sign off that you had accepted these updates and 14 that you would abide by them as formal policies that 15 were being implemented in the San Luis Obispo Police 16 Department? 17 A. I don't recall the specific process of exactly 18 how we went about affirming our knowledge of these 19 changes, but it was something to that effect of logging 20 in and making the affirmation that there were changes 21 being made and we were aware of them. 22 Q. Okay. So when there were updates, you were 23 aware of them? 24 A. Yes. 25 Q. Okay. And, in fact, when you had Lexipol Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3028 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1932 1 training, was it noted on your time cards? 2 A. Yes. 3 Q. Okay. Are you responsible for following the 4 policies? Just like when you're late, are you 5 responsible for following those policies? 6 A. Yes. 7 Q. Okay. You just heard the testimony of 8 Lieutenant Bledsoe? 9 A. Yes. 10 Q. He indicated that the DRMO inventory was kind 11 of like a free-for-all, anyone could just take. Was 12 that kind of how it was? 13 A. That is a complete misrepresentation of how the 14 equipment was given out. 15 Q. Okay. So explain to us how it was. 16 A. Myself and Officer Berrios would acquire the 17 equipment from the DRMO facility. We would bring the 18 equipment back to the department. In some instances, we 19 would be -- have been working a 16-, 17-hour day, 20 turning around from San Diego and back to get the 21 equipment. 22 So the equipment would sit in a location, for 23 convenience, unattended, but, generally speaking, the 24 equipment would not be given out to anyone until we 25 notified people that the equipment was available for Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3029 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1933 1 disbursement. 2 Q. So no one could just go and take whatever they 3 wanted? 4 A. That was never, ever happened. We never told 5 people there's equipment available, go pick it up at 6 your leisure. Never happened. 7 Q. Explain Appellant's PP. 8 A. This is an e-mail that I generated from my 9 house on my cell phone when I was notified by other 10 members of the department, Officer Kevany, specifically, 11 telling me that people were taking equipment from the 12 sally port, and using her word to me was pilfering. 13 People were pilfering equipment. 14 So I generated this e-mail that morning, 15 notifying people that that equipment was not inventoried 16 yet and I needed to be notified of what equipment they 17 had so that I could apply it to the inventory. 18 And then Lieutenant Smith followed up to my 19 e-mail, affirming how unacceptable the behavior was of 20 taking the equipment. 21 Q. Okay. I have, as an example, a time card of 22 yours. Actually, I have a bunch of them, but I want you 23 to explain it for me, and I'm going to enter it as an 24 exhibit. All right? I will pass this out, but if you 25 could hold that. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3030 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1934 1 Can you say the date on that so I can make sure 2 I have the same one for everyone, please, rather than 3 enter a packet of 20 so of those? What's the date on 4 that, please? 5 A. May 23rd through June 6th. 6 Q. Of what year? 7 A. 2013. 8 MS. CASTILLO: Okay. Actually, can we take, 9 like, five minutes? 10 THE HEARING OFFICER: All right. Let's take 11 five to make sure we've got the right documents. You're 12 going to mark more stuff? 13 MS. CASTILLO: Yeah. I just want to make sure. 14 (Recess.) 15 THE HEARING OFFICER: So back on the record. 16 Go ahead. 17 BY MS. CASTILLO: 18 Q. Officer, can you explain what this shows and 19 where it's generated from? 20 THE HEARING OFFICER: And we're looking at 21 what's been marked as Appellant's QQ? 22 MS. CASTILLO: Correct. 23 THE WITNESS: This is a regeneration, if you 24 will, of my time card. When it's originally created, 25 it's in a digital format, but it looks similar to this. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3031 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1935 1 It has the dates for the particular time period, it has 2 drop-downs on the left for what kind of pay code for a 3 particular shift you have, you list what hours you 4 worked for particular days and then there's a 5 description box for what -- how you would describe the 6 shift you're working. 7 BY MS. CASTILLO: 8 Q. Okay. And so I see two shifts that you worked 9 for CAT patrol and I see the five-hour shifts and, 10 obviously, on the bottom, they are signed off by 11 supervisors. 12 At this time, your direct supervisor was Bill 13 Proll? 14 A. Yes. 15 Q. Okay. And is this what is commonly known as 16 SpeedShift? 17 A. Yes -- no, this is not SpeedShift. This is 18 IntelliTime, I believe it might be what it's called. 19 SpeedShift is the scheduling program that's separate to 20 this. 21 Q. Okay. And is this the time card that was in 22 place at the time that is relevant to this hearing? 23 A. Yes. 24 Q. Okay. And so this is what it looked like? 25 A. Correct. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3032 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1936 1 Q. Okay. Now, were you aware of the relationship 2 between Lieutenant and Sergeant Pfarr, their history of 3 friendship or anything like that at the time that you 4 were at the department? 5 MR. PALMER: Objection. Vague. Which 6 lieutenant? 7 BY MS. CASTILLO: 8 Q. Do you understand my question? 9 THE HEARING OFFICER: If you understand, you 10 can answer. 11 THE WITNESS: I think you're referring to 12 Lieutenant Smith. 13 BY MS. CASTILLO: 14 Q. Lieutenant Smith and Sergeant Pfarr? 15 A. Yes. 16 Q. Okay. Can you describe what you were aware of? 17 A. I'm aware that they worked very closely 18 together for the entirety of my employment there. They 19 were -- he was -- Sergeant Pfarr was an officer. He was 20 in a detective unit where when Smith was a sergeant at 21 the time, he directed over -- he directly supervised 22 him. Sergeant Pfarr went to the Detective Bureau where 23 then now promoted Lieutenant Smith was his supervisor. 24 Lieutenant Smith went to patrol and then when Sergeant 25 Pfarr was promoted, that was, again, his direct Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3033 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1937 1 supervisor. 2 So it's very clear that these two developed a 3 very close working relationship and it was my opinion it 4 was common knowledge amongst the department that these 5 two were very close and were very -- they were boys. 6 They were very close. 7 Q. Okay. In your mind, is there any doubt that if 8 you were to say something that was not the truth to 9 either one of them, would there be any doubt that it 10 would get back to the other one? 11 MR. PALMER: Objection. Speculation. 12 THE HEARING OFFICER: Do you understand? 13 THE WITNESS: Yes. 14 THE HEARING OFFICER: You can answer. 15 THE WITNESS: There is no doubt in my mind that 16 anything told to one of them, the other one would be 17 immediately aware of it. 18 THE HEARING OFFICER: I don't know what that 19 means, but, you know, you've got powers of observation 20 that I don't have, but I'm letting it in for what it's 21 worth. 22 BY MS. CASTILLO: 23 Q. Can you clarify that a little bit? 24 THE HEARING OFFICER: You mean you do have a 25 special gift to read minds? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3034 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1938 1 BY MS. CASTILLO: 2 Q. No. I mean, clarify if you understand what I'm 3 asking you. 4 A. I can only draw from my own experiences as to 5 how information came to Sergeant Pfarr that then -- I 6 guess, you could only draw a coincidence at how that 7 information would immediately get to Lieutenant Smith. 8 Q. Describe the culture of the police department. 9 A. Open, joking, family. That was my impression 10 of that department at one point in time. 11 Q. Okay. There was some discussion at the last 12 hearing date about an article that was in the newspaper 13 that you described as statements that were made by the 14 then chief of police that you had attributed to the -- 15 in reference to yourself. Do you recall that? 16 A. Yes. 17 MS. CASTILLO: Okay. And I have that article, 18 which I would like to have marked as Exhibit -- 19 THE HEARING OFFICER: RR. 20 MS. CASTILLO: -- RR. 21 BY MS. CASTILLO: 22 Q. And do you remember Mr. Palmer clarifying the 23 quotation to you? 24 A. Yes. 25 Q. Can you direct us to the specific page you are Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3035 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1939 1 referring to, please? 2 A. On the bottom, it would be Page 4 of 6 and it 3 would be in the middle of the page where it says, 4 "Terminated an officer for untruthfulness despite 5 external" -- 6 THE HEARING OFFICER: I'm sorry. Where are we? 7 THE WITNESS: I'm sorry. Page 4 of 6, and 8 right in the middle of the page. 9 THE HEARING OFFICER: Okay. 10 THE WITNESS: It says, "Terminated an officer 11 for untruthfulness despite external encouragement to 12 levy a lesser level of discipline." 13 BY MS. CASTILLO: 14 Q. Are you aware of any other officer that was 15 terminated in the year of 2015 from the San Luis Obispo 16 Police Department besides yourself? 17 A. No. 18 Q. For any reason, whatsoever. 19 A. No. 20 Q. So this is by process of elimination that you 21 are the terminated officer? 22 A. Yes. 23 Q. Much less, the terminated officer for 24 untruthfulness? 25 A. Yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3036 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1940 1 MS. CASTILLO: I would like to admit RR. 2 THE HEARING OFFICER: Any objection to RR? 3 MR. PALMER: No. 4 THE HEARING OFFICER: How about to QQ? 5 MR. PALMER: No. 6 THE HEARING OFFICER: Without objection, both 7 RR and QQ are admitted. 8 MS. CASTILLO: Nothing else. 9 THE HEARING OFFICER: Cross? 10 MR. PALMER: Yes. 11 12 CROSS-EXAMINATION 13 BY MR. PALMER: 14 Q. Mr. Waddell, how long did you do the DRMO 15 equipment responsibility? 16 A. Sometime in 2009 through my time of 17 termination. 18 Q. Before you signed on to do it with George 19 Berrios, was he doing it alone? 20 A. Yes. 21 Q. All right. So you did it for about five years 22 before the situation came about that brought us all 23 here? 24 A. I'll trust your math. Yes, thereabouts. 25 Q. Don't trust a lawyer's math, but, anyway, I Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3037 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1941 1 would assume that you made many trips down to Camp 2 Pendleton and other military installations to pick up 3 equipment? 4 A. Yes. 5 Q. Brought it back to the department? 6 A. Yes. 7 Q. Put it different places, among them, the sally 8 port? 9 A. There were other places besides the sally port. 10 Q. But one of the places where you put the 11 equipment while you were inventorying and figuring out 12 what you had, it was in the sally port? 13 A. Yes. 14 Q. And the sally port is an area that is 15 accessible by all San Luis Obispo police officers? 16 A. Correct. 17 Q. Is that kind of like the sally port that I 18 recognize where you have an opening, a car can go in, an 19 arrestee is taken out, there's a door that creates some 20 level of security? 21 A. Yes. 22 Q. Okay. Is there some DRMO equipment that has to 23 be inventoried for the military in case they want to 24 reclaim it, and is there other DRMO equipment that does 25 not have to be inventoried? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3038 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1942 1 A. All DRMO equipment needs to be inventoried. 2 Q. Is there some DRMO equipment that everybody 3 knows, including you and Officer Berrios, that will 4 never be reclaimed by the military? 5 A. At a certain time. 6 Q. Do you want to explain that? 7 A. There are certain textiles within DRMO that are 8 considered perishable by the military and that 9 equipment, essentially, becomes not part of our 10 long-term tracking for the military purposes after one 11 year. 12 Q. Okay. So when you mean -- when you say 13 textiles, do you mean, like, shirts and pants? 14 A. The military does not provide uniforms. So if 15 we got shirts or pants, that's the general shirts or 16 pants, but if we got shirts or pants that were not 17 fatigues, they would be part of that one-year time 18 frame. 19 Q. Okay. At some point, did you bring a box of 20 DRMO equipment to S.W.A.T. training? 21 A. Yes. 22 Q. Okay. Do you remember about when that was? 23 A. There were a couple different instances when 24 that occurred. So it was in that time period of 2009 to 25 2010. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3039 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1943 1 Q. So at least a couple times, you brought a box 2 of DRMO equipment to S.W.A.T. training? 3 A. There were several instances, yes. 4 Q. Several. More than two then? 5 A. I can think of two. 6 Q. What kinds of equipment did you have in the 7 box? 8 A. Ponchos, jackets, backpacks, various kinds of 9 things. 10 Q. Would that be the textiles that you previously 11 referenced? 12 A. Yes. 13 Q. Okay. And did you allow people to sift through 14 these boxes of equipment and take what they want? 15 A. Yes. 16 Q. Did George Berrios allow people to sift through 17 this equipment and take what they want? 18 A. Officer Berrios was not present in these 19 instances. 20 Q. Okay. So it was just you? 21 A. Correct. 22 Q. And did you stand there with a clipboard and 23 note what people were taking? 24 A. No. 25 Q. Okay. When you sent this e-mail out on Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3040 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1944 1 Thursday, November 21, 2013 -- Appellant's PP? 2 A. Yes. 3 Q. Is that the date? 4 A. Yes. 5 Q. At 7:51 a.m.? 6 A. Yes. 7 Q. You did that from your home? 8 A. My home, yes. 9 Q. And you sent it to P.D. underscore all? 10 A. Correct. 11 Q. Would that be an identifier that would 12 electronically go to every authorized e-mail user in the 13 San Luis Obispo Police Department? 14 A. That is my understanding of how that works. 15 Q. Okay. And you said what you said. It speaks 16 for itself. 17 Lieutenant Smith weighed in with his own 18 wording regarding what you said about 13 minutes later? 19 A. Yes. 20 Q. Okay. Did you get some responses? 21 A. Yes. 22 Q. A lot of responses? 23 A. 10, or so, probably. 24 Q. Luca Benedetti, is that one of the persons who 25 responded? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3041 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1945 1 A. Yes. 2 Q. Who is Luca? 3 A. He's an officer. 4 Q. Did he take some stuff from the sally port? 5 A. To my recollection, from his reply, yes. 6 Q. A backpack? 7 A. Yes. 8 Q. A trenching tool? 9 A. If that's what he listed in whatever you're 10 reading. 11 Q. Three pack of shirts? 12 A. If that's what you're reading. 13 Q. What is a three pack of shirts? 14 A. I believe, in that shipment, there were 15 individual T-shirts in sealed plastic as if you bought 16 it from the store. 17 Q. Okay. 18 A. That's what he, evidently, grabbed, three. 19 They were in not a three-pack. It's my understanding -- 20 I think they were individually packaged and he took 21 three. 22 Q. Would that be one of those textiles that you 23 talked about? 24 A. Yes. 25 Q. Joshua Walsh, who is he? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3042 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1946 1 A. Another officer. 2 Q. Did he take some boots? 3 A. Yes. 4 Q. Caleb Kemp, who is he? 5 A. He's an officer. 6 Q. Do you remember what he took? 7 A. Not off the top of my head. 8 Q. Glasses? 9 A. I'd have to see what he wrote. 10 Q. Paul Sizemore, who is he? 11 A. He's an officer. 12 Q. Do you remember if he took anything? 13 A. I recall seeing an e-mail that he replied with 14 some equipment that he had. 15 Q. The e-mail I have just says all items returned. 16 Do you remember that? 17 A. I remember two e-mails from him, one 18 identifying the equipment that he took and then a second 19 one for which he said he returned it. 20 Q. I'm on that second e-mail now. Backpack, does 21 that ring a bell? 22 A. Sure. 23 Q. Rain pants, jacket? 24 A. Sure. 25 Q. Fleece? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3043 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1947 1 A. There may have been, if that's what you have. 2 Q. Would those three things, backpack, rain pants, 3 slash, jacket and fleece, would that be the textiles 4 you're talking about? 5 A. Yes. 6 Q. Glasses and a shovel? If you don't remember, 7 that's fine. 8 A. I don't recall how the glasses or the shovel 9 would have been classified by the military. So I can't 10 speak to that without seeing something. 11 Q. Aaron Schafer? 12 A. He's an officer. 13 Q. Two pair of boots? Does that ring a bell? 14 A. Sure. 15 Q. Are boots those textile things you're talking 16 about? 17 A. I believe the boots fell into the textile 18 category. 19 Q. Okay. Folding shovel and a fleece pullover 20 sound familiar? 21 A. Sure. 22 Q. Okay. So I have just went through one, two, 23 three, four, apparently, five people. I don't know if 24 you were keeping count, but approximately five people 25 responded to your e-mail. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3044 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1948 1 Essentially, did you get the impression I got 2 from these e-mails, my bad, I'll return the stuff? 3 A. That was the impression that I got. 4 Q. Okay. So, apparently, if five people -- well, 5 let me ask this. 6 Do you think Caleb Kemp and Paul Sizemore and 7 Aaron Schafer and Luca Benedetti and Josh Walsh are all 8 thieves? 9 A. I would qualify that their initial taking 10 without the consent of the DRMO representatives would 11 fall into that category of being thieves. 12 Q. Okay. So you're putting all those people in 13 the category of thieves, much like you're trying to do 14 with Lieutenant Bledsoe, correct? Just trying to get 15 that straight. 16 A. Anybody that took equipment that morning took 17 equipment unauthorized. So everyone in that instance 18 falls under that category. 19 Q. Okay. Where's your complaint to the police 20 department that all these people are thieves? Did you 21 make one? 22 A. I did not make a formal complaint. 23 Q. Okay. Would you agree with me that if five or 24 six people, at least, that we've talked about, all five 25 that I mentioned, and including Lieutenant Bledsoe, if Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3045 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1949 1 five or six people thought this was come one, come all, 2 take whatever you want, perhaps your message that this 3 stuff has to be inventoried wasn't effectively 4 communicated? 5 MS. CASTILLO: You're asking for speculation. 6 MR. PALMER: No. I'm asking him to tell me if 7 his message that this stuff is important and not take it 8 wasn't effectively communicated inasmuch as six people, 9 apparently, took stuff. 10 BY MR. PALMER: 11 Q. Would you or would you not agree with that? 12 MS. CASTILLO: Objection. Speculation. 13 THE HEARING OFFICER: It's argumentative. You 14 don't need to answer that. I get the point. Move on. 15 MR. PALMER: I will. 16 BY MR. PALMER: 17 Q. When -- when do you recall the Lexipol policy 18 being initially implemented in the department? 19 A. My recollection, it was sometime in and around 20 March of 2013. 21 Q. Okay. And you had to sit through a PowerPoint, 22 right? 23 A. Yes. 24 Q. You already talked about that. 25 And then you had to go online and read some Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3046 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1950 1 parts of the manual? 2 A. My recollection was that, at times when there 3 were updates, we were instructed to log in and view 4 whatever the update would have been. 5 Q. I'm talking about the initial time period which 6 you've pigeonholed sometime in March of 2013 when San 7 Luis Obispo Police Department went to the Lexipol 8 policy. 9 Were you or were you not required to read the 10 entire manual at or around that time? 11 A. I believe that we were to affirm -- no, I don't 12 think we were asked to read the whole thing. 13 Q. Were you asked, in some sort of website or some 14 sort of physical document, to acknowledge that you've 15 received the new Lexipol manual? 16 A. Yes. 17 Q. And that you had read it? 18 A. I believe that that's what we were referring 19 to. 20 Q. Whether you really actually did read it or not, 21 you were required to acknowledge that you possess it and 22 you've read it, correct? 23 A. Correct. 24 Q. Okay. Your counsel identified Appellant's DD 25 previously in this hearing, which I could put in front Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3047 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1951 1 of you. It's just kind of difficult for me to move it 2 over there. 3 The way you interpret this, would this, 4 Appellant's DD, have been adopted by the San Luis Obispo 5 Police Department on January 8th, 2014? Is that what 6 you read? 7 A. I would agree with that, in that it says, at 8 the bottom, adopted January 8th, 2014. 9 Q. Okay. And then the new exhibit related thereto 10 is Appellant's OO, letter OO. That appears to have been 11 adopted September 2nd, 2013. Is that the way you read 12 it? 13 A. Uh, that was also how I read it. 14 Q. Okay. Did you see anything come across your 15 side of the table that has any version of the personnel 16 complaint procedure, Section 1020 of the manual, which 17 is DD and OO, that has an adopted dated prior to 18 September 2nd, 2013? 19 A. Uh, no. 20 Q. Okay. Do you think there would be one that 21 would, perhaps, be in existence, maybe, in March of 22 2013? 23 A. I would think that, based on our request for 24 Lexipol policy in effect 2013, we would have given 25 anything that would have reflected that. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3048 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1952 1 Q. Okay. Can I have that back, please? Thank 2 you. 3 Appellant's QQ, what are you calling the title 4 of Appellant's QQ? What do you call it? 5 A. A time card. 6 Q. Do you fill this out? 7 A. I fill out the body of it, which is reflective 8 through the center portion, which would include reason 9 codes, pay codes, hours for the particular days, the 10 hours or total for us based on what we input and we 11 notate the description box. 12 Q. Okay. So as I'm looking at Appellant's QQ, 13 starting on the left and working to the right, I see a 14 column that says, "Division." Do you see that there? 15 A. Yes. 16 Q. Do you fill anything out in that column? 17 A. Sometimes we were given instructions based on a 18 certain program we were working within -- 19 Q. Okay. 20 A. -- to input something in that box for payroll. 21 Q. On this particular exhibit, there's nothing in 22 the column called project, but there is one entry in the 23 column called grants. 24 Do you actually, physically input that, as 25 well? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3049 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1953 1 A. Uh, I don't recall an instance where I put 2 anything in the grants box. 3 Q. Okay. How about reason code? I would assume, 4 based upon what you said before, that the entries under 5 the column, reason code, you placed? 6 A. Yes. 7 Q. Okay. And pay code, you placed those from the 8 drop-down box? 9 A. Yes. 10 Q. All the hours -- I'm not going to go 11 column-by-column because that's just a little pedantic, 12 but all of the hours, do you actually place those in 13 there, as well? 14 A. I believe the hours column is automatically 15 totaled on -- within the program based on what you input 16 to the right of that. 17 So the hours -- if I remember correctly, you 18 don't actually put the total number of hours for that 19 particular column. 20 Q. Okay. 21 A. The software automatically calculates that box 22 based on what you input underneath each particular day. 23 Q. Okay. Let me make sure I'm understanding what 24 you're saying. I'm going to use an easy one because 25 it's constant. There's a description called donning? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3050 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1954 1 A. Correct. 2 Q. And every entry is .1 of an hour? 3 A. Correct. 4 Q. From what I'm getting from you, correct me if 5 I'm wrong, when you put the word, donning, in the 6 description, somewhere in the computer software that 7 just knows every day you work you get an extra tenth of 8 an hour; is that right? 9 A. No. 10 Q. Okay. Help me out. 11 A. So donning is a manual entry. You, physically, 12 type that in, donning. You have to select the 13 drop-down, which is the next column over, for how you 14 would like to receive that kind of pay. 15 Q. Okay. 16 A. So if we skip the hours column and say go to 17 Thursday, 5/23, I manually input .1 -- 18 Q. Okay. 19 A. -- and then I manually input .1 on 5/24. 20 Q. Okay. 21 A. The hours column would then reflect .2 22 automatically. 23 Q. Gotcha. 24 A. I don't have to put anything in the hours 25 column at any point in time. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3051 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1955 1 Q. Okay. So all these individual entries like 2 Thursday, May 23rd, regular 10 hours, you actually type 3 the 10 hours in there? 4 A. Yes, sir. 5 Q. And the CAT shift, do you actually type the 6 five hours in there? 7 A. Yes, sir. 8 Q. Okay. Lieutenant Smith, according to your 9 testimony, told you, on October 21st, 2013, that he 10 reviewed your time sheets and, by your words, he said 11 you have been coming and going as you pleased. Did I 12 get that kind of right? 13 A. What he told me was it appeared, to him, that 14 that situation was taking place. 15 Q. Other than that change, did I say that, pretty 16 much, correctly as you remember Lieutenant Smith in your 17 meeting October 21st? 18 A. That was my understanding what he said. 19 Q. Is this the document you're referring to as the 20 time sheet? 21 A. This is a time sheet. He did not make 22 reference as to which time sheets he made -- drew that 23 opinion from. 24 Q. Did you ask him? 25 A. No. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3052 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1956 1 Q. Okay. Because this time sheet does not reflect 2 the arrival time or the actual time you left the shift, 3 does it? 4 A. At the time, we were not required to do that. 5 Q. But Appellant's QQ does not do that? 6 A. At no time while I was employed there we were 7 told to write in there what hours we worked. 8 THE HEARING OFFICER: But the question was QQ 9 doesn't do that. 10 THE WITNESS: Yes, QQ doesn't do that. 11 BY MR. PALMER: 12 Q. And this is from the time period of May 23rd, 13 2013, to, approximately, June 5th, 2013, right? 14 A. Yes. 15 Q. Did this format change, materially, as we move 16 through June and July, August, September, October? 17 A. No. 18 Q. Are there any other documents out there, 19 besides Appellant's QQ, that one could go back to, 20 historically, and find out exactly what time you arrived 21 for a shift and left for a shift -- left a shift? 22 A. There's not going to be one specific document 23 that is going to determine that. 24 MR. PALMER: Okay. Thank you. Nothing 25 further. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3053 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1957 1 THE HEARING OFFICER: Anything on redirect? 2 3 REDIRECT EXAMINATION 4 BY MS. CASTILLO: 5 Q. So when Lieutenant Smith said that to you, what 6 did you think about that? 7 A. I was confused how he drew that conclusion. 8 Q. And did you follow up with any kind of 9 questioning about that? 10 A. I did not. 11 MS. CASTILLO: Okay. Nothing further. 12 THE HEARING OFFICER: Anything else on 13 recross? 14 MR. PALMER: No, sir. 15 THE HEARING OFFICER: Okay. Thank you, 16 Officer. 17 THE WITNESS: Thank you. 18 THE HEARING OFFICER: Okay. Next witness? 19 MS. CASTILLO: We have no other witnesses. 20 MR. PALMER: Can we take about 20 or 30 to -- 21 THE HEARING OFFICER: Think about some 22 rebuttal? 23 MR. PALMER: Yes. 24 THE HEARING OFFICER: Let's take 30. 25 (Recess.) Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3054 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1958 1 THE HEARING OFFICER: We're back on the record. 2 It's time for the department's rebuttal. I understand 3 you're calling Lieutenant Smith; is that correct? 4 MR. PALMER: Yes, I am. 5 THE HEARING OFFICER: Lieutenant Smith, you 6 recall you took an oath earlier in this proceeding? 7 THE WITNESS: Yes, sir. 8 THE HEARING OFFICER: So you're still under 9 oath. 10 THE WITNESS: Yes, sir. 11 THE HEARING OFFICER: Very good. You may 12 proceed, Mr. Palmer. 13 14 DIRECT EXAMINATION 15 BY MR. PALMER: 16 Q. To help send your mind on the date I ultimately 17 want you to think about, I want to direct your 18 attention, briefly, to the time period that we've had a 19 lot of discussion about, October 18th, 2013. 20 Do you remember your brief encounter in the 21 locker room with Mr. Waddell? 22 A. Yes, sir. 23 Q. Okay. And then we've had lots of discussion 24 from both sides about the events on October 19th, 2013, 25 with Sergeant Pfarr and phone calls with you. Are you Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3055 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1959 1 with me so far? 2 A. Yes. 3 Q. With those two dates in mind, I want you to 4 fast-forward in your mind to the following Monday, 5 October 21st, 2013. Are you with me so far? 6 A. Yes. 7 Q. Were you on duty that day? 8 A. I was. 9 Q. Did Mr. Waddell walk into your office? 10 A. He did. 11 Q. Did you have an appointment with him or was it 12 unannounced? 13 A. Unannounced. 14 Q. And you had a -- you and he engaged in some 15 exchange of discourse in that meeting? 16 A. Yes. 17 Q. Okay. Here's what I want to ask you. During 18 any part of that meeting, Monday, October 21, 2013, did 19 you say to Mr. Waddell something or anything like the 20 following: Kevin, I pulled your time sheets or I had 21 your time sheets pulled and it's apparent to me that 22 you've been coming and going as you please on the CAT 23 shifts? 24 A. No. 25 Q. Does that ring any bells, at all? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3056 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1960 1 A. No. 2 Q. Did that subject matter, in any form, come up 3 during your interaction with Mr. Waddell on Monday, 4 October 21st? 5 A. No. 6 Q. Is there any document, a retrievable document, 7 within the San Luis Obispo Police Department or a set of 8 retrievable documents that you could go get that would 9 tell you when an officer actually arrived on a shift 10 and/or left the time period that -- the actual time that 11 an officer arrived for a shift or left for a shift? 12 A. No. 13 MR. PALMER: Nothing further. 14 THE HEARING OFFICER: Cross? 15 16 CROSS-EXAMINATION 17 BY MS. CASTILLO: 18 Q. You testified previously that you and Sergeant 19 Pfarr had conversations about Officer Waddell, correct? 20 A. Correct. 21 Q. And you had conversations to the effect that he 22 was a problem officer, right? 23 A. I don't know that I was a problem officer. I 24 testified to the fact that he had come in late and there 25 had been an incident downtown where he was watching a Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3057 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1961 1 movie. 2 Q. And, in fact, you testified that you were aware 3 of multiple times that he had been coming and going, 4 right? 5 A. Uh, I believe I testified knowing that he'd 6 come in late or left early. I don't know how many -- I 7 don't believe I ever gave a number of times. 8 Q. And that Sergeant Pfarr had been making you 9 aware of these, right? 10 A. Correct. 11 Q. And that Sergeant Pfarr had made you aware of 12 them on multiple occasions, correct? 13 A. He had notified me that he was looking into a 14 couple -- or aware of a couple of occasions. 15 Q. Okay. And that, in fact, he was going to -- 16 and he let you know that he was going to talk to him on 17 or about the 12th, correct? 18 A. I'm not positive of the date, but I know we 19 discussed him -- that he was going to talk to Officer 20 Waddell. 21 Q. Okay. And that the -- I believe your testimony 22 was something to the effect that the two of you had 23 discussed specific incidents, correct? 24 A. Specific incidents regarding what? 25 Q. Those instances of when he had come and gone Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3058 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1962 1 that were not in line with the specific start times and 2 end times of his shift, right? 3 A. Yes. 4 Q. Okay. And you were aware of these, right? 5 A. I were -- I was, yes. 6 Q. Okay. And the supervisors had continued to 7 sign off on his time cards, right? 8 A. His time cards were approved. 9 Q. Okay. Did you lobby for Sergeant Pfarr's 10 promotion? 11 A. Did I lobby for it? 12 Q. Right. That's what we were told. 13 A. No. 14 Q. Okay. You and Sergeant Pfarr are really good 15 friends, right? 16 A. We're work companions. We don't do anything 17 outside of work. 18 Q. No? Not at all? 19 A. I've chopped wood with him once or twice. 20 Q. Chopped wood? 21 A. Yes. Oak. 22 Q. Who told you about the missing rifle that we 23 heard testimony about? Do you know what I'm talking 24 about -- 25 A. I don't. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3059 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1963 1 Q. -- the missing rifle? 2 A. (Witness shakes head.) 3 Q. We heard -- so in front of you is 4 Appellant's -- yeah. 5 A. QQ? 6 Q. QQ. Is that reflective of what a time card 7 would look like? 8 A. It is. 9 Q. Okay. And those are signed off by the 10 individual's immediate supervisor? 11 A. Correct. 12 Q. Okay. And so not, necessarily, the supervisor 13 who approved or signs overtime? 14 A. If you're -- are you -- can you be more 15 specific? 16 Q. For example, this particular time card is 17 signed off by Lieutenant Proll, correct? 18 A. Correct. 19 Q. Okay. During this time period, were you the 20 supervisor in charge of the CAT shift? 21 A. I was. 22 Q. Okay. So was Lieutenant Proll the one who 23 signed off on the entire time card? 24 A. He was. 25 Q. So the signing off on this time card was done Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3060 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1964 1 with or without input from the supervisors who would 2 have overseen the CAT shift? 3 A. I don't know if he talked to him or not. 4 Q. Would that have included yourself? 5 A. It could have. I mean, he didn't -- I don't 6 recall Lieutenant Proll discussing his time card with 7 me. 8 Q. Okay. When you were an officer, did you pull a 9 prank where you took broken glass from an accident scene 10 and made it look like there were shotguns stolen from 11 patrol cars? 12 A. Nope. 13 Q. You didn't do that? 14 A. No. I've talked about it. It happened at my 15 old department. I shared the story, but I never did it. 16 Q. Oh, it wasn't you? 17 A. No. 18 Q. Who was it? 19 A. I don't remember. It was in Fontana when I 20 worked there. 21 MS. CASTILLO: Okay. Nothing further. 22 THE HEARING OFFICER: Is that it? 23 MS. CASTILLO: Uh-huh. 24 THE HEARING OFFICER: Anything on redirect? 25 MR. PALMER: No, sir. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3061 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1965 1 THE HEARING OFFICER: Can we excuse Lieutenant 2 Smith? 3 MR. PALMER: Yes. 4 THE HEARING OFFICER: Run out of here before 5 somebody changes their mind. 6 THE WITNESS: Thank you, sir. 7 THE HEARING OFFICER: Next witness? 8 MR. PALMER: Captain Staley. 9 THE HEARING OFFICER: That's easy enough. 10 MR. PALMER: Can he remain here? 11 THE HEARING OFFICER: That's fine. Do we need 12 to close that door? 13 MR. PALMER: Can I have two minutes? 14 THE HEARING OFFICER: Okay. That's fine. 15 (Pause in proceedings.) 16 THE HEARING OFFICER: Captain Staley, you 17 testified earlier; is that right? 18 THE WITNESS: Yes. 19 THE HEARING OFFICER: And you're under oath and 20 you're still under oath. You understand that? 21 THE WITNESS: I do. 22 THE HEARING OFFICER: Very good. You may 23 proceed. 24 MR. PALMER: Thank you. 25 /// Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3062 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1966 1 DIRECT EXAMINATION 2 BY MR. PALMER: 3 Q. Captain, have you been present for most all of 4 the testimonial proceedings in this case? 5 A. Yes, for most of it. 6 Q. And were you present for most of Mr. Waddell's 7 testimony? 8 A. Yes. 9 Q. Did you hear him discuss the ranking of his 10 result on one of his sergeant's exams? 11 A. I believe so, yes. 12 Q. Was there discussion between him and I about 13 the rule of three? 14 A. Yes. 15 Q. Did you do some research at my request on that? 16 A. I did. 17 Q. And did you find a portion of the MOU that 18 describes rule of three? 19 A. I did. 20 Q. Did you bring that to the hearing today? 21 A. Yes, I did. 22 MR. PALMER: I have that, Mr. Cameron. I'd 23 like to mark it as City's Exhibit 24, I think is my next 24 one. 25 THE HEARING OFFICER: Okay. All right. So Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3063 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1967 1 we're marking, as Department 24, a document -- it looks 2 like it's about four pages and the top says Article 29 3 Promotion Policy. 4 MS. CASTILLO: Is there a date on this, Greg? 5 MR. PALMER: No. Let me see if I can clear 6 that up. 7 BY MR. PALMER: 8 Q. Do you recognize what's been marked as City's 9 Exhibit 24, Captain Staley? 10 A. I do. 11 Q. Can you tell us all what it is? 12 A. It is a portion of the most current MOU between 13 the City of San Luis Obispo and Police Officers 14 Association. 15 Q. When you say, "most current," do you remember 16 the span of time that it comprises? 17 A. I don't remember the exact dates, but I know it 18 goes until, I believe, January of this year. 19 Q. Do you remember when it started for your term? 20 A. 2012, yes. 21 Q. And Article 29 pertains to what? 22 A. The promotional policy. 23 Q. Is there a portion of this that talks about 24 what is to be done with the top three candidates? 25 A. Yes, there is. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3064 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1968 1 Q. Where is that? 2 A. It's on Page 50, Section B, 4-B. 3 THE HEARING OFFICER: 4-B? 4 THE WITNESS: Correct. 5 BY MR. PALMER: 6 Q. And just summarize what Section 4-B states with 7 regard to the top three candidates. 8 A. Section B refers to the chief, I'll refer to 9 the candidates, the top three as being equally ranked or 10 considered equal for the promotion. 11 Q. Do you recall some testimony a few days ago 12 from Mr. Waddell about some observations of his conduct 13 at S.W.A.T. PT training? 14 A. I do. 15 Q. Were you present at some of the S.W.A.T. PT 16 training classes? 17 A. Yes, I was. 18 Q. And PT refers to? 19 A. Physical training. 20 Q. Do you recall anything, in particular, at a 21 S.W.A.T. PT training class that you were present that 22 relates to, in any way, Mr. Waddell's testimony in the 23 last week? 24 A. I do. 25 Q. What? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3065 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1969 1 A. We were conducting a PT test, I can't remember 2 exactly which year it was, and I was there with the 3 other command staff at the examination and one of the 4 other commanders pointed out to me that they'd observed 5 Mr. Waddell looking at his watch continuously through 6 the testing and looked like he was trying to take as 7 much time as he could and was in no hurry to complete 8 the test and raised his concern. So he brought it to 9 the other commanders' attention, including mine. 10 THE HEARING OFFICER: I'm sorry. I missed 11 that. He was in a hurry or in no hurry? 12 THE WITNESS: He was in no hurry. 13 BY MR. PALMER: 14 Q. Do you recall anything, in particular, relating 15 to S.W.A.T., or just in general, about Mr. Waddell's use 16 of his phone? 17 A. Again, one of the other commanders brought it 18 to my attention that he appeared to be quite distracted 19 during most of the trainings. He was on his phone 20 continuously during any of the breaks, not interacting 21 with any other team members, and it gave them concern. 22 Q. Do you have any knowledge about the outcome of 23 the criminal case against the driver of the Bentley? 24 A. I do not. 25 Q. If I put in front of you a copy of a court Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3066 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1970 1 criminal docket from the San Luis Obispo County Superior 2 Court system, do you think you can decipher it for us? 3 A. I believe so. 4 Q. Have you ever reviewed a court document from 5 the San Luis Obispo County Court system before? 6 A. I have. 7 MR. PALMER: I don't have copies of this yet, 8 Kasey, but I'll let you look at it before I inquire. 9 THE HEARING OFFICER: Are you going to put it 10 in or are you just going to ask him about it? 11 MR. PALMER: Could we take a break and, maybe, 12 have it copied? 13 THE HEARING OFFICER: Yeah. Let's do that. I 14 prefer we have all the same papers. Let's go off the 15 record. 16 (Discussion off the record.) 17 MR. PALMER: In an off-the-record discussion 18 between Ms. Castillo and I, I think we have a 19 stipulation. Let me see if I can articulate it 20 correctly. 21 May it be stipulated, Ms. Castillo, that the 22 driver of the Bentley was charged by the San Luis Obispo 23 County district attorney with several violations of 24 Vehicle Code, but ultimately pled guilty to Vehicle Code 25 Section 23153 -- actually, pled nolo contendere to Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3067 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1971 1 23153B of the Vehicle Code and admitted a violation of 2 23538B(2)? 3 THE HEARING OFFICER: 23538B(2). 4 MR. PALMER: Parens B -- capital B and parens 5 2. 6 THE HEARING OFFICER: Okay. 7 MS. CASTILLO: Yes. 8 MR. PALMER: Thank you. 9 THE HEARING OFFICER: All right. Very good. 10 MR. PALMER: Let me just check my list. 11 MS. CASTILLO: Based on the outstanding 12 investigation by the MAIT team, including Officer 13 Waddell. 14 THE HEARING OFFICER: Okay. I don't think 15 there's a stipulation as to that. 16 MR. PALMER: No. 17 THE HEARING OFFICER: So we don't have a 18 Department 25, then, at the moment? 19 MR. PALMER: We don't. 20 THE HEARING OFFICER: Okay. 21 MR. PALMER: Nothing more for Captain Staley at 22 this time. 23 THE HEARING OFFICER: Cross-examination? 24 MS. CASTILLO: Yes. 25 /// Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3068 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1972 1 CROSS-EXAMINATION 2 BY MS. CASTILLO: 3 Q. That physical fitness training took place in 4 2011? 5 A. I don't remember the dates of the training. 6 Q. Well, you remember all those other details 7 really well, though, right? 8 A. What I remember was the incident that 9 Mr. Waddell had testified to because I remember 10 specifics of it, yes. 11 Q. Okay. But you know that he was out on medical 12 in 2012, right? 13 A. I don't remember dates of medical leave. 14 Q. Okay. Well, I can recall him. 15 So you know he was looking at his watch and 16 that annoyed you? 17 A. I never said that it annoyed me. 18 Q. You said he was looking at his watch, right? 19 A. That's correct. 20 Q. How many times did he look at his watch? 21 A. It seemed to be repeatedly. 22 Q. What's that mean? Multiple times? 23 A. That would be multiple times, yes. 24 Q. More than one? More than two? More than 25 three? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3069 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1973 1 A. I'd say more than five, that I observed, 2 myself. 3 Q. And how long was this training? 4 A. You have a minimum, I believe, of 6 minutes and 5 30 seconds to complete it. 6 Q. And so am I right in saying that it's timed? 7 A. Yes. 8 Q. Okay. So is there -- is it outside? 9 A. Correct. 10 Q. Okay. Is there a big clock somewhere? 11 A. No. 12 Q. So you would look at your watch to see how much 13 more time you have? 14 A. You could. 15 Q. Okay. And then you said he looked at his phone 16 on his break? 17 A. I said he looked at his phone repeatedly, 18 according to the other commanders, what they shared with 19 me. 20 Q. Oh. So you didn't actually see that? 21 A. I've seen it myself, yes. 22 Q. Well, that time or on another occasion? 23 A. On numerous times at training. 24 Q. At training or at this training? 25 A. At trainings. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3070 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1974 1 Q. Well, just trainings, in general? 2 A. Correct. 3 Q. What kind of trainings? S.W.A.T. trainings or 4 training or just -- 5 A. S.W.A.T. trainings, is what I was referring to. 6 Q. Was he ever removed from the S.W.A.T. team? 7 A. No. 8 Q. Okay. And, in fact, he was given the 9 additional assignment of becoming a sniper, right? 10 A. Ancillary assignment, yes. 11 Q. So he didn't just remain an operator, he also 12 became a sniper, right? 13 A. Correct. 14 Q. Okay. Is there a policy against looking at 15 your phone? 16 A. No. 17 Q. Okay. So is it your testimony that this 18 prohibited him from becoming a sergeant, these two 19 things? 20 A. No. 21 Q. So what is the point of testifying about this? 22 A. The questions were asked of me. 23 Q. Okay. Thank you. 24 What year, again, did these things occur, or 25 just over the course of his career? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3071 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1975 1 A. I'd say phone observations I saw for a number 2 of years and I would say the PT test I don't recall the 3 exact year when that occurred. 4 Q. Was he ever written up for these things? 5 Did you specifically talk to him about these 6 things? 7 A. I did not. 8 Q. Were these ever brought to his attention by 9 another commander, that you're aware of? 10 A. I'm not sure if they were or not. 11 Q. Do you know if the chief ever talked to him 12 about the use of his phone on a break? 13 A. Do I know if the chief did? I have no idea. 14 Q. Okay. Okay. So this policy, this -- 15 THE HEARING OFFICER: Are you talking about 16 Department 24? 17 MS. CASTILLO: Right. 18 BY MS. CASTILLO: 19 Q. So this is about the rule of three, right? 20 A. Yes. 21 Q. Was there a ranking to determine who was in the 22 top three? 23 A. Yes. 24 Q. Who was number one? 25 A. I believe -- which testing process are you Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3072 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1976 1 referring to? 2 Q. The last one that Officer Waddell was there. 3 A. I'm not sure which one -- how many times 4 Officer Waddell tested or which one you're referring to. 5 Q. 2012 of September. 6 A. 2012? I believe he was number one in that one. 7 Q. Okay. And what about after the written oral 8 for the supervisor evaluations? 9 A. I'm not sure what you're talking about, the 10 written oral. 11 MS. CASTILLO: Well, the written exam -- 12 nothing else. 13 THE HEARING OFFICER: Redirect? 14 MR. PALMER: No. 15 THE HEARING OFFICER: So we're all done with 16 Captain Staley? 17 MR. PALMER: Yes. 18 THE HEARING OFFICER: Very good. Not that 19 you're going anywhere, but there you go. 20 Okay. Are we going to deal with Department's 21 24? 22 MR. PALMER: Move it into evidence, please. 23 THE HEARING OFFICER: Any objection? 24 MS. CASTILLO: No. 25 THE HEARING OFFICER: Without objection, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3073 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1977 1 Exhibit 24 is admitted. 2 Next witness? 3 MR. PALMER: Christine Dietrick. 4 THE HEARING OFFICER: All right. I don't think 5 you've testified yet. Ms. Dietrick -- 6 MS. CASTILLO: I want to -- before she 7 testifies, I have a question. If she's going to 8 testify, then I'm going to want to know if I can ask her 9 about all those things that I didn't get to ask or hear 10 about in that in camera review. If she's going to take 11 the stand and -- I mean, if she's going to take the 12 stand, I feel like I should get to hear about all those 13 things that were -- 14 MS. DIETRICK: I'm assuming I'm going to be 15 asked to testify about non-privileged matters, and 16 because I'm not the holder of the privilege, I will 17 decline to testify about any privileged matter. 18 MS. CASTILLO: Well, then I don't understand 19 what she's testifying about. 20 MR. PALMER: I can give you an offer of proof 21 if you'd like. 22 THE HEARING OFFICER: Go ahead. I'd like to 23 hear it. 24 MR. PALMER: Ms. Dietrick will be asked 25 questions about the date on which the Skelly conference Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3074 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1978 1 was heard, who was present, the fact that it was 2 recorded, who was present during the recording, at the 3 point at which it ended, as Mr. Waddell said, he was 4 asked to leave the room, and then perhaps Ms. Dietrick's 5 impressions about Ms. Winter's demeanor following the 6 conclusion of the entire Skelly proceeding and whatever 7 discussion was had after the Skelly. 8 THE HEARING OFFICER: Let me make this easy for 9 you. 10 MR. PALMER: Okay. 11 THE HEARING OFFICER: Okay? First of all, I'm 12 not going to hear any testimony that opens the door to 13 any privileges. So the law is what it is about the in 14 camera part. So we're not going to get into that on 15 direct or on cross. 16 With respect to the Skelly testimony, I think 17 that needs to be introduced because there was no Skelly 18 stipulation here and I'm required to make some findings 19 about that, so that would help me, but as to what the 20 attorney's demeanor was, I don't want to hear anything 21 about that. 22 MR. PALMER: Fine. 23 THE HEARING OFFICER: So with that in mind, 24 let's proceed. 25 MR. PALMER: Okay. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3075 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1979 1 THE HEARING OFFICER: Did you have any 2 objection you wanted to put on the record? 3 MS. CASTILLO: So then my question is, how far 4 are we going? 5 MR. PALMER: Based on -- I'm sorry? 6 THE HEARING OFFICER: One never knows until one 7 begins that adventure. 8 So you're going to take ten minutes, or so, I 9 take it? 10 MR. PALMER: Less than that. 11 THE HEARING OFFICER: Okay. 12 MS. CASTILLO: Well, I mean, so my question is, 13 are we stopping at the point of Skelly is over or are we 14 going beyond that? 15 MR. PALMER: That's where I'm going to stop. 16 MS. CASTILLO: Okay. 17 THE HEARING OFFICER: All right. So let's 18 proceed. 19 Ms. Dietrick, could I get you to raise your 20 right hand? Do you affirm that the testimony that you 21 are about to give will be the truth, the whole truth and 22 nothing but the truth? 23 THE WITNESS: I do. 24 THE HEARING OFFICER: Thank you. Put your hand 25 down. Go ahead. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3076 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1980 1 MR. PALMER: Thank you. 2 3 DIRECT EXAMINATION 4 BY MR. PALMER: 5 Q. By whom are you employed, please? 6 A. I am city attorney for the City of San Luis 7 Obispo. 8 Q. How long have you been so employed? 9 A. As city attorney, about five and a half years, 10 a total of about ten and a half years with the city. I 11 was assistant city attorney prior to my employment of 12 city attorney. 13 Q. Were you present on the day set for 14 Mr. Waddell's Skelly response to the Notice of Intent to 15 Terminate his employment? 16 A. Yes, I was. 17 Q. And where was that Skelly to take place? 18 A. That was scheduled to occur and did occur in 19 the chief of police's office at Walnut Street. 20 Q. And was the chief of police present? 21 A. He was. 22 Q. Were you present? 23 A. I was. 24 Q. Was Mr. Waddell present? 25 A. He was. Well, he was for part of the -- for Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3077 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1981 1 the initial part of the discussion. 2 Q. Okay. And did Mr. Waddell have legal counsel 3 to assist him? 4 A. He did. 5 Q. And who was that? 6 A. I believe that was Nicole Winter at that time 7 with -- formerly with Ms. Castillo's firm. 8 Q. Okay. And did there occur an actual Skelly 9 meeting? 10 A. There did. 11 Q. Where did that occur? 12 A. That occurred in the chief's office. 13 Q. And who was present? 14 A. Just the four of us, Mr. Waddell, his counsel, 15 the chief and me. 16 Q. And was it audiotape-recorded? 17 A. A portion of it was. The beginning of the 18 interaction was, yes. 19 Q. Okay. And -- 20 A. And I believe by both parties. I believe we 21 both advised one another that we would be recording. 22 Q. And did Ms. Winter provide a Skelly response on 23 Mr. Waddell's behalf? 24 A. She did. 25 Q. Did Mr. Waddell say anything? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3078 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1982 1 A. To my recollection, he did not, other than, 2 maybe, some brief introductory remarks, but he did not 3 provide any substantive response, to my recollection. 4 Q. Okay. And was the Skelly conference concluded? 5 A. Yes. 6 Q. Did all parties leave? 7 A. Yes. 8 MR. PALMER: Nothing further. 9 THE HEARING OFFICER: Cross? 10 11 CROSS-EXAMINATION 12 BY MS. CASTILLO: 13 Q. Good morning. 14 Prior to the Skelly conference, did Ms. Winter 15 send the chief of police a Skelly letter? 16 A. Yes. 17 Q. And are you aware as to whether or not the 18 chief of police responded to that letter? 19 A. I don't believe he did. 20 My recollection is that she raised some 21 procedural issues. I believe that we addressed them and 22 I believe, if I'm remembering correctly, you can refresh 23 my memory, but I responded verbally during the Skelly 24 proceeding to the procedural issue that she had 25 raised. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3079 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1983 1 Q. Were they responded to in the portion that was 2 recorded or not recorded? 3 A. Uh, I believe that was in the recorded portion. 4 Q. And that was just a general denial or 5 disagreement, right? 6 A. It was a substantive discussion of our 7 interpretations and application of the law and the 8 perception of what the charging document was attempting 9 to do. 10 Q. Yet, we're here with the same charges, right? 11 A. I'm sorry? 12 Q. Yet, here we are with the same charges, 13 correct? 14 A. I still didn't understand the question. 15 Q. I said, yet, here we are with the same charges, 16 correct? 17 A. Correct. 18 Q. And the issues that were raised were statute of 19 limitations issues, right? That was one issue, correct? 20 A. I believe so. I, honestly, have not reviewed 21 the letter recently. 22 So if you wanted to provide me with a copy of 23 the letter, I could refresh my recollection, but I 24 believe that may have been one of the issues raised. 25 Q. I think it's been entered into evidence. I Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3080 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1984 1 don't remember what the -- 2 THE HEARING OFFICER: I can read it for myself. 3 MS. CASTILLO: Yeah. 4 BY MS. CASTILLO: 5 Q. And I think one of the other issues was the 6 administrative charging of a Vehicle Code section, 7 correct? 8 A. That's the one I'm recalling most explicitly, 9 right. 10 Q. Okay. And then, at some point, Mr. Waddell was 11 asked to step outside, correct? 12 A. Ms. Winter did ask him to leave the Skelly 13 hearing. 14 Q. Okay. And then there was a conversation 15 between yourself, the chief and Ms. Winter, and that was 16 not recorded? 17 A. We agreed that that would be off-the-record 18 discussions in the spirit of resolution discussions. 19 MS. CASTILLO: Okay. Nothing further. 20 THE HEARING OFFICER: Anything on redirect? 21 MR. PALMER: No. 22 THE HEARING OFFICER: Okay. So we're done with 23 this witness? 24 MR. PALMER: Yes. 25 THE HEARING OFFICER: Thank you. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3081 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1985 1 MR. PALMER: Now, that's it for rebuttal 2 witnesses. I just have one final inquiry. 3 THE HEARING OFFICER: This is on the record? 4 MR. PALMER: Yes. 5 THE HEARING OFFICER: Okay. 6 MR. PALMER: I have the actual Skelly 7 recording. I would like to make that an exhibit. The 8 only problem is I only have one disk at this point. I 9 can play it. I can tell you it's slightly less than ten 10 minutes long. So it won't take a long period of time, 11 or we can just keep the record open and I could e-mail 12 it to everybody. I'm sure Ms. Castillo has one already, 13 but I'll be glad to e-mail it or provide a disk. 14 The reason why I have to do it this way is 15 because I've had a difficult time playing it in the 16 past. I can do it now, but I've had a difficult time 17 playing it because the software needed to play it has to 18 be loaded in a light version on one's computer before it 19 will play -- 20 THE HEARING OFFICER: I'm not clear on why it's 21 necessary to have this recording. 22 MR. PALMER: Okay. The only reason that I am 23 expressing an interest to actually have the recording in 24 the record is because they've alleged in opening 25 statement that there was a Skelly violation. I don't Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3082 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1986 1 know what that is because I haven't heard any evidence 2 which supports it, but I'm skittish about leaving that 3 thing open without placing the actual Skelly recording 4 in evidence so that, later on, if I come to understand 5 what the Skelly violation is, I'll have something in the 6 record to refer to to rebut it. 7 THE HEARING OFFICER: Ms. Castillo? 8 MS. CASTILLO: I don't believe the Skelly 9 violation has anything to do with what happened at the 10 Skelly hearing. 11 THE HEARING OFFICER: Well, what is the Skelly 12 violation then? Let's get that clear. 13 MS. CASTILLO: Skelly violation has to do with 14 all of the materials that were not turned over to my 15 client in advance. 16 THE HEARING OFFICER: In advance of the Skelly 17 meeting? 18 MS. CASTILLO: Correct. It has nothing to do 19 with what happened at Skelly. So I'm kind of confused, 20 myself, about the Skelly hearing. 21 THE HEARING OFFICER: So in light of that, 22 Mr. Palmer, is it necessary to have the recording in? 23 I mean, I don't mind putting it in, but I don't 24 know if it's going to really shed any light on the 25 issues that they are raising and I assume you are going Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3083 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1987 1 to brief. 2 MR. PALMER: I still would request that it be 3 made part of the record. 4 THE HEARING OFFICER: All right. Let's go off 5 the record for a second. 6 MR. PALMER: Sure. 7 (Recess.) 8 THE HEARING OFFICER: We're going back on the 9 record and the department wants to play -- actually, I'm 10 directing them to play, for the record, a recording that 11 was made of the Skelly meeting of appellant, and 12 Ms. Castillo wanted to make a representation, and we'll 13 see if we have a stipulation or not, but, Ms. Castillo, 14 what do you want to have understood? 15 MS. CASTILLO: Because there is a portion of 16 the Skelly hearing that was not recorded between 17 Ms. Quintana-Winter and the city attorney and the chief 18 of police, I think it's appropriate that the record 19 reflect that that portion -- or, at least, the record 20 show that because there's an unrecorded portion, that 21 whatever is now being commemorated be reflective that 22 this is not the entirety of the Skelly hearing and that 23 my client's testimony of what his understanding of the 24 Skelly hearing was, what he experienced, as well as what 25 was his interpretation based on what was relayed to him Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3084 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1988 1 by Ms. Quintana-Winter, based on what she experienced, 2 as well. 3 THE HEARING OFFICER: Do you want to comment on 4 that, Mr. Palmer? 5 MR. PALMER: Yeah. I can't stipulate to that. 6 The comment that I would make is that, as far as I 7 understand the proceeding, the way it's been described 8 to me, because I wasn't present, was that everybody was 9 assembled there for a Skelly conference. There was 10 discussion had about an offer to compromise, which we're 11 not going to get into, but in terms of what you're going 12 to hear, as far as I understand it, and we can have 13 Ms. Dietrick testify to this, if necessary, that what 14 I'm going to play is the entirety of the formalized 15 verbal Skelly response made on behalf of Mr. Waddell. 16 THE HEARING OFFICER: All right. So -- 17 MS. CASTILLO: I will not agree to that because 18 that is not my understanding, as well, in having spoken 19 to Ms. Winter. 20 THE HEARING OFFICER: All right. And that's 21 fine. You don't have to agree on this. 22 To me, this is just coming in to find out if he 23 had notice and opportunity to be heard. So it's another 24 piece of evidence, the way that the paperwork that was 25 served on him is, or the paperwork that wasn't served on Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3085 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1989 1 him would be evidence that he didn't have that 2 opportunity, et cetera. It says what it says and I'm 3 going to weigh it with respect to that. If there's 4 other evidence I should hear, we can take that up, too. 5 So with that in mind, let's go ahead and put it 6 on the record. 7 MR. PALMER: Are we going to relieve the court 8 reporter of her requirement to take this down? 9 THE HEARING OFFICER: Oh. I thought that was 10 the whole point, is that we were going to do that in 11 lieu of accepting a digital recording or something else 12 into the record. That's what I intend to do. 13 MR. PALMER: That would be fine. 14 THE HEARING OFFICER: Is she close enough to 15 hear that or do we need to move her? Let's go off the 16 record. 17 (Discussion off the record.) 18 CHIEF GESELL ON AUDIO RECORDING: Test, test, 19 one, two, three. The following will be a recording of 20 the Skelly hearing with Officer Kevin Waddell. The date 21 is 9/11/2014. The time is 1:30 p.m. Present is myself, 22 Christine Dietrick, our city attorney, and we expect to 23 see Officer Waddell and his legal representative. 24 THE HEARING OFFICER: Who is speaking? 25 CAPTAIN STALEY: Chief Gesell. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3086 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1990 1 MS. DIETRICK: Chief Steve Gesell. 2 THE HEARING OFFICER: Okay. Instead of putting 3 "voice," that's who it should be. 4 THE COURT REPORTER: Okay. 5 (THE FOLLOWING IS AUDIO RECORDING BEING 6 PLAYED): 7 "MS. DIETRICK: Nicole Winter. 8 CHIEF GESELL: Nicole Winter. 9 MS. DIETRICK: So going on the record, just to, 10 sort of, give you an introduction, I'm sure you guys had 11 time to discuss this, but this is not a formal hearing. 12 This is just your opportunity to address the Notice of 13 Intent to Terminate that was served on you, provide the 14 chief with any information that you think is relevant to 15 his consideration of what final action will be taken. 16 So it's not an opportunity for you to question the 17 chief. If he has -- needs clarification based on your 18 statements, he'll ask you those follow-up questions. 19 Otherwise, we're, primarily, here to listen. 20 So with that, we did receive your counsel's 21 letter raising a couple of issues. At this point, we're 22 happy to hear your concerns and arguments on those 23 issues, but we don't think that the statutory provision 24 or the Labor Code provision has an application here. So 25 we're not using the past or rest as a basis for Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3087 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1991 1 termination or a charge. We are administratively 2 charging conduct that would legally otherwise violate a 3 statutory provision. 4 So we're happy to hear your arguments on those 5 and the chief will certainly take those under 6 consideration as he determines what final action to take 7 following your presentation. 8 MS. QUINTANA-WINTER: For the record, because 9 of the fact that there is an allegation of criminal 10 misconduct, I'm also -- on my client's behalf, I have 11 advised him to remain silent. This is a voluntary 12 statement that he would be making. So it could be used 13 against him in a court of law and it's not covered under 14 (inaudible), as you well know. 15 So, therefore, I've asked him to actually 16 remain silent, which is a difficult position for him to 17 be in, but because that allegation is still on the 18 table, I just can't let him speak due to potential 19 liability. I'm here to speak on his behalf and I've 20 already sent you the letter and I appreciate you took 21 the time to do a legal analysis and I understand what 22 you're saying about it not being applicable. 23 Really, I'm just here just to discuss, you 24 know, in accordance with Skelly, the mitigating factors 25 that we would ask you, Chief, to take into Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3088 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1992 1 consideration, which is, primarily, you know, a lack of 2 past discipline. So it's not a situation which we 3 understand you're -- you're not acting under the 4 guidance of a progressive discipline policy, you're 5 taking it based on these incidences and applying 6 discipline, but I would ask you, Chief, if you could -- 7 and I know you already have it again -- revisit the 8 issue of his personnel record, which many of his evals 9 were just -- were very, very -- spoke very highly for 10 Kevin, his ability to learn new skills, and not only 11 learn those skills, such as total station or running 12 programs like the DRMO, but to apply them here as a 13 police officer and, also, to share those skills. 14 So he trained others with the total station, he 15 also trained others on being a motorcycle police 16 officer, which, motorcycle, I can't imagine how 17 difficult that is just to ride one and then be someone 18 who has to enforce the law and protect others. So 19 that's something that I'm sure you, as a chief, have 20 great experience with, but it is something that he 21 sought to share with his fellow officers. 22 Also, Chief, was the fact that this is out of 23 character, the incident as a whole, for both 24 administrative investigation matters. There was nothing 25 like it in his personnel records, which I understand is Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3089 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1993 1 why there's no progressive discipline here, but I think 2 there are other factors that may have led to a situation 3 where, you know, Kevin handled this situation poorly, 4 which I know, Chief, and I know you took this into 5 consideration when you looked at his interviews and you 6 weighed -- you know, carefully weighed and analyzed the 7 elements, but, again, just hoping to reinforce the fact 8 that, at that time, I think Kevin had something between 9 15 to 20 days off, he was working a great deal of 10 overtime six months leading up to the October 19th 11 incident and he, I think, had taken on quite a bit for a 12 young officer and maybe -- maybe there was an issue -- 13 maybe too much, just having a child who has special 14 needs, caring for the family, which I know a number of 15 supervisors mentioned about the drain and the sacrifice 16 that a police officer must normally make. 17 So it's important, and I know your supervisors 18 touched on it, about balancing those issues and knowing 19 when you've reached your limit, and maybe that was just 20 a lot for Kevin to have on his shoulders, the DRMO, that 21 he was with the traffic accident investigation unit and 22 a special needs child, he was taking on all these 23 overtime shifts and, you know, he just pushed himself 24 too far and didn't have, you know -- unfortunately, 25 we've got the well-rested state of mind to deal with Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3090 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1994 1 these issues. 2 Again, I -- you know, I've already presented my 3 arguments in the letter about the statute of limitations 4 and I wasn't going to hide anything. I just wanted to 5 let you know where we were coming from. We believe 6 Sergeant Pfarr was in a position to administrate an 7 investigation or to start an investigation with the 8 higher up. He chose not to. He chose to handle it by 9 verbal counseling. 10 But regardless of all that is the fact that, 11 you know, Kevin, (inaudible) in his interview, that poor 12 choice, it's just not appropriate, it's conduct 13 unbecoming to joke in that manner or to even have any 14 other concerns other than what his duties and 15 responsibilities are and I'm sure what you'd want for 16 every single one of your officers when they're on or off 17 duty. 18 So it's not that we're here, in any way, to say 19 Kevin shouldn't be disciplined, but we're here, 20 obviously, to see if there's something in between 21 termination and no discipline, and that's why I'm here 22 not just as an advocate, but, hopefully, as someone who 23 can come to a resolution on this. 24 The other -- and then Kevin explained his 25 issues on the second incident on October 19th, 2013. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3091 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1995 1 Again -- and, Chief, you're an expert, you know, 2 literally, as a law enforcement officer, and I 3 understand that you know how critical communications are 4 and we're -- Kevin is, in no way, excusing that. Again, 5 he's here to -- he understands he needs to have 6 discipline. It's just the loss of his career and, of 7 course, what the dishonesty and the BC10852 speak to, 8 which are all (inaudible) allegations and the concern 9 for any future employment. 10 So, again, we're asking that going back through 11 the IA, seeing the fact that, you know, tired, harried, 12 rushed, a family man, he wasn't -- there was no -- in 13 his misspeaking, it wasn't to cover up something like 14 other officers who, unfortunately, I've repped and 15 worked with who, you know, steal drugs, have drug 16 problems, they have problems with gambling, 17 prostitution, they're trying to cover up morally 18 bankrupt behavior. 19 And we understand -- of course, I was 20 prosecutor for 12 years, deputy district attorney for 12 21 years. I know how damaging dishonesty can be, and it's 22 why (inaudible) case law and its progeny has come to 23 what it's come to, but at the same time, in all of those 24 analyses is a concern over being sure that we reach that 25 threshold and being sure before we wipe someone off, you Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3092 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1996 1 know, essentially, the face of the earth with an 2 allegation as serious as this one. 3 So those are some of the mitigating factors 4 that, you know, Chief, again, we're just here asking you 5 to take those into consideration on Kevin's behalf 6 because Kevin understands that this is a situation where 7 he needs discipline, he needs to own his situation, but 8 we're hoping there's something less than termination. 9 CHIEF GESELL: Thank you. I appreciate it. 10 MS. QUINTANA-WINTER: Is there an opportunity 11 to talk off record? Are you comfortable with that, 12 Chief? 13 CHIEF GESELL: Is there such thing as off the 14 record? 15 MS. QUINTANA-WINTER: Yeah, there is. I 16 believe so. I mean, I've always -- 17 CHIEF GESELL: I was told that once by a 18 reporter. Yeah. I can't guarantee -- 19 MS. QUINTANA-WINTER: Sure. 20 CHIEF GESELL: -- how lopsided that 21 conversation will be, but sure. 22 MS. QUINTANA-WINTER: Okay." 23 (Audio recording stopped.) 24 THE HEARING OFFICER: Okay. So that's it. 25 MR. PALMER: I have one more area of inquiry Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3093 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1997 1 with Ms. Dietrick, please. 2 THE HEARING OFFICER: All right. 3 Have we identified everybody who was there and 4 all the voices on that recording, as far as you -- 5 THE COURT REPORTER: It was Ms. Winter and then 6 the other one was the -- you said was -- 7 THE HEARING OFFICER: Chief. 8 MR. PALMER: The preamble at the beginning was 9 Ms. Dietrick. 10 THE HEARING OFFICER: Okay. 11 12 REDIRECT EXAMINATION 13 BY MR. PALMER: 14 Q. Ms. Dietrick, during any period of time while 15 you were present during the day on which the Skelly 16 response was said to be had by Mr. Waddell and his 17 lawyer, did you hear Chief Gesell say to Mr. Waddell 18 anything in the nature of he had a moral obligation to 19 ensure that Mr. Waddell was never a cop again? 20 A. To my recollection, there was not any direct 21 communication between Mr. Waddell and the chief, at all, 22 that day and that was the conclusion of the group 23 discussion, and, thereafter, Ms. Winter asked 24 Mr. Waddell to leave the room and we had, like I said, 25 what was in the nature of a settlement discussion Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3094 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1998 1 thereafter. 2 MR. PALMER: Thank you. Nothing further. 3 THE HEARING OFFICER: Cross-examination? 4 THE WITNESS: Which -- I'm sorry. Which was 5 memorialized -- the contours that which were later 6 memorialized in a correspondence between Ms. Winter -- 7 THE HEARING OFFICER: What was memorialized? 8 MS. DIETRICK: The contours of -- 9 MS. CASTILLO: I'm going to object to this. I 10 believe that that was something that we were not going 11 to talk about on the record. 12 THE HEARING OFFICER: All right. Fair enough. 13 Let's not go there. Cross-examination? 14 MS. CASTILLO: Not of Ms. Dietrick. 15 THE HEARING OFFICER: No? 16 MS. CASTILLO: No. 17 THE HEARING OFFICER: Okay. Great. 18 MR. PALMER: Rebuttal rested. 19 THE HEARING OFFICER: Very good. 20 MS. CASTILLO: I have a question -- I'd like to 21 recall the appellant briefly. 22 THE HEARING OFFICER: Any objection? 23 MR. PALMER: No. 24 THE HEARING OFFICER: All right. So we're 25 going to have some surrebuttal. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3095 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 1999 1 MS. CASTILLO: Yes. 2 THE HEARING OFFICER: The appellant is being 3 called. 4 Mr. Waddell -- Officer Waddell, you're still 5 under oath. You understand? 6 THE WITNESS: Yes. 7 THE HEARING OFFICER: Very good. Ms. Castillo, 8 go ahead. 9 10 DIRECT EXAMINATION 11 BY MS. CASTILLO: 12 Q. After the Skelly hearing, did you and 13 Ms. Quintana discuss what was said while you were 14 outside -- while you were not present during the meeting 15 between Ms. Dietrick, the chief and Ms. Quintana? 16 MR. PALMER: Objection. Doesn't that get right 17 into the offer to compromise? 18 MS. CASTILLO: I'm not asking about the offer 19 to compromise. 20 THE HEARING OFFICER: What's the question? 21 Could you read that back? 22 (Record read by the court reporter.) 23 THE HEARING OFFICER: You're just looking for a 24 yes or no? 25 MS. CASTILLO: Correct. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3096 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 2000 1 THE HEARING OFFICER: That's all I want to 2 hear. 3 THE WITNESS: Yes. 4 BY MS. CASTILLO: 5 Q. And Mr., um, Palmer -- sorry -- just asked 6 Ms. Dietrick about direct communication between you -- 7 yourself and the chief. Did you hear those questions? 8 A. Yes. 9 Q. There was no direct communication between you 10 and the chief, right? 11 A. No. 12 Q. That comment about a moral obligation to keep 13 you from being a police officer again, do you know where 14 that came from? 15 A. Yes. 16 Q. Where did it come from? 17 A. Chief Gesell. 18 Q. And how was that communicated to you? 19 A. From my attorney. 20 Q. Were you present when that comment was made? 21 A. No. 22 MS. CASTILLO: Nothing further. 23 THE HEARING OFFICER: Anything else? 24 MR. PALMER: Yes. 25 Were you present for the entire proceedings, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3097 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 2001 1 Ms. Dietrick? 2 MS. DIETRICK: Yes, I was. 3 THE HEARING OFFICER: Wait. Who is being 4 examined here? 5 MR. PALMER: Ms. Dietrick. 6 MS. CASTILLO: Oh. I thought -- 7 THE HEARING OFFICER: Anything of the 8 appellant? 9 MR. PALMER: Oh. No, thank you. No. Sorry. 10 THE HEARING OFFICER: All right. So any other 11 surrebuttal? 12 MR. PALMER: I jumped the gun. 13 THE HEARING OFFICER: That's a no? 14 MS. CASTILLO: No. I'm done. 15 THE HEARING OFFICER: Okay. Mr. Palmer, 16 anything else from the department? 17 MR. PALMER: Yes. I call Ms. Dietrick. 18 THE HEARING OFFICER: Okay. 19 20 DIRECT EXAMINATION 21 BY MR. PALMER: 22 Q. Ms. Dietrick, at any time that you were present 23 during the proceedings on the day of the Skelly, did you 24 hear Chief Gesell say to anyone at any point he had this 25 moral obligation? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3098 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 2002 1 A. Not that I recall. I mean, he certainly talked 2 about the gravity of the offensive lying and what that 3 means in the life and career of a police officer, but to 4 my recollection, there was nothing from the chief 5 indicating there's no resolution possible here, and 6 that -- as I said, that was sort of the onus of the 7 settlement discussions. 8 MR. PALMER: Nothing further. 9 THE HEARING OFFICER: Anything else? 10 11 CROSS-EXAMINATION 12 BY MS. CASTILLO: 13 Q. Well, he indicated that there was a resolution, 14 possibly, correct? 15 A. We indicated that we would be willing to 16 consider -- 17 Q. A resolution? 18 A. -- a resolution. 19 Q. But that resolution did not include Mr. Waddell 20 remaining a police officer? 21 THE HEARING OFFICER: I don't want to hear 22 that. That's the substance. That's, obviously, the 23 implication, but, no, I don't want to hear that, not 24 from the attorney. 25 MS. CASTILLO: I have nothing else. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3099 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 2003 1 THE HEARING OFFICER: Anything else? 2 MR. PALMER: No, sir. 3 THE HEARING OFFICER: Very good. Okay. So 4 we're all done submitting evidence in this proceeding; 5 is that correct? 6 MR. PALMER: I am done. 7 MS. CASTILLO: I'm done, also. 8 THE HEARING OFFICER: I'm sorry, Ms. Castillo? 9 MS. CASTILLO: I'm also done. 10 THE HEARING OFFICER: Thank you. Let's go off 11 the record and talk about what's next. 12 (Discussion off the record.) 13 THE HEARING OFFICER: So we're going back on 14 the record to confirm that now that the evidentiary 15 record is closed, the parties have agreed on a briefing 16 schedule. Closing argument briefs will be due to be 17 filed by Monday, December 7th. The parties can file 18 directly with me and serve each other by e-mail 19 attachment, PDF or Word document. That's fine. 20 And we've also set a date for closing reply 21 briefs, and that's Monday, November 14th -- 22 MR. PALMER: December. 23 THE HEARING OFFICER: -- the same conditions. 24 MR. PALMER: December. 25 THE HEARING OFFICER: Excuse me. December. If Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3100 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 2004 1 I've misspoken at any point there, we're talking about 2 December 2015. 3 My report and recommendations to be due within 4 30 days of receipt of the reply briefs. I have 5 represented to the parties that I'm going to do my best 6 to get this done by the end of the year. Anything else? 7 MR. PALMER: Not from me. 8 MS. CASTILLO: Good luck. 9 MR. PALMER: Back to you. 10 THE HEARING OFFICER: Yeah. Before we close, 11 we just wanted to -- I wanted to say that I join Kasey 12 in wishing Greg an efficient and productive surgery, 13 speedy recovery therefrom. 14 I also want to thank Kasey for adjusting her 15 schedule considerably to make the time to not only be 16 here today and the last couple of meetings, but, also, 17 to do her best to shorten the case. I really appreciate 18 that. You did a great job with that. Thank you very 19 much. 20 MR. PALMER: I appreciate that, too. 21 THE HEARING OFFICER: So Godspeed to Greg and 22 we'll see you when we see you. 23 MR. PALMER: Thank you. 24 THE HEARING OFFICER: Thank you. 25 (The proceedings adjourned at 11: 34 a.m.) Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3101 ARBITRATION, VOL. 10, 10-6-15 10/6/2015 McDANIEL REPORTING Page: 2005 1 REPORTER'S CERTIFICATE 2 3 STATE OF CALIFORNIA) SS. 4 5 I, MELISSA PLOOY, Certified Shorthand Reporter, 6 court reporter pro tem for the State of California, 7 County of San Luis Obispo, holding Certified Shorthand 8 Reporter License No. 13068, do hereby certify: 9 That the aforementioned court proceedings was 10 reported by me by the use of computer shorthand at the 11 time and place herein stated and thereafter transcribed 12 into writing under my direction. 13 I further certify that I am neither financially 14 interested in this action nor a relative or employee of 15 any attorney or any of the parties hereto. 16 In compliance with Section 8016 of the Business and 17 Professions Code, I certify under penalty of perjury 18 that I am a Certified Shorthand Reporter with California 19 CSR License No. 13068 in full force and effect. 20 Witness my hand this 19th day of October, 2015. 21 22 _____________________________________ 23 MELISSA PLOOY, CSR NO. 13068 24 25 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3102 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 1 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KASEY A. CASTILLO, SBN #236690 Kasey@CastilloHarper.com NICOLE A. NALEWAY, SBN #300701 Nikki@CastilloHarper.com CASTILLO HARPER, APC 3333 Concours St, Bldg 4, Ste 4100 Ontario, CA 91764 Telephone 909-466-5600 Fax 909-466-5610 Attorneys for Appellant KEVIN WADDELL BEFORE HEARING OFFICER CHRISTOPHER CAMERON In the Matter of the Appeal of the Dismissal of OFFICER KEVIN WADDELL, Appellant, and POLICE DEPARTMENT OF THE CITY OF SAN LUIS OBISPO, Hiring Authority. ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL CSMCS Case No. ARB-14-0209 INTENTIONALLY LEFT BLANK] Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3103 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION TO THE HEARING OFFICER, THE SAN LUIS OBISPO POLICE DEPARTMENT AND ITS COUNSEL OF RECORD: KEVIN WADDELL (hereinafter referred to as “Officer Waddell,” “ Waddell” or “Appellant”) was an approximate twelve-year [Reporter’s Transcript, Waddell, 10/02/15, 1663] veteran of law enforcement and a seven-year officer with the San Luis Obispo Police Department (hereinafter referred to as “the Department”) [RT, Waddell, 10/02/15, 1663] when he was notified of termination on October 2, 2014 by Skelly officer, then-Police Chief Stephen Gesell, [City’s Exhibit #4]. II. CHARGES In this matter, there are two disciplinary investigations (henceforth known as the “CAT INVESTIGATION” and the “BENTLEY INVESTIGATION”) that led to the termination of Officer Waddell. According to the documentation from the Department, [City’s Exhibit #6], the basis for Officer Waddell’s termination stems from the following four (4) allegations: A. Violation of San Luis Obispo Rules and Regulations Standard of Conduct section IV.I: A Department employee shall not knowingly or willfully make a false verbal statement or give false information to a Department supervisor or investigator. B. Violation of San Luis Obispo Rules and Regulations Standard of Conduct section III: Employees of the Department shall be punctual in reporting for duty at the time and place designated by their supervising officer. C. Violation of San Luis Obispo Rules and Regulations Standard of Conduct section IV-I: Department employees shall not conduct themselves in a manner that reflects adversely on the Department, or which discredits the Department, or which is detrimental or damaging to the reputation or professional image of the Department. D. Violation of California Vehicle Code section 10852: No person shall individually or in association with one or more persons, willfully injure or tamper with any vehicle or the contents thereof or break or remove any part of a vehicle without the consent of the owner. The Department’s true motivation behind the termination of Officer Waddell was not found in the City’s Exhibit book, but was clearly evident throughout the Hearing by virtue of the actual testimony of the witnesses called by the City and the Appellant. The poisonous, jealous opinion of one sergeant and his desire to destroy the reputation of the Appellant at all costs was clearly evident, and thereafter, he enlisted the administrative members of the Department to go to great collaborative lengths to accomplish that goal, which ultimately ended in his termination. As was fleshed out during the course of the 10-day Hearing, the San Luis Obispo Police Department engaged in serious and willful misconduct during the two investigations of Appellant Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3104 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Waddell, including violations of his Peace Officers’ Bill of Rights, material misrepresentations, and committing Skelly violations. The Hearing Officer is charged with determining whether the burden has been met by the Department, and furthermore, that the Department has proved that the level of discipline imposed termination) was appropriate, considering the facts and mitigating circumstances surrounding the events in question. In the instant matter, the testimony and evidence introduced at the Hearing proved that level of discipline imposed against Officer Waddell was grossly excessive in nature given the facts and circumstances, and as such that termination is not a just and proper penalty for the alleged conduct before the Hearing Officer. III. BURDEN OF PROOF It is axiomatic, in disciplinary administrative proceedings that the burden of proving the charges rests upon the party making the charges. Parker v. City of Fountain Valley (1981) 127 Cal.App.3d 99, 113. The obligation of a party to sustain the burden of proof requires the production of credible evidence for that purpose and the employer does not meet that burden by simply placing charges before the fact finder and claiming that it established a "prima facie" case. Emphasis added. Id.; see also Los Angeles Police Protective League v. City of Los Angeles, (Cal.App. 2 Dist. 2002) 102 Cal.App.4th 85. The burden is not on the employee to refute the charges made. Steen v. Board of Civil Serv. Comm’rs (1945) 26 Cal.2d 716; Fukuda v. City of Angels, (Cal. 1999) 20 Cal.4th 805 (public City must produce evidence of misconduct by the employee; the employee has no burden to produce evidence that no misconduct occurred). An independent decision maker must make factual findings subject to judicial review. Rather, the independent fact finding implicit in the concept of an administrative appeal requires at a minimum that the hearing be treated as a de novo proceeding at which no facts are taken as established and the proponent of any given fact bears the burden of establishing it. Caloca v. City of San Diego, (2002) 102 Cal.App.4th 433. Typically, the law requires that the appointing power bear the burden of proof by a preponderance of evidence that the employee engaged in the conduct on which the disciplinary charge is based and that such conduct constitutes a cause of discipline under the applicable statutes. Steen v. City of Garden Grove (1948) 31 Cal.2d 542, 547; Parker v. City of Fountain Valley (1981) 127 Cal.App.3d 99, 113). In addition to the burden of proof being placed on the appointing or charging party, the employee may further avoid the adverse action by establishing that the conduct was justified or not inappropriate. See Skelly v. State Personnel Bd., (1975) 15 Cal.3d 194, 204, fn. 19; California Correctional Peace Officers Assn. v. State Personnel Bd., (1995) 10 Cal.4th 1133. However, in the Bentley investigation, Officer Waddell is charged with an allegation for violating Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3105 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 4 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 section 10852 of the California Vehicle Code, specifically a misdemeanor-felony wobbler for tampering with vehicle parts without the permission of the owner. As this is an offense of which the employee is accused of criminal behavior, a higher degree of proof is required where the alleged misconduct is of a kind recognized and punished by the criminal law” [See Elkouri & Elkouri, “How Arbitration Works,” at 907. 5th Ed. 1997 and 1999 Supp. [quoting Kroger Co., 25 L.A. 906, 908]. As discussed in Fong v. City of Livingston (2005) CSMCS Case No. ARB-04-2606, Elkouri & Elkouri: I]t seems reasonable and proper to hold that alleged misconduct a kind of which carries the stigma of general social disapproval should be clearly and convincingly established by the evidence. Reasonable doubts raised by proof should be resolved in favor of the accused. This may mean the employer will, at times, be required for want of sufficient proof, to withhold or rescind disciplinary action which is in fact fully deserved, but this kind of result is inherent in any civilized system of justice. Elkouri & Elkouri, “How Arbitration Works,” at 951. 6th Ed. 1997 and 1999 Supp. [quoting Kroger Co., 25 L.A. 906, 908, emphasis added]. For example, when concerning the quantum of proof to be imposed in a case involving theft, the arbitrator in Armour-Dial, [76 L.A. 96,99 (Aaron, 1980)], stated: I agree with the Union that a discharge for theft has such catastrophic economic and social consequences to the accused that it should not be sustained unless supported by the overwhelming weight of evidence. Proof beyond any reasonable doubt, even in cases of this type, may sometimes be too strict a standard to impose on an employed; but the accused must always be given the benefit of substantial doubts.” Elkouri & Elkouri, “How Arbitration Works,” at 951. 6th Ed. 1997 and 1999 Supp. [quoting Armour-Dial, 76 L.A. 96,99, emphasis added]. See also Columbia Presbyterian Hospital, where the arbitrator stated the requirement to be that the arbitrator must be completely convinced that the employee was guilty.” Elkouri & Elkouri, “How Arbitration Works,” at 951. 6th Ed. 1997 and 1999 Supp. [quoting Columbia Prebyterian Hospital, 76 L.A. 96, 99]. Ultimately, the “clear and convincing evidence” standard is applied by many arbitrators in cases where the employee is charged with an offense that is “seriously criminal, especially opprobrious, or shameful, so as to stigmatize the employee and likely to prevent the employee from obtaining other employment” [Elkouri & Elkouri, “How Arbitration Works,” at 358, 6th Ed. 2010 Cumulative Supplement, quoting Consulate Healthcare of Cheswick, 127 L.A. 1336]. As Officer Waddell is charged with an allegation a misdemeanor-felony violation of a California Vehicle Code section, the clear and convincing standard of proof applies and must be proven by the Department. Additionally, Officer Waddell is also charged with allegations amounting to dishonesty, which are highly stigmatizing charges, capable of ending his law enforcement career. As such, those charges Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3106 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 5 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 also require proof by “clear and convincing evidence.” A sustained dishonesty charge typically has the effect of preventing a police officer from continuing a career in law enforcement because it taints the officer’s credibility as a witness in criminal proceedings. Such a deprivation is similar to a revocation of a license to practice in a field for which a professional has been trained and has unique experience. To revoke a professional license, California courts have required clear and convincing proof to a reasonable certainty that the misconduct occurred. Ettinger v. Board of Medical Quality Assurance 135 Cal. App. 835, 856 (1982). In the matter at hand, it is the Department’s burden of proving, by credible and admissible evidence, each separate charge or allegation against Officer Waddell. It must also prove that the discipline imposed against Appellant Waddell was appropriate. By ALL standards, the Department has failed to meet those burdens. IV. ISSUES TO BE RESOLVED BEFORE THE HEARING OFFICER A. Should the Bentley Investigation be Stricken and Suppressed? 1. Did the Department violate the Appellant’s Peace Officers’ Bill of Rights under Government Code section 3304(d) by including the allegations pertaining to the Bentley investigation? If so, what is the remedy? 2. Did the Department violate California Labor Code section 432.7 by including the allegation of California Vehicle Code section 10852? If so, what is the remedy? B. Did the Department violate the provisions of Skelly? If so, what is the remedy? C. Did the Department violate Appellant’s Peace Officers’ Bill of Rights? If so, what is the remedy? D. Did the Department meet its burden as to each allegation, in each investigation? E. Ultimately, and based on the above issues, was the penalty of termination just and proper? If not, what is the appropriate remedy? V. FACTUAL SYNOPSIS AND PROCEDURAL HISTORY A. The Culture of Supervision in the San Luis Obispo Police Department1 Officer Waddell was able to experience the culture of the San Luis Obispo Police Department on different levels, including the level of supervision over multiple assignments. He found that it was one of self-management, with an expectation that assignments would be completed, and that officers were competent. Examples of Officer Waddell’s experience with this included when he was a motorcycle trainer, and was expected to train others on his off-time, around their regularly scheduled shifts, and as 1 As such, given the culture of the department, Appellant’s thought process in playing the prank on Sgt. Pfarr was one of a legitimate expectation that the prank would taken just as that, a joke on a new supervisor. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3107 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 6 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 time permitted. There was no management oversight, and the trainers were told to ensure that the person was proficient enough to pass the motorcycle school [RT, Waddell, 10/02/15, 1678-1679]. Time cards were approved for the time that was put in, on an honor system [RT, Waddell, 10/02/15, 1679]. In terms of his accident reconstruction assignment, due to the significant amount of analysis, he found there were days and times when he would work on his crash computations on his downtime during his regular bicycle shift, because there was not any active thing going on, and the work needed to be accomplished RT, Waddell, 10/02/15, 1680]. Officer Waddell described the supervision of accident reconstruction as passive,” in that they were expected to complete their assignments. There was no one checking in to see what they needed or how much more time was needed or when it would be completed by [RT, Waddell, 10/02/15, 1680]. The participation in the “Defense Reutilization and Marketing Office” program (herein after known as “DRMO”) was another instance of this culture of self-time management. This program acquired military surplus equipment for departmental use. His participation was solely voluntary, and he began helping in 2009 up to the time of his termination. Only he and Officer Berrios managed the equipment and were responsible for its tracking and inventory [RT, Waddell, 10/02/15, 1676]. Officer Waddell was part of that collateral assignment for almost five (5) years. The entire department benefited from him going and getting this equipment, and when he and Officer Berrios would go north or south in the state to go get the equipment, it was just expected that he would not impact his regular schedule to accomplish that program’s goals [RT, Waddell, 10/02/15, 1682]. Captain Staley oversaw” this program, and initially, he requested e-mails and some dialogue as to what was requested equipment-wise, when and where the DRMO team would be going, but Officer Waddell found quickly they would sometimes not get replies to those e-mails. As such, it was felt that they were expected to appropriately manage themselves, their time and the equipment that they were acquiring. Indeed, neither he nor Officer Berrios were ever notified that they were deficient in any way in that management of their time [RT, Waddell, 10/02/15, 1682]. Additionally, the environment of the police department was more of that like a gym locker room, than a synagogue. According to Waddell, it was “open”, “joking,” and one of “family” [RT, Waddell, 10/06/15, 1937]. He had “regularly” and personally also been the butt of the joke or prank at the police department. Indeed, when an officer got promoted to a new rank or assignment, there was a “little bit of a razzing and hazing and joking till people get settled in” [RT, Waddell, 10/02/15, 1706]. An example of this happening to the Appellant was when he dispatched over the air to a “fight at a party with a knife,” which required him as a new member of the bicycle team to peddle up a very, long and steep hill. When he reached the top of the hill, the entire night shift patrol in their cars and the supervisors were there laughing at them, as they were “pouring down sweat, breathing deeply. It was only then that [he] found Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3108 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 7 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 out that the call was, indeed, fake, that the radio broadcast was fake and there was, clearly, communication amongst the entire patrol shift that this was going to take place and don't freak out and don't go to this call” [RT, Waddell, 10/02/15, 1707-1708]. At the time, Waddell took that call, and the FCC broadcast that anyone with a scanner could have heard (including others from another police agency), seriously [RT, Waddell, 10/02/15, 1708-1709]. Appellant Waddell was the new guy on the team at the time. B. The CAT Investigation 1. The Concept and Scheduling of CAT According to the testimony of all involved, the CAT shift was an overtime detail of five (5) hours for which officers could sign up, and where they would be scheduled based on seniority. It was meant to be a foot patrol deployment of the downtown area addressing any concerns related to businesses, alcohol violations. According to Waddell, My understanding of the program, it was initially deployed that it was an overtime shift, sign-up shift as a beta test, if you will, for what could end up being a full-time program. The program, as I recall, initially, was a two-officer foot patrol, which then, during the early summer months, was a single-officer- only foot patrol shift, but then, in the fall, transitioned back to a two-officer foot patrol shift” [RT, Waddell, 10/02/15, 1686]. According to Waddell, in order to work CAT, there was a sign-up sheet posted on the board in the hallway. An e-mail went out to prospective people that wanted to work the overtime. The sign-up sheet was in the hallway, you would go to the hallway sign-up sheet, it would have CAT shift, it would have some dates, it would have lines next to the dates and people would write their names on specific dates that they wanted. There was only two lines there or one line, depending on the deployment of the number of officers, and sometimes you'd go there and there would be no names and sometimes you'd go there and there would be five names. So sometimes you wouldn't put your name there if you saw people that had more seniority than you because you knew you were probably not likely to get it” [RT, Waddell, 10/02/15, 1688-1689]. Scheduling was done by the CAT supervisor, the lieutenant in charge of the program at that time. Testified Waddell, The period of time in which the sign-up sheet would stay on the board would lapse. Someone would go get the sign-up sheet. The sign-up sheet would disappear. An e-mail would be sent out that these are the officers that are working these specific shifts. We would be told that the shifts would be put Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3109 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 8 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 into SpeedShift, the scheduling program, and we were responsible for showing up on the shifts we were assigned” [RT, Waddell, 10/02/15, 1689]. After the sign-up sheet came down and the shifts were assigned in SpeedShift, the schedule sign- up sheet was not re-posted in the hallway [RT, Waddell, 10/02/15, 1689]. 2. Officer Waddell’s Experience on the CAT Shift Officer Waddell worked a lot of CAT overtime shifts. He was already working downtown on the bicycle on the shift thereafter, so for him, it was a natural place to go to work more. According to Waddell, “I enjoyed working. Like I said, I loved being a cop. So I had no problem working as much and as often as possible” [RT, Waddell, 10/02/15, 1690]. Officer Inglehart often was partnered with Officer Waddell. Together, they were a pretty active unit,” and in his opinion, “by far, we had one of the more active units for a patrol, slash, specialty unit for proactivity. We enjoyed our job. We liked it” [RT, Inglehart, 10/02/15, 1899]. He testified that he would be surprised that it would be the opinion of Sgt. Pfarr that Officer Waddell was not proactive while on downtown bike patrol” [RT, Inglehart, 10/02/15, 1898-1899]. This opinion also carried over to the CAT shifts. Testified Officer Inglehart, “on the shifts that I worked with him, the couple that I did work, we were very proactive and we had a lot of contacts during our shift.” He also testified that all of those contacts would not be reflected over the radio [RT, Inglehart, 10/02/15, 1899]. According to Officer Waddell, while the duration of the CAT shift was typically from 11 to 4, those times were not set in stone, based on his experience. It was his experience that there was extreme flexibility, not only with emergencies, but with small adjustments of 15 minutes to half an hour. He had the personal experience that when other officers scheduled had significant childcare issues related to a shift that they were assigned, that he’d be informed by those officers that the entire time frame of 11 to 4 had been adjusted, such that the shift would go from 10 to 3 or noon to 5, etc. During the times this occurred, Officer Waddell never verified or double-checked that those officers had the adjustment pre- approved. He would simply show up when his partner officer told him to show up and worked those hours. He was never notified that such a practice was inappropriate by the watch commander of the day, or the lieutenant in charge of the CAT program [RT, Waddell, 10/02/15, 1748-1749]. Throughout the time Officer Waddell worked the overtime on CAT, as life would have it, there were times where on occasion he had been late, or had to leave early. He was aware that other officers were in the same boat, so to speak. If when the officer arrived without a valid, and excusable reason, if the officer was to be disciplined, “they could receive a verbal reprimand from the supervisor or, depending on circumstance or repetitiveness, the supervisor could designate to have a formal write-up or supervisor's note placed in their file” [RT, Waddell, 10/02/15, 1750-1751]. If officers were late for a CAT shift, were there regular occurrences where they would add that time that they were late to the end of the shift to Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3110 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 9 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 make it that five-hour block that they were expected to be there, in order to fulfill the obligation of that assignment [RT, Waddell, 10/02/15, 1752]. CAT shifts were also traded amongst officers. The method in which the trade occurred varied. Sometimes, if it was a planned event, there was communication with the lieutenant that the officer was unavailable to work a shift and the officer was replaced with the next officer in line on the sign-up. Other times, the lieutenant said just handle it yourself, “If you can find someone, find someone.” Officers would then send out an e-mail to the whole department asking for coverage. Officer Waddell recalled several instances where he received direct e-mails because the department knew he was working the shift. According to Waddell, “I had people all the time, ‘hey, you work the shift a lot, will you take my shift on this day?’ ‘Absolutely, I'll take it.’ ‘Okay, cool, I'll tell lieutenant or can you tell him’ or there was no communication about who was going to notify anybody, I was just going to work it” [RT, Waddell, 10/02/15, 1752]. According to Waddell, there were other instances where there was attempted communication with the lieutenant and there was no reply. Testified Waddell, and people were like, ‘I haven't heard back from him, are you still going to work it?’ I'm like, ‘I'll work it and we'll deal with it later. Someone needs to work it. We're not going to just leave it empty.’ So it just depended on all the different factors” [RT, Waddell, 10/02/15, 1753]. According to Officer Waddell, despite officers’ best efforts, occasionally communication with Lt. Smith was “poor” with respect to schedule modifications (changes, flexing, shift trades) [RT, Waddell, 10/02/15, 1755]. See Appellant’s Exh. MM, email examples of modification requests. Officer Waddell never believed that he had “blanket permission” to adjust his CAT schedule as he saw fit [RT, Waddell, 10/02/15, 1774]. “I'm saying I have had numerous other verbal interactions with [Lt. Smith] where he understood my situation working these shifts and the childcare issues that were in place, and it's not just e-mails, it's also verbal communication between he and I and other supervisors” [RT, Waddell, 10/02/15,1851]. Testified Waddell: Q. Okay. Are we talking about you just adjusting your schedule whenever you want? A. No. Q. Are we talking about you just flexing here and there when it's convenient for you, and you, alone? A. No. Q. Were you talking about you making your own schedule for CAT? A. No. [RT, Waddell, 10/02/15, 1884]. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3111 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 10 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. The Events in October 2013 October 18, 2013: On October 18, 2013, Officer Waddell saw Lt. Smith in the locker room at the police station. It was in the afternoon and around 3:00, 4:00. Officer Waddell was already in the locker room, and Lt. Smith came in and began changing out of his uniform. Officer Waddell never left the locker room, and was present the whole time and until after Lt. Smith changing and left [RT, Waddell, 10/02/15, 1761]. At no point did Lt. Smith ever mention to Officer Waddell any concerns or issues he had with Officer Waddell while he was working the CAT shift during that opportunity, to include being late, leaving early, watching a movie in the downtown office. As far as Officer Waddell knew at that time, there were no concerns with his performance, or attendance, as no mention had ever been made to him by Lt. Smith, or any of the other watch commanders supervising the CAT shift [RT, Waddell, 10/02/15, 1761]. Officer Waddell felt it was common knowledge that he had ongoing child care issues. He testified as follows: A: My wife works full time, as well, and we overlap schedules, and I, on several occasions, gave that information to Lieutenant Smith and he was aware of it, and each time we've had those passing conversations, he was okay with it, and he -- his response to me in those times was, yeah, no problem, just let whoever know is here. Q. And would you let them know when you came in or before? A. It would just depend on the circumstance. Q. So if you had notice, would you tell him before? A. Yes. Q. If it happened that you were late because you got held up, would you tell him when you got there? A. Yes. Q. Were you ever disciplined when you came in late and you said, hey, I'm here, sorry I'm late? A. I have never been disciplined, in any form, for being late or leaving early. [RT, Waddell, 10/02/15, 1764]. At the time Officer Waddell saw Lt. Smith in the locker room on the 18th, he did not know that he was going to be late for the CAT shift the very next day, and had no reason to obtain permission to be late for the 19th [RT, Waddell, 10/02/15, 1774]. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3112 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 11 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 October 19, 2013: Officer Waddell was not on time for the CAT shift on October 19, 2013. There were childcare scheduling conflicts leading up to the shift, and ultimately, Officer Waddell ran behind getting to work. He did not know the day before that he would be late. He did not know hours before. It was only sometime around 10:15 a.m. that he figured he might be late for his 11:00 start time [RT, Waddell, 10/02/15, 1753]. According to Officer Waddell, he had a “suspicion that it was probably not going to happen, but there was a possibility of me making it on time” [RT, Waddell, 10/02/15, 1754]. As a result, he sent Adam Stahnke2, his CAT partner for the day, a courtesy text message letting him know that he might be late. After the message, Officer Waddell went back to caring for his daughters at their dance class. As the time started approaching toward 11:00, Officer Waddell was informed that his wife was running behind where she was for the exchange of their daughters at the dance class. At this time, Officer Waddell’s daughters were five (5) and seven (7), and the older daughter has special needs3. The lateness was unforeseen, and once his wife arrived at the class, he immediately jumped in the car and headed to work, in an effort to be as timely as possible. According to Waddell, he believes he pulled into the police department lot at 11:15 and was in the locker room dressing out by 11:20. Prior to that day, Officer Waddell was not aware who the on-duty supervisor was. He only became aware that it was Sgt. Pfarr when he texted him. At the time he received the texts, he was driving on the freeway [RT, Waddell, 10/02/06, 1755]. a. The Text Messages [Department’s Exhibit 10] Department’s Exhibit 10 is screen shots of the text conversation between Sgt. Pfarr and Officer Waddell as he was en route on the freeway to the station for his CAT shift. At no time did Sgt. Pfarr ever ask Officer Waddell for clarification as to what his text messages meant [RT, Pfarr, 8/21/15, 1469-1470; Waddell, 10/02/15, 1757]. According to Department’s Exh. 10, at 11:11 a.m., Sgt. Pfarr sent Officer Waddell three text messages “wondering” if he was coming in for the shift. At this point, Officer Waddell would have been 11 minutes late. Officer Waddell’s first response was "Yes. Sorry. I had worked out ahead of one with lt smith. I'm on the way in now". His explanation of this text is as follows: A. This message is saying, yes, I'm coming in. The “sorry” is for not communicating it to him because he's, obviously, looking for me. I'm relating to him that I'd worked out ahead -- others, is what 2 He had previously checked the only place to determine who he’d be working with on that week’s shifts---SpeedShift. 3 According to Officer Waddell, “she's more on a developmental level of, like, a three-year-old. So you have to really be there and you have to monitor her all the time. So there was no ability to leave them there and go” [RT, Waddell, 10/02/15 1754]. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3113 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 12 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that's supposed to say, with Lieutenant Smith, and, clearly, there's an auto correct by my phone to change those words. Q. So "ahead of one" should have been "others"? A. Correct. Q. Okay. And when you said, "I had worked out ahead of one," you're saying it should have meant I had worked out ahead of others with Lieutenant Smith? A. Yes. Q. Okay. What were you trying to communicate to Sergeant Pfarr when you wrote that? A. I was trying to communicate to him my understanding from the past practices that I had operating with in this program, that shift-adjusting was acceptable and I'm on the way now and I'll explain when I get there [RT, Waddell, 10/02/15, 1759]. Q. In terms of the information about the information you had about working it out with Lieutenant Smith, what was the purpose of putting that information in the text to Pfarr? A. That that was my understanding with how the program had been going and that it was my understanding that -- from Lieutenant Smith, that things that arose in unforeseen circumstances, that 15 minutes, 20 minutes, even a half-hour would be -- not be an issue, not be a problem adjusting those hours. RT, Waddell, 10/02/15, 1767]. Sergeant Pfarr did not understand what Officer Waddell meant, and responded, "That made no sense. Stop by when u get here". Officer Waddell likely should have done just that, but in an effort to further clarify (as he was driving), continued typing: Q. "Basically I had talked to smith yesterday about coming in at 11:30 he said fine no problem. But I will stop by" Officer Waddell’s explanation is as follows: A. This is a quick response message, it's fragmented, it's got brevity to it and it, certainly, needs more punctuation for what I was trying to explain….What I'm trying to convey in this message is -- basically, it's a summarization. "I had talked to Smith yesterday," and there should be what would be a period, a formal conversation there, about me coming in at 11:30, which is an estimation of this point in time of driving, I'm probably going to be ready to go, suited up at 11:30. He's okay with that, and that should be he's, not he said. He's, again, another auto correct. He's fine with adjusting. Again, these are fragment -- these are things in my mind and there's no problem with that, is my understanding of what's gone on in the past and what I had intended to do today. Q. Okay. So, basically, I talked to Smith about -- basically, I talked to Smith yesterday. Are you saying there should be a period after that? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3114 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 13 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Yes. Q. What was your conversation with Smith yesterday? A. It wasn't much of a conversation. It was exchanging pleasantries. We saw each other in the locker room and, to me, in saying that, at that time, was me trying to convey that he didn't say anything to me. I had been operating in this program with an understanding of how things were going and no one had said anything to me about I was doing anything wrong, anything should change, and yesterday I saw him and that was an opportunity for him to correct something that was going on that was unapproved. Q. Okay. Did you think that there was any problem if you were going to be slightly late? A. I did not think there was going to be a problem. Q. Did you think that there was going to be any issue with you being slightly late? A. I did not think there was going to be an issue. Q. Did you think that if you had seen Lieutenant Smith, that he would have said something to you when you saw him? A. I thought that if there was a problem or there was an issue going on, that I would have been told about it. [RT, Waddell, 10/02/15, 1761]. It continued: Q. So about coming in at 11:30, is it your understanding that that would be fine, no problem? A. Yes. Q. Is that about the span that you would believe would be within this flexible time period? A. Yes, based on several other incidents where I had adjusted that and worked over for another half an hour on previous occasions. So I didn't think there was going to be any problem. [RT, Waddell, 10/02/15, 1762]. Q. So “about coming in at 11:30 he said fine, no problem.” Your testimony is this should say he’s said fine no problem”? A. Yeah. He's, as in he has in the past. Q. Okay. So that would be a comma after fine, as well? A. Correct. Q. Okay. And then now you say, "but I will stop by." Should there also be a period after "stop by"? A. Yes. [RT, Waddell, 10/02/15, 1764]. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3115 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 14 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 b. The 1st Conversation with Sgt. Pfarr Once Officer Waddell was at the station, he went to the office to speak to Sgt. Pfarr. Although he attempted to, he was not given the opportunity to explain his text message. His explanation is as follows: A. When I got to work and got my uniform on, I went to the office, as Sergeant Pfarr requested. When I got to the office, again, it's the same setup as before. There's the L-desk, he's facing away from the doorway. When I walked in, I said, hey, what's up. He spun around in his chair, he was visibly upset with me, and I got from that, from the tone in his voice because he immediately started asking me questions and was interrogating me about where I was, and he asked me where I was, I said I was at my daughter's dance class4. Q. Were you at a dance recital? A. There was no dance recital. Q. What happens next? A. He next asked me, you saw Smith yesterday? I replied, I saw Smith yesterday. He next asked me, he's okay with you coming in late? My reply was, he's okay with it. He said, okay, Stahnke's been waiting a while, get out there, and that was the end of our conversation in the office [RT, Waddell, 10/02/15, 1764-1765]. When Officer Waddell first went to the office to meet with Sgt. Pfarr, it was clear he was already upset. Officer Waddell believed it because he hadn’t called him and notified him that he was running behind. After the conversation, Officer Waddell found Detective Stahnke and they went out on the shift RT, Waddell, 10/02/15, 1769-1770]. At no time did Officer Waddell ever tell Sgt. Pfarr that he had spoken to Lt. Smith yesterday about coming in late the next day, or that he had been given specific permission to come in late on the 19th. Officer Waddell testified that the purpose of bringing in Lt. Smith in the text message was as follows: A. Again, it was that that was the last time that I saw [Lt. Smith] and if something had changed, if something was different, if an issue had arose, that that was an opportunity. I just saw him yesterday. Nothing's changed, nothing's different from the way things had been going on for months and months on the shift. I saw him yesterday, yeah, I saw him yesterday, and he's okay with it because I thought he was okay with it from the months and months before this. 4 Lieutenant Bledsoe corroborated that Officer Waddell had indeed dropped his children off there and stayed there [RT, Bledsoe, 10/06/15, 1924]. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3116 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 15 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Q. Okay. And up until this point, you're saying months and months, how long had you been working this CAT shift overtime? A. The program started early in the year of 2013 and I had been working under Lieutenant Smith, if you will, once he managed the program come April, May, sometime. So at this time, October, it had been close to six months, probably five months that he had been managing that program where I was underneath him. [RT, Waddell, 10/02/15, 1765-1766]. Officer Waddell explained the reason he put in the additional information to Sgt. Pfarr. A. At that point, I knew it was Sergeant Pfarr that was the supervisor there and I was just trying to give any piece of information based on what my past experience had been and knowledge about Sergeant Pfarr and, at that point, I wanted to try and give him what information that I had, and, again, while driving, distracted, I wasn't looking over every piece of this message before I sent it, it wasn't proofread, but I wanted to give him a sentiment of what was going on. Q. Okay. You said with your past experience and knowledge of Sergeant Pfarr. What did you mean by that? A. Well, with the information that I had from Sergeant Amoroso, I was guarded with what I wanted to say to him, around him, with him, interact with him for fear of what he was going to do with that. Q. Did you feel like you had to justify being late? A. Well, that was the sorry. I was sorry that I was running behind, that I didn't notify him and, however, here's the reasons why. [RT, Waddell, 10/02/15, 1767-1768]. It was Officer Waddell’s intention, given his late arrival, on the 19th to adjust the shift, meaning that he would stay later on the backside of the shift to make up for the late time. According to Waddell, that was what had happened in the past and it wasn't a problem,” however, it was not something he planned to do in advance [RT, Waddell, 10/02/15, 1768-1769]. c. The 2nd Conversation with Sgt. Pfarr Later in the shift, Officer Waddell was summoned back into Sgt. Pfarr’s office, at approximately sometime “after 12:00 sometime, probably 12:15, 12:20.” What happened next is as follows: A. I walked into the office, again, said what's up, he told me to close the door, I closed the door, he told me that I don't want you to say a single thing, he said that he was pissed, Pfarr, he said that he was pissed, being Lieutenant Smith, and told me that I lied. And then, at that point, I said okay, and then I said, at that point, well, if you get Smith on the phone right now, we can clear this up, let's all talk and we can straighten this out, and he very emphatically responded that we're not going to do that, we're not getting anybody on the phone. I said okay, and then I said I don't have anything else. So he said, don't talk. So I said, are we done? He said, yes, we're done. So I left. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3117 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 16 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Q. When you said okay, were you admitting to lying? A. No. Q. What were you saying okay to? A. I was saying okay to what he was saying. I said okay, not in approval, not disapproval, just an acknowledgment of what he had just said. Q. Meaning when he said I don't want you to respond to this? A. Yes. Q. Did he ever mention to you during that conversation or the first conversation any of the text message that we had discussed in Department's or City's Exhibit 10? A. No. Q. So were you ever, that day, ever able to explain what you had meant in this text conversation? A. No5. At all times, Officer Waddell sought to clear up any miscommunication. Q. When you asked Sergeant Pfarr to get Lieutenant Smith on the phone so that you could all have a joint conversation to clarify and he refused to do so, why didn't you just leave and call Lieutenant Smith, yourself? A. I didn't have his phone number. I don't have his personal phone number, I don't have his cell phone number. There would have been no way to call him. Q. Was he working at the station that day? A. No. Q. When Sergeant Pfarr had indicated to you that he had already spoken to Lieutenant Smith, what were your thoughts about that -- well, did you have any thoughts about that conversation if he had already believed that you were lying? A. I had questions about all of it. I had questions whether or not he actually called, I had questions as to what -- if he did call him, what did he tell him. That's why I wanted him to get on the phone so we could all talk about it so there would be no ambiguity, there would be no confusion, we could all talk, everybody would be in front of everyone else, so to speak, and we could clear it up right then and there and be done with it [RT, Waddell, 10/02/15, 1773-1774]. 5 The first time Officer Waddell was ever asked about the text conversation was during his internal affairs interview on December 12, 2013, some two (2) months later [RT, Waddell, 10/02/15, 1771-1772]. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3118 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 17 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 October 21, 2013: On October 21, 2013, Officer Waddell went in to see Lt. Smith in his office to attempt to clear up any confusion. Officer Waddell was not working that day, but went into the department knowing it was likely going to be Lt. Smith’s first day back to work, with the intent to talk to him about what happened on the 19th because he was denied the opportunity to talk to him on the phone that day. According to Officer Waddell, A. I began to tell him about the events of the morning, where I was, where I was coming, I started telling him about the text message communication and how it was a misunderstanding between Sergeant Pfarr and that's when he cut me off and told me that, Kevin, you know that I didn't give you permission to come in late, and it was very clear at that moment that whatever I was going to say at that point was not going to be received in a way -- it was very apparent that whatever Sergeant Pfarr had told him on Saturday, that Lieutenant Smith was already off to the races and Sergeant Pfarr was already off to the races with whatever that conversation was about characterized with. So I shut down at that point with what I was going to say and, pretty much, at that point, just was agreeable to the remainder of the conversation and we ended it and left. Q. Okay. Did you ever tell him that you told Sergeant Pfarr that he had given you permission to come in late? A. I never told Lieutenant Smith that. Q. Did you ever tell him, Sergeant -- sorry -- Lieutenant Smith that you had spoken to him, meaning Smith, in the locker room and had a conversation about coming in late the day before? A. No, I did not. Q. Once Lieutenant Smith said to you, you know, you did not have permission from me to come in late, was it clear to you that there was going to be an IA or internal affairs investigation starting? A. Well, at that point, he had already told me and he even patted a pad of paper on the corner of his desk, referencing that Sergeant Pfarr had written a memo, and that was my whole point of being there, to get in front of what appeared to be, at this point, a speeding train of something that was a complete misunderstanding [RT, Waddell, 10/02/15, 1776-1777]. Officer Waddell, never having been in a situation like this before, believed that Lt. Smith would have at least listened to his side of the story, believing that he could at least have a conversation that would have been “received a little more neutrally” [RT, Waddell, 10/02/15, 1777]. He was never given Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3119 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 18 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the opportunity to discuss the text messages with Lt. Smith or their content [RT, Waddell, 10/02/15, 1777]. The entirety of the conversation lasted about 10 to 15 minutes [RT, Waddell, 10/02/15, 1778]. During that meeting, Lt. Smith told him that his time sheets had been reviewed and that it appeared that Waddell had been coming and going as he pleased, although he made no reference to a specific time sheet, and Waddell never asked him what he drew those conclusions from6 [RT, Waddell, 10/06/15 1955-1956]. However, Lt. Smith testified that he and Sgt. Pfarr had conversations about Officer Waddell, specifically that “he had come in late that he had come in late and there had been an incident downtown where he was watching a movie [RT, Smith, 10/06/15, 1961]. According to Lt. Smith, “Uh, I believe I testified knowing that he'd come in late or left early. I don't know how many -- I don't believe I ever gave a number of times” [RT, Smith, 10/06/15, 1961], and further that it was Sergeant Pfarr who had been making him aware of these instances [RT, Waddell, 10/06/15, 1961]. Indeed, by the 21st, Lt. Smith had been made aware by Sgt. Pfarr that it had been Pfarr’s intent to talk to Officer Waddell about instances when Officer Waddell had come and gone that were not in line with the specific start and end times of the CAT shift7 [RT, Smith, 10/06/15, 1961-1962]. Further, at all times, Officer Waddell was available to Lt. Smith if he needed to talk to him, as he was consistently at the department during the day shift for the CAT shifts [RT, Waddell, 10/02/15, 1696]. When Officer Waddell left the lieutenant’s office that day, he felt “defeated” that he hadn’t been given the opportunity to explain or talk about the miscommunication without there being a little bit of a bias toward what he was trying to say. He felt no one had heard what he was saying and both supervisors’ minds were already made up [RT, Waddell, 10/02/15, 1779]. C. The Bentley Investigation The Bentley incident occurred eight (8) months earlier. On February 21st, 2013, Officer Waddell was on-duty and wearing his bicycle unit uniform. While he still wore a Sam Browne with the same police equipment, he did not carry a knife, and did not have one that evening [RT, Waddell, 10/02/15, 1710]. Officer Waddell responded to the Bentley crash scene due to it being “a rollover,” and to determine the potential for reconstruction if there were injuries to the occupants. 6 According to Lt. Smith, there was no retrievable document in the San Luis Obispo Police Department at that time that would provide information as to when an officer actually arrived on a shift and/or left the time period that -- the actual time that an officer arrived for a shift or left for a shift [RT, Smith, 10/06/15, 1960-1961]. 7 However, despite his “awareness,” and his overseeing of the CAT shift as its dedicated supervisor, he had never spoken to Waddell about the perceived issue, Waddell’s time cards for the shift continued to be approved, and he continued to be assigned several additional hours and shifts on the overtime detail by Lt. Smith [RT, Smith, 10/06/15, 1962-1964]. Indeed, in the time period between the events on October 19th and his placement on administrative leave on December 12th, Officer Waddell continued to be assigned to CAT overtime by Lt. Smith, in the neighborhood of 160 additional hours. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3120 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 19 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Officer Waddell at first rode with Sgt. Amoroso in the FST truck. During the ride to the scene, the two of them discussed Sgt. Pfarr and his promotion. “Sergeant Amoroso brought up the fact of wouldn't it be funny to prank him, prank him in a way so much that he would freak out, it would cause someone that is a new supervisor to freak out, and we equally laughed about it,” something consistent with Officer Waddell’s trek up the steep hill when he was in his new assignment. No specificity regarding what prank was discussed between the two of them [RT, Waddell, 10/02/15, 1712]. They both left, went back to the station, with Officer Waddell retrieving the necessary accident reconstruction equipment and returned to get “things rolling so we weren't there till all hours of the night” RT, Waddell, 10/02/15, 1711]. The accident reconstruction team was called out, to include Officer Colleen Kevany, Officer Robert Cudworth, and Sgt. Janice Goodwin. Officer Waddell’s responsibility for the reconstruction portion was the scene diagram, on the Total Station, the specialty tool [RT, Waddell, 10/02/15, 1713]. Colleen Kevany was the primary individual responsible for the collision report that evening. After the evidence-gathering with the Total Station was completed, the tow truck driver was called to come to the scene. The Bentley was on its roof, and there was a process of having to get the car flipped over on its wheels, and so that took time to have that happen. According to Officer Waddell, there was a lot of standing around at that point, which included “joking, talking, that kind of thing” [RT, Waddell, 10/02/15, 1713]. Other than the other members of the department, no one else but the tow truck driver was present. Given the joking mood of the people that were there after the occupants of the car had been transported from the scene (with only minor injuries), and given everyone had already been teasing Sgt. Pfarr about his new rank (“people would accentuate the word “sergeant” when they referred to him, people were saluting at strange, weird times….he'd ask somebody something and they'd say, yes, sir, sergeant, sir, and they'd stand at attention and salute him”), Officer Waddell recalled his earlier conversation with Sgt. Amoroso in the car about pranking Sgt. Pfarr. Officer Waddell, thinking that he could prank Sgt. Pfarr a little bit more, began to refer to some of the Bentley emblems, the Bentley car, as a whole, the uniqueness of this car, and the Bentley emblem, itself. The statements were designed to start a conversation that he was trying to spur amongst the other officers so Sgt. Pfarr would overhear. Officer Waddell never thought his coworkers would take him seriously [RT, Waddell, 10/02/15, 1715]. At the scene, there were multiple Bentley parts on the ground around the car, including parts of the front bumper, wheel caps, side mirrors, and glass. “It was a convertible car. So a lot of the interior had come out of the car, a lot of personal belongings, things like that” [RT, Waddell, 10/02/15, 1717]. Based on his training and experience, not only as a police officer, but as an accident reconstructionist, it was Officer Waddell’s professional opinion that this car was not going to be put back together. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3121 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 20 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Based on his observations and joking mind-set at the time, Officer Waddell decided to ask the tow truck driver for a screwdriver. He then went back over to the car and made reference to the hood emblem, whilst making comments about it, but never actually inflicting any kind of the required force to remove it [RT, Waddell, 10/02/15, 1719]. He then looked at the car to see if there was something else on the car that could be removed without damaging the already destroyed vehicle. He noticed on the wheels, like many wheels in common cars, there was a cap in the middle of the car that covered the lug nuts that hold the wheel on the car. Its removal was not something that would damage the car; it was something that a regular mechanic would take the cap off to rotate the tires or change them. Thus, with that same screwdriver, he inserted it in the slot on the side of a cap, and it popped right off. He noted that there was also one on the ground that was thrown off the car as a result of the crash [RT, Waddell, 10/02/15, 1720]. At the time he popped off the hubcap, he was trying to get Sgt. Pfarr to see that what he was doing, such that Sgt. Pfarr would come over and tell him to “knock it off, hey, what are you doing, get him to kind of get a little concerned about what was going on, freak out a little bit” [RT, Waddell, 10/02/15, 1720]. Unfortunately for Officer Waddell, Sgt. Pfarr became upset at what was going on and made the comment, loud enough for Officer Waddell to hear, that “the sergeant can't be here for this anymore, I'm leaving, and he turned around and walked away” [RT, Waddell, 10/02/15, 1720]. Officer Waddell then said loud enough that I thought he could hear, “hey, man, I'm just messing around with you” as Sgt. Pfarr continued to his car and drove away [RT, Waddell, 10/02/15, 1720]. According to Officer Waddell, At that point, I took the hubcap and the other hubcap that was there with it and I put it inside the car, which is typical of these accident scenes, as the tow truck driver will clean up all the parts and just throw them inside the passenger compartment of the car because it's easier to transport them. So that's where I put them because that's been my experience where all those parts go anyway… I have regularly seen the tow truck driver sweep up things into a bucket, car parts, kitty litter that they use to clean up fluids, and dump that into an open window of a car into the passenger compartment of the car” [RT, Waddell, 10/02/15, 1720-1721]. This included the car part that he saw on the ground. No damage was done to any part of the Bentley by Officer Waddell, and nothing else was removed [RT, Waddell, 10/02/15, 1721-1722]. The rear and hood emblems were not touched, and contrary to the testimony of Officer Benson, the steering wheel or column area was never touched or damaged by Officer Waddell [RT, Waddell, 10/02/15, 1722]. None of these items were ever placed in a brown page evidence bag. The prank was clearly over. None of his co-workers ever commented to him at the scene, and Officer Waddell felt it didn’t go over well and fell flat of his intended razzing of Sgt. Pfarr [RT, Waddell, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3122 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 21 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10/02/15, 1723]. At the time the prank was initiated, he had no reason to believe that it would have gone over the way it did. Officer Waddell returned the screwdriver to the tow truck driver. Officer Waddell’s testimony is as follows: Q. When you talked to the tow truck driver, other than saying could you borrow the screwdriver, what was your conversation like? A. Well, when I returned the screwdriver to him, I made some casual comment to the effect of, hey, I don't know if you were watching, or whatever, but we were just joking around. Q. Did he say anything to you? A. He kind of awkwardly chuckled as if he didn't really know what I was talking about or he was confused about what I was saying. Q. Did you have any knowledge as to whether or not he had witnessed what you had done? A. I didn't have any specific knowledge [RT, Waddell, 10/02/15, 1723]. As Officer Waddell was finishing up his duties at the scene, his phone rang and it was Sgt. Pfarr calling from his personal phone. Officer Waddell answered, and knew the sergeant was upset. According to Officer Waddell, he told Sgt. Pfarr, “hey, man, I was just messing around with you.” Sergeant Pfarr then told him to put everything back, and Officer Waddell informed him that “nothing left the car, I was messing around” [RT, Waddell, 10/02/15, 1724-1725]. Sergeant Pfarr then asked him to finish up at the scene and report to his office. Once off the phone, Officer Waddell text Sgt. Pfarr a photo of the car parts back in the car. His testimony was as follows: Q. And what was the point of doing that? A. I felt like, based off the phone conversation and him telling me to put the parts back, that he wouldn't necessarily believe that and I wanted to show him, look, here's a photo of the hubcap on the floorboard in the car, there no harm, no foul. I was just messing around [RT, Waddell, 10/02/15, 1725]. Officer Waddell then reported to the office to speak with Sgt. Pfarr. The conversation was as follows: A: So when I walked in, I said, hey, what's up, because I'm there, and he quickly spun around in the chair and went right back into the same stuff he was saying on the phone about you put me in a bad spot, and we went through all the possible scenarios of what was not good about that and how it could look bad for him, us, the department, all those kinds of things. He, pretty much, chewed my ass. Q. Okay. What was your response, if you had one? A. I was apologetic to him. I was apologetic to the fact that how it could have been perceived, that was not my intention, I was just messing with you, there was no hard feelings, those kinds of things. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3123 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 22 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Q. Did you tell him that it was a joke? A. I believe that was the message that I conveyed by, I was messing with you, and he didn't seek clarification. So I got that he knew what that meant. Q. Okay. And at that time, did you tell him that you had had that conversation with Sergeant Amoroso that evening about, hey, wouldn't it be funny to play a joke on Chad because he's a new sergeant? A. I did not tell him that. Q. Why not? A. I felt like, based on Sergeant Pfarr's response, how upset he was about it, at that point, I was in a position to just lay on the grenade, so to speak. I didn't want to, necessarily, compromise Sergeant Amoroso for something he said that was my responsibility in making the decision to play the prank. I didn't want to make things worse in the situation, I didn't want to make things worse between he and Sergeant Amoroso, he being Sergeant Pfarr. So I figured, at that point, just drop it, leave it, let the whole thing go away and we'll all move on with it just being a poor decision of a bad prank [RT, Waddell, 10/02/15, 1727-1728]. During that office conversation, Sgt. Pfarr indicated to Officer Waddell that he had already talked to the other officers on the scene, that he made sure that they knew that he handled it with him, and that it was done [RT, Waddell, 10/02/15, 1729]. Officer Waddell took the overall conversation that to mean that he “got verbally disciplined for doing something wrong and [Sgt. Pfarr] made sure that everybody else knew that he disciplined [Waddell] or counseled [Waddell]. Officer Waddell apologized to Sgt. Pfarr that night for “putting him in the position and playing a prank, and when he left the office, he believed the issue had been resolved [RT, Waddell, 10/02/15, 1729]. Officer Waddell never had any intention of taking and keeping any of those vehicle parts as trophies for a “collection” of any kind [RT, Waddell, 10/02/15, 1728]. He never had another conversation with Sgt. Pfarr, or anyone else about that night, until it became, almost a year later, an issue as he attempted to become a detective and part of the allegations before the Hearing Officer [RT, Waddell, 10/02/15, 1730]. VIII. PROCEDURAL HISTORY After the CAT shift incident, Officer Waddell was placed under internal investigation. The CAT Investigation and Bentley Investigation were combined (despite the Bentley matter having already been resolved by Sgt. Pfarr and Officer Waddell the night of some 10 months earlier), as the administration attempted to bootstrap the facts of the Bentley incident to the CAT Investigation in the hopes of improperly adding “bad facts” and “bad character” to substantiate a disciplinary decision. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3124 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 23 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Captain Storton made his recommendation to the chief after January 15, 2014 [RT, Storton, 07/23/15, 894]. That recommendation was rejected by the chief, and the entirety of the “oversight” of both investigations were now in the hands of Captain Staley as well as the drastically different recommendation of discipline, which was submitted May 8th, 2014 [Department’s Exh. 6]. The investigation was forwarded to City Manager Lichtig on June 18, 2014 (the email requests for the entire file) for affirmation of the decision to terminate. Officer Waddell was given a notice of Intent to Discipline with the penalty of termination, after the two (2) investigations were combined [See Department’s Exh. 5] in September of 2014. He attended a Skelly hearing (originally scheduled for September 9, 2014), with his attorney at the time, Nicole Quintana-Winter on September 11, 2014. [RT, Waddell, 10/02/15, 1787; Dietrick, 10/06/2015, 1980-1981]. Also present were then-Chief Gesell, and Dietrick. According to Waddell, To my recollection, we had an opportunity to respond and Nicole gave some of the reasoning behind my exceptional work record and some various other things as reasonings for a different discipline, and that information was taken by the chief, and, at one point, he made a comment8 that he had a moral obligation to make sure that I'll never be a cop ever again” [RT, Waddell, 10/02/15, 1786]. On October 2, 2014, Officer Waddell was served the Notice of Decision of Disciplinary Action [See Department’s Exh. 4], and thereafter he filed a timely appeal of such disciplinary action. IX. ARGUMENT A. THE BENTLEY INVESTIGATION MUST BE STRIKEN AND SUPPRESSED IN ITS ENTIRETY. 1. The Department Violated Section Government Code Section 3304(d)9 with Respect to the Bentley Investigation. The Remedy is Suppression and Exclusion of the Investigation in its Entirety. According to Government Code section 3304(d), there is a one-year statute of limitations period from when the Department is aware of the alleged misconduct, to when it notifies the officer of its proposed discipline. Indeed, Absent any specific identification or authorization by the appointing power, ‘the person authorized to initiate an investigation’ must be at a supervisory level or higher, have been a witness to or otherwise have knowledge of the underlying alleged misconduct, and not have participated in the underlying 8 This comment was relayed to Waddell by his attorney after he had left the room. 9 This section is part of the Peace Officers’ Bill of Rights (Government Code section 3303 et. seq.) Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3125 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 24 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 alleged misconduct” In re: Matter of Appeal by R.B. (2008) SPB Precedential Dec. 07-3421). The Department has not put forward any policy indicating any specific identification as to who is authorized to initiate an investigation. Absent that, the supervisor on scene, and percipient witness, Sgt. Pfarr, was immediately aware on February 21, 2013. Further, Lts. Smith and Bledsoe also were made aware by Sgt. Pfarr during the time of detective selections. Simply put, the Department’s violation of Appellant’s rights and protections guaranteed by the POBR as related to the passing of the statute of limitations under Government Code section 3304(d) enables this Hearing Officer to render appropriate relief to remedy the violations and to prevent future violations of a like or similar nature. The court in Alameida v. State Personnel Board (2004) 120 Cal.App.4th 46, 54 stated “once punitive action is taken, the employee can assert the violation of the Act as a defense to discipline in administrative proceedings, or can seek an adjudication in court. The word “initial” in Section 3309.5 simply deprives the employer of defeating court action by arguing the employee has failed to exhaust administrative remedies.” It is clear through case law and the intent of the Legislature that the Hearing Officer has the authority and jurisdiction to grant the appropriate remedy for the Department’s POBR violations in the administrative Hearing. The Department was at all times on notice of this violation [See Appellant’s Exhibit T; RT, Dietrick, 10/06/15,1983], yet it still failed to conform to the rights provided to Appellant Waddell pursuant Government Code section 3304(d). As such, the “fruit” of Department’s violation, including any allegations and/or evidence of violating the City’s policies should be excluded from Appellant’s administrative hearing and review. See Section 3309.5(d)(1); Gales v. Superior Court (1996) 47 Cal.App.4th 1596, 1602. 2. The Department Violated California Labor Code Section 432.7 by Including the Allegation of California Vehicle Code section 10852 Against Appellant Waddell and it MUST BE STRIKEN. Appellant’s Exhibit T is a two-page letter outlining the impropriety of the application of a seemingly administrative10 California Vehicle Code section violation of 10852 [See App. Exhibit T], which was sent to the Department prior to the Skelly hearing of Appellant Waddell [RT, Dietrick, 10/06/15, 1982-1983]. The Department chose not to respond to the letter prior to the Skelly, instead stating at the Skelly that it didn’t believe the Labor Code provision had an application here, and that it found it appropriate to “administratively charging conduct that would legally otherwise violate a statutory provision” [RT, Dietrick, 10/06/15, from Skelly recording, 1990-1991]. What a novel concept. 10 Indeed, most everyone, citizens and travelers alike, would likely want to know that one can avoid criminal prosecution in SLO, and only face administrative penalties outside a Superior Court for such alleged violations. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3126 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 25 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pursuant to California Labor Code section 432.7(a), no employer may utilize “as a factor in determining any condition of employment including hiring, promotion, termination” “any record of arrest or detention that did not result in conviction.” There is no evidence that the Department ever arrested or detained Waddell on an alleged violation of this Vehicle Code section at the time of the alleged “offense,” despite their acknowledgment that they would be the very department with jurisdiction over this issue. Thus, there also exists no “record.” The filing of such a charge was at all times within the purview of the Department, had they had probable cause to do so. Now, and solely for administrative purposes, the Department violates California Labor Code section 432.7(a) by 1) considering this alleged criminal conduct as a factor in Waddell’s termination decision, and after notice of the same 2) puts it forth for consideration before the Hearing Officer. As described above, there was no report, arrest, or a filing. The inclusion of such an allegation that he violated this criminal statute in his administrative investigation was done for the sole purpose to throw in the kitchen sink” and dirty up the Appellant, and is contrary to the holding in Pitman vs. City of Oakland (1988) 197 Cal.App.3d 1037. As shown at the Hearing, the Department never arrested the Appellant, and never requested “witness officers” on scene write reports. Indeed, given the testimony presented it is quite clear that the Department cannot have it both ways: either the Appellant committed a crime, and Sgt. Pfarr et. al. were involved in a shift-wide, then department-wide, cover- up of that crime, OR it was in fact, a joke, with no mens rea, and thus no violation of the statute, criminally or administratively, as we all know to be true. Thus, the conduct of the Department is in direct violation of Labor Code 432.7(a) and California case law. The inclusion of this allegation is clearly contrary to established public policy, and any and all evidence” pertaining to the alleged CVC violation should be precluded, and the allegation itself stricken as a matter of law. Their inclusion of this allegation shows the Department’s bad faith attempt at finding additional allegations against Waddell to justify a termination, as we have heard, as stated by Lt. Proll to Sgt. Pfarr during his interview on the subject that “Obviously, you can tell how serious this is in conjunction with the other thing going on” [See Appellant’s Exh. C, Sgt. Chad Pfarr’s interview, dated January 25, 2014]. B. THE DEPARTMENT VIOLATED OFFICER WADDELL’S RIGHTS A peace officer is entitled to the procedural protections afforded under the Peace Officer’s Bill of Rights (also known as POBR, pursuant to Government Code Sections 3300 et seq.). Specifically, Govt. Code Section 3303 provides that any public safety officer under investigation and subjected to interrogation that could lead to punitive action shall be afforded certain rights. Government Code Section 3303 of the POBR provides: When any public safety officer is under investigation and subjected to Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3127 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 26 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 interrogation by his or her commanding officer, or any other member of the employing public safety department, that could lead to punitive action, the interrogation shall be conducted under the following conditions. For the purpose of this chapter, punitive action means any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.”(Emphasis added.) The POBR goes on to provide the following rights that must be afforded the public safety officer. The officer has the right to be represented by any person of his/her choice, who may be present at all times during the interrogation. (Section 3303(i)) Prior to an interrogation, the officer must be informed of his/her additional rights under the POBR, including (1) informing the officer that he/she is under investigation (Section 3303(c)); (2) informing the officer of the nature of the investigation (Section 3303(c)); (3) reading the officer his/her Constitutional rights (Section 3303(h)); and (4) giving the officer the opportunity to tape-record the interrogation (Section 3303(g)). The State Supreme Court has described the POBR as "a labor relations statute that provides procedural protections for police officers during administrative and disciplinary actions initiated by their employers" [See Van Winkle v. County of Ventura (2007) 158 Cal.App.4th 492, 497; Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Ca1.3d 564, 572-574] and a peace officer might be subjected to punitive action. Pasadena Police Officers Assn., supra, 51 Cal.3d at p. 574 (italics added). Punitive action" is statutorily defined as "any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment." Government Code Section 3303. 1. Sergeant Pfarr Initiated an Investigation What ultimately transpired was not the routine, unplanned contact distinguished in Steinert v. City of Covina (2006) 146 Cal. App. 4th 458. Sergeant Pfarr, already knowing Officer Waddell was running late due to 1) the time and 2) having spoken to Det. Stahnke, conducted further investigation, believing Officer Waddell was in violation of policy. Given the potential for punitive action, Officer Waddell’s rights attached before the text messages sent, and during both conversations in the sergeant’s office. There can be no dispute: On October 19, 2013, Sgt. Pfarr, while conducting an investigation into the whereabouts of Officer Waddell, including asking Det. Stahnke, sent him text messages asking where he was and if he was still coming in, knowing that he was already late for the CAT shift. Sergeant Pfarr then called Officer Waddell into the sergeant’s office to speak to him further. Pfarr initiated the text conversation, and asked him in-person questions, after having spoken with Det. Stahnke. In essence, Sgt. Pfarr was endeavoring to catch Officer Waddell late for the shift, and then determine if the information from Officer Waddell would “match up” with the information he had already obtained from Waddell and Stahnke. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3128 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 27 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Clearly, there can be no question that Waddell was subject to investigation by Sgt. Pfarr on October 19, 2013, one that could, and did, lead to punitive action. As such, his POBR rights attached and were violated. Prior to questioning by Sgt. Pfarr related to his lateness, wherein Sgt. Pfarr already knew he was late, Officer Waddell was never informed that he was under investigation by Sgt. Pfarr, nor was he informed of the nature of that investigation (his whereabouts) in violation of Govt. Code section 3303(c). While the text messages were “recorded”, the in-person questioning was not, in violation of Government Code section 3303(g). This is especially prejudicial to Officer Waddell, as a factor for the dishonesty allegations was the substance of the conversation he had in person with Sgt. Pfarr in the both times he was called in by Sgt. Pfarr that door. Further, pursuant to Govt. Code section 3303 (i), Officer Waddell was not afforded a representative of his choice during questioning. As will be fleshed out below, this was not a routine, unplanned contact by a supervisor. This was an investigation undertaken by Sgt. Pfarr, and as such, the potential for punitive action was present. As a result, Officer Waddell was entitled to his rights under POBR. Officer Waddell had never been the subject of an administrative investigation before [RT, Waddell, 10/02/15, 1763]. While Sgt. Pfarr did not participate in the formal Internal Affairs investigation as an investigator, he conducted the preliminary investigation, much of which was relied upon by Lt. Bledsoe in the CAT shift Internal Affairs investigation. The standard to be applied is not that the POBR attaches when the Department determines it is going to conduct an official or formal administrative investigation, but rather, POBR requires that the officer be advised of his rights if any questioning could result in punitive action. In Paterson v. City of Los Angeles (2009) 174 Cal.App.4th 1393, the court held that an officer’s POBR rights attach as soon as he is questioned on matters that could result in punitive action, and not once the Department “formally” initiates an investigation. If POBR rights were contingent on when the Department deems an investigation occurs, it would result in a nullity of POBR, as departments would most likely make a conscious effort to always conduct “inquiries” rather than formal investigations to avoid providing POBR rights to officers. Case law establishes that investigations of officers, and not merely interrogations, may come within POBR 3303. As such, when questioning Appellant about his conduct without asking if he wanted a representative present, by failing to allow the recording of the questioning, by failing to notify Officer Waddell that he, his whereabouts, his conversations and his timeliness was being investigated, Sgt. Pfarr violated Govt. Code section 3303. Whether Officer Waddell knew it or not (and clearly he did not), the potential for discipline was present, and claims related any kind of misconduct, if sustained, could result in disciplinary action against Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3129 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 28 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 him. In fact, Officer Waddell did face disciplinary action and was terminated as a result of the alleged misconduct he was asked about by Sgt. Pfarr. Accordingly, such questioning was investigatory in nature and as a result, Officer Waddell was subjected to unlawful interrogations in violation of Section 3303. As such, the Department should be precluded from benefiting from such violations in the form of any findings whatsoever in relation to this factual basis. 2. Any Evidence Relied Upon by the Department in Violation of Officer Waddell’s Peace Officers’ Bill of Rights Must be Suppressed The Department cannot violate Officer Waddell’s Peace Officers’ Rights in order to utilize that information to prove up charges of tardiness and dishonesty. Such admission is clearly prohibited under the fruit of the poisonous tree doctrine and contrary to public policy. Therefore, the Department should be barred from utilizing “evidence” obtained unlawfully to discipline Officer Waddell. The Department failed to conform to the rights provided to Appellant pursuant to the POBR. As such, the “fruit” of Department’s unlawful investigation, including any allegations of dishonesty or falsification stemming therefrom from Officer Waddell’s alleged statements to Sgt. Pfarr or the Department’s interpretation of his text messages should be excluded from Appellant’s administrative Hearing and review. See Section 3309.5(d)(1); Gales v. Superior Court (1996) 47 Cal.App.4th 1596, 1602. 3. Remedy Requested: Exclusion or Suppression of the Text Messages and Officer Waddell’s Alleged Statements to Sgt. Pfarr and Everything Therefrom As the court in City of Los Angeles v. The Superior Court of Los Angeles County (1997) 57 Cal.App.4th 1506 (hereinafter referred to as “Labio”) held, the remedy of exclusion of evidence obtained contrary to POBR’s provisions “serves a deterrent effect.” Labio, at 57 Cal.App.4th at 1517. Allowing evidence that is based on the information gained from the unlawful interrogation and questioning to be admitted would not advance the deterrent effect imposed by the Legislature. If the Department is allowed to use unlawfully obtained evidence, there would be no deterrent from continuing these POBR violations, and would be contrary to the remedies outlined in Government Code Section 3309.5 and the Labio case. As a result of Department’s actions, the Hearing Officer should apply the exclusionary rule and suppress the illegally obtained information. Gales v. Superior Court (1996) 47 Cal.App.4th 1596, 1602. For example, in City of Los Angeles v. The Superior Court of Los Angeles County (1997) 57 Cal.App.4th 1506 (hereinafter referred to as “Labio”), the court held the investigating officer’s failure to inform the officer that he was under investigation and of POBR rights warranted application of the exclusionary rule and suppression of all statements and evidence obtained. Id. at 1517. Government Code Section 3309.5 c) provides: In any case where the Superior Court finds that a public safety Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3130 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 29 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 department has violated any of the provisions of this chapter, the court shall render appropriate injunctive or other extraordinary relief to remedy the violation and to prevent future violations of a like or similar nature, including, but not limited to, the granting of a temporary restraining order, preliminary, or permanent injunction prohibiting the public safety department from taking any punitive action against the public safety officer.” Simply put, the Department’s violation of Appellant’s rights and protections guaranteed by the POBR enables this Hearing Officer to render appropriate relief to remedy the violations and to prevent future violations of a like or similar nature. The court in Alameida v. State Personnel Board (2004) 120 Cal.App.4th 46, 54 stated “once punitive action is taken, the employee can assert the violation of the Act as a defense to discipline in administrative proceedings, or can seek an adjudication in court. The word “initial” in Section 3309.5 simply deprives the employer of defeating court action by arguing the employee has failed to exhaust administrative remedies.” It is clear through case law and the intent of the Legislature that the Hearing Officer has the authority and jurisdiction to grant the appropriate remedy for the Department’s POBR violations in the administrative hearing. In the Labio case, the court held the investigating officer’s failure to inform Labio of the fact that he was under investigation and of his rights under the POBR warranted application of the exclusionary rule and suppression of all statements obtained during the interview. Labio, supra, 57 Cal.App.4th at 1517. Officer Labio was under investigation and interrogated for allegedly driving a city vehicle without permission and passing by the scene of an accident without rendering assistance. Id. at 1510. The court held that when a violation of POBR is present, suppression of evidence is warranted and “serves a deterrent effect.” Id. at 1517. (emphasis added). See also Hanna v. City of Los Angeles (1989) 212 Cal. App. 3d 363, 367. The Department should not be permitted to benefit from its violation of Officer Waddell’s POBR rights, and the penalty should be sufficient as to deter future violations by the Department. Additionally, as outlined above, the POBR violations are appropriately presented before the Hearing Officer for resolution. Alameida v. State Personnel Board (2004) 120 Cal.App.4th 46, 54; Government Code section 3309.5. C. THE DEPARTMENT VIOLATED THE PROVISIONS OF SKELLY. 1. Failure to Turn Over Materials—the Many Investigative Drafts [Appellant’s Exh. Y(a) f) and the Recommendation by Captain Storton The general pre-disciplinary requirement is that the employee be provided with notice of the proposed discipline, the reasons for the proposed discipline, a copy of the charges, the materials upon Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3131 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 30 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 which the matter is based, and notice of the right to respond. Skelly v. State Personnel Bd. (1975) 15 Cal.3d. 194, 215. Regardless of the weight of the withheld evidence, the State Personnel Board in Arnold 2002) SPB Dec. No. 02-07 stated, “pretermination due process requires strict adherence to the notice requirements that enable an employee facing discipline to respond adequately to the disciplinary action, prior to the imposition of discipline” (emphasis added); Keely v. State Personnel Board (1975) 53 Cal.App.3d. 88, 98; Kristal v. State Personnel Board (1975), 50 Cal.App.3d. 23, 240-241. City Manager11 Katie Lichtig was involved in the termination of Officer Waddell, in that she had responsibilities for reviewing certain disciplinary actions,” including the review and approval of any terminations of employees [RT, Lichtig, 7/24/15, 932-933]. She testified this was because she, as the city manager, supervised the chief of police [RT, Lichtig, 7/24/15, 948]. Additionally, this authority was conferred on her, pursuant to Department’s Exh. 1, Section 2.36.320 (“Disciplinary Action Authority”). According to CM Lichtig, she is “presented with the investigative file and the material that's used in this particular case for the chief (Skelly officer) to make his determination and the HR director to evaluate the level of discipline in cases of termination, and I reviewed all of the material that was presented to the chief and to me and then concurred with the termination.” [RT, Lichtig, 7/24/14, 933, emphasis added]. According to CM Licthtig, “I am involved in ensuring that the investigation warrants that because it's a serious action to take” [RT, Lichtig, 7/24/15, 940]. She anticipated that she would be informed prior to any decision made so that she could be consulted and to made sure she felt “comfortable that that decision is moving along appropriately” [RT, Lichtig, 7/24/15, 948]. CM Lichtig also testified that the Human Resources Director (here, Monica Irons) is consulted as well, “to ensure that our rules are being followed, that there is sufficient evidence to support the action that's being taken, that there's consistency throughout the organization….It gives us an opportunity to make sure that we're applying the rules and the standards in a similar fashion, or if we're deciding that there are differences between individual cases, facts that are presented, that we understand the why and the what-fors associated with the differences in the levels of discipline associated with those cases” [RT, Lichtig, 7/24/15, 963]. According to CM Lichtig, the HR Director’s role “just another level of review. It's a check and a balance, a quality assurance, quality control function” [RT, Lichtig, 7/24/15, 944]. Testified CM Lichtig, the reason it took four months between Captain Staley’s Executive Recommendation [Department’s Exh. 6] and the of notice of intent in September was because according to CM Lichtig, “We were taking -- doing due diligence on ensuring that the investigative materials supported that level of discipline. We had a number of conversations about the level of discipline and the 11The city charter title was changed from city administrative officer before Lichtig’s arrival to city manager. As a result, her title now is city manager, but it is commonly referred to in many of our Municipal Code sections as city administrative officer [RT, Lichtig, 7/24/15, 964]. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3132 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 31 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 facts that supported it and really wanted to make sure that we were doing the right thing” [RT, Lichtig, 7/24/15, 958]. Yet, despite her adamancy that she was aware of the investigation since its inception, and had reviewed all of the materials provided to the chief,” including the “entire file,” the Appointing Authority and ultimate decision-maker was never informed by Human Resources Director Monica Irons that Captain Storton had sent Irons his initial draft of his recommendation for review for a two-week suspension based on the CAT investigation [RT, Lichtig, 7/24/15,963-964]. Testified Lichtig, “I was informed by the chief of the circumstances that were being investigated” [RT, Lichtig, 7/24/15, 963] and to the best of her knowledge, the material that she was presented was the “final form of the file” [RT, Lichtig, 7/24/15, 963]. She was only made aware of the two-week suspension recommendation “since the hearing started” and she “understood that was an issue raised here” [RT, Lichtig, 7/24/15, 963]. Captain Storton testified on July 23, 15, the day before the City Manager. In terms of the Skelly packet, Ms. Lichtig believed that “To the best of my knowledge, it was the internal affairs investigation and all of the supplementary information that was used to make the determination12” [RT, Lichtig, 7/25/15, 933]. See Appellant’s S and Q, email correspondence between CM Lichtig and then-chief Gesell re: the Waddell investigation. Appellant’s Q is from the CM to the then-chief indicating that she “would like to review the entire file.” On June 18, 2014, the then-chief agreed. According to CM Lichtig, she reviewed the materials upon which this termination was based, after the Skelly13” [RT, Licthtig, 7/24/15, 933]. CM Licthig testified that in order to affirm the imposition of discipline (termination), she solely relied on whatever was in the recommendation from the captain14, the packet and the letter of intent, because she did not attend Officer Waddell’s Skelly hearing RT, Lichtig, 7/24/15, 938, emphasis added]. Indeed, she testified that although she “reviewed the file, met with the chief, asked questions, and met with the city attorney and the HR director to ensure that we all felt that the level of discipline was appropriate, based on the actions that were documented in the file” RT, Lichtig, 7/24/15, 938], she had no recollection of ever seeing Appellant’s Exhibit T, the letter from Waddell’s then-attorney to then-Chief Gesell dated September 4, 2014 [RT, Lichtig, 7/24/15, 939-940]. She believed she was consulted on the termination decision after Skelly, as would have been her expectation [RT, Lichtig, 7/24/15, 963]. 12 CM Lichtig didn’t “have a specific recollection” of the materials she was provided, other than “it was several binders or several files worth of information.” She did not recall being provided audios, or listening to audios, despite the fact that it would have been five (5) hours’ worth, for the only police officer termination in the city that year [RT, Lichtig, 7/24/15, 934-937]. 13 13However, the emails indicate that the then-chief was “ready to move forward with a letter of intent,” which comes before Skelly [RT, Lichtig, 7/24/15, 938]. Indeed, CM Lichtig was given the materials in June, and the Skelly was originally noticed for September 9, 2014 and then occurred on September 11, 2014 [See Department’s Exh. 4 and 5]. 14 We know this to be the Captain Staley Executive Recommendation for termination, not the Captain Storton recommendation for a two-week suspension that the chief discarded and thereafter reassigned to Staley to write. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3133 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 32 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 While the then-chief was the Skelly officer, CM Lichtig testified that she is “consulted before the notice of termination is determined to affirm that that's the level of discipline that we want to -- that the city intends to pursue,” and that the applicable municipal code section mandates that she “shall affirm” as the final decision-maker [RT, Lichtig, 7/24/15, 966-967]. According to the CM, after the Skelly, PALMER: Q. And, ultimately, based upon everything you knew, including the Skelly response, whatever was downloaded to you during that conference, did anything change your mind from the initial decision you made, as the appointing authority of the City of San Luis Obispo, to affirm the decision to terminate Mr. Waddell? LICHTIG: A. No information was presented that changed my mind to affirm the decision [RT, Lichtig, 7/24/15, 962, 968]. We know this to mean, “no information (that she was given, other than what the chief wanted her to know), was presented that changed her mind to affirm the decision.” A termination decision in this matter smacks of the ultimate hypocrisy: the materials provided to Officer Waddell did not include the entirety of the investigation, did not include complete and accurate information, did not include information obtained that was favorable to him, and did not include the materials upon which the matter was based, including the multiple drafts of the investigations, and the recommendation of Captain Storton, as required by law. The testimony in the Hearing on this matter is quite clear: the Department, in violation of the tenets of the Skelly case, failed to provide all the materials upon which the matter was based. Skelly v. State Personnel Board (1975) 15 Cal.3d 194. Based upon these Skelly violations, Officer Waddell is entitled to back pay from the date of his termination on October 2, 2014. Barber v. State Personnel Board (1976) 18 Cal. 3d 395. In Barber, the court held that the effective date of a dismissal when the employee’s Skelly rights were violated would be extended to the date the Board filed its decision. Thus, Appellant Waddell is minimally entitled to back pay from the date of the Skelly to the date of the Hearing Officer’s final decision due to the Department’s failure to provide mitigating evidence/information. D. THE DEPARTMENT DID NOT MEET ITS BURDEN AS TO EACH AND EVERY ALLEGATION BY CREDIBLE EVIDENCE Allegation 1: Violation of San Luis Obispo Rules and Regulations Standard of Conduct section IV.I: A Department employee shall not knowingly or willfully make a false verbal statement or give false information to a Department supervisor or investigator. This allegation most logically pertains to the CAT Investigation. Officer Waddell testified as follows: Q. So while you're not disputing that you were late, are you disputing that you were dishonest or made false statements? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3134 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 33 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Yes. Q. Both in your text messages and in your statements to your supervisors? A. Yes. Q. And in your internal affairs investigations? A. Yes. [RT, Waddell, 10/02/15, 1887]. 1. Officer Waddell Was Not Dishonest or Untruthful and Never Intended to Deceive The substance of Allegation 1 is dishonesty. Dishonesty entails an intentional misrepresentation of known facts. Marc Shelton (1994) SPB Dec. 94-19, pg. 20. In Gee v. State Personnel Bd. (1970) 5 Cal.App.3rd 713, the court stated “…’dishonesty’ denotes a disposition to cheat, deceive, or defraud [and] it denotes an absence of integrity.’” Fong v. City of Livingston (2005) CSMCS Case No. ARB-04-2606. As held in Cvreck v. State Personnel Board (1967) 247 Cal.App. 2d 827, 832, it is for the trier of fact to resolve any conflicts of testimony and to credit (or not) the employee’s claim that any misstatements to his supervisor were not intended to deceive, but were merely the result of poor memory, misrecollection, misinterpretation or confusion, simple error, etc. The critical issue is not whether statements made were incorrect or misleading, but whether they were knowingly incorrect or misleading. The Department must prove not only a misstatement of fact, but also that the misstatement was intentional to deceive the Department. An employee or witness can in good faith give answers or provide information that is wrong or interpreted differently without being guilty of misconduct. This does not automatically make them liars. As evidenced in this very Hearing, the human mind is a fallible instrument. The evidence presented, both in the Internal Affairs interviews, and at the Hearing on this matter, clearly showed that Officer Waddell never intended to deceive his supervisors, nor did he have any motivation to do so. According to the testimony, the worst possible discipline Officer Waddell believed he would face for tardiness was “a verbal reprimand from the supervisor or, depending on circumstance or repetitiveness, the supervisor could designate to have a formal write-up or supervisor's note placed in their file” [RT, Waddell, 10/02/15, 1750-1751]. As was discussed, there is no evidence that Officer Waddell was deceitful or dishonest. Officer Waddell’s statement to Internal Affairs investigators remained consistent with his testimony throughout the Hearing. If an Officer is accused of dishonesty, additional factors must be considered, which hinge upon a showing of an intent to deceive. Ackerman v. State Personnel Board (1983) 145 Cal.App.3d 395 The end of Waddell’s twelve-year career in law enforcement came down to the Department’s mistaken perception of “dishonesty” related to the interpretation of an on-the-fly text message from Officer Waddell. The evidence presented by the Department is simply not sufficient to establish, by any qualitative amount, that Waddell was dishonest or deliberately misleading. Furthermore, that Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3135 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 34 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 which the Department relies on does not support a finding that to reach the conclusion that dismissal is appropriate. Allegation 2: Violation of San Luis Obispo Rules and Regulations Standard of Conduct section III: Employees of the Department shall be punctual in reporting for duty at the time and place designated by their supervising officer. Officer Waddell acknowledged that he should have called into dispatch, and notified the watch commander of the day that he was running late on the 19th, when he became aware he wasn’t going to make it by 11:00 [RT, Waddell, 10/02/15, 1855]. He does not contest that would have been a better course of action. He is remorseful for his tardiness on that date. Allegation 3: Violation of San Luis Obispo Rules and Regulations Standard of Conduct section IV- I: Department employees shall not conduct themselves in a manner that reflects adversely on the Department, or which discredits the Department, or which is detrimental or damaging to the reputation or professional image of the Department. The Department alleges that Officer Waddell violated San Luis Obispo Rules and Regulations Standard of Conduct section IV-I, when he removed the hubcaps from the Bentley. However, as stated above, Officer Waddell was playing a prank on Sgt. Pfarr, and he told Sgt. Pfarr multiple times (at the scene, during their phone conversation, and during the meeting in Sgt. Pfarr’s office) that he “was just messing around” with him. During the conversation over the phone, Sergeant Pfarr told him to put everything back, and Officer Waddell informed him that “nothing left the car, I was messing around” RT, Waddell, 10/02/15, 1724-1725]. Once off the phone, Officer Waddell text Sgt. Pfarr a photo of the car parts back in the car. Even Sgt. Pfarr admitted that he believed that Officer Waddell was just joking. When Sgt. Pfarr was interviewed by Lt. Proll during the course of the internal affairs investigation on the Bentley incident, Sgt. Pfarr stated “My take on it was that it was a joke that he took a little bit too far once the – once he involved the tow truck driver” [See Appellant’s Exhibit C: Interview of Chad Pfarr, dated January 25, 2014, p. 19]. Additionally, Sgt. Pfarr was aware that Officer Waddell had a conversation with the tow truck driver about the prank. When Sgt. Pfarr was questioned by Lt. Proll about this issue, his statement is as follows: PROLL Q: Did Kevin say he had any conversation – other than asking the tow truck driver for a screwdriver, did he – when he put them back, did he say, “I was just kidding”? Did he – Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3136 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 35 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PFARR A: Oh, you know what, yeah. He did say that he kind of brushed it over with the tow truck driver and let him know that it was a new sergeant. It was just a joke and all that stuff [See Appellant’s Exhibit C: Interview of Chad Pfarr, dated January 25, 2014, p. 22]. Ultimately, the Department failed to produce any evidence that Officer Waddell violated San Luis Obispo Rules and Regulations Standard of Conduct section IV-I, conduct bringing discredit to the Department. Allegation 4: Violation of California Vehicle Code section 10852: No person shall individually or in association with one or more persons, willfully injure or tamper with any vehicle or the contents thereof or break or remove any part of a vehicle without the consent of the owner. CASTILLO: Q. And are you disputing that you committed any kind of vehicle code violation? WADDELL: A. Yes [RT, Waddell, 10/02/15, 1888]. Officer Waddell had an additional collateral assignment as an accident reconstructionist. When he was assigned to the traffic unit, he continued to push himself to go to the required schools (basic, intermediate, advanced, and reconstruction) [RT, Waddell, 10/02/15, 1169-1670]. In order to be a part of the accident reconstruction team, Officer Waddell had to have completed reconstruction school (40-hour basic investigation school, 40-hour intermediate, which is also skid analysis school, 80-hour advanced school, which taught momentum and basic vehicle inspection techniques, and then an 80-hour reconstruction school, which taught more advanced momentum, and more advanced crush analysis). As part of these schools, Officer Waddell became familiar with mechanics. In advanced accident investigation, there is an eight-hour segment specific to vehicle inspections. He went through all the engine components and brakes, took wheels off cars, inspected brakes for brake pads, brake function… As such, Officer Waddell is very familiar with cars [RT, Waddell, 10/02/15, 1670-1671]. He was additionally part of the traffic safety unit for three (3) years, up until the point he was terminated [RT, Waddell, 10/02/15, 1671]. Given his exceptional knowledge and familiarity with cars, Officer Waddell knew that he would not cause any damage whatsoever to the Bentley by virtue of his popping off the lug nut cover. E. THE INVESTIGATIONS UNDERTAKEN WERE INACCURATE, MISLEADING, AND IF NOTHING ELSE, SUPREMELY BIASED 1. The Bias of Sgt. Pfarr was Imparted into the Investigations and Condoned by the Rest of the Administration At all times, had Sgt. Pfarr wanted to address any “perceived problems” with Officer Waddell, he could have. Officer Waddell was always at the department, either on his regular shift, or for CAT Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3137 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 36 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 overtime. Instead, Sgt. Pfarr chose to not address any issues, instead holding on to them until the time was right and he could use them as examples of Officer Waddell’s “burn out” or as an example of him being a problem officer” to prevent any possibility of Officer Waddell promoting, or being assigned to detectives. a. Promotional Testing by Officer Waddell Besides his multiple collateral assignments, Officer Waddell tried to further his career by promoting within the department. He tested for sergeant twice, beginning in 2011. After the first time when he did not get promoted, Officer Waddell sought to improve his chances on the next go-around. He put on briefing trainings, tried to extend his knowledge of reconstruction to the patrol deployment and what they could do, continued to manage all of his same programs to the best of his ability, and continued to be as involved as possible [RT, Waddell, 10/02/15, 1697]. Officer Waddell learned that he was ranked #1 during the testing period of 201215, that Fred Mickel was #2, and that Chad Pfarr was #3. The chief had the ability to select from the top three (3) [RT, Waddell, 10/02/15, 1698]. Mickel was promoted in 2012, and in 2013, Pfarr was promoted. Officer Waddell first learned that he was not one of Sgt. Pfarr’s favorite people when he returned from his Europe vacation (June 9 – July 3, 2013). Upon his return, on his first shift back Sgt. Amoroso asked him into the office and told him that he had to talk to him about something that happened before he left for Europe. Sergeant Amoroso stated that he didn't know why Sgt. Pfarr just handle it with Officer Waddell, but that Sgt. Pfarr wanted Sgt. Amoroso to talk to him about him catching him in the downtown bike office, watching a movie. Sergeant Amoroso went on to say that he considered it “handled,” and that he didn’t know why Sgt. Pfarr hadn’t addressed it with Officer Waddell at the time it occurred, and why Sgt. Pfarr had waited for Officer Waddell to go to Europe to tell him about it, given if he was there and he was the sergeant over the CAT shift that day, it would have been his responsibility [RT, Waddell, 10/02/15, 1733-1734]. Sergeant Amoroso went on to state that Sgt. Pfarr would likely be Officer Waddell’s supervisor come January 2014, and that although Amoroso didn’t know why, “clearly, he's got it out for you and you need to watch what you're doing” [RT, Waddell, 10/02/15, 1734]. Based on Sgt. Pfarr’s testimony, it was clear that he truly was out to get Officer Waddell. Sgt. Pfarr had been watching Officer Waddell, since the moment he became sergeant. Sgt. Pfarr testified that because Officer Waddell signed up for so many overtime C.A.T. shifts, that it seemed as though he was getting “burnt out,” and that Sgt. Pfarr recommended to Lt. Smith that they have another officer, not Officer Waddell, work these shifts [RT, Pfarr, 06/25/15, 98]. Sgt. Pfarr testified that his opinion was based on seeing Officer Waddell late once or twice, that he saw him watching a movie on his lunch 15 Captain Staley confirmed that Officer Waddell was ranked #1 for the sergeant testing process in September of 2012 [RT, Staley, 10/06/15, 1976]. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3138 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 37 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 break16, and that Sgt. Pfarr couldn’t hear him on the radio during the C.A.T. shift [RT, Pfarr, 06/25/15, 138]. Sgt. Pfarr never pulled Officer Waddell’s statistics to determine his productivity; his opinion was purely based on lack of radio traffic. The “movie incident” occurred in May 2013, not October 2013. Officer Waddell was working a CAT shift alone, and took a break in the downtown bike office to cool off, around 1:00 p.m. He had already been on the shift for about two (2) hours, and had three (3) more to go. He got himself a snack, sat in the air-conditioned office, and watched an AR-1517 (a weapon they used on the S.W.A.T team)- building video18 as he ate. During this time, Sgt. Pfarr came into the downtown office. He came to the doorway edge of the room, kind of, with his hands on his hips. He's all, what are you doing? I said, just taking a quick break, and he goes, oh, okay, you about done? I said, about done. He said -- he asked me, you want to go get a cup of coffee then? I said, sure. So I threw the last bite of slider in my mouth and we got up and walked to the Starbucks, which is practically connected to that same building, which is maybe a one-minute walk from the office” [RT, Waddell, 10/02/15, 1738]. At no point did Sgt. Pfarr never appeared upset or concerned, and never mentioned the break, eating, or movie to Officer Waddell. Assuming that Sgt. Pfarr had a problem with Officer Waddell watching a movie and taking a lunch break at the downtown office, you would think that Sgt. Pfarr wouldn’t then ask him to take a longer break, and go get coffee with him. Officer Waddell never heard about it from a supervisor until Sgt. Amoroso spoke to him about it [RT, Waddell, 10/02/15, 1738-1740]. In 2013, Officer Waddell decided he’d put in for a detective position. He built up his resume, and he met with the detective division lieutenant, Lt. Bledsoe. He met with the current detectives to find out what he should study and how he should prepare for the testing process. He went on ride-alongs with the narcotics team. He went out on warrant services [RT, Waddell, 10/02/15, 1703]. However, once Sgt. Pfarr learned of Officer Waddell’s intention to become a detective, he “suddenly” believed the Bentley prank of seven (7) months before was now not a prank, but a possible theft in progress. Sgt. Pfarr’s testimony is as follows: CASTILLO: Q. And only up until the point where now he needs to promote to—or wants to promote to detective, suddenly, it’s concerning you, was what your testimony was yesterday, right? 16 Upon cross-examination, Sgt. Pfarr suddently states that there were two (2) times that Officer Waddell was watching a movie during the C.A.T. shift. However, Sgt. Pfarr never mentioned this second time in any of the interviews he gave, and he never mentioned the second time to either lieutenant that he spoke to when he mentioned the movie [RT, Pfarr, 08/21/15, 1447]. 17 Officer Waddell specifically recalls this because he was working on building a rifle for his use as a sniper on the S.W.A.T. team. At the time, the team didn’t have any semi-automatic rifles, only had bolt-action rifles, and he was in the process of teaching himself how to build a rifle with the components involved [RT, Waddell, 10/02/15, 1737]. 18 It was not a Marvel video, as Sgt. Pfarr claims [RT, Waddell, 10/02/15, 1737]. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3139 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 38 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PFARR: A. Absolutely [RT, PFARR, 06/26/15, 189]. His testimony continues: CASTILLO: Q. Well, it only became a big deal in December when it was brought to your attention by Captain Storton based on potential verbal counseling, slash, aggressive discipline? PFARR: A. No. Q. Okay. Then tell me when it became a big deal to you. A. Again, it became a big deal to me when he put in for this investigative position, or positions. Q. Not after—okay. So not when he was arresting people in the ten months leading up to, I guess, his administrative leave, right? A. No. Again, it was when he applied for these investigative positions. Q. Okay. So not in the time he was going to court and testifying in court cases, either, right? A. Correct [RT, PFARR, 06/26/15, 208-209]. Sgt. Pfarr’s testimony lacks credibility and shows a clear bias against Officer Waddell. Sgt. Pfarr set out to destroy any chance Officer Waddell had to make detective He went from supervisor to supervisor, telling them of his “concerns” that Officer Waddell could not be trusted to be in a detective position (despite the fact he’d be acting as a police officer, making arrests, and testifying in court, without apparent concern). In hindsight, Officer Waddell agreed that knowing that Sgt. Pfarr was “out for him,” that he should have been more careful to author a properly worded text on October 19, 2013 [RT, Waddell, 10/02/15, 1857-1858]. But he was driving, and he was trying to get to the station. There was no mal intent. After the CAT incident, Officer Waddell continued working as usual through November 2013. During this time period, he was approached by coworkers about Sgt. Pfarr looking for him. Officer Waddell recalled an instance of another CAT shift where it was before 11:00 and the partner he had on that shift (Officer Inglehart) told him that Sgt. Pfarr had already been in the locker room looking for him. That day, Inglehart questioned Waddell, asking why the sergeant was looking for him before the shift even started. Officer Waddell felt like he was being watched everywhere by Sgt. Pfarr, even before he was supposed to be at a shift, the sergeant was looking for him, trying to figure out where he was [RT, Waddell, 10/02/15, 1779-1780]. After he was placed on administrative leave, Officer Waddell was approached by officers in the department, Officer Inglehart and Officer Berrios. Both of the officers indicated that they had been Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3140 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 39 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 contacted by Sgt. Pfarr, and that Pfarr was trying to open dialogue and communicate to them and with them about Waddell’s administrative leave. Ingleheart relayed to Waddell that the night the night he was put on admin leave, Sgt. Pfarr went to him, asked if he heard what was going on, and said that “the department was going to be looking at attitudes to make sure you don't get involved in his thing because you know you still have a pending IA, as well.” Officer Berrios told him that two days after he was put on admin leave, that Berrios was asked to coffee by Sgt. Pfarr, wherein Sergeant Pfarr asked him if he knew what was going on with Waddell. When Berrios said he didn’t know, Pfarr told him that Waddell was on admin leave, but that “it's not as bad as what's happened to some other people around here” [RT, Waddell, 10/02/15, 1784]. Sergeant Pfarr continued his smear campaign. During a conversation in the hallway about a missing rifle, Sgt. Pfarr made comments in front of Officer Berrios, a sergeant and another officer that maybe they should check Officer Waddell’s safe to look for this missing rifle. When Officer Berrios came to Waddell’s defense, Sgt. Pfarr said, hey, well, you never know with him [RT, Waddell, 10/02/15, 1784]. ii. The Bias of Lieutenant Smith in the CAT Investigation Lieutenant Smith testified that he considered himself to be a “work companion” of Sgt. Pfarr [RT, Smith, 10/06/15, 1962], but it went farther than that. According to the Appellant, they worked very closely together for the entirety of his employment at the police department. Lieutenant Smith directly supervised Pfarr in different assignments (detectives, patrol) [RT, Waddell, 10/06/15, 1937]. “It's very clear that these two developed a very close working relationship and it was my opinion it was common knowledge amongst the department that these two were very close and were very -- they were boys. They were very close” [RT, Waddell, 10/06/15, 1937]. According to Waddell, “There is no doubt in my mind that anything told to one of them, the other one would be immediately aware of it” [RT, Waddell, 10/06/15, 1937]. It was apparent that once Sgt. Pfarr told Lt. Smith that Officer Waddell had lied, that was the belief of Lt. Smith, without question. iii. The Bias of Lieutenant Bledsoe in the CAT Investigation The waters with Lt. Bledsoe had already been poisoned prior to his assignment to the CAT Investigation. Sergeant Pfarr had come to him in his office about Officer Waddell and the Bentley incident at the time of the testing process in the for detectives in the Fall of 2013 as Lt. Bledsoe was the lieutenant in charge of that division [RT, Bledsoe, 10/06/15, 1911-1912]. At the time Lt. Bledsoe began investigation Officer Waddell relating to charges of dishonesty, Lt. Bledsoe had already heard about the alleged “emblem theft” from Sgt. Pfarr [RT, Waddell, 10/02/15, 1913]. Sgt. Pfarr testified that he brought up the Bentley incident with Lt. Bledsoe and Lt. Smith in August of 2013 [RT, Pfarr, 06/26/15, 244], but these lieutenants did nothing with this information until after the C.A.T. incident occurred. Additionally, Lt. Bledsoe’s biased investigation is evident in that he could have done additional investigation, which Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3141 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 40 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 had he done additional investigation would have led him to include exculpatory evidence (i.e. emails reflecting past practice and flexibility of the C.A.T. shift). a. DRMO According to Lt. Bledsoe, questions about DRMO were not relevant to his case (the CAT Investigation) [RT, Bledsoe, 10/06/15, 1919]. DRMO was clearly unrelated to the Bentley Investigation. Yet, throughout the course of the two investigations, the DRMO program was brought up and Officer Waddell was asked multiple questions about it. In fact, allegations were made that if he had collected items in the Bentley investigation, that the property could be stored in the DRMO lockers or storage area. On the day that Lt. Bledsoe served him the notice for his CAT IA for dishonesty, Officer Waddell was shown a photograph that LT. Bledsoe had taken boots from the sally port prior to their inventory. At the time of service, Lt. Bledsoe never mentioned taking these non-inventoried boots to Officer Waddell, the DRMO coordinator [RT, Waddell, 10/02/15, 1917]. Officer Waddell then sent out an email demanding the return of any DRMO property, which was echoed in an email from Lt. Smith [RT, Waddell, 10/02/15, 1920; Appellant’s PP19]. It smacks of the ultimate hypocrisy that A. ….Lieutenant Bledsoe was down there taking boots the same day he served me with the IA for the texting incident, he's down there taking boots to the point that other officers are taking photos of the security camera in the department to make a wanted poster of him because he took boots, and he never once told me that he had anything. I have all kinds of other people that communicated back with me that, hey, I have this, this, this, and this. Another lieutenant piggy-backed on my e-mail that said that stuff all needs to be put back. Not one time did Lieutenant Bledsoe come and say I have your boots. The same day he served me, hey, by the way, I got some boots, oh, and here's your IA service. Q. For an honesty issue? A. For an honesty issue [RT, Waddell, 10/02/15, 1783]. iii. The Bias of Lieutenant Proll in the Bentley Investigation According to Lt. Bledsoe, he was not given a Lexipol policy format or template to follow for constructing findings and recommendations at the time he drafted his internal affairs investigation, and there were no changes to the policy that he was aware of, and he had conducted an investigation just months before. Lieutenant Bledsoe testified that he was not assisting Lt. Proll with the writing or 19 This is an e-mail Waddell generated on November 21, 2013when he was notified by other members of the department, Officer Kevany, specifically, that people were pilfering equipment from the sally port. Thus, he drafted the email that morning, notifying people that that equipment was not inventoried yet and I needed to be notified of what equipment they had so that he could apply it to the inventory. Lieutenant Smith followed up to the e-mail, affirming how unacceptable the behavior was [RT, Waddell, 10/06/15, 1933]. While Officer Waddell did not make a formal complaint to the department re: the taking of the DRMO property, he immediately notified the department via department-wide email to put the materials back, which was accomplished. Despite the widespread “taking” without authorization, none of those individuals, including Lt. Bledsoe, were subjected to administrative investigation. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3142 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 41 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 formatting of his investigation (the Bentley investigation) of Officer Waddell [RT, Bledsoe, 10/06/15, 1914-1915]. Yet, Lt. Bledsoe sent Lt. Proll his CAT dishonesty investigation on Officer Waddell “for the format20” [RT, Bledsoe, 10/06/15, 1918], despite the format being explicitly described in the department’s Lexipol policy on this subject [See Appellant’s DD, section 1020.6.2 (2014/01/08 version) and Appellant’s OO, 2013/09/02 version]. When confronted with the policies, Lt. Bledsoe admitted there were no policies in between those versions, and no actual change to the format. Despite a request for Lexipol policy in effect 2013, no other documents or policy versions were provided by the department RT, Waddell, 10/06/15, 1952]. Ultimately, it was fleshed out that Lt. Bledsoe sent Lt. Proll his unfinished21 CAT investigation on February 5, 2014, the very day Lt. Proll interviewed Lt. Bledsoe for his Bentley investigation. [RT, Bledsoe, 10/06/15, 1925]. The format of the final version of the Proll Bentley investigation is nothing like the Bledsoe CAT investigation, proving the investigation was sent not for format, but for content. iv. The Opinions of Captain Storton As he completed the CAT Investigation, Lt. Bledsoe gave Captain Storton his completed internal affairs investigation [RT, Bledsoe, 10/06/15, 1923]. Captain Storton had a working recommendation of discipline based on his review of this internal affairs investigation [RT, Storton, 07/12/15, 868]. He reviewed the discipline of another officer that he was aware of within the Department as a comparison to the case of Officer Waddell in making his recommendation of discipline of a two-week suspension [RT, Storton, 07/12/15, 871]. Additionally, he did not consider the lack of prior discipline of Officer Waddell. Captain Storton’s testimony is as follows: Q: Okay. Did you utilize, as a factor, the fact that he had no prior discipline in your determination recommendation? A: No [RT, Storton, 07/12/15, 871:10-19]. When asked what the facts were of the case that Captain Storton used for comparison, his testimony was as follows: Q: What were the facts? A: There was a situation where some information on a police report was misrepresented. Q: And what was the discipline that was given to that particular officer? A: I believe, and I’m not certain on this, it was 40 hours of time. 20 Even with a cursory review of the CAT investigation format and Bentley investigation format, it is immediately apparent the format is different. 21 Lieutenant Bledsoe completed another interview on February 28, 2014 as part of his investigation [RT, Bledsoe, 10/06/15, 1925]. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3143 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 42 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Q: Based on your initial review of the allegations, without listening to the audio and just based only on the report as written by Lieutenant Bledsoe, what was your recommendation to chief—the chief—the Skelly officer in this case? A: In this case, it was 80 hours of time off and removal from the special assignment on the S.W.A.T. team. Q: And was this conveyed? A: To? Q: The chief. A: Yes, it was [RT, Storton, 07/12/15, 872:16-873:9]. Thus, Captain Storton, in order to determine the appropriate level of penalty, conducted research, and compared the Waddell CAT Investigation to the case of an officer making a false representation/statement on a police report, a legal document with due process implications, and which only received forty (40) hours of discipline. Ultimately, Captain Storton determined that Officer Waddell’s case was more severe, but still did not warrant termination. Once Captain Storton relayed his recommendation of discipline to Chief Gesell, he was immediately taken off of this case by the chief, who found his penalty recommendation to be to light. The case was therein transferred to Captain Staley. Captain Storton’s testimony was as follows: Q: And how was it conveyed? A: I recall it was a meeting in his office and there was a discussion about the discipline with him. Q: Okay. And then, subsequently, you were removed from the –the—you were removed from writing the formalized executive summary? A: I was. At the time, Chief Gesell had brought a policy that indicated that the investigation should be controlled by the supervising—by the ultimate manager of that division where Officer Waddell, at the time, was under of the direct—under the immediate—I’m sorry under the managerial supervision of Captain Staley on the operations side of the house. Q: Who assigned you to the –who assigned you to conduct the assignment and executive summary preparation, in the first place? A: Initially, Chief Gesell [RT, Storton, 07/12/15, 873:18-874:9]. Although Chief Gesell assigned this case to Captain Storton for review and to prepare a recommendation of discipline, once it became clear that Captain Storton did not believe the appropriate discipline was termination, Chief Gesell took the case away from Captain Storton and gave it to Captain Staley to do his bidding. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3144 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 43 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. The Opinion of Captain Staley Under the direction of Chief Gesell, Captain Staley recommended that Officer Waddell be terminated. Although Captain Staley made the recommendation of termination to the Chief of Police, admitted that he did not listen to all of the audios—in fact, the only audio he partially listened to was Officer Kevin Waddell’s, and he only listened to “portions” of it [RT, Staley, 07/12/15, 800]. Interestingly, Captain Staley was directed to those specific portions of audio through Lt. Bledsoe’s report RT, Staley, 07/12/15, 800], and then later participated in the editing of Lt. Proll’s investigation report multiple times [RT, Proll, 08/21/15, 1317-1318]. Lt. Proll’s testimony about these revisions was as follows: CASTILLO Q: Okay. And, ultimately, how many drafts of your report do you recall there ended up being? PROLL A: I think three or four. Q: Were those three or four that you audited –or edited, or authored? A: Yes. Q: Okay. And who else participated in the editing? A: I submitted them to Captain Staley. Q: Okay. And so he participated in the editing? A: Yes. Q: And who else? A: I believe Chief Gesell and City Attorney Christine Dietrick. Q: Okay. And then did they come back to you for review for accuracy? A: Yes [RT, Proll, 08/21/15, 1318]. Not only did the (now 2nd) individual making the Executive Recommendation for penalty, Captain Staley participate in the revisions and changes of Lt. Proll’s investigation report, but so did then- Chief Gesell, THE SUPPOSEDLY “IMPARTIAL” SKELLY OFFICER. vi. The Chief Decided the Fate of Officer Waddell Prior to the Conclusion of the Investigations and Made Sure that He was Doomed. Then-Chief Gesell never testified in the administrative Hearing of Officer Waddell, as he had already been “separated” from the Department himself. Despite being assigned as the Skelly officer who would ultimately as for CM Lichtig, the final decision-maker Chief Gesell sent an email to Lt. Proll dated March 28, 2014, stating “See my note,” under conclusion [See Appellant’s Exhibit Y]. In the attachment to this email, Chief Gesell made interlineations and notes and wrote “G.S.,” as his initials next to the notes [RT, Proll, 08/21/15, 1323]. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3145 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 44 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 It is clear that the Department’s investigation was biased from the beginning, with Chief Gesell directing the investigators, removing those who suggested non-termination (i.e. Captain Storton), in order to attempt to substantiate the result that he wanted—ultimately resulting in the termination of Officer Waddell. Although he provided an opportunity for Officer Waddell to meet with him in a Skelly, then-Chief Gesell, as fleshed out above, had already long before come to the conclusion that Officer Waddell needed to be terminated, and there was no other conclusion. While he met with Officer Waddell, he was obtuse and unwilling to have an open mind into the alternative possibility that the CAT incident was really was just a miscommunication, and the Bentley incident was only a prank gone wrong. According to the testimony of Captain Storton, the chief believed this was a termination-quality case from the beginning RT, Storton, 7/23/15, 880-881]. The comment22 made by the then-chief in the Skelly hearing that he had a moral obligation to make sure Officer Waddell would never be a cop again was indicative of the Chief’s unwillingness to view the investigation objectively. According to Officer Waddell, “the other person he made that same comment about was Cory Pierce, the San Luis Obispo police officer that had been recently arrested for federal charges for armed robberies under the color of authority while he was a detective in county narcotics. That statement was made during his press conference. The chief additionally made statements about Officer Waddell in the press, authoring an e-mail to a leadership school for law enforcement officers wherein, Officer Waddell’s termination was listed as one of his “accomplishments” after he terminated him “for untrustworthiness, despite external influence for a lesser discipline” [RT, Waddell, 10/02/15, 1789; see also Appellant’s Exh. RR23]. As evidenced by the facts of the investigation, the apparent and egregious violations of Officer Waddell’s rights, and the testimony before the Hearing Officer, together with the circumstances argued in this Brief, the Department did not prove by credible evidence that Officer Waddell violated the Department’s policies. Based on the evidence before the Hearing Officer, it is clear the Department has not met its burden as to the attendant allegations and any policy violations, and as such, this discipline should not stand. As set out above, the San Luis Obispo Police Department engaged in serious and prejudicial misconduct during the investigations of Officer Waddell. For that reason, the Hearing Officer should suppress the evidence offered by the Department in violation of his Peace Officers’ Bill of Rights and the 22 This comment was communicated to Officer Waddell by his then-attorney, Ms. Winter, after the Skelly hearing [RT, Waddell, 10/06/15, 2000]. 23 See page 4 of 6 of Appellant’s Exh. RR, "Terminated an officer for untruthfulness despite external encouragement to levy a lesser level of discipline." No other officer was terminated that year from the San Luis Obispo Police Department besides Officer Waddell [RT, Waddell, 10/02/15, 1939-1940]. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3146 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 45 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 California Labor Code [Section A] and Skelly [Section VIV.C.], give little weight to any remaining or unsuppressed “evidence,” reinstate Officer Waddell to his previous employment as Officer, and make him whole. F. The Truth Behind the Termination of Officer Waddell It was made clear throughout this hearing that the Department was intent on terminating Appellant, and took great measures to do so. Throughout the course of the Hearing, it was exposed that Officer Waddell had fallen out of favor with the administration, and as a result, the Department had no qualms about abusing the process in order to terminate the Appellant. In early 2013, Officer Waddell, after the last testing process for sergeant, had a conversation with Chief Gesell during his exit interview from that process where he was accused of having a “lack of commitment to the organization.” Indeed, then-Chief Gesell started off the interview questioning something that he thought he heard on the telephone when he called Waddell to tell him that he had promoted Sergeant Pfarr [RT, Waddell, 10/02/15, 1692]. Chief Gesell accused Waddell of laughing at him on the phone when he made the notification of his selection. Officer Waddell had not laughed at him, and emphatically told him that, explaining what was going on in his home at the time of the call. After that, he chief went on to tell Officer Waddell things that he did not necessarily take into consideration for his decision of the non-promotion to sergeant, but he that he wanted Waddell to respond to [RT, Waddell, 10/02/15, 1693]. Then-chief Gesell told Waddell that he was approached by people (that he would not name), that witnessed Waddell, during timed S.W.A.T. PT (physical fitness) tests looking at his watch24. This apparently caused the Chief to believe that Waddell had a lack of commitment to the organization. In response, Officer Waddell told him that he was flabbergasted he would have to respond to something like that, but also that it was something that would come up in a four-month period between promotions. He also told him that it's very curious that this came up then, between the two sergeant promotions because he hadn't run a S.W.A.T. PT test since 2011 due to an on-duty injury and this was now January of 2013. Officer Waddell wondered why someone would go to the chief in this four-month period between testing periods, other than to make him look bad to the chief for the new pending promotion [RT, Waddell, 10/02/15, 1694-1695]. As a result, Officer Waddell upped the ante, by working as much and as hard as possible. Promoting at this department is something that he wanted to do. Said Waddell, 24 According to Captain Staley, it didn’t annoy him that Officer Waddell repeatedly looked at his watch during the six (6) minutes and 30 second timed test [RT, Staley, 10/06/15, 1973-1974]. It was also noted that he “looked at his phone while on a break” which is not a violation of policy) [RT, Waddell, 10/06/15, 1975]. Officer Waddell was never removed from the S.W.A.T. teams for this “behavior,” and in fact was given the additional duty of being a sniper on the team [RT, Staley, 10/06/15, 1974]. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3147 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 46 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I wanted to be part of the management team at this point. So I felt like I needed to now, at this point, given what I'd been just told, now I needed to go above and beyond to try and work as hard, work as much as possible to try and show him and anyone else -- because I didn't know who this was at this point. I had my suspicions as to who it probably was, but I had no idea who it was. So at this point, I had to show to everybody how committed I was” [RT, Waddell, 10/02/15, 1695]. It became clear throughout the hearing that because of Officer Waddell’s determination to become sergeant, Sgt. Pfarr did not like Officer Waddell. Officer Berrios testified as follows: CASTILLO: Q. Did you get the impression that Sergeant Pfarr didn’t like Officer Waddell? BERRIOS: A. Uh-huh. Yes. Q. Was there any specifics in regards to that, other than the statement with me, or have you heard anything from Sergeant Waddell, specifically, in relation to that impression or that opinion other than that statement? A. Okay. Rewind. Have I – Q. Other than the statement made about the gun being, hey, check Kevin’s locker or safe – A. Right. Q. --other than that statement, what is your opinion based on, or your knowledge? A. As far as Sergeant Pfarr’s – Q. Not liking Officer Waddell. A. What my opinion is? Q. Right. What is it based on? His testimony continued: BERRIOS: A. Okay. I think it’s because the whole sergeant issue. Q. And what do you mean by that? A. Well, both Officer Waddell and Sergeant Pfarr took this test at the same time to become sergeant and the chief made his decision on who he wanted to pick to make sergeant. Sergeant Pfarr got picked over Officer Waddell and I think that has a lot to do with it. Q. If Sergeant Pfarr got picked over Officer Waddell, why would Sergeant Pfarr dislike Officer Waddell? A. Like it was mentioned earlier, the bullying – not the bullying. The… PALMER: Trading insults. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3148 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 47 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BERRIOS: A. Trading insults. There you go. The trading insults thing comes into play. My stripes are bigger than your stripes, he picked me over you, I’m your boss now, I beat you, the whole trading insults philosophy that adults do in the workplace. CASTILLO: Q. Is it your personal impression or do you have knowledge that this is a commonly-held opinion in the department? A. That he – that he didn’t like Kevin – Q. Correct. A. - or that Sergeant Pfarr –um, I would think it’s common – I don’t want to say common knowledge, but those of us that have been in law enforcement long enough can see it, just like anybody at a workplace would be able to see when subject A doesn’t like subject B, you can – kind of easy to see RT, Berrios, 07/24/15,1011-1013]. G. A JUST AND PROPER PENALTY? CASTILLO: Q. Do you believe that the penalty in this case is appropriate? WADDELL: A. No. Q. Why not? A. What's -- what -- rhetorical question, what's the penalty for being late to work? That was all I've done wrong, was late to work. In either instance, in either case, that's the only thing I've done wrong. Q. You've testified that you agreed that, on the night of the Bentley incident, you probably shouldn't have done -- played the practical joke that you did; would you agree with that? A. Yes. Q. Obviously, you probably wouldn't do that again, would you? A. No. Q. Do you think that the termination is an appropriate penalty? A. No. [RT, Waddell, 10/02/15, 1887]. Testified Waddell, I've done a lot for this department, I've done a lot for the people of this department, tried to make it a better place, and what did I get for it? I tried to promote. Promoting is the worst thing I could have done at this department because all it did was put a target on my back, and it was very clear, going forward, all these things were going on behind my back that I had no idea that were happening, that I didn't find out until after I get given Skelly packets, that Sergeant Pfarr is trying to block me from getting detective spots. For what? What did I do? What did I do to him? All I've done is work hard for them. Equipment, training, worked hard. 600 something hours of overtime in a year. For what? So I can't be heard over one thing? It's disappointing. It shouldn't be like this” [RT, Waddell, 10/02/15, 1781]. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3149 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 48 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 It is clear that the Department has failed to meet the burden of proof that is required for the sustained findings and resulting discipline. Even if the Hearing Officer should determine that one or more of the allegations were proven, the penalty imposed by the Department (termination) is excessive. The Hearing Officer should reinstate Officer Waddell to his previous employment as an Officer. 1. Excessiveness of Discipline This is not a termination case. Even if the Hearing Officer were to find that the investigation conducted by the Department was credible and legitimate and the burden of proof satisfied, certainly the evidence introduced at the Hearing regarding the mitigating facts and circumstances as argued in this Brief would point to the finding that termination, in this case, is excessive and not supported by the evidence. See Richardson v. Board of Supervisors (1988) 203 Cal. App. 3d 486, where the California Court of Appeal found that the penalty was excessive in the upholding of the termination of an Officer who was employed for 6 ½ years) who was involved in a brief, resolved instance of misconduct in which no significant harm to the County was shown. The court in that instance found that “the penalty imposed was grossly excessive.” Id at 491. In this matter, the Department has not, and cannot, show significant harm to the City of San Luis Obispo or its Police Department by the actions of Officer Waddell. a. Factors to Determine Level of Discipline i. Progressive Discipline/Prior Disciplinary Record Through progressive discipline, an employee is informed of the need for improvement and given the opportunity to improve his or her behavior. Robert Watson (1994) SPB Decision No. 94-10. In Mercedes Manayao (1993) SPB Decision No. 93-10, the State Personnel Board stated, “the purpose of progressive discipline is to provide the employee with an opportunity to learn from prior mistakes and to take steps to improve his or her performance on the job, prior to the imposition of harsh discipline.” As shown by these decisions, progressive discipline is designed to impose greater discipline on similar violations of which the violator was already placed on notice that future violations will result in greater discipline. In this case, Officer Waddell had worked in law enforcement for twelve (12) years, and for the San Luis Obispo Police Department for approximately seven (7) years. HE HAD NEVER RECEIVED DISCIPLINE DURING HIS POLICE CAREER. ii. Seriousness of the Misconduct In cases such as the matter before the Hearing Officer, the extent to which the employee’s conduct resulted in, or if repeated, is likely to result in, harm to the public service, should be considered, as well as other relevant factors, including the circumstances surrounding the misconduct and the Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3150 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 49 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 likelihood of its recurrence. See Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 217-218. This is known as the Skelly standard. The Department has failed to provide credible evidence that the actions and statements of Officer Wadell are of a grave matter resulting in public harm. At the time of his termination in October 2014, Appellant Waddell had an approximate twelve (12) year law enforcement career, and seven (7) year history of employment with the San Luis Obispo Police Department. There had been no similar instances of misconduct and there is no likelihood of recurrence. iii. Disparate Treatment At all times, the benefit of the doubt should have gone to Officer Waddell. Even so, Officer Waddell was subjected to disparate treatment by the San Luis Obispo Police Department regarding the circumstances before the Hearing Officer. Officer Waddell testified that he was unaware of any officers who were on the CAT shift who came in late or left early were ever disciplined, to include any written reprimands [RT, Waddell, 10/02/15, 1751]. Despite the Department’s assertion that the Appellant was untrustworthy and a problem officer,” neither Lt. Smith, nor Sgt. Pfarr were ever disciplined for failure to supervise Officer Waddell on the CAT shift, even after the investigation of this event took place [RT, Cameron, 10/02/15, 1662, ruling on Pitchess]. Only Sgt. Pfarr received a letter of discipline for Failure to Supervise after both investigations, but only with respect to the Bentley event, and that was issued by then-Chief Gesell on 7/22/14, more than a year later [See Appellant’s Exh. NN]. Interestingly, there was no investigation into Pfarr’s failed supervision of Officer Waddell; there was only a memorandum. Clearly, the Department did not have as much of an issue with the “loose oversight of problem officer Waddell” while he worked the CAT shift. Quite likely because the truth of the matter was that he did an excellent job, he was proactive, he was a hard worker, and they failed to document any instances of actual tardiness aside from the October 19th date, which he readily admitted to. The Department’s disparate treatment of Officer Waddell is clear when Lt. Proll interviewed Sgt. Pfarr on January 25, 2014. Lt. Proll goes out of his way to clarify Sgt. Pfarr’s responses about whether Officer Waddell was just “joking,” implying that if it was not a joke, that Sgt. Pfarr was covering up a theft. The questioning between Lt. Proll and Sgt. Pfarr is as follows: PROLL Q. I’m just saying that – so the whole crux of this whole thing is going to be, you know, on a one thing, if in his interview he would be completely dumb and completely stupid to say, “No, I never touched anything on that car.” So it’s all going to come down to – PFARR A. Oh, God, I hope he doesn’t do that. Q. It’s all going to come down to why he was taking that item. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3151 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 50 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Right. Q. And this—the interesting thing, he’s had a conversation with Sergeant Amoroso since all of this, and never once did Kevin say, “Brian, that was just a bad joke.” And you would think that would be the first thing on his mind. So what I really need to do is to think and, you know, with – I’m just going to be honest with you. I think if you personally minimize this as a practical joke, it kind of goes easier on you that you didn’t -- A. Absolutely. Q. I’m just saying that you didn’t report a theft. A. Completely agree. Q. And so I’m just kind of getting into this a little more delicately to – A. No, no. I – hey, I screwed up. I’ll be the first one to say that. Q. Right. A. And – Q. But it is a lesser screw-up if this practical joke gets perpetuated. And then when you report it to them –I’m just suppositioning this because – A. No, I see where you’re going. I see what you’re saying, though. Q. Had you gone to either one of these lieutenants or both and said, “Kevin clearly was stealing this” instead of bringing up the (inaudible) thing, I would have believed that they would not have just took in this information and not done anything with it. Because up until the recent IA, neither captain knew anything about this, nothing. A. Correct. Q. So it was, you know, either watered down or minimized to – from the lieutenant level to maybe protect you, or they didn’t want that happening on their thing. But it is interesting that the people that were there and stuff – you know, if – you know how we are. A. Yeah [Appellant’s Exhibit C: Interview with Sergeant Chad Pfarr (January 25, 2014), p. 26:16-28:12]. While the Department was quick to determine Officer Waddell was being dishonest in this investigation, they were not quick to determine that Sgt. Pfarr had “covered up” a theft. The questioning exhibits the Department’s willingness to allow Sgt. Pfarr an opportunity to clarify his answers. While honesty, integrity and hard work were very important to Officer Waddell, it appears as though other members of the Department were able to held to a much lower standard. iv. The Experience and Character of the Officer While at the San Luis Obispo Police Department, Officer Waddell worked patrol, was selected to the traffic enforcement unit as a motorcycle officer, was in the downtown bicycle unit, and then shortly Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3152 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 51 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 before administrative leave, had been selected to go to the daytime bicycle unit. He held several other collateral assignments, such as being an accident reconstructionist, motorcycle trainer, was on the S.W.A.T. team as an operator and sniper. He was also a part of the military surplus program (DRMO) which secured needed equipment for the police department [RT, Waddell, 10/02/106. 1164-1665]. As part of the team, he took it upon himself to write grants for accident investigation tools [RT, Waddell, 1672- 1673]. Officer Waddell apologized for any mistaken understanding relating to flexibility on the CAT shift when unpredictable issues arose. He agreed that during his interview with Lt. Bledsoe, he told him that he understood that he had overstepped his bounds, in that he had “misinterpreted the past practices of the program in thinking that any last-minute instance to be a few minutes late and adjust those hours or those minutes would be not a problem, not an issue [RT, Waddell, 10/02/15, 1869-1870]. He apologized for any miscommunication of that understanding to Sgt. Pfarr. He apologized for the bad prank the night of the Bentley crash [RT, Waddell,10/02/15, 1833]. Officer Waddell, on every occasion, has shown appropriate remorse. See In the Matter of Appeal by R.N., SPB Decision 97-2003, wherein the State Personnel Board determined that the Department’s punishment was too excessive after an exhibition of remorse for an isolated incident that was out of character for the Appellant. VII. CONCLUSION The Department/City could not and cannot prove by a preponderance, or any other level of evidence what it had hoped to show—that Officer Waddell committed a “crime,” is untrustworthy, a slacker officer, and/or dishonest. For the many reasons enumerated in this Brief, it is clear the termination of Officer Waddell is not justified. Even if the Hearing Officer was to find that the substance of some of the events presented it were in fact violations of Department policy, certainly with the evidence introduced at the Hearing regarding the mitigating facts and circumstances argued in this Brief, termination in this case is grossly excessive. A. The Appropriate Remedy is Reinstatement, to Include Making Officer Waddell Whole. For all of the reasons set forth herein, Appellant Waddell asks for a finding that the Department failed to meet its burdens as to each allegation based on the information contained herein. Should the Hearing Officer find that the Department did meet its burden on one or more of the charges, Appellant asks for a finding that termination is excessive based on the evidence before the Hearing Officer. In the alternative, should the Hearing Officer make a finding that the sustaining of lesser charges is justified, Appellant Waddell asks that discipline be commensurate with the charges found to be proven, such that a termination is not the appropriate penalty. Further, based on the evidence provided related to the violations of Officer Waddell’s Skelly rights, Appellant Waddell requests the Hearing Officer make findings on those issues. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3153 ARGUMENT ON BEHALF OF APPELLANT KEVIN WADDELL - 52 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ultimately, Appellant Waddell respectfully requests that the Hearing Officer find the discipline should be set aside and Appellant be reinstated to his position as an Officer, with full reimbursement of back pay (to include wages and benefits), from the date of his wrongful termination on October 1, 2014. Pereyda v. State Personnel Bd. (App. 3 Dist. 1971) 92 Cal.Rptr. 746, 15 Cal.App.3d 47. Dated: December 21, 2015 Respectfully submitted, CASTILLO HARPER, APC KASEY A. CASTILLO NICOLE A. NALEWAY Attorneys for Appellant KEVIN WADDELL Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3154 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3155 1 2 3 4'' 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JONES & MAYER Gregory P. Palmer, Esq., SBN 133647 3777 North Harbor Boulevard Fullerton, California 92835 714) 446-1400/Telephone 714)446-1448/Fax e-mail: gpp@jones-mayer.com BEFORE CHRISTOPHER DAVID RUIZ CAMERON HEARING OFFICER IN THE MATTER OF THE APPEAL OF THE DISMISSAL OF OFFICER KEVIN WADDELL, Appellant, I and POLICEDEPARTMENT OF THE CITY OF SAN LUIS OBISPO, Hiring Authority. CSMCS Case No. ARB -14-0209 POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENT TO HEARING OFFICER CHRISTOPHER DAVID RUIZ CAMERON, APPELLANT KEVIN WADDELL AND HIS ATTORNEY KASEY A. CASTILLO: The San Luis Obispo Police Department hereby submits its post -hearing brief in support of the decision imposing termination of employment on Kevin Waddell. 1- POST-HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3156 I 2 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25- 26 27 R1 I. INTRODUCTION Kevin Waddell ("Waddell") was terminated from his positions as police officer with the San Luis Obispo Police Department (" SLOPD") for allegations of misconduct stemming from a traffic accident which occurred in San Luis Obispo (" SLO") on February 22, 2013 (The Bentley Event) and for lying to a supervisor regarding having the approval of another supervisor to be late to work on October 19, 2013 (The CAT Shift Event). He appealed his termination and requested an administrative hearing, pursuant to Section 2.36.340B of the City's Municipal Code. (CX -1).t Christopher David Ruiz Cameron was mutually chosen as the hearing officer and was appointed to hear the appeal and render an advisory decision to the city council. (CX - 1) The hearing was held over the course of approximately five months and was reported by a court stenographer. The hearings were held on the following dates: June 25, 2015 (Volume 1); pp. 1-174; June 26, 2015 (Volume II); pp. 175-429; July 9, 2015 (Volume III); pp.431- 719; July 23, 2015 (Volume IV); pp. 720-907; July 24, 2015 (Volume V); pp. 908-1099; August 20, 2015 (Volume VI); pp. 1100- 1303; August 21, 2015 (Volume VII); 1304-1475; September 2, 2015 (Volume VIII); pp. 1475- 1655; October 2, 2015 (Volume IX); pp. 1656-1903; and October 6, 2015 (Volume X); pp. 1904-2005. Waddell was represented by Kasey Castillo. The San Luis Obispo Police Department was represented by Gregory P. Palmer. Both sides had a full and fair opportunity to examine and cross-examine all witnesses and to proffer documentary evidence in support of their relative positions. The matter will stand submitted for decision upon the simultaneous submission of the post hearing briefs and rebuttal briefs. The hearing officer's decision is advisory to the City Council pursuant to Section 2.36.350F of the City's Municipal Code. (CX -1) i City's Exhibit Number 1. The CX reference will refer to City's Exhibits. The AX reference will refer to Appellant's Exhibits. 2- POST-HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3157 1 II. RELEVANT RULES AND REGULATIONS 2 RULE IV OF THE CITY PERSONNEL RULES AND REGULATIONS 3 STANDARD OF CONDUCT 4 SECTION IV.I: 5 6 A Department employee shall not knowingly or willfully make a false verbal statement or give false information to a Department supervisor or investigator. 7 SECTION III: 8 Employees of the Department shall be punctual in reporting for duty at the time 9 and place designated by their supervising officer. 10 SECTION IV -I: I1 Department employees shall not conduct themselves in a manner that reflects 12 adversely on the Department, or which discredits the Department, or is 13 detrimental or damaging to the reputation or professional image of the Department. 14 CALIFORNIA VEHICLE CODE SECTION 10852 15 16 No person shall either individually or in association with one of more other persons, willfully injure or tamper with any vehicle or the contents thereof or 17 break or remove any part of a vehicle without the consent of the owner. 18 III. DISCOVERY EFFORTS 19 20 Prior to and during the hearing, appellant made several discovery requests from the 21 City. Some came in the form of Public Records Act Requests, some in the form of Subpoenas 22 Duces Tecum and finally, appellant filed and served on three separate occasions Pitchess 23 Motions for discovery of confidential information from a peace officer's personnel file. (See 24 Evidence Code Section 1043-1047). 25 One such subpoena duces tecum, which was the subject of some debate, sought any and 26 all previous drafts of and revisions to the administrative investigative reports prepared by 27 Bledsoe and/or Proll. The City filed a motion to quash that subpoena duces tecum. That 28 motion was denied and the City complied with the request except insofar as it related to the 3- POST-HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENT Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3158 I drafts and revisions made by the City Attorney. At the City's request, the hearing officer 2 conducted an in -camera review of one of the drafts of Proll's investigative report which had 3 been reviewed and commented upon by Christine Dietrick, the City Attorney, in order to assess 4 the claim the document was attorney-client privileged and should not be produced. Following 5 the in -camera, the hearing officer sustained the privilege, commented on how impressed he was 6 by the extensive nature of the comments and held the documents did not have to be produced. 7 Other drafts, with revisions and comments made before Ms. Dietrick conducted her review, had 8 already been produced to Waddell. (RT. 1248- 1252; CX -8) 9 The third round of Evidence Code § 1043-1047 ("Pitchess") motions filed by Appellant 10 were argued and granted, at least as it related to Pfarr and Smith. The in -camera review was 11 conducted by the hearing officer into the personnel file of both men. As a result of that review, 12 one document was ordered released. That document was the letter of discipline issued to Pfarr 13 for the Bentley event. The written reprimand issued to Pfarr dated July 22, 2014 was turned 14 over to Appellant's counsel, subject to a protective order. No documents were ordered 15 produced from the personnel file of Smith. (RT. 1659-1662) 16 The written reprimand for failure to supervise issued to Pfarr dated July22, 2014, was 17 introduced and admitted. (RT. 1910; AX -NN) 18 IV. STIPULATION 19 It was stipulated between counsel that the driver of the Bentley was charged with several 20 Vehicle Code violations and that she pled no contest to a violation of Vehicle Code §23153(B). 21 (RT. 1969-1971) 22 V. ARGUMENT 23 A. ALLEDGED SKELLY VIOLATION 24 In her opening statement and a few times during the hearing counsel for appellant made 25 reference to a Skelly violation existing in the case against Waddell. That claim, from our 26 27 28 4- POST-HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3159 1 review of the record, was never developed. But since it was alleged the City addresses it herein 2 to the extent we understand the claim. (RT. 20)2 3 Skelly v State Personnel Board (1975) 15 Cal. 3d 194, requires a public employer to 4 provide certain pre-deprivation rights prior to disciplining a tenured public employee. Those 5 rights include the right to be provided with an explanation of the charges against the employee, 6 the materials on which those charges are based and an opportunity to respond to the charges. 7 Appellant appears to argue that the alleged Skelly violation pertains to the claim that 8 photographs of the Bentley from the accident scene were not provided in the Skelly package. 9 (CX-11) 10 A careful look at the record reveals that claim was never fully proven. The alleged 11 violation was alluded to by counsel, but never directly addressed or established by any witness. 12 The lynchpin here is not whether counsel ever saw the photographs before the hearing began; 13 the lynchpin is whether the allegations against Waddell or City's case in any way rely on the 14 photographs and, if so, whether they were contained in the package provided to Waddell along 15 with the Notice of Intent to Terminate his employment. 16 Neither the allegations against Waddell nor the City's case on the Bentley incident as a 17 whole rely on the photographs of the accident scene or anything depicted in them. At best the 18 photos are a visual aid to orient one to the scene. Nonetheless, the evidence in the record is that 19 the photographs were always part of the packet provided. Staley testified that he went to Sue 20 Sanders, Administrative Assistant to Chief Gesell, prior to the hearing and asked her to prepare 21 a "dummy" file for him to use during the hearing. That " dummy" file was prepared from the 22 original investigative documents concerning this case. When he received the "dummy" file, all 23 the photographs used in this case were in that file. (RT. 781-786; 791-794; CX-11) 24 During the hearing, Staley reviewed the original investigative file maintained by the 25 department. The photographs were present in the original investigative file. The logical 26 inference from this evidence is since it was Sanders who copied the supporting materials for the 27 28 2 For a more detailed summary of the testimony provided in this case with citations to the record and exhibits in support thereof, the reader is referred to the appendix filed concurrently herewith. 5- POST-HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3160 I Waddell notice from the same source material used for Staley's "dummy" file, if the photos 2 were in the "dummy" file, they were attached to the Waddell notice. L) 3 Nothing offered by Waddell refutes that evidence. Indeed, one would think if one were 4 going to prove a Skelly violation, one would have asked Waddell, under oath, if he reviewed the 5 materials provided by the department along with the Notice of Intent to Terminate his 6 employment and, if so, whether the photos were present in the package. Curiously, that 7 question was not asked of him and no evidence was presented. He was asked and 8 acknowledged that he received the notice but he was not asked even one question about the 9 attachments. (RT. 1785- 1786; 1792-1795; CX-5). The inference which can be drawn from that 10 omission is that the answer would not have been favorable to the appellant. Moreover, the 11 photos were not hidden from Waddell. Proll makes clear reference in his report to the fact that 12 he obtained photos of the accident scene as part of his investigation. If the photos were 13 inadvertently left out, a quick review of Proll's report would alert the reviewer to the existence 14 of the photos. (CX-24, p. 24) Notwithstanding that reference, no request was made of the City 15 for the photos from any of the three or four separate legal counsel representing Waddell 16 throughout this proceeding. 17 The fact that current counsel for Appellant had apparently never seen the photos could 18 have been due to the many factors, none of which track back to the department. Waddell's fust 19 lawyer was Alison Berry-Wilkinson. She represented him at his interview. If she still 20 represented him at the notice stage, presumably she received the notice packet. Waddell 21 changed law firms for the Skelly and used Nicole Winter as his counsel. Prior to the hearing 22 Astrid Alphonso was going to represent him at the hearing. At the last minute, Kasey Castillo, 23 took Alphonso's place at the hearing. Given Captain Staley's testimony and the lack of any 24 contradictory evidence, the more likely explanation for the omission of photos from current 25 counsel's file is that, as the file was passed through all these hands, that maybe a small part of it, 26 like the photos, got lost. 27 The weight of the evidence suggests strongly that the notice and the supporting materials 28 were properly provided to Waddell prior to his Skelly conference. 6- POST-HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENT Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3161 1 There was no suggestion, much less any evidence of any other possible Skelly violation. 2 The charges against Waddell were explained in the notices and the Chief allowed him to 3 respond through counsel prior to making a final decision. Waddell's counsel requested that 4 Waddell not speak at the Skelly. Moreover, Waddell's counsel took a completely different tone 5 during the Skelly than Waddell did at the hearing. The recording of the Skelly conference, or 6 the written transcript in the record clearly demonstrates that Waddell acknowledged that what 7 he did at the Bentley event was incredibly stupid and that he deserves some level of discipline 8 for conduct unbecoming an officer. Waddell also attributed the CAT shift situation to having 9 been a by-product of working way too many hours and his counsel indicated that he understood 10 some discipline was warranted for the CAT shift events as well. Yet, when compared to the 11 hearing, Waddell minimizes his conduct as to both events, concludes that all he did wrong in the 12 whole situation was arrive late to work on October 19, 2013, and suggests that the entire 13 disciplinary action against him is the result of nothing more than a series of misunderstandings 14 and colleagues who don't like him. (RT. 1989-1997; CX-4 and 5) 15 No evidence was presented suggesting that any Skelly violation occurred and this 16 contention by counsel should be dismissed without further consideration. 17 B. STATUE OF LIMITATIONS 18 Counsel for Appellant has also argued that disciplining Waddell for any of his actions 19 related to the Bentley event is time barred by the Public Safety Officer's Procedural Bill of 20 Rights Act (" POBOR") (see Government Code §3300 et seq.). (RT. 20) 21 The provision within POBOR cited in preheating correspondence between legal counsel 22 is Government Code §3304(d)(1): 23 (1) Except as provided in this subdivision and subdivision (g), no punitive action, nor denial of promotion on grounds other than merit, shall be 24 undertaken for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within one year of the 25 public agency's discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct. 26 This one-year limitation period shall apply only if the act, omission, or other misconduct occurred on or after January 1, 1998. In the event that 27 the public agency determines that discipline may be taken, it shall complete its investigation and notify the public safety officer of its 28 proposed discipline by a Letter of Intent or Notice of Adverse Action 7- POST-HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3162 1 articulating the discipline that year, except as provided in paragraph (2). The public agency shall not be required to impose the discipline within 2 that one-year period. 3 (AX -T) 4 The post hearing argument will undoubtedly allege the Bentley event occurred on 5 February 22, 2013, and discipline was not proposed for it until September 9, 2014 and therefore, 6 it is time barred. (CX -5). However, missing from the argument is any discussion of what is 7 meant by the phrase "...not completed within one year of the public agency's discovery by a 8 person authorized to initiate an investigation of the allegation..." (Gov't Code Section 9 3304(d)(1) italics added). It is not the commission of the act which begins the running of the 10 statute; it is the discovery of the act or allegation by one with the authority to initiate an 11 investigation. By all accounts, the only persons who were present at the time of the acts were 12 the tow truck operator, Waddell's peers and Sergeant Pfarr. Sergeant Pfarr did not have the 13 authority to initiate an investigation of the event. He had the authority to report conduct to his 14 superior officers, like Staley, who did have such authority, but Pfarr himself could not have 15 directed an investigation to be initiated. As it stands, the undisputed testimony is that Pfarr 16 failed to advise his superiors with authority to initiate an investigation at the time of the incident 17 and later was disciplined for that failure to supervise appropriately. (AX -NN) 18 While the event occurred on February 22, 2013, it is undisputed that the SLOPD 19 superiors with the authority to initiate an investigation, like Staley and the Chief of Police, did 20 not know about it until Pfarr prepared his memorandum about the event on December 20, 2013. 21 (AX -A) It was that date which began the statute of limitations. Thus, noticing Waddell for 22 proposed discipline for that event on September 9, 2014 was timely notice under the statute. 23 (CX -5) 24 C. BENTLEY EVENT 25 As it relates to the analysis of this set of charges, the City acknowledges the Hearing 26 Officer's statement during the course of evidence that, even if he were inclined to sustain every 27 charge related to the Bentley event, it alone likely would not result in a recommendation to 28 sustain the discharge of Waddell. While the City understands the reason behind the sentiment, 8 - POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3163 I the City nonetheless contends that the charges related to the Bentley event should be sustained 2 and that, in the context of the complete case, it forms support for the overall decision to 3 discharge Waddell when viewed collectively with the CAT shift event. The City's argument on 4 this issue will be succinct and attempt not to belabor the matter. 5 It should be obvious that the gravamen of the charges surrounding the Bentley event is 6 vehicle tampering in violation of California Vehicle Code §10852 and conduct unbecoming a 7 police officer. The relevant statutory section reads as follows: 8 No person shall either individually or in association with one 9 or more other persons, willfully injure or tamper with any 10 vehicle or the contents thereof or break or remove any part 11 of a vehicle without the consent of the owner. 12 (CX-3) 13 Tampering, as used in that section is not further defined, however, its typical definition 14 is: 15 To meddle, especially for the purpose of altering, damaging, 16 or misusing 17 By whatever measure one wants to use, vehicle tampering is exactly what Waddell did. 18 It is exactly the conduct in which he engaged. Joke or not, he tampered with a vehicle and at no 19 time did he assert or present any evidence that he did so with the consent of the owner. 20 Benson said Waddell tried to pry off the Bentley symbol on the rear trunk lid, first with 21 his hands. Then, he asked for and retrieved a screwdriver from the tow truck operator. He then 22 used the screwdriver to try to pry off the Bentley symbol from the rear trunk lid. In doing so, he 23 bent the wings depicted in the symbol upward and damaged the emblem. If believed, Waddell's 24 actions caused permanent damage to the vehicle. That is pure and simple vehicle tampering. It 25 is not even a fairly debatable point. (RT. 369-375) 26 And there is no good reason to disbelieve or doubt Benson's testimony or motive in 27 providing it. There was no glaring cross-examination issue elicited from him to cause doubt in 28 3 wwwdictionary.com 9- POST-HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3164 I his statement. He is a facially neutral witness, likely, if anything to give his fellow officer the 2 benefit of the doubt. The most pertinent point to be made about Benson's testimony is that he 3 likely was the only one who directly observed the totality of the conduct as it related to the 4 trunk emblem. The tow truck operator was readying the car to be towed. The Accident Team 5 was packing their equipment getting ready to leave. Is it no wonder that people could have been 6 looking at any number of other things besides what Waddell was doing throughout the course of 7 events at the accident scene. The same can be said about the activity at the steering wheel of the 8 Bentley. There is no reason to disbelieve Benson and, if believed, this set of charges, involving 9 vehicle tampering, must be sustained. 10 Even without Benson, however, the charge still stands based on what Pfarr observed 11 Waddell doing to the car and what Waddell admits to doing to the car. Waddell admitted a 12 portion of what Benson said he saw him doing. Specifically, Waddell admitted he did 13 something to the emblem on the rear trunk lid (Later, he said it was the hood ornament), but he 14 could not or would not articulate what he did to it in any greater detail. Waddell said, in 15 essence, "I did something to it but I cannot recall the precise nature of my conduct in that 16 regard." In contrast, Benson articulated a clear and precise recollection and his memory and 17 motive were intact and unimpeached. Thus Benson's testimony must be given greater 18 credibility. (RT. 1811-1818 CX -22, p. 15- 16) 19 Waddell's own testimony standing alone establishes conduct that meets the definition of 20 vehicle tampering. Waddell admitted he picked up a part he knew belonged to the owner of the 21 Bentley, without permission or evidentiary value to the accident, and used a screwdriver to pry 22 another vehicle part from the Bentley, which he also had no permission to do and which had no 23 evidentiary value. Waddell also admits that he possessed.those two parts for period of time, 24 which amounts to theft. Theft requires only the intent to permanently or temporarily deprive 25 the owner of his/her property. Ultimately, it appears that Waddell returned the vehicle parts to 26 the car, but for the time period he possessed them, he was temporarily depriving the owner of 27 them. Vehicle tampering requires no specific intent to deprive the owner of a part. It merely 28 POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3165 I requires proof of tampering with the vehicle without consent. The crime is committed at the 2 point the tampering occurs, not at the point of the taking away of the part. 3 Even if one were to give Waddell every benefit of the doubt and were inclined to 4 believe, against the weight of evidence, that Waddell engaged in this conduct as a joke on the 5 new sergeant, it still does not change the fact that his acts constituted (1) vehicle tampering and 6 (2) astoundingly poor judgment and conduct in public view, which conveyed a poor view of 7 Waddell and his department. 8 Waddell attempted to diminish the clear import of his conduct by claiming the whole 9 thing was just a joke. By all accounts that night, the only person present who testified that they 10 knew Waddell was joking was Waddell. Pfarr did not know it was just a prank. Nobody else at 11 the scene knew it was a prank. Amoroso only knew he and Waddell had talked about pranking 12 Pfarr, but even he did not know what Waddell was going to do or have knowledge that Waddell 13 was considering the removal of a part from a vehicle at an accident scene to be a joke. (RT. 14 1156-1161; CX-23, p. 9). To the outside world, the conduct certainly did not resemble a prank. 15 To the outside world, it looked like vehicle tampering and/or theft. To the tow truck operator, it 16 likely looked like one of those two things and it would have been difficult for any objective 17 passerby to reach another conclusion. (RT. 1193-1198; CX-8, p. 4). Viewed in this way, it 18 becomes clear that it does not matter if Waddell really thought he was joking or not; even if he 19 was truly just joking, his conduct was the product of such poor judgment and conveyed such an 20 objectively poor image of him and the department that it warrants disciplinary action. 21 Even to those closest to the events, Waddell did not act in conformance with his claims 22 that his conduct was a joke after Pfarr confronted him about it. Instead he apologized and put 23 the parts back in the car. While he did later tell Harr he was just "messing" with him, he never 24 called it a joke at that time, never said he was just engaged in a prank, and never told Pfarr that 25 he and Amoroso had discussed pranking him while both were at the scene or that his conduct 26 was intended to be said prank. (RT. 1725- 1730). If this truly was a prank, one would have 27 expected Waddell to say those things to Pfarr when confronted with Pfarr's obvious irritation 28 with the incident. That he did not suggests that what really happened that night was 11- POST-HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3166 I Waddell was caught taking souvenirs from the Bentley for his own personal gain and then 2 attempted to dodge the consequences of that by calling it a prank. 3 Waddell's only partial support for his claim that this was all just a prank, was Amoroso. 4 There are so many reasons to disbelieve and discount what Amoroso said, it is hard to know 5 where to start. First, Amoroso was Waddell's best friend on the department, as well as his 6 neighbor. (RT. 1045-1047; 1145- 1148). We all tend to want to believe the best about our 7 friends and neighbors and are generally inclined to give them the benefit of the doubt, 8 sometimes even irrationally so. Moreover, Amoroso was visibly uncomfortable with having to 9 testify against his friend and former colleague and resisted confronting his own misguided 10 desire to credit his friend's incredible story. ( RT. 1156-1161; CX -23, p 9) 11 Third, Amoroso claimed to have first heard about what Waddell did that night at the 12 Bentley scene when Pfarr told him about it in November or December, 2013, some ten months 13 after the accident. It is utterly unbelievable that: Amoroso and Waddell would discuss 14 pranking Pfarr and how fun that would be while both were at the Bentley accident scene; that 15 Amoroso would then leave the scene; that Waddell would, on his own, pull his prank on Pfarr 16 by the apparent taking parts off the Bentley; that Waddell would get into big trouble for doing 17 so with Karr; and that Waddell and Amoroso would then never discuss how badly the prank 18 went in the days following the event. Yet, if Amoroso's testimony is to be credited, that is 19 exactly what one has to believe. Amoroso denied being informed by his good friend in the days 20 following the Bentley event how well, or how poorly, the prank he pulled went. According to 21 Amoroso, Waddell did not come to him in the days afterward and tell him he tried a prank on 22 Pfarr and it did not go well. Waddell testified that exact conversation, indeed, did occur 23 between Amoroso and he a few days after the Bentley event. Again, Waddell appears to be the 24 only witness that recalls things that way, conveniently in the way that would have most 25 benefitted him, even where it directly conflicts with the testimony of his close friend. So, either 26 Waddell was again lying in his own testimony or Waddell was right when he said one cannot 27 rely on anything Amoroso said about 2013. (RT. 1068- 1071; 1162- 1167; 1172-1173; 1834- 28 1836) i?_ POST -HEARING BRIEF OF TIM SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3167 I Amoroso also showed a high level of cognitive dissonance in his testimony. On the one 2 hand, Amoroso told others that it made him angry that Pfarr dumped the movie incident 3 involving Waddell on him to handle. On the other hand, he was also angry that Pfarr did not tell 4 him about the movie event when it occurred. (RT. 1059-1064). One logically cannot have it 5 both ways. Add to all of this, the fact that Amoroso tried to convince everyone that making it 6 look like one is stealing car parts was precisely the kind of prank he would have expected 7 Waddell to pull following their conversation at the scene and you just have to conclude that 8 Amoroso was simply unwilling to contemplate that his good friend would engage in 9 misconduct, that he testified in a manner calculated to support his fixed belief system, and, 10 consequently, his testimony cannot be believed at all. (RT. 1167- 1172; CX -23, p. 10) 11 The charges surrounding the Bentley event were proven. Law enforcement officers are 12 not supposed to be law breakers at the same time. A violation of criminal law by a police 13 officer, especially a theft type crime, is enough, on its own, to support termination of the officer. 14 (See Ackerman v. State Personnel Board (1983) 145 Cal. App. 3rd 395.). If the joking nature 15 behind the conduct is credited and mitigates the conduct in the eyes of the hearing officer, it still 16 does not diminish the potentially publicly damaging nature of the unbecoming conduct and that 17 fact leads to the conclusion that the proper penalty in this case still should be termination based 18 on the CAT shift event. 19 While Pfarr may have his own faults, one thing is for sure; he did not have to report the 20 Bentley event to his supervisors. He could have left it between him and Waddell and nobody 21 would have been the wiser. Waddell certainly had no reason to report his own misbehavior and 22 if Pfarr never did, nobody else would have ever known. The same is true for Pfain Reporting it 23 as he did some 10 months after the event occurred was against his own self interest. Reporting 24 it late as he did exposed his own inertia regarding the event. Reporting it as he did led to the 25 department discovering his failure to supervise Waddell that day, which led to his own 26 discipline. (RT. 75-78; 213-221; AX -Cl; CX -17, p. 17; AX -NN). This goes to his credibility. 27 Credibility that the City argues is much more sound than Waddell's. After all, Pfau reported 28 the Bentley event at a point in time when it became apparent to him that Waddell's actions that 13 - POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARI'MFN IWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3168 I night were not a joke and he intended to embark on certain assignments which would give him 2 more autonomy. It was wrong for Pfarr to have waited so long. Pfarr knew it and 3 acknowledged that in his interview. Unlike Waddell, he fully understood he was exposing 4 himself to discipline, said so in his interview and was indeed given a written reprimand for his 5 misconduct. (AX -NN). He accepted that discipline. This is much more than can be said about 6 Waddell. Waddell said some of the right things in his interview about the Bentley event: I'm 7 sorry; I made a bad decision; it was a poor decision; I take responsibility for my actions, but the 8 reality is that he never actually took responsibility. ( RT. 1833-1834). Instead, he continually 9 tried to deflect and re -characterize his conduct. When it came to actually confronting the 10 consequences of his behavior, his justifications escalated during his appeal hearing. His 11 argument morphed from his administrative interview position of "I was just joking and I'm 12 sorry my supervisor and colleagues misunderstood" to "I was only joking, everyone should 13 have known that and the investigation and discipline imposed is the unfair result of some 14 (ultimately unexplained) grand conspiracy against me." In the end, Waddell's position seems to 15 be that: the department and his supervisors should just get over it and learn how to take a joke; 16 what has happened to him is the fault of many others, but certainly not his own; and he does not 17 deserve any disciplinary action for his conduct. In contrast, Pfarr acknowledged he did 18 something wrong by not reporting Waddell's conduct to command staffwhen it happened and 19 he accepted the discipline for his conduct, when he could have kept quiet and completely 20 avoided it. Looked at in this way, Pfarr deserves a far higher credibility rating than does 21 Waddell and the record as a whole supports the charges against Waddell arising from the 22 Bentley incident. 23 A CAT SHIFT 24 Any discussion of the CAT shift event in terms of the dishonesty charge against Waddell 25 must start with the unrefuted facts about the underlying event. One cannot analyze whether 26 Waddell was untruthful with Pfarr, and later in his Administrative Inquiry (AI) interview with 27 Bledsoe, until one understands what the facts are about the event. Once the documented facts 28 and Waddell's own written words are clearly established, they can then be compared to how 1d_ POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENT Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3169 1 Waddell later explained the event and how his interpretations of facts, and of his own words, 2 evolved. When the undisputed record is compared to Waddell's interpretation of and testimony 3 about that record, his truthfulness or, in this case lack thereof, becomes quite clear. 4 So, here are the facts. Waddell worked many CAT shifts in the latter part of 2013. He 5 signed up for these CAT shifts when Smith posted the signup sheet. Smith assigned Waddell 6 many of these shifts because Waddell was a senior officer and shifts were assigned by seniority. 7 Smith, and others on his behalf, sent out periodic emails to Waddell and the other officers 8 assigned indicating to which shift those officers had been assigned and confirming each time the 9 CAT shifts ran from 11:00 a.m. to 4:00 p.m. and, indeed, they did run between those hours. 10 (AX -B, G and H) 11 To be sure there were many times when life got in his way. On at least three occasions 12 which we know about, both before and after October 19, 2013, and perhaps other occasions, 13 Waddell requested permission to vary either the start time to a CAT shift, the end time to a CAT 14 shift, or to swap him for another officer for an entire CAT shift. (AX -J, K and L). Each time he 15 requested specific permission from Lieutenant Smith, the supervisor in charge of the program. 16 If it were the truth that Waddell reasonably concluded that he could come in at 11:30 17 a.m. or leave at 3:30 p.m. without the specific approval of Smith, there would have been 18 absolutely no need to request specific permission from Smith on the three occasions included in 19 the record. And yet, he did. The reason he did was because he knew Smith's permission was 20 required on each occasion before such a change was made. This is not fairly debatable. It is, on 21 the contrary, established fact in the record. Specifically, if Waddell truly was under the 22 impression he could show up when he wanted to and leave when he wanted to, he would have 23 had no need to request permission to be one hour late on the June 6, 2013 CAT shift (AX -J); to 24 swap out Officer Dickel for him on the December 2, 2013 CAT shift (AX -K); or finally leave 25 one hour early on the December 15, 2013 CAT shift (AX -L). Each and every one of these 26 documented instances indicated Waddell was aware of and acting in conformance with the rule 27 that such changes in the schedule required approval; each of these instances is inconsistent with 28 15- POST-HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENT Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3170 0 0 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Waddell's stated impression that he could change his schedule without specific permission on the general assumption that Smith was "okay with that." There is also nothing in Smith's responses to these requests indicating that Waddell did not need to seek his permission. On the contrary, each of Smith's three responses in the record, approving three separate requests from Waddell, reinforces the notion that his approval was required prior to deviating from the established schedule, every time. In fact, there is no evidence in the record anywhere that supports a reasonable conclusion that Smith was perfectly fine with changing start and stop times without his approval. If the CAT Team hours were so regularly adjusted by individual officers without specific permission as to create the general impression that such adjustments did not require advance permission, one would expect that Waddell could have found at least one other officer who worked CAT shifts in 2013 to come in and testify in support of Waddell on this point. Those other officers were well known to Waddell, both from direct experience and from the shift confirmation entails that Waddell himself put in the record at his hearing. One would think, if Waddell's testimony was true, there would be at least one of those several known witnesses who could have testified to a shared belief or practice. Yet, Waddell produced no other witness that offered such testimony and several of his own witnesses, as well as the City's, expressly contradicted his assertions. Waddell testified he had heard other officers say they could vary the CAT shift hours without approval and just add it to the end of the shift to make the hours up. Waddell testified that such occurrences were common. (RT. 1748- 1749). However, every department supervisor testified that was not a generally acceptable practice and not one other CAT shift officer was produced to support Waddell on this or any similar point4 The only explanation for that is that such a policy only existed in Waddell's head and that it only existed after the events of October 19, 2013, when he realized he had been caught in a a Not even his partner that day supported him in this notion. Stahnke testified that one needed the specific approval of a supervisor to vary the hours of a CAT shift. In fact, when asked about having some sort of blanket approval to vary the hours on one's own, he responded that the hours of the CAT shift were 11:00 a.m. to 4:00 p.m. RT. 255-259; 275-276). Additionally, it was first thought that Inglehart would have been that supportive witness; however, he turned out to be unable to support anything Waddell said in his testimony. Not only did Inglehart not support Waddell in this notion that flexing a CAT shift was allowable, he could not even corroborate the email Waddell said Inglehart sent him about Pfarr while Waddell and his family were in Europe. (RT. 1890-1901) 16- POST-HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3171 I direct lie to and about his supervisors and needed a way to justify his actions and shift blame 2 from himself to Smith and Pfarr. 3 The actions of Pfarr and Smith in the dates prior to October 19, 2013 also demonstrate 4 there was no reasonable impression created that one could vary the hours without permission. 5 Waddell was late for a CAT shift and left early on October 12, 2013 without approval. Pfarr 6 took that information and reported it to Smith. Smith did not say to Pfarr, "What are you 7 talking about, officers are free to vary the hours of a CAT shift on their own without my 8 approval, so don't worry about it." No, instead Smith very reasonably told Pfarr to speak to 9 Waddell about it. (RT. 29- 32; 461-464). Smith did not jump to a conclusion and tell Pfarr to 10 write Waddell up. After all, there may have been a good explanation for why Waddell arrived 11 late and left early. This conduct by Smith, too, was in conformance with the continuing notion 12 that approval was required to vary the CAT shift hours, rather than being a subject of individual 13 officer discretion. Pfarr would have had that very discussion with Waddell, but for the events of 14 October 19, 2013 occurring. Had Waddell simply acknowledged and honestly explained his 15 unexcused late arrival on October 19, Pfarr might have discussed both matters with Waddell at 16 the end of that shift and assuming that discussion went well, Waddell may have found himself 17 with a verbal or written counseling, but nothing even nearing the magnitude of a termination 18 would have occurred. Instead, Waddell lied, in writing, to one supervisor about another 19 supervisor, and hoped that would allow him to avoid any consequence of his late arrival. 20 Perhaps Waddell believed that he had led Pfau off the scent of his misconduct with the Bentley 21 incident by making up a story to avoid discipline, so lying again was worth a try. 22 With this set up, we review the facts in the record. Waddell was scheduled for the CAT 23 shift on October 19, 2013. He had been scheduled to work that shift for more than a month. It 24 was not a last minute sign up. Waddell had sent no email or other communication to Smith, as 25 he had done in June, 2013, requesting any change in the shift hours prior to October 19, 2013. 26 The shift was scheduled to begin at 11:00 a.m. and end at 4:00 p.m. and those hours were 27 confirmed in the email to Waddell indicating his assignment to that shift. Stahnke was to be his 28 partner on that CAT shift. (AX -H) 17 - POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3172 1 During the late afternoon hours of October 18, 2013, roughly 18 hours before the CAT 2 shift was set to begin, Waddell and Smith found themselves in the same locker room at SLOPD. 3 Waddell was coming to work his regular shift and Smith was finishing up his. The two men say 4 "Ili" to one another and that's it. Both agree, now, no other discussion was had between them. 5 Even to describe their interaction as nothing more than "exchanging pleasantries", as Waddell 6 later described it, overstates the interaction. There was no discussion of the upcoming CAT 7 Shift the next day. There was no discussion about how to seek permission to vary the hours of 8 any CAT shift at all, let alone the one upcoming the following day. (RT. 468-470; 1760; 1846- 9 1847). To suggest, as Waddell did in the hearing, that Smith proactively should have taken the 10 opportunity at that time to advise Waddell that he had to have permission to vary the hours is 11 incredible. (RT. 1760-1762). First, that would require a level of prescience which would rival 12 the best mentalist making a living on the stage today. Neither Smith nor Waddell had any idea 13 that Waddell would be late the next morning or need to vary the hours in any way at that time. 14 Yet, Waddell says, Smith should have taken the opportunity to correct him after he said "Hi" to 15 him. (id) 16 Smith had no idea that Waddell harbored this impression that he could vary CAT shift 17 hours without permission from him or a watch commander at that time. Indeed, Waddell had 18 previously acted in conformity with the requirement to seek permission. All Smith knew at that 19 time was that sometime that week Pfarr had reported Waddell had arrived late and left early on 20 his CAT shift on October 12, 2013 and Smith told Pfarr to speak to Waddell about it. Smith 21 was very clear in the hearing that speaking directly to Waddell about such thing would not be 22 normal protocol; instead he viewed that as the job of a patrol sergeant such as Harr. Smith told 23 Pfarr to do his job and speak to Waddell about October 12, 2013. At that point, Smith was out 24 of the loop, unless Harr had a need to go back to him to follow up on any issues about how his 25 discussion went. Being late and leaving early on one occasion does not translate into "coming 26 and going as he pleased" as that phrase was used by Waddell to describe what Smith said to 27 him, in part, during their brief meeting on October 21, 2013. (RT. 1850-1852) 28 N 18 - POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3173 I First, Smith vehemently denied using that phrase, or anything remotely like it, in his 2 rebuttal testimony. (RT. 1958-1960). Second, Waddell's claim that Smith told him he and 3 Pfarr pulled the timecards and based on a review of them, he had to be "coming and going as he 4 pleased" on CAT shifts, cannot be true. The reason for that is simple: Timecards do not show 5 arrival time or departure time on shifts. They only reflect scheduled hours, unless an employee 6 proactively enters a deviation. Indeed, there is no retrievable document in SLOPD which would 7 indicate arrival and departure time on any shift, let alone a CAT shift. Smith, being a long time 8 employee of SLOPD, would likely have known that and not made such a silly, easily refutable 9 comment to Waddell. (RT. 1952-1956; AX-QQ) 10 Turning to October 19, 2013, the City position is based on the testimony of Waddell and I 1 other parts are based upon that of Pfarr, Stahnke and Smith. In either case, the evidence relied 12 upon in support was either unrefuted and/or clearly reliable. 13 Based on Waddell's testimony, Waddell attended his daughter's dance lesson that 14 morning. His wife was planning to meet him there to relieve him so that he could go to work 15 the CAT shift which was scheduled to begin at 11:00 a.m. At first, Waddell had no indication 16 that something would happen to make him late that morning. However, something happened 17 that delayed his wife from meeting him at the dance studio. It became apparent to him at about 18 10:15 a.m. that morning that he might be late to work. He sent a text message to Stahnke, his 19 partner on the CAT shift, advising him that he might be as late at 11:30 a.m. Stahnke received 20 the message and replied. Waddell sent Stahnke this message solely as a courtesy, since he was 21 his partner that day. (RT. 1753-1755; 1852-1854). Stahnke, being apeer, could not approve of 22 Waddell being late and that was not the reason for the message being sent to him. 23 At 10:15 a.m. that day there were two potential persons to whom Waddell should have 24 gone to (1) advise he was likely going to be late and (2) seek approval. One was the watch 25 commander on that patrol dayshift. The second was Smith. Smith was on his day off. In his 26 absence, the patrol day shift watch commander has functional supervision over the CAT shift 27 since that shift overlaps with the regular day shift. The watch commander that day was Pfarr. 28 Waddell claims to have not known who the patrol day shift watch commander was at 10: 15 a.m. 19 - POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3174 I on October 19, 2013 and he apparently made no attempt to get that information when he texted 2 Stahnke about his late arrival. (RT. 1854-1855) 3 It would have been a very simple thing to find out who the watch commander was that 4 day. The phone number for the watch commander is a well known published number in the 5 department. All officers know that if unforeseen events occur that may disrupt the arrival of 6 an officer to work at the last minute, the watch commander is the person whom should be 7 notified. If no one answers that number, the call rolls to SLOPD dispatch who can then assist 8 the caller in connecting to the watch commander. This is not hard. It is demonstrated time and 9 time again by SLOPD personnel that such notifications are not hard to make. 10 Waddell did absolutely nothing that day to provide notification to the watch commander 11 that he might be late. Waddell did nothing to even find out who the watch commander was that 12 morning. It was not until he received Pfarr's text message at 11:11 a.m., some 55 minutes after 13 he texted Stabnke that he might be late, that Waddell even knew who was the watch 14 commander. (RT. 1855- 1858; CX -10) 15 He notified his CAT shift partner he might be late but he utterly failed, for almost an 16 hour, to give that same courtesy to Pfarr. If he had enough time to type and send a text message 17 to Stabnke, he had enough time to find out who the watch commander was and notify him or 18 her as well. Indeed, the logical first call regarding delays arriving to work would be one's 19 supervisor. 20 Pfau was the watch commander during the October 12, 2013 CAT shift, which Waddell 21 worked. The email confirmation of the CAT shift assignments of October 19, 2013, was sent 22 by Plain It is not a stretch of the imagination to think if Pfarr was the watch commander on 23 Saturday, October 12, 2013, he may also likely be the watch commander the same day of the 24 following week, Saturday, October 19, 2013. It would have been a simple matter to send Pfarr 25 a text message, like he did to Stahnke asking whether Pfarr was the watch commander. If he 26 responded yes, then it was a fairly simple thing to reply and just tell him something like, "My 27 wife was late relieving me for child care and I might be late for the CAT shift." Instead, 28 Waddell did nothing to ensure supervisor notification. on_ POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENT Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3175 I I 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Waddell may assert he was afraid and being guarded around Pfarr because he thought he was after him. (RT. 1742). However, by his own statement, he did not know Pfarr was the watch commander that morning. So any supposed fear of having to deal with Pfarr would not have played into his inertia. Moreover, if it was true that he was fearful and guarded around Pfarr, one would think Waddell would be especially attentive to ensuring that he was complying with the rules and not giving Pfarr any cause to focus negative attention on him. Such would be a reason to think, speak and write very carefully around one whom you believe is coming after you. Reasonably, Waddell should have been far more intent and insistent on notifying Pfarr as far in advance as he possibly could of his evolving situation. But he did nothing. The responsibility for that failure falls squarely at the feet of Waddell. When 11:00 a.m. came and went, with no attempt by Waddell to contact Pfarr, Pfarr began to wonder if a CAT shift was scheduled at all and, if so, who was scheduled to work. Nothing was on the department's computer scheduling system about the CAT shift. So, he phoned Smith at home on his day off to determine if there was a CAT shift that day at all. Smith did not answer because he was mowing his lawn. (RT. 32-35) It was at about this time, perhaps between 11:05 a.m. and 11:10 a.m., that Pfarr saw Stahnke, who was also scheduled to work the CAT shift. He told Pfarr that Waddell had sent him a text saying he might be late. That was the first Pfarr had heard of Waddell being late. RT. 35/14-22; 37; 39) At 11: 11 a.m., Pfarr sent Waddell a text message asking him if he was still coming in.5 RT. 35- 37; CX -10). Now, at the time Waddell received that message he was driving to work. RT. 1855- 1858). According to the Vehicle Code requirements, he should have stopped and carefully composed his response or done so using a hands free device. He was already late at that time. Being a few more minutes late would not materially change that. He was planning on texting his immediate supervisor, not his family or friends. He was planning to text about a serious matter, him being late for work and if you believe Waddell, he was planning on texting to someone about whom he felt fearful and guarded and whom he believed was out to get him. At first, Pfarr thought he sent the text to the wrong person but it was quickly apparent he had not. 21- POST-HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENT Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3176 I Any one of these reasons, on their own or collectively, would lead a reasonable person to stop 2 and carefully compose a text response or just call and have a verbal conversation rather than run 3 the risk of driving while texting and not getting the message right. 4 Waddell did none of that. While driving, he texted in reply to Plain His text was, in 5 part, incomprehensible. To the extent it could be deciphered it alluded to having cleared his late 6 arrival in advance with Lieutenant Smith. When asked to clarify the words he intended to use in 7 his text some 2 years after the fact in his hearing testimony, after presumably having had time to 8 think about it, he could not come up with anything else that made any more sense than the 9 original text. (RT. 1858- 1859; CX -10) 10 Pfarr texted back that his message made no sense and he should stop by when he got to 11 work. ( CX -10). At this point, Waddell knew Pfarr knew he was late and wanted to see him 12 when he got to work. This should not have been left to a hastily prepared text to explain. This 13 should have been an "okay, I'll explain it to you when I get there" or a simple phone call 14 directly to Pfarr followed by a verbal explanation of what occurred or, finally, by stopping the 15 car and composing a correctly worded text like this: 16 "Sorry, my wife was delayed in relieving me from child care duties 17 at my daughter's dance school. I should have called before. I'm 18 coming in now; I'll be there at 11:30 a.m. " 19 A message like that would have been the more prudent thing to do. Even Waddell 20 admitted a message like that would have likely avoided the entire problem. A message like that 21 would have been the truth. But the problem was a message like that would have also opened 22 Waddell up for some likely discipline. It would likely have been very minor discipline and one 23 would wonder why an individual would lie and make something up to avoid what amounted to a 24 very minor infraction. Unfortunately, this sort of thing happens all too often. There is even a 25 well known phrase in law enforcement to go along with it. "A police career can withstand even 26 serious misconduct, if you don't lie about it, but a police career cannot withstand even the most 27 innocuous infraction, if you lie about it." That is exactly what happened here. For whatever 28 reason, Waddell simply could not, at that moment, accept responsibility for his lateness and his 22- POST-HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3177 I failure to timely notify the watch commander. So, he tried an explanation which would cover 2 for his conduct and which he apparently felt was small enough to go undiscovered. That was 3 the false notion that Smith had specifically approved Waddell modifying the CAT shift start 4 time by 30 minutes and that was why Waddell was not there on time. This was false then and it 5 is false now. To foster that false notion, Waddell texted the following to Pfarr: 6 Basically I had talked to Smith yesterday about coming 7 in at 1130 he said fine no problem. But I will stop by. (CX-10) 8 On its face, we have to accept the words chosen by Waddell and assume Pfarr was 9 entitled to rely on its accuracy. The clarifying text is, in fact, fairly clear and unambiguous. 10 Certainly, if Smith approved of the modification Waddell would have been in the clear. 11 Waddell had no way of knowing that Pfarr had placed a call to Smith and that the two men 12 would later talk. For all Waddell knew Smith was on his day off and would never find out 13 about his lie. A risk, again, inexplicably some take in order to avoid a minor disciplinary action 14 or supervisory conflict. 15 Waddell's message states that he had permission from Smith to be late and that 16 permission had been given to him "yesterday". "Yesterday", as used in that message and in the 17 context of being sent on October 19, 2013 could not possibly mean anything else by October 18, 18 2013. That was a lie. We know that because the truth is, even according to Waddell, the two 19 men only said "Hi" to one another on October 18, 2013. There was only one interaction with 20 Smith and Waddell on October 18, 2013 and the extent of that conversation was only an 21 "exchange of pleasantries". There was no other communication with which it could be 22 confused. The conversation with Smith reflected in the text simply did not occur. Smith never 23 gave his approval to Waddell to be late. So saying he did in a text message was a false 24 statement. 25 This is not merely a miscommunication with a text message. This is material 26 dishonesty. We know it was not just a text message miscommunication or as one observer said 27 a text message that was hastily sent and "fat-fingered". (CX-12,p. 4). We know this because 28 Waddell repeated the same lie in the text message to Pfarr verbally after he arrived for work. 23- POST-BEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTNIENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3178 I (RT. 42-43). Obviously, Waddell was committed at that point. He knew the subject matter of 2 this text message. He chose to keep it going. If it were true that his text got all messed up and 3 was not what he intended to say, one would think he would immediately seek to clear it up 4 when he got to Pfarr's office. He did not do that. That is because his text message was exactly 5 as intended. He intended to write that Smith gave his approval because he doubled -down on 6 that very same statement when he met with Karr. 7 Pfarr accepted the verbal and written statements from Wadddell at face value and let the 8 late arrival go initially. If Smith approved Waddell arriving at 11:30 a.m., Waddell did nothing 9 wrong. That would have been enough had Pfarr not phoned Smith previously and left a 10 message and had Smith not returned Pfarr's call on his day off. Even when he received Smith's 11 return call Pfarr's response was not immediately to try to check up on Waddell. To the 12 contrary, Pfarr had believed Waddell and told Smith that it had all worked out by the time Smith 13 called back. It was only after Smith specifically asked him, why he had called that Pfarr told 14 him the explanation Waddell's had provided about his late arrival. (RT. 46-49). This is hardly 15 the act of someone "out to get" Waddell as Waddell testified. If Pfarr was out to get Waddell 16 one would expect him to call Smith again and immediately double check what Waddell told 17 him. Pfarr did not do that. He accepted Waddell's excuse as genuine until Smith called him 18 back and asked him to articulate why he called in the first place. 19 Pfarr then called Waddell back in from the field and informed him that he did not have 20 the approval from Smith to be late and that Pfarr knew he had lied. Nothing else was discussed. 21 But this piece of information led Waddell to modify his original verbal statement to Pfarr and to 22 assign blame to others for not understanding what he meant, rather than what he said — 23 specifically, his post hoc story was that he had not meant that he had specific approval for that 24 particular day, received from Smith the day before, but that he had some past, but ongoing, 25 authorization to vary CAT shift hours at his election without Smith's specific approval. He 26 never said that in either of his text messages or in his discussion with Pfarr after he arrived to 27 work. This claim only came up because Karr found out the original permission story was false. 28 POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3179 I Calling the texts a miscommunication and calling Pfarr a liar is the only way to make that 2 fabricated story work. 3 Waddell first attempted to concoct this "blanket authority to flex the hours without 4 approval" story when he is interviewed by Bledsoe. In that interview he acknowledged he was 5 late and he acknowledged that he did not have Smith's approval to be late. This again validates 6 his awareness of the requirement to have such shift changes approved. Then Waddell created 7 the false excuse narrative that he thought he could flex without approval because he had so 8 often obtained approval in the past. (CX -21). That was a lie, too, designed to cover up his first 9 lie. In other words, if specific approval to be late that day does not work, try tacit approval to 10 be late at any time. This, too, was false. Indeed, Waddell as much admitted it in his interview 11 in much the same way as he did in the Bentley event. On the one hand, it was okay because 12 Smith was okay with him coming in late without approval. But on the other hand he understood 13 he overstepped his bounds in coming to that conclusion and he takes responsibility for his 14 actions. Waddell simply cannot have it both ways and trying to do so amplifies his dishonesty. 15 One of the problems with making this argument is that his second clear and 16 unambiguous text message is still out there and it says Smith gave his specific approval. 17 Waddell did not do a very good job in explaining that away in his interview, but between his 18 interview and his hearing, a span of approximately two years, Waddell had, in his judgment, 19 successfully parsed the real meaning of his second text out to be: 20 Basically I had talked to Smith yesterday. About coming 21 in at 1130. He's fine no problem. But I will stop by. (CX -10) 22 The level of parsing here is staggering and it is so tortured that it is difficult to believe 23 that Waddell would even attempt to advance it. (RT. 1759-1763; CX -10). The bottom line is 24 Waddell was dishonest in this text message when he wrote to Pfarr that Smith had approved him 25 being late on October 19, 2013 in a conversation on October 18, 2013. Waddell was untruthful 26 when he confirmed that statement to Pfarr verbally after he arrived for work on October 19, 27 2013. Waddell continued and expanded upon his dishonesty in his interview with Bledsoe on 28 December 12, 2013 when he tried to chalk this whole thing up to just a misunderstanding, and 25- POST-BEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3180 I suggest that Smith had given him some level of blanket approval to vary the CAT shift hours on 2 his own without specific approval. Smith testified on the issue of his alleged grant of blanket 3 authority and was pointedly asked by the hearing officer about that very thing, while 4 simultaneously reviewing precisely what Waddell said about that in his interview. Under oath 5 and unequivocally, Smith testified that he never granted any such authorization and he 6 confirmed the untruthfulness of Waddell's statement. (RT. 1608-1612; CX-21, p. 7-8) 7 In short, Waddell's story relies on the premise that everyone else's perceptions and, in 8 this case, Waddell's own written and verbal statements, were mistaken and we must believe 9 what he meant, not what he wrote and then said. That premise cannot stand in the face of 10 overwhelming documentary evidence and credible testimony to the contrary. Moreover, the 11 premise bears striking resemblance to the one on which his Bentley story depends, i.e., that 12 notwithstanding the uniform perceptions of multiple observers and objective indicia to the 13 contrary, we must believe his vehicle tampering was just a joke. Taken together these incidents 14 form a disturbing picture of an individual that is willing to lie to avoid even the most minimal of 15 consequences and to question the reputations of others to deflect attention from his lies and 16 avoid accountability. These are not the characteristics of an individual who deserves to be a 17 police officer and the discipline in this case should be upheld. 18 E. SPECIAL STATUS OF PEACE OFFICERS 19 1. PEACE OFFICERS ARE HELD TO HIGHER STANDARD OF CONDUCT THAN OTHER EMPLOYEES 20 21 When courts confront issues involving police officers, they look at their conduct from a 22 very different point of view. Courts have said they are "mindful of the peculiar and delicate 23 position police officers hold in society." Szmaciarz v. State Personnel Board (1978) 79 Cal. 24 App. 3rd 904. It is for that reason that "police officers must be held to a higher standard than 25 other employees." Ackerman v. State Personnel Board (1983) 145 Cal. App. 3rd 395. Police 26 officers possess "the most awesome and dangerous power that a democratic state possesses with 27 respect to its residents -- the power to use lawful force to arrest and detain them." Policemen's 28 Benevolent Association v. Township of Washington (3rd Circ.) 850 F. 2d 133, 141. 26 POST -HEARING BRIEF OF TIM SAN LUIS OBISPO POLICE DEPARTMENT Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3181 I The position of police officer is by its very nature such that very little direct supervision 2 over the performance of duties can be maintained. The police department must, of necessity, 3 not only place full trust and confidence in its police officers, "but also must totally rely upon the 4 accuracy and honesty of their oral and written reports. Any breach of trust must, therefore, be 5 looked upon with deep concern. Dishonesty in such matters of public trust is intolerable." 6 Wilson v. State Personnel Board (1976) 58 Cal. App. 3rd 865. In Wilson, a state Fish & Game 7 Warden falsely reported eight hours of overtime, entitling him to later take a full day off with 8 pay. The court said that "this is pure and simple cheating, some might even call it theft... Short 9 of physical violence, it is hard to imagine a more serious offense by an employee against an 10 employer. Cheating of this sort is unendurable and should not be taken lightly. No 11 employer ... is to be condemned for terminating one who has willfully defrauded his employer in 12 such a fashion." (id.) By the same token, the SLOPD is not to be condemned for terminating 13 Waddell, who is responsible for the dishonest statements made in this matter. 14 In Ackerman, supra, a State Traffic Officer for the California Highway Patrol, who had 15 been employed for 15 years, misappropriated state-owned motorcycle parts and installed them 16 on his own motorcycle, later denying that he had done this. The court stated, "Ackerman's 17 actions would probably warrant some form of punishment less than dismissal if he was not a 18 police officer. However, a police officer must be held to a higher standard than other 19 employees. A police officer is expected to tell the truth ... his dismissal was warranted." 20 Ackerman, supra. 21 In that connection, the case of Cranston v. City of Richmond (1985) 40 Cal. 3rd 755 is 22 all-important. Cranston was terminated from his job as a Richmond police officer for conduct 23 unbecoming after he drove his private car, off duty, with inoperative lights in the middle of the 24 night, during a rainstorm, and led fellow Richmond police officers on a wild chase over wet and 25 slippery streets at speeds up to 95 miles per hour. This was the only conduct upon which 26 charges were based to support Cranston's termination. Cranston argued that his dismissal was 27 an abuse of discretion because his conduct merely amounted to several traffic infractions. The 28 court stated that Cranston's "conduct endangered his life, the life of his passenger, and the lives 27 - POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENT Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3182 1 of the pursuing officers, showed carelessness and poor judgment, and demonstrated a blatant 2 disregard of the law and of the responsibilities of a peace officer. Cranston's was the kind of 3 conduct which any reasonable police officer must know would be cause for discipline or 4 dismissal from employment." The court further stated, "Cranston's conduct was not only 5 reckless, but clearly violated the very law which, as a traffic officer, it was his job to enforce.i6 6 San Diego Sheriff Bill Kolender terminated Deputy Sheriff Timothy Berry for lying 7 about and covering up the misconduct of a fellow deputy. When Berry was hired he signed an 8 Honor Code which stated, "I will not lie, cheat or steal. I will not tolerate those who do. I will 9 treat everyone fairly and respectfully ... I tell the truth and ensure that the full truth is known. I 10 do not lie." This proclamation is similar to the law enforcement code of ethics and the duty to 11 be truthful in all respects while employed as a San Luis Obispo Police Officer. 12 Berry was on duty in a detention center when an inmate became disorderly and 13 belligerent towards another deputy named Padilla. Berry witnessed Padilla yell provocative 14 words at the inmate, forcefully hold the inmate, and intermittently tug at him. Padilla indicated 15 to Berry that he no longer needed Berry's cover and Berry left. Padilla then repeatedly bumped 16 the inmate's head against the wall and caused him to suffer injuries. The inmate filed a 17 grievance and Berry's sergeant questioned Berry about it. Berry followed Padilla's request and 18 lied about the incident, saying Padilla simply took the inmate to the medical holding area. 19 Berry was questioned seven days later and after being confronted with the belief that he was not 20 being honest he admitted he lied to cover for Padilla. Berry was terminated and appealed to the 21 Civil Service Commission which held a hearing. The hearing officer recommended a 90 day 22 suspension instead of termination and the commission adopted that recommendation. The 23 sheriff filed a writ petition challenging that decision as an abuse of discretion. 24 /// 25 6 See also Nicolini v. County of Tuolumne (1987) 190 Cal. App. 3rd 619, in which the court, analyzing the 26 termination of a Sergeant for obtaining Valium by using an altered and fraudulent prescription said, "The measureofthepenaltyinthisinstance cannot be determined apart from the responsibilities and role of a law enforcement 27 officer. The credibility of such an official must always be above challenge to perform effectively. The position ofappellantasaDeputySheriff.. is one involving public trust, and the Department, due to the lack of direct 28 supervision of its employees, must totally rely on the accuracy and honesty of the employee and the employee's reports." Nicolim, supra. o Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3183 I The Court of Appeal reversed the decision and said `Berry's wrongdoing implicated 2 important values essential to the orderly operation of the office. He lied regarding a grave 3 matter, and thereby forfeited the trust of his office and the public. [] Berry was complicit in 4 covering up abuse of an inmate. The safety and physical integrity of inmates is one of the 5 office's paramount responsibilities. No Requirement exists that San Diego Sheriff s Office 6 retain officers who lie and protect deputies who harm inmates; rather, the Sheriff was entitled to 7 discharge Berry in the first instance." Kolender v. Civil Service Commission (Berry) (2005) 8 132 Cal. App. 4' 716. 9 Applying all of these principles to the case at hand, Waddell committed vehicle 10 tampering and/or a theft related criminal offense and repeatedly lied to his supervisors about 11 having specific permission to be late to work on October 19, 2013. His termination from 12 employment is amply supported by the evidence. 13 Police officers take away the liberty of citizens of the community by merely uttering 14 words (i.e., "You're under arrest.") We must therefore demand total and complete integrity of 15 police officers in the course of their duties. Police officers are called upon to give testimony 16 under oath, and any breach of the trust reposed in them, especially if that breach took place 17 while on duty should be looked at with grave concern. A fording that a police officer lacked 18 integrity on a given occasion renders his future testimony under oath completely ineffective. 19 And much the same way the appellant utilized Evidence Code section 1043-1047 to 20 access the personnel files of former fellow officers, a future criminal defendant may be able to 21 bring a "Pitchers" motion prior to his trial, seeking disclosure of any complaints of misconduct 22 involving previous occasions where Waddell lied about a matter or exhibited behavior of a 23 morally lax character. Due to the provisions of Proposition 8 (the Crime Victims' Bill of 24 Rights), past incidents of misconduct amounting to moral turpitude are now admissible to prove 25 a character trait for untruthfulness and a readiness to lie. People v. Harris (1989) 47 Cal. 3rd 26 1047; People v. Taylor (1986) 180 Cal. App. 3rd 622; People v. Wheeler (1991) 54 Cal. 3d 140; 27 People v. Mickle (1992) 4 Cal. 4th 284. 28 In Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3184 I A criminal defendant, following disclosure of the departmental discipline in this case 2 (assuming it will be less than termination), could use the findings of dishonesty herein on the 3 stand to impeach his testimony and to show to a jury that if he committed such an act of moral 4 turpitude under color of authority, he has such a morally lax character that it is likely that he 5 would lie in the present incident involving the defendant. This underscores the permanent 6 effect that Waddell's conduct in this case will have on his individual effectiveness as a police 7 officer should he be reinstated in the future giving testimony under oath. 8 Obviously, all of this goes to the severity of the penalty imposed in this case. For all the 9 above reasons, we submit that the penalty of termination is not only warranted by the facts of 10 this case it was the product of a tremendous amount of deliberation before it was imposed. 11 The whole line of questioning of several witnesses on the issue of when Waddell was 12 placed on administrative leave with pay was simply designed to try to confuse the hearing 13 officer and obfuscate the real facts. The evidence on this point proves conclusively that SLOPD 14 did not just take Pfarr's word for what happened and immediately invoke administrative leave. 15 Instead, it did what is proper in such circumstances. It started an investigation, gathered 16 additional facts from Pfarr and others and then interviewed Waddell. This gave Waddell the 17 chance to explain his side of the events. This gave Waddell the chance to support his claim that 18 this was all just a big misunderstanding rather than a misrepresentation. Unfortunately, for him, 19 he failed in that regard and perpetuated the lie in his interview. It was only after all that did the 20 department place Waddell on administrative leave. 21 One would think that Waddell would appreciate the fact that the department did 22 not rush to judgment and actually listened to his point of view before making that decision. But 23 no, he took the opportunity to criticize it. The department was being very deliberative in 24 making such a serious decision, rather than making a rush to judgment. You see that is the type 25 of twin argument that is set up by this approach. On the one hand, if SLOPD does place 26 Waddell on administrative leave immediately based solely on Pfarr's memorandum, the 27 appellant gets to argue that the department made a rash decision before all the facts were 28 known; on the other hand, if SLOPD does not immediately place him on leave, they get to argue 30- POST-BEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENT Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3185 I that they obviously do not believe Pfarr. Bottom line: the timing of the placing of Waddell on 2 leave was appropriate and no adverse interest should be inferred by it. 3 The notion that the department proceeded in a very thoughtful, serious and deliberative 4 manner in this case is also shown clearly by the testimony of City Manager Katie Lichtig. The 5 City is mystified as to why appellant chose to call the City Manager to the witness stand in this 6 case because she certainly did not help appellant's case at all. In fact, her testimony showed 7 that Lichtig was no newcomer to these types of proceedings. She has an extensive background 8 in both conducting personnel type investigations for the Federal government and in reviewing 9 them. Further, she insisted and indeed it is required by local rule that she be brought into 10 significant proposed disciplinary matters before the final decision is made. She reviewed the 11 entire investigative file on this case. And using her own training and expertise concurred with 12 the findings and the proposed disciplinary action to be taken. She also brought other top 13 officials into this discussion as well, like the City Attorney and the Human Resources Director. 14 And this review took place over the span of several months, between June, 2014 and September, 15 2014. 16 This was not a rush to judgment. It was a carefully thought out deliberative process 17 which took months to complete in order to ensure the decision was the right one to make. This 18 decision involved the input of the two investigators, the executive review by Staley, the Police 19 Chief, the City Manager, City Attorney and the Human Resources Director. Each of these 20 individuals concurred in the decision. This makes the recommendation of Captain Storton to 21 impose an 80 hour suspension completely out of step with where the discipline should be by 22 comparison, especially when one considers that he was a brand new captain at the time, had 23 never made such a recommendation before and that he now realizes that his recommendation 24 was completely wrong and he would support termination at this point, even in the face of that 25 previous case on which he relied which occurred on the watch of a previous police chief. 26 CONCLUSION 27 Waddell appeared offended by his claim the police chief said to him during the Skelly 28 that he had a moral obligation to ensure he was never a police officer again. Putting aside for 31 - POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENT Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3186 1 2 3 4 5 6 7 8 9 10 11 12' 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the moment that comment was not made during the Skelly conference itself and City Attorney Dietrick did not hear the Chief make such a comment, if it was said it was a true statement. Waddell's misconduct amply supports the termination of his employment as a police officer for all the above stated reasons. In fact, governmental agencies have a duty to weed out the obviously unfit (see generally Peters v. Bellinger (1960) 166 N.E. 2d 581). 7 The SLOPD strongly urges the hearing officer to issue a recommendation to the City Council that it uphold the termination of Kevin Waddell. Dated: December 21, 2015 JONES & MAYER Z". Attorneys for San Luis Obispo Police Department v Or to quote an ancient latin phrase; "Highest law, highest cross" (W. Gurney Behnam, Putnams' Complete Book of Quotations, Proverbs and Household Words, 1927) 32- POST-HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3187 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is 3777 North Harbor Boulevard, Fullerton, California 92835. On December 21; 2015, I served the foregoing document described as POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENT on each interested party, as follows: SEE ATTACHED SERVICE LIST X (Via Mail) I deposited such envelope, with postage thereon fully prepaid, in the mail at La Habra, California. I am readily familiar with the Law Offices of Jones & Mayer practice for collection and processing of correspondence for mailing with the United States Postal Service. Under that practice, it would be deposited with the United States Postal Service on that same day with postage thereon fully prepaid at La Habra, California, in the ordinary course of business. I am aware that on motion of the parties served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing affidavit. Overnite Express) I deposited such envelope in the depository at Fullerton, California ensure next day delivery. Via Personal Service) I caused to be delivered such envelope by hand to the offices of the addressees. Via Facsimile) I caused the within documents to be transmitted to telephonic facsimile to the addressees. X (Via E -Mail) I caused the within documents to be transmitted electronically to the e-mail address indicated above. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on December 21, 2015 at Fullerton, California. L URA MILLE PROOF OF Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3188 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Christopher Cameron Arbitrator and Civil Service Hearing Officer Professor of Law c/o Southwestern Law School 3050 Wilshire Blvd. Los Angeles, CA 90010 Telephone: (213) 738-6749 Facsimile: (213) 738-6698 ccameron@swlaw.edu Kasey A. Castillo, Esq. Nicole A. Naleway, Esq. Castillo Harper, APC 3333 Concours St., Bldg 4, Ste. 4100 Ontario, CA 91764 Telephone: (909) 466-5600 Facsimile: (909) 466-5610 kasey@castilloharper.com nikki@ castilloharper.com Attorneys for Appellant Kevin Waddell Christine Dietrick, Esq. City Attorney, City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401 Telephone: (805) 781-7140 cdietrick@slocity.org Chris Staley Operations Police Captain San Luis Obispo Police Department 1042 Walnut St. San Luis Obispo, CA 93401 cstaley@slocity.org SERVICE LIST 2 PROOF OF SERVICE Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3189 112 3 4 5 6 7 8 9 10 11 12 13 14 15, 16 17 18 19 20 21 22 23 24 25 26 27 28 JONES & MAYER Gregory P. Palmer, Esq., SBN 133647 3777 North Harbor Boulevard Fullerton, California 92835 714) 446-1400/Telephone 714)446-1448/Fax e-mail: gpp@jones-mayer.com BEFORE CHRISTOPHER DAVID RUIZ CAMERON HEARING OFFICER IN THE MATTER OF THE APPEAL OF THE DISMISSAL OF OFFICER KEVIN WADDELL, Appellant, POLICEDEPARTMENT OF THE CITY OF SAN LUIS OBISPO, Hiring Authority. CSMCS Case No. ARB -14-0209 APPENDIX TO THE POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENT TO HEARING OFFICER CHRISTOPHER DAVID RUIZ CAMERON, APPELLANT KEVIN WADDELL AND HIS ATTORNEY KASEY A. CASTILLO: The San Luis Obispo Police Department hereby submits its appendix to the post - hearing brief in support of the decision imposing termination of employment on Kevin Waddell. 1- APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICEWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3190 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15, 16 17 18 19 20 21 22 23 24 25 26 27 28 APPENDIX TO THE POST HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENT III. STATEMENT OF THE CASE CITY'S CASE -IN -CHIEF THE CAT SHIFT EVENTt SERGEANT CHAD PFARR Sergeant Chad Pfarr ("Pfarr") is employed by the San Luis Obispo Police Department SLOPD") and holds the rank of Sergeant. He has been employed by SLOPD for 15 years and has been a Sergeant of police for 2%2 years. (RT. 23-24)2 Pfarr is currently the Downtown Bicycle Unit Supervisor but before that, in October, 2013, he was a Patrol Sergeant. Asa Patrol Sergeant he supervises a compliment of 4-10 patrol officers. (RT. 24) He knew the Appellant Kevin Waddell ("Waddell") from working with him at SLOPD. When Pfarr made sergeant, he did not become Waddell's direct supervisor but did work with him when the bike unit overlapped with his shift. ( RT. 24-25) Pfarr knew Detective Adam Stahnke ("Stahnke"). He has known Stahnke for 10 years and they were partners in detectives for a number of years. (RT. 25-26) Pfarr ran into Stahnke on October 18, 2013. Stahnke was working in the Detective Bureau and Pfarr was covering day watch patrol. October 18, 2013 was a Friday. In fact, it was the "Friday" of Stahnke's work week, so Pfarr wished him a good weekend. Stahnke responded that he would see him tomorrow since he was working an overtime shift on the Community Action Team ("CAT"). The CAT overtime shifts were typically held on Saturdays, so that In order to orient the reader to the format of this appendix and to simplify as much as possible the presentation of testimony on two distinct events, the city has decided to present the summary of the city's case -in -chief in this appendix by separating the testimony of the two events using the headnotes: "The CAT Shift Event" and "The Bentley Event". In other words, all of the testimony received by the City's witnesses regarding the CAT shift event will be presented under that headnote, whether it was chronologically received that way or not. The same will be true of the Bentley event. The only exception to that formatting will be as it relates to the summary of testimony of Captain Chris Staley since his testimony necessarily covered both events. As for the Appellant's case and the rebuttal case, those will be presented in chronological order as it was received in the hearing. z RT. refers to Reporter's Transcript of Proceedings, the numbers which follow refer to pages 23 through 24. APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3191 I meant to Pfarr that Stahnke was working a CAT shift the next day on October 19, 2013. (RT. 2 26-27) 3 CAT was a program to form a team of two officers who would deal directly with 4 habitual offenders in the downtown area and would specifically address things like chronic 5 drunkenness, aggressive panhandling and things of that nature. Presently, there are two officers 6 whose sole assignment is to CAT. Before that, however, there was a period of about a year, 7 where CAT was a 5 -hour overtime shift which was posted in the department for two patrol 8 officers to work. Overtime pay was authorized for these shifts. (RT. 27-28) 9 The CAT shifts began at 11:00 a.m. and ended at 4:00 p.m. and were always intended to 10 be a two -officer unit. Occasionally, staffing did not permit two officers to work CAT or only 11 one officer signed up, but the default was a two officer unit. Pfarr did not recall how he 12 discovered the information, whether Stahnke told him or he looked at the sheet, but somehow 13 he determined that Waddell was going to be Stahnke's partner on the CAT shift on October 19, 14 2013. (RT. 28-29) 15 Pfarr started his work day at 6:45 a.m. on October 19, 2013. He was scheduled to work 16 until 7:00 p.m. that night. Since he knew that Waddell was coming in that day for the CAT shift 17 at 11:00 a.m. he had already planned to speak with him when he arrived. That plan grew out of 18 a previous event which involved Waddell and the CAT shift of October 12, 2013, one week 19 prior to October 19, 2013. Pfarr did not know in advance which officer was scheduled to work 20 CAT on October 12, 2013, but it was customary for the assigned officer to check in with him, as 21 the on -duty patrol watch commander, to check out equipment needed for the CAT shift 22 assignment. At approximately 11: 15 a.m. Pfarr realized nobody had checked in with him for 23 the CAT shift and to check out the needed equipment. Pfarr checked the signup sheet and 24 noticed that it was only Waddell who was supposed to work that CAT shift. Pfarr went to the 25 locker room and found Waddell there still changing for the CAT shift. Waddell told Pfarr he 26 was late due to having to stop and put gas in his car unexpectedly. Pfarr let that go at that time. 27 (RT.29-31) 28 3- APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPAKI MEN I Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3192 1 Later in that same week, Waddell worked a CAT overtime shift on which Pfarr was the 2 patrol sergeant. This shift fell between October 12, 2013 and October 19, 2013. According to 3 Pfarr, the CAT shifts are typically very busy and quite a bit of radio traffic is generated by the 4 officer or officers assigned to the CAT shifts. Pfarr began to notice there was not a lot of radio 5 traffic emanating from the CAT shift that day. He found that unusual. At that time, SLOPD 6 maintained a small one room satellite office downtown which could be used by officers for 7 report writing or other tasks. Pfarr went to that office and found Waddell inside watching a 8 movie while eating his lunch. Pfarr said one does not typically take a lunch break on as short a 9 shift as a CAT shift. (RT. 233). Waddell appeared tired to him. He offered to buy him a coffee. 10 He did and Waddell went back to work. 11 Based on these two events Pfarr decided to inform Lieutenant Smith ("Smith") of his 12 observations of Waddell. Lieutenant Smith was in charge of that CAT overtime assignment at 13 that time and that's why Pfarr went to him. Waddell had signed up for a large number of the 14 CAT shifts. Pfarr thought Waddell was working all the overtime because of an upcoming 15 family vacation. He went to Lieutenant Smith to offer that maybe Waddell was not the best 16 officer to utilize for the CAT shifts. Smith advised Pfarr to simply speak to Waddell about 17 these issues the next time he came in on a CAT shift (October 19, 2013) to see if that fixed the 18 problem before re -assigning the remaining shifts to other officers. (RT. 31-32) 19 All those things were in his mind to discuss with Waddell when he arrived for his shift 20 on October 19, 2013. 11:00 a.m., the scheduled start time, came and went and Waddell did not 21 arrive. Pfarr began to wonder if there actually was a CAT shift that day and so he checked 22 SLOPUs digital calendar scheduling program, which is called "Speedshift". He saw no entries 23 in Speedshift for the CAT shift on October 19, 2013. Pfarr put in a quick phone call to Smith 24 just to confirm that the CAT shift had not been cancelled without him telling Pfarr. Smith did 25 not answer and Pfarr did not leave a message; he just hung up so Pfarr's call to Smith showed as 26 a missed call. Pfarr left his office to check the paper signup sheet in the hall. The signup sheet 27 listed the officers assigned to the October 19, 2013 CAT shift as Waddell and Stahnke. By then 28 it was about 11:10 a.m. (RT. 32-35) 4- APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3193 1 At about this same time, Pfarr sent a text message to Waddell. The actual time this text 2 message was sent was 11:11 a.m. Pfarr wrote in his text message something to the effect of 3 "Are you still working today". Pfarr was shown the screen shot copy of his text exchange with 4 Waddell which was an exhibit at the hearing. The text message on the right in the shaded boxes 5 are his own text messages. The others in the clear boxes are the response text messages from 6 Waddell. His initial text to Waddell said "Are you still coming in today" 3. (RT. 35- 37; CX - 7 10) 8 It was about this same time, as some of these things were happening simultaneously, that 9 he met up with Stahnke in the hall on his way to check the signup sheet. Stahnke informed him 10 that he had received a text message from Waddell indicating that he was running about 30 11 minutes late. (RT. 35/14-22; 37; 39) 12 Waddell sent a response text to Pfarr which read: 13 "Yes, sorry. I had worked out ahead of one with It. Smith 14 I'm on the way in now." 15 Pfarr did not completely understand Waddell's text due to the word choices but what he 16 got out ofit is he was coming in, he was going to be late, and that he had worked out coming in 17 late ahead of time with Lieutenant Smith. Pfarr interpreted the lowercase "It"to mean the 18 abbreviation of Lieutenant and that he meant Smith. (RT. 39- 40; CX -10) 19 Even though Pfarr felt he understood the gist of the message, it still did not make sense 20 to him, so to be sure, he responded to Waddell in a text which told him his message did not 21 make sense and to see him when he arrived. His text said: 22 "That made no sense. Stop by when a [you] get here." 23 This series of text messages, sent back and forth between the two men, was done 24 immediately following each message without delay. Pfarr received quickly in response another 25 text message from Waddell. It stated: 26 /// 27 Initially, Pfarr thought he may have inadvertently sent his initial message to a different employee named Kevin 28 because it went as a green text message instead of a blue imessage. He knew that Waddell had an iphone so it should have been blue. But when he checked again, he had indeed texted Waddell. (RT. 37-39; CX -10) 5- APPENDIX TO POST -HEARING BRIEF OF TIM SAN LUIS OBISPO POLICE DEPARTMENT Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3194 1 ! Basically, I had talked to Smith yesterday about coming 2 in at 1130 he said fine no problem. Boil will stop by." 3 Pfau interpreted that message to mean that Waddell had some type of conversation with 4 Lieutenant Smith about coming in late at 11:30 a.m. on October 19, 2013; that this conversation 5 occurred on October 18, 2013 and that Smith had approved it by saying to Waddell — "fine. No 6 problem". Pfarr's conclusion from that information was that Waddell had done what he needed 7 to do and his tardy arrival was excused by a supervisor. Lieutenant Smith is Pfarr's supervisor 8 so, if what Waddell said were true, Waddell would not have been tardy without permission. 9 RT. 40-42, CX -10) 10 Waddell did arrive at SLOPD on October 19, 2013 at approximately 11:30.m. He did 11 stop by Pfarr's office to see him. Waddell seemed a bit nervous to Pfarr. Waddell spoke first. 12 He told Pfarr that he had run into Smith on October 18, 2013 in the locker room as he was 13 preparing to leave for the day. Waddell related to Pfarr that he had told Smith that his daughter 14 had some sort of dance function, a recital or practice, and that Waddell wanted to be present for 15 the event and he asked Smith if it was all right if he came in late. Waddell told Pfarr that Smith 16 gave him permission to do so. (RT. 42-43) 17 Pfarr was shown his statement from the transcript of his interview with Lieutenant 18 Bledsoe on November 15, 2013. On page 6 thereof, he was asked if his description of what 19 Waddell told him that day was a direct quote from him. Pfarr confirmed it was quoted from 20 Waddell. The way he described his conversation with Waddell on October 19, 2013 in his 21 interview with Bledsoe was as follows: 22 Hey, I talked to Lieutenant Smith yesterday. We talked in 23 the locker room and, uh, I told him that my daughter had a 24 dance, um, function. Um, it was her first one of the dance 25 season, and that he wanted to go to that, and Lieutenant 26 Smith had authorized him to come in late so he could 27 attend that dance function of his daughter's". (CX -12,p.6) 28 6- APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPAKI MEN IWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3195 1 This conversation occurred with Waddell in Pfarr's office on October 19, 2013 at 11:30 2 a.m. and it was just Pfarr and Waddell. (RT. 43-46) 3 Waddell also gave Pfarr more context and timing of his conversation with Smith the day 4 before. According to Waddell, it was when both men were changing clothes to go home after 5 the shift. It occurred at about 4:00 p.m. or 4:30 p.m. Both of them were in the locker room of 6 SLOPD. Based on Waddell's summary of his conversation with Smith the afternoon before, 7 Pfarr believed Waddell had Smith's specific authorization to be late for his shift on October 19, 8 2013 and that he could arrive at 11:30 a.m. instead of 11:00 a.m. (RT. 46) 9 At approximately 12:00 Noon or 12:30 p.m. that same day, Smith called Pfarr back. 10 Pfarr answered Smith's call and told him not to worry as the reason for him to call had worked 11 itself out. Smith asked why he called. Pfarr told Smith Waddell was late for his CAT shift, but 12 that Pfarr had already learned from Waddell that Smith had authorized the late arrival. Pfarr 13 also told Smith he was planning to speak to Waddell about the issues from the previous week, 14 but did not due to the lateness and that he would have that conversation with him later that shift. 15 Pfarr told Smith that Waddell told him that he and Waddell had spoken the night before in the 16 locker room, that Waddell had a dance recital/event for his daughter that he wanted to attend 17 and that because of that, Smith authorized him to come in at 11:30 .m. instead of 11:00 a.m. 18 When Pfarr finished this explanation, Smith told Pfarr that he never had that conversation with 19 Waddell. Smith told Pfarr that he had only a passing interaction and no substantive 20 conversation with Waddell the day before and that he had not authorized Waddell to come in 21 late on October 19. Smith asked Pfarr to write a memorandum about the event and to inform 22 Waddell that his statement about his late arrival was now an issue. (RT. 46-49) 23 Pfarr was upset by the information that it appeared Waddell had lied to him. He 24 explained that from day one in the police academy police officers are taught the importance of 25 honesty, whether in court or in his office. Waddell's statement had made something which 26 would have been a supervisor's note of a tardy into something much more serious. (RT. 49-50) 27 Pfarr radioed Waddell to come back to SLOPD and see him in his office. Waddell came 28 into Pfarr's office shortly thereafter. It was Karr's impression that Waddell could tell that Pfarr 7- APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3196 I was upset. Waddell appeared nervous. Pfarr told Waddell that he knew Waddell did not have 2 a conversation with Smith about coming in late and that Smith would be in contact with him 3 later as to proceeding further. Waddell began to respond apologetically and Pfarr stopped him. 4 He told Waddell it was best if he did not say anything at this point. Pfarr's concern in this 5 regard was the fact that this event could lead to punitive action on Waddell and he did not want 6 Waddell to say anything he shouldn't say. (RT. 50-51) 7 Waddell returned to his duties. Due to the events on October 19, 2013, Pfarr never did 8 discuss Waddell's lateness on October 12, 2013 or him watching a movie in the downtown 9 office with Waddell. Pfarr completed a memorandum about the October 19 occurrence, as 10 directed by Smith. He prepared and dated that memorandum the same day, October 19, 2013 11 when the events were fresh in his mind. (RT. 51-52; CX -9) 12 Pfarr did not interpret any portion of his text exchange with Waddell on October 19, 13 2013 to convey that Waddell believed he had permission to be late that day based on some 14 authorization from Smith, in the days or weeks before October 18, whereby Waddell had been 15 granted blanket approval to flex his time by Smith. Pfarr also did not believe Waddell 16 conveyed any information during their direct conversations on October 19, 2013 that suggested 17 Waddell was asserting he had some kind of standing authorization from Smith to come in late 18 for CAT shifts. Pfarr never got the impression from anything Waddell said that he was 19 asserting he could change his shift start time without specific, prior supervisor approval. ( RT. 20 53-54) 21 Indeed, Pfarr had worked a number of Saturday day shifts prior to October 19, 2013. He 22 had worked them for 2-3 months prior to this. It was never his impression working those 23 Saturday day shifts with overlapping CAT shifts that the officers assigned to those shifts (not 24 just Waddell) could come in early or late or leave early or late and flex their time without 25 specific prior approval. On the contrary, the CAT shift started at 11:00 a.m. and ended at 4:00 26 p.m., unless one obtained approval beforehand. The 11:00 a.m. to 4:00 p.m. time period was 27 chosen because it was some of the busiest time periods in the downtown area. It was during 28 N APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENT Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3197 I that time businesses were open and it was business owners who were very vocal to the City 2 Council and City Manager about the problems the team was intended to address. (RT. 54-55) 3 On cross-examination, Pfarr further explained that he never actually worked a CAT 4 shift. He supervised several shifts on which a CAT shift occurred in the six to eight weeks 5 between August to mid-October. Sometimes it was he and sometimes it was another sergeant 6 acting as a watch commander who supervised a CAT shift. He knew that Waddell worked 7 many of the CAT shifts because he signed up for a lot of them. That, in part, was what caused 8 Pfarr to go to Smith with his concerns about Waddell because it was his impression Waddell 9 might have been getting burned out. (RT. 96-99). 10 There were some weeks when Waddell did not sign up for any CAT shifts and some 11 where he signed up for two to four CAT shifts. His regular shift started at 5:00 p.m. — so 12 Waddell would work a CAT shift from 11:00 a.m. to 4:00 p.m., take an hour break and then 13 work his regular shift at 5:00 p.m. (RT. 100-101) 14 Pfarr reiterated the CAT shift hours of 11:00 a.m. to 4:00 p.m. were selected because it 15 was during that time the greatest level of activity occurred. The CAT shift over time hours were 16 set with that in mind. There, nevertheless, was some flexibility in that time period if, for 17 example, an officer had something going on and other reasons, that particular officer could go 18 to Smith or whoever the supervisor was on that shift and ask for some adjustments in the CAT 19 shift time frames. (RT. 111-113) 20 Pfarr said he left his office to check the posted schedule at approximately 11:05 a.m. on 21 October 19, 2013 to ensure it was Waddell who was scheduled for that day's CAT shift. It was 22 on his trip down the hallway that he encountered Stahnke. He asked Stahnke if he knew who 23 his partner was for that shift. He replied that he received a text message from Waddell 24 indicating that he would be 30 minutes late. Pfarr did not ask to see the text message. Pfarr 25 found it to be a bit odd that he did not receive the same text message from Waddell. (RT. 124- 26 125) 27 Waddell was approximately 10-15 minutes late on October 12, 2013. Pfarr did not 28 document his lateness that day. Instead he spoke to Smith about it. (RT. 133-134). Pfarr found 9 - APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENT Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3198 I Waddell watching the movie between October 12, 2013 and October 19, 2013 in the downtown 2 bike office. It was some kind of Marvel movie; either Batman or Spiderman. Waddell stated he 3 was on his lunch break but according to dispatch he was still in-service and available for a call 4 for service. He did not recall if Waddell was eating while watching the movie. (RT. 135- 137) 5 Pfarr also noticed the week of October 12, 2013 through October 19, 2013 was not very 6 active on the CAT shift. Typically, it is a very active shift with lots of radio traffic because the 7 officers do not always have access to an in -car computer. The lack of activity that week also led 8 Pfarr to be concerned Waddell had burned out. Waddell worked about three shifts that week of 9 the week before after that. (RT. 138-139) 10 Pfarr took the screen shot of his text message exchange with Waddell after he spoke to 11 Smith that same day. In fact, at the top of the screen shot it shows the time of 12:14 p.m. This 12 was an accurate portrayal of when he took the screen shot of the text message exchange. He 13 and Smith discussed saving the exchange. So, he took a screen shot of them and emailed it to 14 Smith. He also printed a copy of it and attached it to the memorandum he prepared about the 15 event. All the messages between him and Waddell came in a five minute time span. (RT. 141- 16 143; CX -10) 17 Based on the timing of the screen shot, Pfarr concluded Smith had to have called him 18 back before 12:14 p.m. that day. After that call, he radioed Waddell to come see him. (RT. 19 144- 145) 20 Pfarr believed at the point he called Waddell in to speak with him following his call with 21 Smith that Waddell lied to him. Even so, he did not place him on administrative leave at that 22 point. Pfarr kind of scoffed at that suggestion because he does not have that authority; only the 23 Chief of Police and Captain can put someone on administrative leave. (RT. 152) 24 Pfarr was asked to be very specific about what he recalled about his conversation with 25 Waddell on October 19, 2013. Pfarr said the first time he spoke to Waddell that day about this 26 was before he knew there was a problem. Waddell came in and said he talked to Smith the day 27 before, on October 18, 2013, and because he wanted to attend his daughter's dance recital or 28 practice, he asked Smith if it would be all right if he arrived for work one half-hour late and Io- APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENT Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3199 I Smith told him that was okay with him. This conversation lasted less than a minute and was 2 based on his text message to come see him when he arrived. (RT. 156-157) 3 Pfarr also emphasized that while the 11:00 a.m. to 4:00 p.m. CAT shift could be 4 modified in terms of actual start or end time of the shift, this could be done only with the prior 5 approval of a supervisor, such as himself or Smith. While there was no specific rule on how far 6 in advance the approval had to be obtained, Pfarr confirmed permission could have been granted 7 as late as the morning of a shift and it could have granted by Pfarr if Waddell had 8 communicated with him that day. However, Pfarr did not receive any communication from 9 Waddell, text, phone or otherwise, on October 19, 2013 prior to the 11:00 a.m. asking for 10 permission to be tardy. (RT. 230-233; 246-247) 11 Waddell continued to work CAT shifts after the events of October 19, 2013. (RT. 192- 12 195); 198-200; AX -B). Pfarr sent the email with the November -December, 2013 CAT shift 13 assignments on behalf of Lieutenant Smith, who asked him to do it in his absence. (RT. 204- 14 205; AX -B) 15 The introductory paragraph to his email about the November/December CAT shift 16 assignments confirms those shifts run from 11:00 a.m. to 4:00 p.m. The sentence concerning 17 the prohibition from doing other work during a CAT shift was not put in the email because of 18 Stahnke carrying around other paperwork while waiting for Waddell to arrive on October 19, 19 2013. That concept was always applicable to CAT shifts. The time on a CAT shift was always 20 supposed to be devoted to the downtown area. Pfarr did not say exactly what Stabnke was 21 doing between 11:00 a.m. to 11:30 a.m. on October 19, 2013; but whatever he was doing was 22 solely occasioned by Waddell being tardy and delaying the two man CAT shift from its duties. 23 (RT. 233-236; AX -B) 24 Pfarr does not have the authority to place an officer on administrative leave. The person 25 who does have that authority is the Chief of Police. (RT. 236). And Pfarr had nothing to with 26 that decision when it was made. (RT. 239) 27 The introductory paragraph used in his November -December CAT shift assignments 28 was simply from a previous email concerning the same topic by Smith. (RT. 247-248;'AX-B) 11- APPENDIX i_ APPENDIX TO POST-FIEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3200 I ADAM STAHNKE 2 Adam Stahnke ("Stahnke") is employed as a police officer with the SLOPD and has 3 been so employed for 11 years. With his prior service at Orange Police Department, his total 4 time in law enforcement is 16 years. (RT. 254) 5 He was so employed and on duty on October 19, 2013. He was scheduled to work the 6 CAT shift that day in an overtime capacity. The CAT shift began at 11:00 a.m. and typically 7 ran to 4:00 p.m. or 5:00 p.m. Those hours were pretty well set. Those hours were not flexible 8 in any way as far as he was aware. Officers certainly could theoretically change the arrival time 9 with prior permission from a supervisor such as a Lieutenant or a Sergeant. (RT. 255-256) 10 Stabnke did not work the CAT shifts all that often. He worked it fewer than 5 times. 11 When he did, those shifts ran from 11:00 a.m. to 4:00 p.m. It was a special assignment. One 12 volunteered for it by signing up for them on a signup sheet. The officers who signed up were 13 then assigned based on seniority. It was a two officer shift. (RT. 256-257) 14 Stabnke knew for several weeks before the October 19, 2013, CAT shift that Waddell 15 was going to be his partner that day. He knew that because the Lieutenant will finalize a 16 schedule after he determines who is assigned to each shift, again based on seniority. He had 17 worked with Waddell on CAT shifts before October 19, 2013 at least twice. And those shifts 18 started at 11:00 a.m. and ended at 4:00 p.m. ( RT. 257-259) 19 Stalmke received a text message from Waddell prior to 11:00 a.m. on October 19, 2013. 20 He received it approximately 45 minutes to one hour before the beginning of the shift; around 21 10:00 a.m. or 10:15 a.m. Waddell's text message stated he would be late for the shift and 22 estimated his arrival time to be 11:30 a.m. Stahnke responded and told him he would see him 23 then. Waddell's text was only sent to him individually. Pfarr was the scheduled watch 24 commander that day. He did not know if Waddell sent a similar text to Pfarr. (RT. 259-260) 25 Stabnke arrived for the CAT shift that day on time. After his arrival he had an informal 26 meeting with Pfarr in the hallway. He was on his way to retrieve a component necessary for his 27 uniform when he ran into Pfarr. It was about 11:05 a.m. or 11:10 a.m. Pfarr asked him if he 28 had seen Waddell. Stahnke told him he had not but that he received a text message from him i? - APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3201 I which said he was going to be late. Stahnke was not working on any other police business at 2 that time, he only came in for the CAT shift. Waddell eventually arrived for the CAT shift at 3 11:15 a.m. or so. After Waddell changed into his uniform they went to the downtown area to 4 being working. While doing so, Waddell told him that Pfarr had spoken to him about being late 5 and that it had something to do with a childcare issue and that he had prior permission from 6 Lieutenant Smith. (RT. 260-267) 7 On re-direct, Stahnke clarified that his impression of what Waddell told him about the 8 type of permission he had received from Smith was that it was not specific permission to be late 9 for a particular date, but was more of a blanket-type to do so when Waddell was assigned to a 10 CAT shift. Stahnke was asked if Waddell's statement was consistent with how the CAT shift 11 were when he worked them. Stahnke answered by saying, "It's scheduled from 11:00 a.m. to 12 4:00 p.m.". (RT. 274) 13 Stahnke was shown the November -December, 2013 email shift assignment email. It 14 looked familiar to him, was consistent with other similar emails he received concerning CAT 15 shift assignments. His name was listed as a recipient of this email. It would come out 16 sometime in advance of the shifts. Stahnke noted in the introductory paragraph to the list of 17 assignments that it reiterated the CAT shifts run from 11:00 a.m. to 4:-00 p.m. That was 18 consistent with Stahnke's understanding. (RT. 275-276; AX-B) 19 LIEUTENANT JOHN BLEDSOE 20 Lieutenant John Bledsoe (` Bledsoe") is employed by the SLOPD as a police lieutenant. 21 He has been a lieutenant for 2'/2 years and spent 28 years total time in law enforcement. He has 22 worked many assignments over the years. (RT. 278-279) 23 In 2013 he was the Detective Lieutenant and supervised a certain number of detectives. 24 While Pfarr was under the direct supervision of Smith in 2013, there are times when each 25 lieutenant will overlap in supervising sergeants. This can happen in special assignments. (RT. 26 279-280) 27 Bledsoe does conduct administrative investigations when assigned to him. He was 28 assigned to conduct the administrative investigation into the CAT shift event based on a 13- APPENDIX TO POST-HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENT Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3202 I memorandum prepared by Pfarr. He conducted this investigation which included conducting 2 several interviews. He also interviewed Waddell about this event on December 12, 2013. 3 Waddell's interview led him to conduct follow up interview with Pfarr, Smith and the owner of 4 the dance studio. (RT. 288- 291; CX -9) 5 He prepared a written report after conducting his investigation. He submitted that report 6 to the Chief of Police via Captain Staley. In his report he made findings of misconduct. He 7 found that Waddell had been dishonest with Pfarr regarding his tardiness and his claim that he 8 received permission from Smith to come in late to work on October 19, 2013. Bledsoe made 9 this finding of untruthfulness not only as to Waddell's text exchange with Pfarr but also based 10 on his verbal interaction with Pfarr that same day. ( RT. 291- 295; CX -7) 11 Bledsoe also found that Waddell had been dishonest with him in his interview on 12 December 12, 2013. This was based, in part, on his overall behavior and state of nervousness 13 during the interview. Waddell had trouble forming complete sentences. He was sweating 14 profusely. He was visibly shaking at times. Bledsoe expected some nervousness due solely to 15 the setting but Waddell's reaction was abnormal for one telling the truth. He stuttered and 16 stumbled. He had to be prompted by his attorney at times. (RT. 295-297; CX -7) 17 Bledsoe pointed out in Waddell's interview that he tried to pass this whole thing off on 18 the fact that he had received specific permission from Smith in the past to be late and because of 19 that felt he had some sort of automatic approval to be late on his own, yet that was not what he 20 told Pfarr on October 19, 2013. Bledsoe warned him in the beginning of the interview that 21 making false statements would lead to severe disciplinary action. Waddell admits he did not 22 have specific permission from Smith to be late on October 19, 2013 but still tried to support his 23 tardiness by these prior occasions on which he did have permission all the while implying to 24 Pfarr that he did have specific permission. Bledsoe found that Waddell contradicted himself in 25 the interview. One such occasion was when he denied speaking to Smith in the locker room at 26 one point and later said he might have talked to him. (RT. 297-305; CX -21, pp. 11-12) 27 Bledsoe began his interview with Waddell at approximately 3:33 p.m. in the afternoon 28 1 on December 12, 2013. It lasted over an hour. Following the interview he informed Captains 14- APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3203 1 Staley and Storton of his impressions of Waddell during the interview. He also discussed this 2 with Chief Gesell. He told them that he believed Waddell had been dishonest with him in the 3 interview. Having a lieutenant of police such as Bledsoe make this finding in an interview 4 created a serious integrity issue in terms of having an officer still in the field working after he 5 has been dishonest in an interview. Thus, the decision was made to place Waddell on 6 administrative leave with pay that same day. (RT. 305-309) 7 On cross-examination, counsel for the Appellant again asked a witness, in this case 8 Bledsoe, to go through the department's exhibit book to try to locate an item within it which 9 everyone but the witness and the hearing officer knew was not in the notebook. (RT. 319-320) 10 Bledsoe did listen to the recording of each interview when he prepared his report and 11 each summary of an interview is fairly close to verbatim. (RT. 320-321) 12 Bledsoe was assigned to do the administrative investigation on October 28, 2013. He 13 first interviewed Pfarr on November 15, 2013. He authenticated the transcript of that interview. 14 The Pfarr interview began at 9:03 a.m. He interviewed Smith next that same day beginning at 15 9:23 a.m. He authenticated the transcript of that interview. He next interviewed Stahnke on 16 November 18, 2013 and authenticated the transcript. Next he interviewed Waddell on 17 December 12, 2013 beginning at 3:33 p.m. Next, he re -interviewed Smith on December 12, 18 2013 which began at 4:55 p.m. That was a very short interview; the main purpose of which was 19 to determine if Smith had given Waddell permission to take time off or come in late in the past. 20 Smith reacted to that suggestion and told Bledsoe he did not want the CAT shift to be flexible - 21 he wanted the hours to be 11:00 a.m. to 4: 00 p.m. In other words, he would have granted 22 permission for specific days but not on a regular basis. He then asked Smith a question based 23 on what Waddell had told him in his interview with him; when Waddell received permission in 24 the past, did he think that was blanket permission for the future. Smith responded no and that 25 such would be contradictory to what the overtime was intended to accomplish. It was then after 26 his re -interview with Smith that he went to speak to the Captains about his impression of 27 Waddell's interview. (RT. 334-347; CX -7; 12; 13; 14; 15; 21) 28 /// 15- APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENT Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3204 I Waddell was placed on administrative leave with pay on December 12, 2013 at 7:35 2 p.m. (RT. 347-349) 3 LIEUTENANT JEFF SMITH 4 Smith is employed by the SLOPD and has been so employed for 13 years. His rank is 5 Lieutenant. He has prior service with the Fontana Police Department. His current assignment 6 is Day Shift Watch Commander. That was his assignment in 2013 as well. (RT. 441-442) 7 One of his ancillary duties was to supervise the CAT shift. The CAT shift originated in 8 2012. It evolved over time into a two-man five hour shift which began at 11:00 a.m. and ended 9 at 4:00 p.m. Officers who were interested could sign up for these shifts. The Captain and the 10 Chief of Police wanted officers on the CAT shift to focus on the downtown area over lunch and 11 when businesses were open and that was why the 11:00 a.m. to 4:00 p.m. shift hours were 12 chosen. It was an overtime assignment in 2013. Officers who signed up for a CAT shift would 13 then be evaluated by him for seniority and assigned based on that. Once the officers were 14 assigned, Smith would put out an email to all the officers indicating those who had been 15 assigned. (RT. 442-448) 16 He recognized the email about this topic put out by Pfarr at his direction, probably 17 because he was out of the office. The email was dated November 8, 2013 and was sent to 18 multiple people. The introductory paragraph to the email, according to Smith, simply reiterates 19 his expectations for the officers on those shifts. This email is similar to other emails he sent on 20 this topic. The introductory paragraph was a standard paragraph which he cut and pasted in 21 each email. Within the introductory paragraph it emphasizes the hours of the CAT shift were 22 11:00 a.m. to 4:00 p.m. It also emphasizes to spend the time on shift working CAT duties, not 23 other work. (RT. 448- 451; AX -B) 24 Since he cannot be present to supervise every scheduled CAT shift, Smith has to rely on 25 other supervisors, including sergeants to overlap and provided needed supervision to CAT shift 26 officers working on their shifts. (RT. 451-453) 27 Smith was certain that at some point an officer assigned to a CAT shift did come to him 28 and request some sort of modification intheir shift start time or end time. He had no memory of 16- APPENDDC TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPAR'I'MEN 'IWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3205 I a specific circumstance but he said it possibly occurred. His general approach to such a request 2 was that it had to be run by himself or if he was not there, with a sergeant. Smith tried to 3 accommodate each request. Such a request would also have come before the particular shift 4 occurred and there would have been some sort of good reason to do so. For such a good reason, 5 he could see accommodating a request to arrive at 11:15 a.m. or even may be 11:30 a.m. instead 6 of 11:00 a.m. If it went after 11:30 a.m. he would likely have an issue with that since that 7 would interfere with the designated shift hours too much. This was not a common thing; it was 8 a once in a while thing. (RT. 453-456) 9 Smith never, between April, 2013 and November, 2013, gave a CAT officer the blanket 10 authority to flex the start and/or end time of a CAT shift on their own without his specific 11 approval. That would have been contrary to the goal of the program. The CAT shift was 12 designed to place officers in the downtown area during specific times. So to provide such 13 blanket authority to flex would not be something the department or himselfwould have done. 14 Indeed, if an officer had said, in connection with the case, that Smith gave them blanket 15 authority in 2013 to flex the start and/or end time of a particular CAT shift without his specific 16 approval, that would be a lie. ( RT. 456-457) 17 Smith knows Waddell from working with him at SLOPD. He did not recall a specific 18 occasion when Waddell signed up for a CAT shift and later contacted him about not being able 19 to make it. Something like that could have happened; he just had no memory of it. The same is 20 true with regard to Waddell asking to come in late, say, for example at 11:30 a.m. Waddell was 21 just like other officers in this regard. He was not treated differently in any way. ( RT. 458-460) 22 Waddell never came to him requesting any sort of blanket authorization to flex the start 23 or end time of a CAT shift, or series of CAT shifts, on his own without his specific approval 24 and if he did make such a request he would not have approved of such a plan. And he never 25 used any words or phrases with any other officer which could reasonably be interpreted to be 26 blanket approval to flex the timing of CAT shifts. And if Waddell said Smith made such a 27 statement, it would be a lie. (RT. 460-461) 28 APPENDIX TO POST -HEARING BRIEF OF THE SAN THIS OBISPO POLICE DEPARTMENT Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3206 I Prior to October 19, 2013, Pfarr brought to his attention issues he had with Waddell. 2 Pfarr informed him about finding Waddell watching a movie in the downtown office while 3 working on a CAT shift. Also, Pfarr had informed him that Waddell either arrived late or left 4 early from a CAT shift. These two events upset Smith. One does not take a lunch on a 5 -hour 5 shift. It is not unreasonable to take a break or get a drink, but not take a lunch on a CAT shift. 6 As it relates to coming in late or leaving the shift early, he just asked Pfau to monitor Waddell 7 to ensure he arrived and left on time. (RT. 461-464) 8 Smith was off duty on October 19, 2013. During that day he received a phone call from 9 Pfarr. He did not see the call come in. He was mowing his lawn when it came in. His best 10 recollection is Pfarr's call came in around 11:00 or 11:30 a.m. Later that day, he noticed he 11 missed a call from Pfarr and that he left a voicemail message. Smith listened to Pfarr's 12 voicemail. Smith noticed the missed call about 30 minutes to an hour after Pfarr's call. Pfarr, 13 in his voicemail, inquired about Waddell's CAT shift and whether it had been cancelled. (RT. 14 464-466) 15 Smith called Pfarr back right after listening to the voicemail. Pfarr answered the call. 16 Smith apologized for not taking his call earlier. Pfarr told him not to worry about it and that the 17 situation had already been handled. Pfarr told him that Waddell arrived and told Pfarr that he 18 had spoken to Smith the previous day on October 18, 2013 about coming in late due to his 19 daughter's dance recital or rehearsal and that Smith had approved it. While Pfarr was 20 explaining what Waddell said to him, Smith stopped Pfarr and told him Waddell never spoke to 21 him the previous day about coming in late and that they never had that conversation. Smith 22 never gave Waddell permission to come in at 11:30 a.m. on October 19, 2013 for his CAT shift. 23 (RT. 466-468) 24 Indeed, there was no truth to the claim that he had any sort of conversation with Waddell 25 on October 18, 2013. The two men did see each other in the locker room that day as Smith was 26 changing clothes. Waddell was sitting on a bench in the locker room. He was in street clothes 27 and was text messaging on his phone. Smith said "hi" to him and Waddell responded with a 28 "hi" to him and he was still texting at the time. So the sum total of their conversation on 18_ APPENDIX TO POST -HEARING BRIEF OFT SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3207 I October 18, 2013 was a mutual greeting or as some say; "exchanging pleasantries". That was 2 the only conversation he had with Waddell on October 18, 2013. There was no discussion of 3 the CAT shift or of coming in late the next day. And there was no discussion of his daughter's 4 dance recital or practice. (RT. 468-470) 5 Having been informed of this, Pfarr was upset because Waddell had lied to him. He and 6 Smith discussed it. Smith wanted to ensure it was not just a misunderstanding. He advised 7 Pfarr to reflect on their conversation and make the decision as to how to proceed. He had 8 another conversation with Pfarr later that day wherein Pfau told him he had decided to prepare 9 a memorandum about the event. He later reviewed that memorandum. (RT. 470-471; CX -9) 10 Smith did not recall if he and Pfarr discussed his text message exchange with Pfarr while 11 on the phone. Smith did eventually see and review this text message exchange between 12 Waddell and Pfarr. Smith felt he reviewed the texts because it was attached to Pfarr's 13 memorandum. Smith reviewed Waddell's first text message sent in response to Pfarr's text. 14 His interpretation of Waddell's text messages was that he had worked it out with him (Smith) 15 the previous day to come in late. That was not a true statement. Waddell's second text message 16 also states that he (Waddell) spoke with Smith about coming at 11:30 a.m. and that Smith said 17 fine, no problem. That was also not a truthful statement. (RT. 472-476; CX -10) 18 Smith came in to work his regular shift on Monday, October 21, 2013. During that day, 19 Waddell came into his office uninvited. He asked to speak with Smith. Before Waddell 20 continued, Smith told Waddell that Pfarr submitted a memorandum about the event which 21 would be going through the chain of command and it would be better if he did not speak about 22 it. Smith gave him his admonishment because he respects the Public Safety Officers Procedural 23 Bill of Rights (`POBOR)" (See Government Code Section 3300 et. seq.). Waddell said he 24 understood Smith's advisement but he still wanted to talk to him. Waddell then tried to call the 25 whole situation nothing more than a misunderstanding between he and Pfarr in their text 26 messaging only. He did not bring up he and Pfarr's verbal discussion when he arrived. Smith 27 did not ask any questions. He simply made the statement, "Kevin, you know, that we had no 28 N 19 - APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3208 I conversation yesterday and that's a lie". Waddell acknowledged that and said, "yes, he knew". 2 (RT. 476-479) 3 Smith was first interviewed on November 15, 2013 by Bledsoe. He was re -interviewed 4 on December 12, 2013. He reviewed the transcript of each interview before testifying. Smith's 5 re -interview began at 4:55 p.m. and it was very short. Its subject matter was whether Smith had 6 ever given any officer a blanket statement on any CAT shift that they can come and go at any 7 time and make their own arrangements. Smith told Bledsoe he never did that. On the contrary, 8 every change in a CAT shift had to be specifically authorized by either he or a sergeant and he 9 did not give Waddell permission to come in late on October 19, 2013. And he would never 10 approve of an officer concluding that since he approved certain changes before, the officer 11 could reasonably conclude he could make changes on his own. ( RT. 479-485; CX -13; 15) 12 Counsel for Appellant was able to find within the documents discovered as part of 13 complying with an SDT, three instances where Smith approved of a modification in a CAT 14 shift. Smith reviewed an email from Waddell to Smith dated June 5, 2013 at 1:16 p.m. wherein 15 Waddell was requesting to be excused from working the first hour of his CAT shift (11:00 to 16 12:00 Noon) on June 6, 2013. While Smith had no specific recollection of receiving this 17 particular email, it would be consistent with his expectations of an officer, who was not able to 18 work for some reason or another, to seek his permission to adjust a shift. Smith more than 19 likely approved this request, either in a reply email or verbally. (RT. 603-607; AX -J) 20 Smith was then shown another email from Smith to Waddell regarding the CAT shift on 21 December 21, 2013. The email was dated December 11, 2013. This was an email string which 22 began with Officer Dickle asking Waddell if Waddell wanted to take his CAT shift on 23 December 21, 2013. Waddell sends the email to him on December 3, 2013 saying he will take 24 the CAT shift if eligible and Smith replied on December 11, 2013 putting him down for the 25 shift. Smith, again, said this is consistent with his practice in this regard. (RT. 607-610; AX - 26 K). 27 Smith was shown an email from Smith to Waddell dated December 12, 2013 regarding 28 the CAT shift on December 15, 2013 wherein Waddell informed him that something came up 20- APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3209 I and that he needed to leave at 3 00 p.m. that day instead of staying to 4:00 p.m. Smith's 2 response email said, "that is fine" and that referred to him leaving at 3:00 p.m. Smith said this, 3 again, was consistent with the practice of how he handled such changes. (RT. 610-613; AX -L) 4 Smith explained that he would have a problem if modifying the start time of a CAT shift 5 to 12:00 Noon became a consistent thing. If it was an on occasion thing, he tried to be 6 accommodating to his officers needs. (RT. 617-618; 621-622) 7 Smith, again, goes over, on cross examination, the circumstances of the very brief 8 exchange of pleasantries he had at approximately 3:30 p.m. on October 18, 2013 while in the 9 locker room with Waddell. (RT. 627-629) 10 On re -direct, Smith explained that it was not incongruous for him to continue assigning 11 CAT shifts to Waddell following October 19, 2013. He had no reason to deny shifts to Waddell 12 at that time. He had not been placed on administrative leave. The matter being investigated 13 could have resulted in the whole thing being just a misunderstanding. So, he gave Waddell the 14 benefit of the doubt, at least as it related to assigning him CAT shifts. (RT. 682-683) 15 Smith said his approval for Waddell to come in one hour late for a CAT shift on June 6, 16 2013, via an email request is a demonstration of how he expected Waddell to seek approval 17 from him to make a change in shift. Other ways he could have sought approval would be 18 verbally, by phone, etc. Either which way, this is what he expected when an officer needed to 19 vary a shift. And this event occurred before the October 19, 2013 CAT shift event and thus 20 demonstrated that Waddell knew how to seek approval before the October 19, 2013 events. 21 (RT. 683-685; AX -J) 22 And while the context is a bit different, the same can be said about the series of emails 23 in December, 2013 in which one officer was trying to swap his CAT shift to Waddell. Waddell 24 made this request more than two weeks before the shift was to occur. So, this is just another 25 occurrence of Waddell doing everything correctly in terms of how to seek Smith's approval for 26 a change in a CAT shift. And this would have been after October 19, 2013. (RT. 685-688; 27 AX -K) 28 21- APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENT Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3210 I Again, Waddell demonstrated that he knew exactly how to get approval prior to a 2 change in a CAT shift when he sought approval to leave at 3:00 p.m., instead of 4: 00 p.m. for 3 the December 15, 2013 CAT shift. (RT. 688-689; AX -L) 4 Waddell did not engage in any effort to get prior approval to make any change for 5 October 19, 2013. Had he done something like the three exhibits, we would not have been in 6 this hearing. And that is true even given the fact that sometimes things come up at the last 7 minute and this sort of email exchanges to get approval is not as viable in a last minute 8 situation. Waddell could easily have called the watch commander on that shift (or dispatch and 9 asked to be transferred to the watch commander), advised the watch commander of the 10 circumstances and inform him/her they would be late. Inasmuch as Waddell had the time to 11 send a text to his partner on October 19, 2013, Smith saw no reason why he could not have also 12 sent a text message, or grouped his message to his partner, to Pfarr advising he would be late. 13 (RT. 699-691) 14 Smith said the email announcing the CAT shift assignments on November 8, 2013 likely 15 came from him. The introduction paragraph to the email is identical to the introductory 16 paragraph used by Pfarr in his email with some syntax and pronoun identification changes and 17 both reiterate the shifts run from 11:00 a.m. to 4:00 p.m. (RT. 702-703; AX -B and H) 18 Smith said arriving 5- 10 minutes late for a shift without prior approval is a very low 19 level administrative infraction which would likely result in a supervisor's note, which is 20 tantamountto a verbal counseling. (RT. 709-710) 21 THEBENTLEYEYENT 22 SERGEANT CHAD PFARR 23 Pfarr was on duty and employed by SLOPD as a police sergeant on February 22, 2013. 24 He was the patrol sergeant that day. While working that day, a traffic collision occurred at 25 Orcutt and Johnson. SLOPD officers responded to the call. It was a major traffic collision with 26 a major rollover. The vehicle involved was a Bentley. There were two occupants of the 27 vehicle, one of which appeared to be very badly injured and unresponsive. The car had struck 28 an embankment, flipped up and over onto its roof. (RT. 55- 56) 22- APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3211 H 2 3 4 5 6 7' 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The accident occurred at approximately 2:15 a.m. Initially, Pfarr and one other officer were the first to arrive. Eventually, many more officers responded to assist. There is a specialized investigative unit for major traffic accidents in SLOPD. It is called the Traffic Call Out Team. Waddell is on that team. Waddell arrived at the accident scene fairly quickly because he was already on duty working the downtown bike team. (RT. 57-58) Platt's job at the accident was basic scene supervision. Due to the passenger being in very bad shape and the possibility of it being a fatal, the Call Out Team was mobilized. The driver appearing to be under the influence of an alcoholic beverage also factored into that decision. (RT. 58-59) Pfarr left the scene to go to the hospital to assist the primary handling officer with the blood draw on the driver. He returned to the scene and arrived at about 4:00 or 5:00 a.m. When he arrived back at the scene, things were wrapping up. Fire personnel had cleared the scene, the Call Out Team had finished the majority of its investigation and the tow truck was on scene. The Bentley was still upside down. Waddell was packing up some equipment when Pfarr arrived back at the scene. (RT. 59-60) Pfarr, at the time of this incident, had been promoted to his Sergeant position only a few weeks before. Some of the officers present had not interacted with him since being promoted and so some of them were engaging in behavior toward him in a form of genuflecting; saluting, standing at attention and saying "sir, yes sir" to him. (RT. 60-61) After receiving a briefing from Officer Kevany regarding the team's findings, the tow truck operator righted' the Bentley. It was at that time Pfarr saw Waddell doing something unusual. Pfarr saw him manipulating the rear trunk Bentley emblem and trying to remove it. He did not know exactly what Waddell was doing. He did not think about whether their might have been an evidentiary reason to remove the emblem. (RT. 61-63) Waddell then stopped trying to remove the rear trunk emblem and walked over to the tow truck operator. He asked him for a screwdriver. Both Waddell and the tow truck operator It was noticed in the transcript of proceedings that whenever a witness used the word "righted" in the context of righting the Bentley, in other words, flipping it over from its roof to its wheels, the court reporter typed the word ride&% instead of "righted". 23- APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMEN I Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3212 1 went to the side of the tow truck where tools were kept. Waddell then walked back toward the 2 Bentley carrying a tool in his hand. Pfarr thought it was a screwdriver or some kind of pry tool. 3 He went back to the trunk of the Bentley. Waddell was positioned so as to block Pfarr's clear 4 view of what he was doing at the trunk. His body was between the trunk lid and Pfarr. Pfarr 5 surmised he was using the tool to remove the emblem from the trunk. When Waddell moved 6 away from the Bentley's trunk, he was still carrying something in his hand, either that tool 7 and/or the emblem as well and the emblem was not on the car. (RT. 63-65) 8 Pfarr was shown some of the photographs taken at the scene of the Bentley accident. 9 Pfarr recognized the photograph which depicted the Bentley, still upside down, at the scene of 10 the accident in which the rear trunk Bentley emblem, which he saw Waddell manipulating, 11 could be seen. (RT. 65-67; CX-11C) 12 During the time period in which Waddell was manipulating the rear trunk lid with his 13 hands, then retrieved the tool from the tow truck operator and returned to the trunk lid, Pfarr 14 also heard Waddell say that the emblem would look good in his collection. All of this confused 15 Pfarr. It was obvious to Pfarr now that the emblem had no evidentiary value. Pfarr began to 16 believe Waddell may have been playing a joke on him, like the other officers who were 17 genuflecting with him. As he reflected on the scene later, he did not believe that, but he did 18 believe Waddell's actions to beat joke at the time. (RT. 68-69) 19 Pfarr decided to leave the scene. He proclaimed he was leaving, saying he did not want 20 to be part of the internal affairs investigation and that he was "out of here". In retrospect, he 21 realizes that he should not have done that. He should have called Lieutenant Smith at the time 22 of the interaction. Instead, he decided to leave. (RT. 69-70) 23 Pfarr began to walk to his car, but also continued to watch Waddell. Waddell went over 24 to one of the rear wheels of the Bentley. Waddell then popped off the lug nut cover from the 25 wheel of the Bentley. Pfarr identified one of these wheel covers from a photograph taken at the 26 scene. Each of these wheel covers had the iconic Bentley `B" emblem on it. Pfarr was 27 watching Waddell's actions in his rearview mirror while driving away from the scene. (RT. 70- 28 71; CX-11D). Waddell took the wheel cover with the `B" emblem on it and began walking 24- APPENDIX TO POST-HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3213 I toward the Field Service Technician ("FST") truck. He was carrying a brown evidence bag. 2 Pfarr believed the two emblems were inside the bag. (RT. 71-72) 3 Pfarr was still confused by what he had witnessed. He was irritated having been put in 4 this position. On the other hand, he was not sure if it was still a joke. He decided to call 5 Waddell on his cell phone and stop Waddell from going any further. His call was interrupted by 6 a text message which came from Waddell and contained a photograph. The photograph 7 depicted the Bentley emblems Waddell removed on the floor board of the Bentley. 8 Accompanying the photograph was a message which said he was "sorry" and he put the 9 emblems back. Pfarr ultimately did complete the phone call to Waddell. He told Waddell to 10 come to his office to see him. Waddell told him he put the parts back. (RT. 72-73) 11 About 15-20 minutes later, Waddell did meet with Pfarr in Pfarr's office. Pfarr was 12 upset with Waddell because he and Waddell had been on the SWAT team together and he 13 thought it was very wrong of Waddell to put him in this position where his actions were in front 14 of fellow officers and more importantly, in front of at least one civilian—the tow truck operator. 15 Pfarr could only imagine how the tow truck operator could have interpreted Waddell's actions. 16 (RT. 73-74) 17 Waddell apologized to Pfarr and told him he took it too far. He said he was joking, but 18 that he should not have done it. He told Pfarr that he explained to the tow truck operator that he 19 was joking with the new sergeant. Pfarr compared this incident in his discussion with Waddell 20 to a recent incident where another officer had been arrested for theft and robbery. That event 21 had put SLOPD in the media spotlight. Now, this tow truck operator witnessed arguably 22 something that would not make SLOPD look very good and if motivated to disclose it, he 23 certainly could. Waddell appeared to understand that concern and appeared remorseful. (RT. 24 74-75) 25 Pfarr considered his options following this discussion with Waddell. He could have 26 written a formal memorandum to his Lieutenant. He did not. He let it go as a bad joke. He did 27 not inform his lieutenant of the occurrence. In retrospect, he agreed he should have made this 28 notification. (RT. 75-78) 25- APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENT Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3214 I Plan continued to work with Waddell and to gam experience in grade as a sergeant of 2 police. During this time, Pfarr's experience with Waddell at the Bentley scene lay dormant. At 3 a later point, that changed. The department had openings for a narcotics investigator position. 4 Pfarr knew Waddell had put in for it. This occurred in either September or October of 2013. 5 Pfarr became concerned about this because such positions have less supervision than those in 6 patrol. He did not think based on his actions at the Bentley accident scene that Waddell had the 7 right character for such a position. Moreover, as he gained more experience as a sergeant and 8 thought about the Bentley event more, he began to re -think whether it really was simply a joke. 9 He began to conclude that Waddell may have intended to steal those car parts. Based on that 10 change of thought, he went to Lieutenant Bledsoe first, since he was the Detective Lieutenant at 11 the time and, therefore, had responsibility for the positions for which Waddell had applied. He 12 told Bledsoe about the Bentley event. Bledsoe thanked him for bringing this to his attention and 13 advised him to also report the event to Lieutenant Smith. He did so that same day. (RT. 76-81) 14 Sergeant Amoroso (" Amoroso") was Waddell's direct supervisor. Waddell was 15 supervised by Pfarr primarily when Waddell worked on a shift Pfarr supervised. (RT. 104-106). 16 Pfarr explained that if he had a problem with Waddell in his function as a downtown bike 17 officer he would go to Amoroso about that since Amoroso was in charge of the bike unit. 18 Conversely, if it dealt with a CAT shift, Pfarr would go to Smith because Smith was in charge 19 of that detail. (RT. 106- 107). He also can deal with such officers directly in his function as a 20 sergeant. (RT. 107-108) 21 Regarding the photograph of the Bentley at the accident scene, he believed some of 22 them were taken by a member of the Traffic Call -Out Team. Who actually took them is likely 23 documented in the report, but he did not have any recall of who it was. (RT. 169; CX_ I 1). The 24 photograph marked 11B is of the Bentley upside down, in its final resting place after the 25 accident. The front of the car is facing the top of the page. Photograph 11 C is of the trunk of 26 the Bentley. It was a convertible. The top was up at the time of the accident. Photograph 11D 27 depicts the left rear and left front wheels. The wheel cover caps can be seen in this photograph 28 with the white `B" emblem. Photograph 11E depicts the left rear. Photograph I IF depicts fire 26 - APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3215 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 personnel and was probably taken by patrol. Photograph 11 G shows a view from farther away with poles. Pfarr is sure there are many more photographs of this scene thanjust these. He did not recall seeing any other picture. (RT. 169-173; CX -11) Pfarr was asked to review the department's exhibit book and try to find a document which Appellant's counsel knew was not present in the book. The document requested was the memorandum he prepared regarding the Bentley event. Pfarr reviewed and authenticated Appellant's Exhibit A (AX -A) as the memorandum he prepared and dated December 20, 2013 regarding the Bentley event. Pfarr then got confused as to the actual date of the Bentley incident. In spite of the fact that his memorandum stated it occurred on February 22, 2013; Pfarr mistakenly believed that was a typo and it occurred in 2012 5. Of course, Appellant's counsel, in our view, knew that this was an error of innocuous proportion, but desperately wanted to amplify it into some importance and kept pressing him on it. The City's counsel intervened and offered to resolve the entire debate with the police report of the Bentley accident. Finally, Pfarr settled on the dates in his memory being correct and that he wrote it on December 20, 2013; ten months after it occurred. (RT. 181-186; AX -A) It was this memorandum which started the administrative investigation of the Bentley event. This memorandum was dated after Waddell was placed on administrative leave. (RT. 188; AX -A) Pfarr testified that he thought Waddell was joking when the Bentley incident occurred in February, 2013. Over time he continued to think about the issue and when Waddell put in for a detective position, it began to concern Pfarr. (RT. 189) Pfarr was asked about the perception that if Pfarr minimized Waddell's culpability in the Bentley event and dismissed it as nothing more than a joke, it would tend to, in tum, minimize his own misconduct for not immediately reporting it. While it was not his intent at the time to cover up for Waddell, he could see how someone, after the fact, could conclude that and he admitted he should have reported it, immediately. After more time as a sergeant, he now s This was not the first time Pfarr was confused between 2012 and 2013. He became confused about the year he was promoted at several points in his testimony. (RT. 52; 87-88 and 95) 27_ APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPAK1Mh1N r Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3216 I believes Waddell intended to steal those car parts that night and it was not a joke. (RT. 213- 2 221; AX -Cl, CX -17, p. 17) 3 Pfarr acknowledged that he verbally counseled Waddell in his office after the Bentley 4 event occurred. He characterized it as an "ass chewing" in his interview. He discussed all the 5 ramifications of the event he could think of at the time. It was a lengthy conversation. (RT. 6 228-229) 7 On re -direct, Pfarr agreed with the premise that whether Waddell actually formulated the 8 requisite criminal intent to steal car parts that night or was simply engaging in joking behavior 9 with him, it was still poor judgment. It also constituted conduct unbecoming an officer 10 ("CUBO") and, whether intended as a joke or not, could potentially tarnish the image of the 11 SLOPD in the eyes of fellow officers and third party observers. (RT. 229- 230) 12 Pfarr explained in more detail how his thoughts evolved with regard to the Bentley event 13 as 2013 wore on and after the CAT shift event occurred. Eventually, he concluded that if 14 Waddell lied to him "about this silly thing that he didn't need to lie about, why wouldn't he also 15 lie about the Bentley parts?" (RT. 239-241) 16 LIEUTENANT JOHN BLEDSOE 17 Bledsoe said Pfau was promoted to Sergeant the same time he was promoted to 18 Lieutenant in January, 2013. Sometime in October of 2013, SLOPD publicized that it was 19 testing for detectives. That same time Pfarr came to him to discuss some of the detective 20 candidates. Pfarr expressed concern about one candidate — Waddell. He told Bledsoe about the 21 Bentley event and Waddell's involvement in taking car parts from the Bentley. Bledsoe 22 recalled the accident which involved the Bentley, but this was the first time he heard 23 specifically about Waddell's actions. Pfarr explained that the event, over time, had made him 24 question Waddell's integrity which is very important to the law enforcement function. As 25 Bledsoe received the information, he realized that Pfarr should have reported this event much 26 earlier. Indeed, Bledsoe told Pfarr to report it to his Lieutenant. (RT. 280-287) 27 Bledsoe confirmed that sergeants and lieutenants of police do not have the authority to 28 initiate administrative investigations. Only the Chief of Police has that authority. (RT. 287-288) 28 - APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENT Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3217 1 GREG BENSON 2 Greg Benson ("Benson") is employed by the SLOPD as a police officer and has been so 3 employed for 2'h years. Before that he spent five years with Pismo Beach Police Department. 4 He was on duty on February 22, 2013. During that shift he went to the scene of a traffic 5 accident involving a Bentley. When he arrived, Waddell was present. He observed Waddell 6 trying to remove the rear Bentley emblem from the car. He fust tried to remove the Bentley 7 emblem with his hand and fingers. He then walked to the tow truck operator and had some 8 verbal interaction with him which Benson could not hear. He then left the tow truck operator 9 and returned to the Bentley carrying a screwdriver. He again went to the rear trunk area of the 10 Bentley and tried to pry off the rear trunk emblem. He was not able to remove it; only to bend 11 the wings upward. (RT. 369-375) 12 Waddell then went to the steering wheel of the Bentley and using a knife tried to cut the 13 Bentley emblem from there. He tried to cut the leather `B" emblem out. He was not 14 successful. Waddell then moved to the center cap of one of the wheels. The center cap of the 15 wheels also had the Bentley `B" emblem on it. He went to one of the front wheels and using a 16 pry tool he popped out the center cap. He put the cap in his hand. (RT. 375-378) 17 Pfarr was on scene as well. Pfarr was in the same area as Benson and was also watching 18 what Waddell was doing. He noticed Pfarr turning red which based upon how well he knew 19 Pfarr meant that he was getting upset but holding it in. Pfarr confronted Waddell and told him 20 to put the part back. Waddell put the part back. Pfarr then left the location as did he. Before he 21 left, Pfarr said to Benson, "Let's get out of here" before we get involved in an Internal Affairs 22 investigation. Based on what Benson saw it was his impression that Waddell was taking the car 23 part because it's not every day a Bentley crashes, its parts are unique and he was taking it for 24 personal gain or to keep as a souvenir. (RT. 378-383) 25 Benson heard no discussion that night about the whole episode being a joke and it 26 appeared to him that Pfarr did not think it was a joke. (RT. 383). hi fact, Benson thought it was 27 a theft. (RT. 420; CX-19, p.16) 28 29- APPENDIX TO POST-HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENT Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3218 1 LIEUTENANT JEFF SMITH 2 In late 2013, Pfarr came to Smith and gave him some information about the Bentley 3 event. Pfarr had told Bledsoe about it before he told him. Pfarr explained what occurred at the 4 Bentley accident scene and what he thought about it at the time. He also described how his 5 thought evolved over time and what brought him to bring it up late. (RT. 485-488). 6 AS TO BOTH THE CAT SHIFT AND THE BENTLEY EVENTS 7 CAPTAIN CHRIS STALEY 8 Captain Chris Staley is employed by the SLOPD as a Police Captain. He has been 9 employed for 20 years, the last 6 years as a captain. He is currently the acting Chief of Police 10 for SLOPD. He has had that assignment since May, 2015. He was the Operations Captain and 11 as such oversaw the Patrol Division and has been in that assignment since 2012. He was the 12 Operations Captain when the CAT shift concept was conceived. (RT. 770-771) 13 Staley explained how the CAT shift was originally conceptualized from directed 14 enforcement of transient related behaviors on a multitude of shifts to an overtime assignment to 15 an assignment which was more permanent with 2 officers assigned to it. The 5 -hours overtime 16 portion of the CAT shift evolution began in April, 2013 and ran to January, 2014. The 5 -hour 17 shift ran from 11:00 a.m. to 4:00 p.m. (RT. 771-773) 18 Staley then explained that Waddell's potential misconduct at the scene of the Bentley 19 accident came to the attention of the department via a written memorandum authored by Pfarr. 20 As a result of that, Lieutenant Bill Proll conducted an administration investigation of that event. 21 (RT. 773- 774; AX -A). 22 Separate information came to the attention of the department that Waddell was thought 23 to have lied to a supervisor. That information also came in a written memorandum from Pfarr. 24 (RT. 774-775; CX -9) 25 Staley explained that honesty in police work is the cornerstone of the function. It is a 26 vital piece of what law enforcement officers do. Police officers testify in court and thus, it has 27 to be believed that officers are telling the truth. It is a fundamental part of the job. (RT. 775- 28 776) 30 - APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3219 1 When Staley read Pfarr's memorandum about the CAT shift event, Staley noted that at 2 least Pfarr believed he had been lied to by Waddell. The department did not immediately place 3 Waddell on administrative leave with pay based solely on Pfarr's word. The department wanted 4 to ensure Waddell had an opportunity to explain what occurred and clarify something that may 5 have been no more than a miscommunication. Placing someone on administrative leave is 6 something they take very seriously. (RT. 776-778; CX -9) 7 An administrative investigation of the CAT shift event was conducted by Lieutenant 8 Bledsoe. Bledsoe interviewed Pfarr, Smith and others as well as Waddell. Waddell's interview 9 occurred on December 12, 2013 which was followed by a re -interview of Smith later that same 10 day. The subject matter of that interview was to clarify whether Smith had given blanket 11 permission to officers to come in late for that CAT shift. Following his re -interview with 12 Smith, a meeting was held with Bledsoe, Staley, Storton and Police Chief Gesell. The reason 13 for the meeting was to discuss Bledsoe's impression of his interview with Waddell. Bledsoe 14 explained that it was his impression Waddell had lied to him in the interview. It was decided, 15 based on that, to place Waddell on administrative leave with pay at that point. At that point the 16 department had a clearer picture as to whether Waddell lied to Pfarr other than just what Pfarr 17 had said. Waddell was not able to recast the situation between him and Pfarr into just a 18 misunderstanding. So, he was called in and placed on administrative leave at approximately 19 7:30 p.m. ( RT. 778-781) 20 Staley referenced a blank zippered folder which he carries around with him for most of 21 each day. Inside the black zippered case is a black cardboard file. Staley said the black 22 cardboard file is a complete copy of both administrative investigations involved in this case. He 23 had the file prepared before the hearing started. He requested it be prepared by Sue Sanders, 24 ("Sanders"), the Police Chief s assistant. She has been the Chief s assistant since 2013 and was 25 in that same position when the Notice of Intent to Terminate Waddell was prepared. Sanders 26 created the file Staley had in his possession from the original administrative investigative files 27 kept in her office. The photographs that were used to create City Exhibit 11 in this case were 28 also contained in Staley's "dummy" file. And from other documents contained in his "dummy" 31- APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARI'MEN IWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3220 I file, Staley was able to recall Waddell was placed on administrative leave with pay at 7:35 p.m. 2 on December 12, 2013. (RT. 781-786; CX -11) 3 Following this point, both administrative investigations continued to their conclusions. 4 Each investigator prepared a written report of their respective investigation. Staley reviewed 5 both reports. Staley identified the investigative report prepared by Bledsoe regarding the CAT 6 shift event. He also identified the written report prepared by Proll regarding the Bentley event, 7 Staley reviewed both reports since his role as a Caption of Police required that he provide a 8 written recommendation to the Chief of Police regarding Waddell. (RT. 786- 788; CX -7 and 8) 9 Lieutenant Proll made a finding that Waddell did in fact remove vehicle parts in 10 violation of Vehicle Code § 10852. Lieutenant Bledsoe made a finding that Waddell lied in his 11 text message to Pfarr with the intent to deceive; that he lied again in his meeting with Pfarr that 12 same day, October 19, 2013 when he told Pfarr he had permission from Smith to be late and he 13 lied in his interview as well. Staley concurred with both findings and provided a written 14 recommendation to Chief Gesell. In his recommendation, Staley explained why he concurred 15 with each investigators findings and made a recommendation on the proper discipline to 16 impose. He recommended Waddell be terminated for cause. The Chief accepted his 17 recommendation. (RT. 788- 791; CX -4 and 6) 18 At that point, Staley prepared the Notice of Intent to Terminate on behalf of Chief 19 Gesell. He asked Sanders to prepare copies of the complete investigation of both events, much 20 the same way he asked her to create his "dummy" file which included the photographs and then 21 he connected the copies of the investigations to the Notice of Intent and served it on Waddell. 22 (RT. 791-794; CX -5) 23 A Skelly conference was thereafter held with Waddell and his legal counsel. He was 24 present the day the Skelly occurred but did not actually participate in it. He and the Chief 25 discussed the Skelly after it was concluded and the Chief decided termination for cause was still 26 the appropriate penalty. Staley concurred with that decision especially for Waddell's repeated 27 lies. (RT. 794-795; CX -4) 28 32- APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPAKIMEN IWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3221 I On cross-examination, Staley recalled reviewing the photographs associated with the 2 Bentley event when he reviewed the investigation preparatory to making his recommendations. 3 (RT. 808- 809; CX -11) 4 Staley explained that Waddell's text messages to Pfarr were abundantly clear and could 5 not be construed any other way other than a lie and coupling that with the statements he made to 6 Pfarr after he arrived constituted Staley's overwhelming evidence of false statements. (RT. 7 817-818-; CX -6) 8 Staley was allowed to testify that Captain Storton's initial recommendation was for a 14- 9 20 day suspension. Storton's recommendation was never made final. (RT. 832-833) 10 On re -direct, Staley met with Sanders on July 9, 2015 in her office. Sanders pulled out 11 the original investigative records which comprise the source material for Staley's "dummy" file. 12 The photographs of the Bentley used as evidence in this case were in the back of the original 13 investigative file. (RT. 838-839; CX -11) 14 Waddell and Sergeant Amoroso are very close. They are also neighbors and socialize 15 together. (RT. 839-840). 16 Indeed, the photographs about which so much consternation was made at the hearing, 17 were clearly described by Proll in his written investigative report. ( RT. 841-842; CX -8, p. 24) 18 And also, his interpretation of what Benson said about the Bentley event being a matter 19 of "personal gain" for Waddell and a "theft" was actually based on what Benson said in his 20 interview with Proll. (RT. 842-845; CX -19, pp. 15- 16) 21 Staley clarified that at the time Captain Storton provided his recommendation regarding 22 this case he had less than a year time in grade as a Captain of police. And Staley believed 23 Storton had not reviewed any administrative investigations and had not prepared an executive 24 recommendation before. When Staley was informed what Storton's recommendation was, he 25 was shocked. He expressed his shock to Storton and it was Staley's opinion that Storton was 26 quite insecure in his role and was unsure which direction to go with his recommendation. (RT. 27 845-847). 28 33- APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENIWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3222 I APPELLANT'S CASE -IN -CHIEF 2 CAPTAIN KEITH STORTON 3 Captain Keith Storton ("Storton") was called by the appellant. Captain Storton confirmed 4 that he reviewed some of the material supplied by Bledsoe with his administrative investigation 5 of the CAT events and that he made an initial recommendation to the Chief. Storton confirmed 6 this was the first time he ever had a chance to provide an executive recommendation in this 7 context and he based it on a previous case. He recommended an 80 hour suspension and 8 removal from the SWAT team be imposed on Waddell. (RT. 865-873; CX -7) 9 Storton confirmed the Bentley event was not brought to his attention until December, 10 2013 when Pfarr advised him of it. (RT. 875-876) 11 Storton further explained that the Chief did not accept his recommendation and advised 12 him that the prior case upon which Storton relied occurred under the direction of a different 13 police chief and that Chief Gesell's idea of what the discipline should be was different. (RT. 14 880-881) 15 On cross-examination, Storton confirmed he had less than a year time in grade as a 16 Captain when he reviewed the CAT shift investigation. In fact, he had about 10 months as a 17 Captain and had been a lieutenant only about 2 years before his promotion. He had never made 18 an executive recommendation before this one. He did not discuss his thoughts about the 19 recommendation with the Chief beforehand. Storton recalled that both Staley and the Chief of 20 Police were shocked when he conveyed his thoughts about this case to them. Indeed, the Chief 21 was very matter of fact about the fact that the previous event used by Storton as comparison 22 occurred 5-6 years ago, under a different police chief and he was the new chief. He also was 23 well aware that this was simply his recommendation and that other persons above his pay grade 24 might disagree with it and decide not to follow it. And ultimately, this decision was for the 25 Police Chief to make. Since then, he has more time in grade, has gone to more management 26 oriented training conferences and looking back on it now, with that additional time and training, 27 he would recommend termination of employment on Waddell. (RT. 881-888) 28 34- APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3223 I Storton's recommendation was solely based on his review of the CAT shift events. (RT. 2 892) 3 Storton struggled with making his recommendation. He reached out to the Human 4 Resources Director for another perspective on it. The written recommendation he submitted to 5 the Chief was only a working document. (RT. 894) 6 CAPTAIN CHRIS STALEY 7 Staley was recalled as a witness in appellant's case. He was shown a series of emails 8 which appeared to indicate a progression of the administrative investigations being forwarded 9 through the chain of command to the City Manager Katie Lichtig in June, 2014. There were 10 also many revisions to drafts of the prior investigation report and it was reviewed by many 11 persons including the Human Resources Director and City Attorney. (RT. 912-916; 921- 924; 12 AX -Q and S) 13 Staley said the April 21, 2014, reference on his executive summary could mean nothing 14 more than when he began preparing the document. He finished it on or about May 8, 2014. He 15 sent it to the Chieffor review. The Chief concurred with Staley's recommendation thereafter. 16 Yet, even though there was a meeting of the minds as to this case between Staley and the Chief, 17 Waddell was still not provided with any Notice of Intent to Discipline until approximately 4 18 months later on September 9, 2014. And the reason for that length of delay is because it was 19 the police chief s responsibility to advise the City Manager of his intentions with regard to 20 Waddell. Staley said it would not be wise for the police chief to move forward with the 21 termination of a police officer without bringing the City Manager in on the decision. Other 22 persons are brought into the discussion, as integral players, as well, such as the Human 23 Resources Director and the City Attorney. All of these individuals have the authority to stop 24 the proposed termination of Waddell and/or recommend changes or additions. All of these 25 reviews were taking place before Waddell was noticed for termination of employment and the 26 reason for that is the department wanted to ensure this action was done substantively and 27 procedurally correct. And during this time period between May and September, 2014 when 28 these reviews were occurring, Waddell was getting paid. (RT. 924-930; CX -6; AX -S) 35 - APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMEN'1Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3224 I KATIE LICHTIG 2 Katie Lichtig ("Lichtig") is the City Manager for the City of San Luis Obispo. She has 3 been the City Manager for 5`/ years. She has the responsibility to review and approve any case 4 in which the termination of an employee is proposed. Her review in this regard is contained in 5 the City's Municipal Code and Personnel Rules. She reviews the investigative file in order to 6 perform her required function. (RT. 931- 938; CX -1; AX -S and Q) 7 Lichtig takes her responsibility in this regard very seriously. Her involvement in this 8 review is to ensure that the investigation warrants the action proposed because it is a serious 9 action to take. She did, in fact, review the investigations, met with the Police chief, asked 10 questions, met with the Human Resources Director and the City Attorney and ensured that she 11 and everyone else in the chain all felt that termination was the appropriate penalty. ( RT. 938- 12 942; 944) 13 On cross-examination, Lichtig was able to express her background. She was previously 14 a federal agent with the U.S. Treasury Department. She also spent time investigating white 15 collar crime and conducting internal affairs type investigations for the U. S. Department of 16 Education. She has 30 years of public sector experience including local governments before 17 San Luis Obispo. Lichtig brought all that training and experience to bear when she reviewed 18 the investigative materials related to Waddell. She takes this part of her job seriously because 19 she has to maintain the integrity of the organization as well as be fair to the involved employee. 20 (RT. 946-947) 21 As the City Manager, she is the supervisor of many department heads, including the 22 Chief of Police. It is her expectation that all department heads make her aware of significant 23 events which may be happening under their command including significant disciplinary action. 24 Lichtig insists on this because she does not want to be blindsided. Indeed, such notification is 25 again required by the City Municipal Code. And it would be her expectation that she be 26 informed before the decision is made. (RT. 947-949; CX -1) 27 Lichtig does allow her department heads to have a certain amount of autonomy in 28 handling their respective departments. For example, Lichtig does not expect to be informed of 36 - APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3225 I every internal affairs investigation that is going on. It depends on the type of misconduct being 2 alleged. If an officer is suspected of committing a felony violation of law, she would expect to 3 be informed. For something less serious, she would not. She would allow the department to 4 complete its investigation and then when the department head decided to take a significant 5 disciplinary action, she would expect to be informed at that point. (RT. 949-951) 6 Lichtig reviewed Staley's executive summary. She would have expected the police 7 chief to inform her of the proposed termination after he reviewed Staley's executive summary. 8 Using the email string, Lichtig confirmed that the Chief did inform her of the proposed decision 9 to terminate Waddell about 5 weeks after Staley sent his executive summary to the Chief. This 10 would be in conformance with both the Municipal Code and her expectation. Lichtig responded 11 to the Chief saying to him she would like to review the entire investigative file. She made that 12 request possibly because she is a former investigator and also it is her responsibility to ensure 13 termination of a city employee was the correct decision. She feels confident in reviewing an 14 internal affairs investigation and making her own assessment of its quality and competency. 15 She has done this before and told a police chief in the past that he was not to go forward with 16 his initial decision. (RT. 951- 955; CX -6; AX -Q) 17 Ultimately, both investigative files were delivered to her and she reviewed them. 18 Lichtig was shown the notice of intent served on Waddell in this matter. It was dated 19 September 9, 2014. Given that date and the transfer of the investigative records for her review 20 in June, 2014, that helped Lichtig pinpoint that her review occurred before the Skelly 21 conference happened in this case. And her review was mirrored by the Human Resources 22 Director and the City Attorney. All of this information demonstrated from Lichtig's point of 23 view, that everyone was taking this matter very seriously. During this four month period of 24 time the city was doing its due diligence to ensure the investigation conclusions supported 25 termination, everyone was working to ensure the decision was the right one. (RT. 955-959; 26 CX -5; AX -Q) 27 Finally from reviewing the Notice of Termination of Employment and the Notice of - 28 Intent, Lichtig was reminded that a Skelly conference was held with Waddell on September 11, 37- - APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3226 1 2014. She did not attend the Skelly. Given the fact that there was a 3 -week period of time 2 between the termination notice and the Notice of Intent, she recalled that she was consulted 3 following the Skelly. Nothing was presented at the Skelly which changed anybody's mind 4 regarding termination of Waddell. ( RT. 959-962; 968; CX -4 and 5) 5 Lichtig recalled reviewing more than one photograph of a crashed car as part of her 6 review. (RT. 965) 7 OFFICER GEORGE BERRIOS 8 Officer George Berrios (`Berrios") has been a SLOPD officer for the past 8 years. He 9 has worked many assignments with Waddell over the years. (RT. 972-974) 10 Having worked with Waddell for the past 8 years it was his opinion that Waddell was a 11 truthful and ethical person. (RT. 985- 986) 12 On cross-examination Berries admitted that he considered Waddell to be a real close 13 friend. Their families went camping together and their families knew each other. Berrios 14 admitted his impression of Waddell's integrity is based on the sum total of working with him in 15 various assignments the past 8 years, rather than any review he has independently done of the 16 materials which comprise the basis of the disciplinary action and hearing involving Waddell at 17 which he testified. He also admitted that if he were allowed to review all the material which 18 comprised this case he may be convinced that Waddell does not have the level of integrity he 19 thought Waddell had. (RT. 987-988; 1000- 1002) 20 SERGEANT JANICE GOODWIN 21 Sergeant Janice Goodwin ("Goodwin") is employed as a Police Sergeant by SLOPD and 22 has been employed by SLOPD for 19 years. She has been a sergeant for 10 years. She knows 23 Waddell from her time supervising him in patrol and traffic. (RT. 1014-1016). 24 Based on only her experience with Waddell, she has never had a problem with him. She 25 has a personal relationship with him as well as a working relationship. He has never lied to her. 26 (RT. 1026 and 1029). 27 Goodwin agreed her opinion of Waddell is based on working with him at SLOPD. She 28 did not know him before he began working at SLOPD. She admitted that other than the portion 38 - APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEFAKIN1EN tWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3227 1 dealing with her own interview, she knew nothing else about the case against Waddell which 2 brought us to the hearing. She could not say whether if she had a chance to review the materials 3 she could be convinced of a different result. (RT. 1033- 1035) 4 Goodwin also said if Waddell did take something off of the Bentley which did not 5 constitute evidence it would be " a stupid thing to do" but that it would not surprise her because 6 nothing "surprises [her] anymore in the, realm of human existence". Moreover, she has had a 7 situation in her life when a close friend she trusted a lot disappointed her. (RT. 1035- 1037; AX - 8 V, pp. 8-10). Goodwin clarified her statement that it would be a stupid thing to do to take 9 something from the Bentley as a trophy. (RT. 1043) 10 SERGEANT BRIAN AMOROSO 11 Sergeant Brian Amoroso ("Amoroso") is employed as Police Sergeant and had been 12 employed by SLOPD for the past 12-13 years. He is a close friend of and up until recently was 13 neighbors with Waddell. (RT. 1045-1047) 14 Amoroso recalled that in November or December of 2013 several special assignments 15 within the organization became open. He recalled talking with Pfarr about who would make a 16 good sergeant. It was Amoroso's opinion that Waddell would have made a good sergeant. (RT. 17 1059-1061) 18 Amoroso said at the time the Bentley event occurred, he was Waddell's direct 19 supervisor. He never heard anything concerning Waddell having vandalized or tampered with 20 the Bentley at the time of the event. He never heard of any joke played on Pfarr that night. He 21 never heard that Pfarr was upset with him for anything that night. He would expect to be 22 informed if another supervisor had a problem with an employee he directly supervised. He 23 would inform a supervisor of an employee if he had a problem with that employee. (RT. 1059- 24 1064) 25 When he and Pfarr were discussing who would make a good sergeant, Pfarr also brought 26 up the issue with Waddell removing the wheel hub cover from the Bentley while at the accident 27 scene. Amoroso said that was the first he had ever heard of that event. Amoroso did not do 28 39- APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARI'MEN IWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3228 I anything with this information because the Lieutenant was already aware ofit. Pfarr told him 2 the Bentley event angered him. (RT. 1068-1071) 3 Amoroso said that although he and Waddell did discuss playing a prank on the newly 4 appointed Sergeant Pfarr, they did not discuss any particular prank to pull on him. Amoroso 5 then left Waddell at the Bentley accident and went home. (RT. 1074- 1075) 6 When Amoroso found out what Waddell did at the Bentley scene during his interview 7 with Proll, he expressed that it would be the "type of activity [which] would be exactly what we 8 would have been referring to as a funny joke, you know, basically, flip out a new sergeant". 9 Amoroso confirmed his continued belief in that statement and explained why he had that belief. 10 (RT. 1075-1077; CX-23, p. 10). 11 Amoroso said typically a practical joke which was successful is shared around the 12 department quickly among the personnel. Pfarr told him he verbally reprimanded Waddell in 13 his office after the event occurred. Nevertheless, Amoroso did not hear about this event from 14 the personnel in the department like it would have been had it been a more successful practical 15 joke. (RT. 1077-1079) 16 Amoroso supervised Waddell for 2V2 years and found him to be a great officer. He was 17 motivated and proactive. He had no problem with Waddell. (RT. 1122- 1125). Pfarr came to 18 him and informed Amoroso that he found Waddell in the downtown office watching a movie. 19 This occurred shortly before Waddell's Europe trip which his family took in June, 2013. 20 Amoroso was not overly concerned about that event, because it is really hard to ride bike patrol 21 for 12 hours nonstop so breaks are taken on those shifts. At first, Amoroso did not recall the 22 type of movie Pfarr found Waddell watching. (RT, 1125- 1128). Amoroso told Waddell, upon 23 his return from Europe, to be sure he was out there working because Pfarr was keeping track of 24 what was going on. (RT. 1133-1134) 25 On cross-examination, Amoroso acknowledged the shift on which Pfarr found Waddell 26 watching a movie was not a 12-hour bike patrol shift, but a CAT shift. Amoroso acknowledged 27 CAT shifts were either 5 or 6 hours in length and typically officers do not take a lunch break on 28 a CAT shift. Moreover, CAT shift patrol duties are not always accomplished on bikes. Many 40- APPENDIX TO POST-HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3229 1 are foot patrols. Pfarr would be the responsible sergeant on a CAT shift, not Amoroso. 2 Amoroso admitted that while he did not recall the type of movie Waddell was watching, it was a 3 theatrical movie of some type rather than a police training video. This still did not concern him 4 because Amoroso trusts Waddell and knew his work ethic. Amoroso though admitted that he 5 had " no clue" what was contained in the materials which led us to the Waddell disciplinary 6 action and hearing. (RT. 1134-1144) 7 Amoroso described his advisement to Waddell about Pfarr as a "heads up", rather than a 8 warning. Amoroso also agreed that one of the roles of a sergeant of police is to ensure officers 9 under their command are doing what they are supposed to do and earning an honest paycheck. 10 (RT. 1144-1145) 11 Amoroso, over the five or so years he worked with Waddell at SLOPD, became very 12 good friends with him. They also are neighbors who visit with one another off duty fairly 13 regularly. (RT. 1145-1148) 14 That type of regular contact between the two men would have been occurring when the 15 Bentley accident occurred. Amoroso said both he and Waddell were on duty when the Bentley 16 accident call came out. His initial reason for going to this accident was because Pfarr was such 17 a new sergeant. Yet, the first stated reason he gave Lieutenant Proll in his interview for going 18 to the scene was to see if the people on scene needed help. (RT. 1148-1153; CX -23, p. 1) 19 Additionally, he thought that he drove the FST truck to the scene while Waddell drove a 20 Crown Victoria there. Driving separately made sense since Waddell was part of the Accident 21 Call Out Team and he was not. (RT. 1153- 1154) 22 Pfarr arrived after he and Waddell arrived. He and Pfarr discussed calling out the 23 Accident Call Out Team. Then Amoroso left the scene. However, while there he and Waddell 24 conspired to prank Pfarr. He and Waddell spoke about how funny it would be to play a joke on 25 the new sergeant. In fact, he told Proll he said to Waddell, "it would be funny to fuck with 26 [Pfarr]". He also used the words "screw" and "haze" in the planning discussion with Waddell. 27 And Amoroso was unconcerned, almost boastful, about using such profanity in an 28 administrative interview which was being recorded and which would be reviewed by many 41 - APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3230 I others. He said, "I have a big mouth". The discussion about pranking Pfarr ended there. There 2 was no discussion as to what exactly he and/or Waddell would actually do to prank Pfarr before 3 he left the scene. (RT. 1156- 1161; CX -23, p. 9) 4 Amoroso was not present at the scene when Waddell pulled his prank of Pfarr. He had 5 gone home after leaving the scene in the FST truck. Amoroso confirmed the very next time he 6 heard anything about this event was when Pfarr brought it up in relation to sergeant or special 7 assignment candidates in August, 2013, a good six months after the event. Amoroso denied that 8 Waddell came to him a day or so after the Bentley event and said anything to him about trying a 9 prank on Pfarr after he left and it sure did not go well. And this was true even though the two 10 men were close friends and spoke to each other often. (RT. 1162-1167) 11 Amoroso's fust reaction to Pfarr telling him that Waddell removed parts from the 12 Bentley, something he had never heard before, was that it did not make sense and that there was 13 "no way" it occurred. His reaction also was surprise that Pfarr had not told him before this due 14 to Amoroso being Waddell's direct supervisor. It was not until later in the discussion with 15 Waddell that it dawned on Amoroso that what Waddell did related back to his discussion with 16 him at the scene to prank Pfarr. And in telling Proll about this, Amoroso said Waddell's 17 conduct "would, that type of activity which would be exactly what... something like that would 18 be what we would have been referring to as a funny joke on ... a new sergeant". Amoroso 19 acknowledged the same sentiment at the hearing. When pressed, however, Amoroso admitted 20 that using a pry tool to damage the property of another would not have been what he expected 21 of Waddell. And using a pry tool to damage another's property in view of a tow truck operator 22 would not have been what he expected of Waddell. Same for cutting leather from the steering 23 wheel. But he had less angst of removing the wheel hub cover from the Bentley because that 24 does not cause permanent damage. (RT. 1167-1172; CX -23, p. 10) 25 After first hearing about the events surrounding the Bentley from Pfarr six months later 26 for the first time, Amoroso still denied that he had any subsequent conversation with his good 27 friend Waddell afterward. (RT. 1172-1173) 28 42- APPENDIX TO POST -HEARING BRIEF OF TIS SAN LUIS OBISPO POLICE DEPAKTMFNIWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3231 I Amoroso did not even know, for sure, that Waddell was indeed joking that night. In 2 fact, he only came up with two explanations for his conduct; (1) theft for personal gain or.(2) a 3 joke and he could not say which one it was. (RT. 1173-1174) 4 Amoroso also found it odd when Pfarr told him that Waddell's reaction to Pfarr that 5 night was to be apologetic. Amoroso found it odd that Waddell did not bring up his 6 conversation with him earlier that night, because it would tend to support the fact it was all a 7 joke. When it was suggested that the reason Waddell did not bring up the conversation was 8 because it never occurred, Amoroso got very defensive and proclaimed the truth of his 9 testimony. (RT. 1174-1176) 10 He admitted to improperly discussing the existence of a pending administrative 11 investigation into the Bentley event to Waddell while the two men stood in one of their 12 driveways about a week before an interview with Proll. (RT. 1176- 1177) 13 Amoroso was allowed, over objection, to say he never heard in the six-month period of 14 the time between the accident and his discussion with Pfarr, that the crime scene had been 15 tampered with and the criminal case compromised by the acts of a SLOPD police officer. (RT. 16 1182) 17 LIEUTENANT BILL PROLL 18 Lieutenant Bill Proll ("Proll") has been employed with SLOPD since 1986. His current 19 rank is Lieutenant. He knew Waddell from working with him and supervising him at SLOPD. 20 (RT. 1191-1193) 21 Proll was assigned to do the administrative investigation of the Bentley event in 22 December, 2013. Before testifying in the hearing he reviewed his report and some previous 23 drafts of his reports. He first interviewed the tow truck operator who he just happened to find 24 by accident while he was on duty one day. Because the interview was impromptu, he was not 25 able to record it. The tow truck operator's statement about the event, "If I could use my 26 imagination and I was back in high school" meant to Proll that the tow truck operator likened 27 what he saw Waddell doing that night was taking vehicle parts. (RT. 1193-1198; 1201; CX -8. 28 p. 4) 43 - APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPAKI MEN IWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3232 1 2 3 4 5 6 7 a 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Proll said he spoke to the insurance adjustor for the Bentley about trying to get any photographs of the car. He did get photos from the adjustor. He did not recall how many. Other photos were department photos. (RT. 1202- 1203) Proll said the photo of the steering wheel came from the insurance adjustor. The remaining photos were department photos. (RT. 1203-1204; CX -8, p.24 and CX -11) He interviewed Officer Colleen Kevany who was at the scene as part of the Accident Call -Out Team. She told him they were going to take a little symbol from the car as a trophy for Traffic as kind of a joke. The idea of taking a symbol as a trophy originated with Waddell. It was not a joke on Pfarr according to Kevany. (RT. 1222- 1230; 1370-1372; CX -8, pp.6-7) He next interviewed Officer Robert Cudworth ("Cudworth"). Cudworth told him he did not see Waddell removing any car parts; the only thing Cudworth added to the case is he heard Waddell ask the tow truck operator for a screwdriver and some of the conversation between Pfarr and Waddell. (RT. 1232-1233) Proll then interviewed Amoroso. Amoroso describes his conversation with Waddell about joking with Pfarr. But Amoroso told Proll that Pfarr was at the accident scene when they had that conversation because both men were looking at Pfarr while they were talking. ( RT. 1235-1237) Proll interviewed Goodwin who provided no real helpful information to the investigation. (RT. 1243-1244; 1376-1377) Proll was not able to immediately recall the source for the information that Pfarr called Waddell at 5:08 a.m. the morning of the accident to tell him to put the parts back on the Bentley. (RT, 1268). Later, Proll recalled that Pfarr checked his phone record and informed Proll the call was made at 5:08 a.m. (RT. 1358; 1378-1379). Proll was shown several previous versions of his investigative report and was asked questions about certain edits made to those drafts by Staley and the Chief. All that came out of this inquiry was that Proll was the principal author of the report. If a comment was made or change suggested, it was limited to a single word choice or a grammar change. (RT. 1317- 1335; 1364-1365; 1386-1388; AX -Y -A; Y -C; Y -D; Y -E; Y -F; P and CX -8) 44- APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3233 I When Proll prepares a witness interview summary, he plays the recorded interview to 2 himself with ear buds and then creates an accurate statement of each question and answer. In 3 fact, this was demonstrated by comparing the first few questions of Pfarr's interview to his 4 report. (RT. 1365- 1368; of-, CX -8, p.12 to CX -17, p. 1) 5 Proll said the reason the CAT shift investigative report was sent to him was because it 6 was a template to follow in formatting such a report to conform to new policy guidelines and 7 that was the only reason for it to be sent to him. (RT. 1368-1370) 8 Proll said Kevany also told him that she would expect Waddell to have known that 9 taking a vehicle part as a Traffic trophy was wrong and he should not have put a sergeant in that 10 position. ( RT. 1371; CX -8, p.7) 11 That portion of his investigative report wherein he summarized Amoroso telling him he 12 had the conversation with Waddell about pulling a joke on Pfarr "while they were looking at 13 Pfarr who was standing nearby" actually sources from Amoroso's interview transcript where he 14 said to Proll, "Chad, I remember having a conversation with Kevin on scene while we were 15 looking at you". (RT. 1373-1375; of; CX -8; pp.8-9 to CX -23, p.9) 16 Proll said photograph 11-A came from the insurance adjustor. The remaining photos 17 came from SLOPD personnel on scene. The annotation on some of the photographs were done 18 byhim. (RT. 1379- 1382; CX -8, p.15; CX -11) 19 His conclusion paragraph said that Waddell's conduct was witnessed by other 20 employees and by at least one citizen was based on the SLOPD employees who were there and 21 saw it and also the tow truck operator who was the citizen to whom he was referring in the 22 paragraph. In fact, Proll said that while the tow truck operator said he saw nothing, he did hit 23 him cold when he did not know he was going to be interviewed and it was his sense that the tow 24 guy knew more than he was letting on. And everyone else present at the time, including 25 Waddell, said the tow truck operator was present when Waddell did what he did. (RT. 1382- 26 1386) 27 In trying to summarize each witnesses statement given to Proll, what he received from 28 the tow truck operator, Sean Brady ("Brady") was while he did not see an officer remove any 115 - APPENDIX TO POST -HEARING BRIEF OF TIM SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3234 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vehicle parts, an officer did borrow a screwdriver from him which would have been used to remove vehicle parts and he did not think it was a joke. John Walsh ("Walsh") saw nothing. Kevany said Waddell brought up taking a car part for a trophy for Traffic and it was only a joke between she and Waddell; it had nothing to do with Pfarr. It was not a practical joke on Pfarr. Cudworth heard Waddell ask the tow guy for a screwdriver so that according to Cudworth, he could remove a Bentley emblem from the car. Cudworth did not think it was a practical joke on Pfarr. He thought the taking of something would have been for personal gain. Amoroso thought for sure it was a practical joke, even though he was not there and there was no planning. Berrios saw nothing. Goodwin gave him nothing. Benson saw Waddell try to pry the rear emblem from the car, try to cut the emblem from the steering wheel, remove a wheel hub cover and he did not think it was a joke at all. Pfarr was unsure and evolving and Waddell said it was all a joke. And the only two persons who definitely believed it was a joke on Pfarr are also neighbors and good friends. From this summary the following "what -you -had" chart emerges: Definitely a practical joke Definitely not a practical -joke Definitely a joke - trophy. Nothing to do with Pfarr Nothing Amoroso Cudworth Kevany Walsh Waddell Benson Berrios Brady Goodwin Pfarr (evolving) Pfarr (evolving) RT. 1388-1397) Proll said in his interview with Waddell, he admitted he responded to the accident scene; admitted asking the tow truck operator for a screwdriver; admitted he removed one of the wheel hub covers from the front rear passenger side of the Bentley and picked up a second wheel hub cover which came off in the crash. He knew the tow truck operator saw him do these things. He knew Benson and Pfarr saw him do these things. That Waddell thought the Bentley emblems were unique and cool. That Pfarr confronted him and told him to put the parts back APPENDIX TO POST -HEARING BRIEF OF TIM SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3235 I and he did. That Waddell realized he had made a bad choice and took responsibility for his 2 actions. Waddell's statements on their own, according to Proll, intended as joke or not, show 3 that he knowingly and willfully violated Vehicle Code §10852. (RT. 1397-1400) 4 Proll based his conclusion that Brady did not seethe events of that night as a joke based, 5 in part, on his re-interview with him in which he said no officers on scene mentioned to him the 6 taking of the wheel hub covers was part of a joke. (RT. 1430) 7 SERGEANT CHAD PFARR 8 Pfarr was recalled by appellant. Pfarr confirmed he checked his phone bill and that is 9 how he was able to later tell Proll the call was at 5:08 a.m. ( RT. 1445-1446) 10 Pfarr said he may tend to text in a sloppy manner if the text exchange is with his brother 11 or his wife. However, if he is having a text exchange with one of the Captains or a text 12 exchange is about a serious matter, he tries to be more professional. The text exchange he had 13 with Waddell on October 19, 2013 was about a serious matter. (RT. 1522-1523). Pfarr also 14 thought that some of Waddell's message did not make sense to him but the "yes, sorry" and 15 "I'm on the way in now" was not ambiguous or vague to Pfarr. As for Waddell's second text 16 message to him, Pfarr thought that message was clear, unambiguous and not influenced, in his 17 opinion, by auto-correct. ( RT. 1523-1525; CX-10) 18 Pfarr said the only reason Waddell's lateness and leaving the shift early on October 12, 19 2013 became an issue which required documentation was because the events of October 19, 20 2013 occurred. If Waddell had come in on time on October 19, 2013 Pfarr would have 21 discussed the events of October 12, 2013 with him as planned. Had Waddell responded 22 positively to that discussion, the issue when have been concluded and no documentation of it 23 would have been made. (RT. 1525- 1527) 24 LIEUTENANT JEFF SMITH 25 Smith was called again by the appellant. In questioning conducted by the Hearing 26 Officer of Smith, Smith confirmed that he did not give permission to Waddell on October 18, 27 2013 to report late for his shift on October 19, 2013. Further, Smith was asked to review a 28 portion of Waddell's interview transcript wherein Waddell states, in pertinent part, "I didn't say 47- APPENDLY TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3236 I to him (Pfarr) that he (Smith) gave me permission for that day. I said that Smith's okay with me 2 coming in late. I believe that's how I said it. Smith's okay with me coming late". After 3 reviewing that statement, the hearing officer asked Smith a very simple question, "Were you 4 okay with him coming in late?" Smith's response was "absolutely not, unless he was given 5 permission. There's not a general rule that I (Smith) have with any of my officers that they can 6 come in late and leave whenever they want". The hearing officer then pointed out to Smith 7 another portion of the interview transcript with Waddell wherein Waddell said yes, that Smith 8 had given him permission on past dates to come in late on two particular occasions. Waddell 9 continued by saying that since Smith had given permission to come in late on those other 10 occasions, that he (Waddell) had "construed the situation" to mean it was okay that he came in 11 late all the time and that he may have "overstepped his bounds" in doing so. To that testimony, 12 the hearing officer again posed a very simple question: "Did you give him (Waddell) blanket 13 permission to come in as he says here?" Smith responded: "No". "Did you give anybody 14 blanket permission?" Smith said, "No". (RT. 1608-1612; CX -21, p.7 - 8) 15 Finally, Smith confirmed that the issue in this case is not that Waddell was 30 minutes 16 late to work on October 19, 2013; the issue is that he lied to Pfarr about him (Smith) giving him 17 permission to do so. (RT. 1622) 18 CAPTAIN KEITH STORTON 19 Storton again said in looking back on his initial decision to only recommend an 80 hour 20 suspension and removal from the SWAT team, his decision was wrong. (RT. 1644-1645; AX - 21 II) 22 KEVIN WADDELL 23 Waddell was hired as a police officer by SLOPD in July, 2007. Prior to that he was a 24 police officer at Santa Maria Police Department for 5 years. Waddell explained his academy 25 days and the various assignments he worked. He also described the various training classes he 26 has attended. (RT. 1663-1673) 27 28 48- APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARIMEN IWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3237 I Waddell then authenticated his certificates of appreciation he has collected over his 2 career. His counsel channeled her opening statement and called the packet a "standard 3 awesome officer" packet. (RT. 18; 1682-1685; AX-JJ) 4 Waddell described the goal of the CAT shift as he understood it and how officers like 5 him signed up for CAT shifts in 2013. (RT. 1685-1689) 6 He worked a lot of CAT shifts. He did it, in part, because Chief Gesell in early 2013 7 accused him of having a lack of commitment to the organization. After he did not make 8 sergeant, he made an appointment with the Chief to discuss how he could improve his chances. 9 The conversation did not go well. One event the Chief described to him was it was reported to 10 the Chief that during SWAT Physical Training "PT" testing, Waddell was observed looking at 11 his watch during a timed run as if he was trying to only complete the run in the minimal amount 12 of time rather than running it as fast as he could and that showed a lack of commitment. 13 Waddell was flabbergasted by this story since he had not done a PT test since 2011. (RT. 1689- 14 1694) 15 Waddell said he learned he placed number one on the sergeant's promotional test in 16 2012. Fred Mickel was number two and Pfarr was number three. (RT. 1698) 17 Waddell was working the Bike Unit on February 23, 2013. He responded to the Bentley 18 accident call. He got there with Amoroso in the FST truck. Amoroso drove there with Waddell 19 as a passenger. It was while he and Amoroso were driving to the scene that they discussed how 20 finny it would be to prank the new sergeant — Pfarr. They did not discuss doing anything in 21 particular to prank Pfarr, just that it would be funny to do it. (RT. 1709-1712) 22 He responded back to the station to pick up the equipment the Call Out Team would 23 need to perform their job and then returned to the scene. The Call Out Team responded and 24 they conducted their investigation of the scene and took measurements. When the Call Out 25 Team had concluded its investigation it became time to turn the Bentley over to the tow truck 26 operator to flip the car over back on its wheels. (RT. 1712- 1715) 27 The mood at the scene was jovial. Officers still at the scene were saluting Pfarr in 28 strange and accentuated ways. That was what gave him the idea to pull a prank on Pfarr. He 49- APPENDIX TO POST-HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3238 I thought about the Bentley emblems because they were similar to the emblems on his Mini 2 Cooper. He vocalized these thoughts but he did not think his co-workers took him seriously. 3 (RT. 1715-1717) 4 Waddell asked the tow truck operator for a screwdriver. He went back to the Bentley 5 and went to the hood ornament. It was clear to him that he would not be able to remove the 6 hood ornament without using force. He looked around to see if there was a Bentley emblem 7 that could be removed without causing damage. He noticed the wheel hub cover with the 8 Bentley emblem on it. The cap is designed to be removed when changing a tire. He inserted 9 the screwdriver into a slot on the side of the cover and it easily popped off. He found a second 10 wheel hub cover on the ground. Waddell said it came off in the accident. He did this in a 11 manner to get Pfarr to come over to him and freak out. Pfau did. Pfarr loudly told him he 12 could not be there for this and he was leaving. As he walked away, Waddell told him he was 13 just messing with him. Waddell put both wheel hub covers inside the Bentley. He did not try to 14 cut anything from the steering wheel and he did not touch the rear Bentley emblem. At that 15 point he thought the prank was over. (RT. 1718-1722) 16 Waddell returned the screwdriver to the tow truck operator and told him that they were 17 just joking around. The tow truck operator awkwardly chuckled and appeared confused by 18 what he was saying. It was then his phone rang. It was Karr calling him. He answered. Pfarr 19 was clearly upset. He told Waddell that he put him in a bad spot and what did he think he was 20 doing when junior officers were present. Waddell told him he was just messing around with 21 him. Pfarr told him it was inappropriate and to return the parts. He sent him a picture of the 22 wheel hub covers inside the Bentley to show him that he did return the parts. Pfarr told him to 23 finish up and meet him back at the station. (RT. 1724- 1725) 24 Waddell went back to the station and met with Pfarr. He told him the same thing he said 25 on the phone about how he put him in a bad spot, how it could look bad for the department and 26 "pretty much chewed my ass". Waddell apologized and again told him he was just messing 27 with him. He did not tell him about the conversation with Amoroso mainly because he did not 28 want to make things bad for him. It was Waddell's prank; it was his responsibility and it was he 50- APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPAKI MEN IWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3239 I who was going to "lay on the grenade". He never intended to take the vehicle parts as trophies. 2 He left the office feeling the issue was resolved. (RT. 1725-1730) 3 The next time he heard about the Bentley event again was on December 30, 2013, when 4 he went to Amoroso's home to borrow something. Waddell expressed frustration to him about 5 being on administrative leave for the CAT event and Amoroso told him that an administrative 6 investigation was being done on the Bentley event, too. Waddell was taken aback by that 7 information. (RT. 1730- 1732) 8 Waddell first learned that Pfarr did not think to fondly of him when he returned from his 9 European vacation. It was July 3, 2013. Amoroso told him about being informed that Pfarr 10 caught him watching a movie. Amoroso told him Pfarr clearly has it out for him and that he 11 better watch what he was doing. There was one movie incident which occurred in May, 2013. 12 He was working a CAT shift solo. It was 1:00 p.m. He purchased a BBQ slider from an 13 amazing downtown BBQ place and took a little break in the downtown office. He then began to 14 watch an AR -15 building video. Pfarr came in and asked him what he was doing. He told him 15 he was taking a break. Pfarr asked if he was about done. They then both got a cup of coffee 16 from a nearby Starbucks and that was it. (RT. 1732-1739). 17 While in Europe he received an email from Officer Inglehart giving him a heads up as to 18 how upset Amoroso was for Pfarr putting the movie incident on him to handle. (WE 1739- 19 1740) 20 Waddell became very guarded in how he would interact with Pfarr after that as it 21 became clear that interactions with him were being misrepresented. (RT. 1742) 22 It was his impression that the 11:00 a.m. to 4:00 p.m. CAT shift hours were not set in 23 stone. Instead, from his experience, there was extreme flexibility. Small adjustments of 15 to 24 30 minutes were made, not just for emergencies but for child care issues. Other officers told 25 him this as well. He was never told this practice was not allowed. ( RT. 1748- 1749) 26 In fact, he had been late before and he had left early before. Other officers have done 27 that, too. Typically that resulted in a verbal reprimand or a supervisor's note. He was not 28 aware of CAT shift officers being written up for being late. It was also common for CAT shift 51- APPENDIX 1- APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3240 I officers to come in late and just add the required time to the end of the shift to constitute a 5- 2 hours shift. This was a regular occurrence. Officers would also trade shifts. If it was a planned 3 event, such a change was communicated through the lieutenant via emails. Other times he 4 received direct emails from officers offering to give him their CAT shifts and they would tell 5 the lieutenant later. Sometimes the communication with Smith was poor. (RT. 1750-1753; 6 1755-1756) 7 Waddell did not show up for his CAT shift on October 19, 2013 on time. Child care 8 issues which were unforeseen made him run late. It became apparent to him that day that he 9 was going to be late at about 10:15 am. He sent Stahnke a text message letting him know he 10 might be late. His wife was also running late to relieve him at the dance studio. It was 11 approaching 11:00 a.m.. When his wife arrived he left and arrived in the SLOPD parking lot at 12 11:15 a.m. (RT. 1753-1755) 13 Before this, he did not know who the watch commander was that day. He realized it 14 was Pfarr when he got a text from him. He was still on the freeway south of SLO when he 15 received Pfarr's text. He was driving. Waddell confirmed the text message exchange exhibit 16 was indeed the text conversation he bad with Pfarr that morning. His first text message 17 response to Pfarr was sent by him at 11:11 a.m. Then, by this time, he was already late. 18 Waddell's first test message to Pfarr was intended to mean that he was coming in; that he was 19 sorry for not communicating with him before and that "I'd worked out ahead of others with 20 Lieutenant Smith". hi other words, "ahead of one" was intended to be "ahead of others" and his 21 phone auto corrected it to "ahead of one". This was trying to communicate his understanding 22 that from past practices shift adjusting was acceptable. (RT. 1755-1759; CX-10) 23 Pfarr responded to that text and said it made no sense to him and see him when he 24 arrived. Waddell responded to that text and wrote: "Basically I had talked to Smith yesterday 25 about coming in at 11:30 he said fine no problem, but I will stop by." 26 27 28 52- APPENDIX TO POST-HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3241 1 2 3 4 5 6 71' M 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Waddell was asked to explain his text message.6 Waddell then began to parse what he said he meant to write in excruciating detail. He said the message was quickly done, its fragmented, had brevity to it and needed punctuation. It was meant to say, "I had talked to Smith yesterday." There should have been a period after "yesterday". "About me coming in at 11:30" was meant just to be an estimation at that point in time as to when he would probably be suited up ready to work. The "he's okay with that" should be a "He's", not "he said". "He's" was an auto correct. "He's fine with adjusting". And there's no problem with that was his understanding of how flexible it's been in the past. Meaning he meant to type "he's fine, no problem. ( RT. 1759-1760; 1761; 1763; CX -10) Waddell admitted that the extent of his conversation with Smith "yesterday" (on October 18, 2013) was not much of a conversation and amounted to just exchanging pleasantries. This occurred at around 3:00 to 4:00 p.m. Waddell said he had been operating in this program with the understanding of how things were done and nobody told him he was doing anything wrong. And Lieutenant Smith had the opportunity that day when he saw him in the locker room to correct him if he has doing something not approved and he said nothing. Bottom line: He did not think coming in at 11:30 would be any problem whatsoever. (RT. 1760- 1762; CX -10) He did have some on-going child care issues of which Smith was aware. If such an issue occurred, depending on the circumstances, he would let them know. He was never disciplined for being late or leaving early. As requested, Waddell did stop in to see Pfarr after arriving to work. Pfarr was visibly upset with him from his appearance and tone of voice. He immediately began interrogating him, asking where he was. He told him about the dance class. He asked if Waddell saw Smith yesterday. Waddell replied "I saw Smith yesterday". He asked and he's okay with you coming in late. Waddell replied he's okay with it. That was the end of the conversation. Waddell said he never had the opportunity to explain the text messages. (RT. 1762-1765) e Even though it is clear and unambiguous on its face and needs no explanation and it also curiously traces exactly to what Waddell told Pfarr verbally after he arrived at the station. APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3242 I Waddell denied ever telling Pfarr that he had spoken to Smith the day before and that 2 Smith had given him specific permission to come in late on October 19, 2013. Waddell 3 reiterated his previous point that he had seen Smith in the locker room the day before and if the 4 previous practice of adjusting had changed Smith had that opportunity to tell him that day and 5 he did not. (RT. 1765-1766). 6 Waddell put additional information in his texts to Pfarr because he was being guarded 7 with Pfarr. But he did not proofread them before they were sent. He never had "blanket 8 permission" from Smith to adjust his CAT shift schedule. But he was going to adjust it that 9 day. He was to going to add 20-30 minutes to the end of the shift. He did not plan to do that in 10 advance. (RT. 1766- 1769). 11 He understood why Pfarr was upset with him. It was because he did not call or 12 otherwise notify him that he would be late. (RT. 1769-1770) 13 Pfarr called him on the radio at around 12:00 Noon to 12:20 and asked him to come to 14 the station to see him. He did. He told him to close the door. He told him he did not want him 15 to say anything. He could tell he was pissed. He told him that Smith said he lied. Waddell 16 offered to get on the phone with Smith to straighten this out. That request was denied and he 17 left. ( RT. 1769-1771) 18 The first time he was asked to explain his text messages was in this interview on 19 December 12, 2013. (RT. 1772) 20 Waddell confirmed when he saw Smith in the locker room on October 18, 2013 he had 21 no reason to believe he would be late the next day. (RT. 1774) 22 He came to work the next Monday to speak to Smith about this. He met him in his 23 office and closed the door. He told Smith he wanted to speak to him about what occurred on 24 October 19, 2013. Smith admonished him that whatever he said was not privileged. Waddell 25 began to explain about the events of the morning and the text communication misunderstanding 26 and that was when Smith cut him off and said, "Kevin, you know that I didn't give you 27 permission to come in late". Waddell perceived that comment to mean whatever he said would 28 not be well received so he stopped. (RT. 1775-1777) 54 - APPENDIX TO POST -HEARING BRIEF OFT SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3243 1 Waddell described an incident when several employees took boots meant for the DRMO 2 program without permission. One of the employees was Bledsoe. He compared that to his own 3 honesty issues. Many officers returned the boots they took. (RT. 1781-1782) 4 Waddell was served with the notice of intent to terminate his employment. He attended 5 the Skelly conference with this attorney Nicole Winter. (RT. 1785-1786; CX -5) 6 Waddell claimed Chief Gesell made comments about him to the press. Waddell claimed 7 Chief Gesell authored an email to a leadership school for law enforcement officers wherein he 8 was listed as one of the Chief's accomplishments for having terminated him for 9 untrustworthiness, despite external influence for a lesser discipline. (RT. 1788) 10 On cross-examination, Waddell admitted that Chief Gesell's list of accomplishments 11 never mentioned him by name at all. (RT. 1790) 12 Waddell said he was provided with the Notice of Intent to Terminate his employment 13 along with some supporting materials. He retained a law firm to assist him and a Skelly date 14 was set. He was present for the Skelly along with his lawyer, Chief Gesell and Christine 15 Dietrick. They proceeded with his response to the proposed discipline. Both sides were 16 recording the Skelly. His lawyer spoke, he did not. It lasted 10-15 minutes and then he was 17 asked to leave the room. (RT. 1792-1795) 18 Waddell said he did not think the text messages he sent to Pfarr were going to be 19 important until they were shown to him in his interview on December 12, 2013. He was placed 20 on administrative leave later that day in the evening hours. Waddell would still have expected 21 to have been placed on leave on October 19, 2013. Yet, he also agreed that it would be wise for 22 SLOPD to give him a chance to explain himself and not just take Pfarr's and/or Smith's word 23 for it before placing him on leave. (RT. 1798-1801) 24 He and Amoroso have known each other since Waddell has worked at SLOPD. They 25 are neighbors. He is a close friend. Waddell recalls now that they drove to the Bentley scene 26 together even though both of them were unsure about that point in their interviews. Waddell 27 also recalled now the conversation he had with Amoroso about pranking Pfarr was while both 28 were seated in the FST truck having just arrived at the accident scene but before they got out of 55- - APPENDI 5- APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPAx1 MEN i Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3244 1 the truck. Pfarr and Amoroso discussed the accident and the Call Out Team possibility at the 2 open window of the truck. The patients, fire department and ambulance personnel had already 3 left the scene. The tow truck driver was not present. Amoroso took him back to the station to 4 pick up equipment. Waddell took another vehicle back to the scene. Amoroso went home. He 5 and Amoroso never discussed doing anything in particular to Pfarr and he did not harbor any ill 6 intentions towards Pfarr. (RT. 1801-1806) 7 Waddell performed his function of taking measurements to document the accident scene. 8 He put his equipment away. The car was still on its roof. All the SLOPD photographs had 9 already been taken. It was after he finished taking the necessary measurements that devising a 10 plan to prank Pfarr formalized in his head. They don't call for a tow until later when one is 11 needed so they are not waiting a long time. (RT. 1806- 1810) 12 The decision to go forward that night with his prank was solely his idea. The timing of 13 it was toward the end of the event. The tow truck operator had arrived and was present on 14 scene. The tow truck operator had just flipped the car over onto is wheels. Pfarr was not only 15 present still; he was Waddell's audience. Benson was also there watching. (RT. 1810- 1811) 16 Waddell thought about taking one of the uniquely designed Bentley emblems from the 17 car. Such a prank was easier since the car was totaled. At first, Waddell did not recall focusing 18 on the rear trunk lid Bentley emblem until a reference was pointed out to him in his interview 19 which he said related to the front hood ornament and not the trunk. He denied trying to remove 20 it with his fingers. He went to the tow truck operator and asked for a screwdriver. He gave one 21 to him and did not ask why he needed it. Waddell went back to the hood ornament of the car 22 but denied trying to pry it off or make it look like he was prying it off with the screwdriver. 23 When faced with a reference point in his interview, Waddell admitted that he had the 24 screwdriver in his hand close to the emblem trying to look behind it to determine how it was 25 affixed to the car. (RT. 1811-1816; CX -22, pp. 15-16) 26 Waddell said his initial reason for asking for a screwdriver was to try to remove the 27 hood ornament without damaging it. After proclaiming that, a reference was pointed out to him 28 in his interview where he told Proll the reason he asked for a screwdriver was to take the wheel 56- APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENT Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3245 I hub cover off. In an attempt to reconcile that, Waddell said the original reason was to get the 2 hood ornament but it ultimately ended up being used for the hub cap. (RT. 1817-1818; CX -22, 3 p.5) 4 When he could not remove the hood ornament without damaging it, he then moved to 5 the wheel hub covers. He made that decision because they are intended to be removed. He 6 placed the screwdriver into a slot on the side and popped off the cover from the front passenger 7 side wheel. Benson and Pfarr were present watching him. He did not know if the tow truck 8 driver was watching. Waddell acknowledged, after being shown a reference in his interview, 9 that he previously said he removed the wheel hub cover from the rear passenger side, not the 10 front. Waddell agreed that the rear passenger side wheel would also be accurately referred to as 11 the right rear wheel. In connecting that up to one of the photographs taken before the car was 12 righted onto it wheels wherein the right rear wheel is identified by annotation and the wheel hub 13 cover is still affixed to the wheel in that photograph. (RT. 1818-1822; CX -22, p. 7; CX -11) 14 Waddell then confirms that he picked up a second wheel hub cover which was lying on 15 the ground nearby the car. He also retrieved this after the car was righted. He did not recall 16 from which wheel this hub cover came. It looked to Waddell, in the interview transcript 17 reference shown to him, that he was speculating that it came from the front passenger side 18 wheel. That would be the right front wheel. And in the photograph the wheel hub cover on the 19 right front is still in place. Thus, Waddell agreed it did not come off in the accident and he 20 guessed it must have come off when the car was flipped. (RT. 1822-1825; CX -22, p. 7; CX - 21 11B) 22 He picked up the second wheel cover and stacked them on the ground. While removing 23 the one wheel hub cover and picking up the other one, the tow truck operator was in the vicinity 24 as was Benson and Pfarr. He was certain Pfarr saw what he was doing because he intended for 25 him to see it in order to get him to react. Indeed, Pfarr did react. He said something like he 26 could not be here and walked away. He interpreted this to mean Pfarr was not happy with him. 27 (RT. t826-1827) 28 57- APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENT Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3246 1 He returned the screwdriver to the tow truck operator and briefly spoke to him. He said 2 to him that he did not know what he saw but that we were justjoking around. He also told him 3 he did not need the wheel hub covers. He did not think he told the tow track operator that he 4 did not want him to think he was stealing the car parts. And that was true even though he said 5 in his interview that he did not want him to think he was taking things. Waddell could not even 6 agree that to an outside person watching what he was doing not knowing about any intent to 7 joke around, might get the idea he was stealing car parts. (RT. 1827-1829; CX -22, pp.18- 19) 8 Waddell picked up the wheel hub covers and placed them in the Bentley. He did not 9 recall making sure the tow truck operator saw him do that. Yet he indicated exactly that to Proll 10 in his interview. (RT. 1829-1830; CX -22, p.20) 11 It was then that Karr called him. He answered his call. Pfarr told him to put the parts 12 back. He told him he put him in a bad spot. Waddell told him he was joking. He later saw him 13 in his office. Pfarr told him what he did was a bad idea. Pfarr told him he put him in a bad spot 14 and described all the different things that could have been perceived by his actions, including 15 junior officers. He was upset with him and Waddell did not bring up to Pfarr his conversation 16 with Amoroso and he did not use the term practical joke with him. (RT. 1831- 1833) 17 Waddell realized then that he came up with a bad idea and he acknowledged that in his 18 testimony. He expressed to Proll that he took responsibility for his actions and still expresses 19 that contriteness in his hearing testimony. (RT. 1833-1834) 20 And contrary to the testimony of Amoroso, Waddell did discuss the Bentley events with 21 him the night after it occurred. Amoroso was on duty as was he. Waddell opened the 22 conversation by asking Amoroso to recall the conversation he had with him about messing with 23 Pfarr. Amoroso recalled it. Waddell said, "Yeah, well, it didn't really go over well". That was 24 the extent of their conversation. Waddell recalled that Amoroso was asked that very same 25 question and Amoroso claimed to have no recollection of such a conversation. In explanation 26 of that, Waddell could only say Amoroso does not remember a lot of things that happened in 27 2013. (RT. 1834-1836) 28 58- APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENT Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3247 I Waddell signed up for the October 19, 2013 CAT shift. It was assigned to him and his 2 partner Stahnke. He was aware of that before October 19, 2013. CAT shifts run from 11:00 3 a.m. to 4:00 p.m. He knew about being assigned when the email about the assignment came 4 out. Every email about CAT shift assignments repeated the fact that the shift runs from 11:00 5 a.m. to 4:00 p.m. Even though he was provided the email confirmation of his assignment to the 6 October 19, 2013 CAT shift, he did not know how far in advance it was sent. He agreed, 7 however, given the context that the first assigned shift is on September 14, 2013, the email was 8 sent out prior to that date. So he knew he had been assigned to the October 19, 2013 CAT shift 9 on or before September 14, 2013. This was not an illustration of Smith's poor communication 10 skills. (RT. 1836-1838; AX -H) 11 Waddell received permission on a number of occasions to vary a start time or end time 12 of a CAT shift from Smith. One such example was June, 2013. He needed to be excused for 13 the first hour of the shift. Waddell did not recall if Smith responded to his email request to 14 come in at noon. Waddell arrived that day at noon. Waddell acknowledged Smith tried to be 15 accommodating to such requests. (RT. 1838-1842; AX -J) 16 There was another occasion when he was offered to take a CAT shift assigned to another 17 officer. That request was forwarded to Smith. He did that to see if the request was going to be 18 approved. When I pointed out to Waddell that requesting Smith to approve the request is the 19 opposite of Waddell's claim he could make changes on his own, Waddell said, "I don't think 20 that's a fair inference". (RT. 1841-1843; AX -K) 21 Waddell explained there may have been more senior officers who could take the shift 22 and that is why he sent the request to Smith. Smith approved the swap. (RT. 1843-1844; AX - 23 K) 24 There was another occasion when he asked for permission to leave a CAT shift early. 25 The CAT shift ends at 4:00 p.m.; Waddell needed to leave at 3:00 p.m. and he sent an email 26 asking for Smith's permission to do this because he knew he needed Smith's special approval 27 before doing this. He could not just leave early on his own and flex without approval. Smith 28 59- APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3248 1 approved it and sent that approval in a reply email and this was not an illustration of Smith's 2 poor communication skills. (RT. 1844-1845; AX -L) 3 These three instances were not the only times he reached out to Smith for approval to 4 change some aspect of a CAT shift. There were other times. These three emails asking for 5 approval were the only ones he still had in his email inbox. (RT. 1845; AX -J, K, L) 6 Waddell acknowledged that by October 18, 2013, he had no special verbal or written 7 permission from Smith to be late on October 19, 2013. He did not seek such permission via 8 email as before because he did not know on October 18, 2013, that he would be late. He did see 9 Smith in the locker room on October 18, 2013. Smith was changing out of his uniform, and 10 Waddell was changing into his uniform. Waddell was on his phone. The two men "exchanged 11 pleasantries". He did not have a conversation with him. He did not discuss being late the next 12 day and again that was because he did not know he would be late the next day. (RT. 1846- 13 1847) 14 In questioning Waddell on how Smith could possibly know on October 18, 2013 to 15 correct Waddell's perception he could do what he wanted on CAT shifts and that Smith did not 16 take that opportunity to correct him, Waddell went into his meeting with Smith on October 21, 17 2013. Smith told him that he and Pfarr had pulled his timecards, he did not know when and that 18 Waddell had been coming and going as he pleased. Waddell did not know if Smith knew this 19 information on October 18, 2013. Smith, in this discussion, did not approve of Waddell coming 20 and going as he pleased. When it was pointed out that Waddell was trying to convince us that 21 Smith was okay with him coming and going as he pleased, Waddell pointed back to the emails 22 as proof of that, even though the emails prove such changes have to be approved beforehand. 23 (RT. 1847-1850; AX -J, K and L). Waddell tried to say the emails and other verbal interaction 24 with Smith led him to that conclusion. And this is true even though he was present when Smith 25 testified and denied giving him such latitude. ( RT. 1850- 1852) 26 Nevertheless, Waddell did not have any conversation with Smith on or before October 27 18, 2013 about coming late on October 19, 2013. He first became aware he would be late at 28 about 10:15 a.m. the morning of October 19, 2013 while at his daughter's dance class. It was at 60- APPFNDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENT Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3249 I that time he texted Stahnke. He was not driving at that time. He was seated in a chair inside the 2 dance school. When it was pointed out to him that there would be no need to text Stahnke if he 3 truly thought he could come and go as he pleased, he said that was not in his mind at the time. 4 He just texted him that he might be late, as a courtesy. When it was further pointed out that he 5 did not extend that same courtesy to the watch commander, Waddell contradicted himself and 6 said he was not sure he was going to be late. (RT. 1852-1854) 7 Waddell could easily find out who the watch commander was that day if he did not 8 know. There is a phone number of which everyone is aware to phone the watch commander. 9 He had time to phone that number but did not. He could have texted Pfarr and asked him if he 10 was the watch commander. He did none of those things. ( RT. 1854- 1855) 11 The dance class was scheduled to last until 11:00 a.m. His wife arrived shortly before 12 11:00 a.m.; approximately 10:50 a.m. He then left for work. At 11: 11 a.m. Pfarr's text came in. 13 It was then he knew Pfarr was the watch commander that day. He wasdriving. He certainly 14 could have stopped the car and composed a properly worded text response. And it was at that 15 point in time it was his perception Karr did not like him, was watching him and was coming 16 after him. Waddell had to acknowledge that all these things would have been good reasons to 17 stop and carefully compose his text response. (RT. 1855- 1858) 18 But he did not stop. He texted Pfau in response. Waddell said the lower case "It" meant 19 Lt — as in lieutenant. Waddell said his only amendment to this first text message of his, had he 20 stopped driving and composed and proofread, would be that the word "one" should have been 21 "others" so it was meant by him to say: "I had worked out ahead of time with others with It. 22 Smith". Waddell was asked how that made any more sense that it did before. He said that it 23 didn't. (RT. 1858-1859; CX -10) 24 Waddell claimed that at the point he sent this text message he was under the impression 25 that Smith was fine with him coming in at 11:30 instead of 11:00 a.m. When it was pointed out 26 his message does not say that, he said he was just sending it quickly. Waddell agreed that by 27 this time he was already 11 minutes late for his shift and was still on the road. That did violate 28 61- APPENDIX TO POST -HEARING BRIEF OF TFIE SAN LUIS OBISPO POLIUJ- t)rxAxiivmiv 1 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3250 1 department rules and could lead to punitive action. When asked if that is what he was trying to 2 get out of by putting this thing onto Smith, he denied the inference. (RT. 1859-1860; CX -10) 3 Waddell then sent his second text message to Pfarr, again while driving. Waddell 4 agreed that even though he had several modifications to this text, presumably designed to 5 express his true intent behind it, he had to agree that Pfarr could only rely upon the message he 6 wrote. (RT. 1860-1861; CX -10) 7 The phrase, "I had talked to Smith yesterday" was isolated for some questions. While 8 he did speak to Smith "yesterday" meaning October 18, 2013 all he said to Smith was "Hi" and 9 all Smith said back to him was "Hi". Waddell was asked if "I had talked to Smith yesterday 10 about coming in late at 11:30" was an untrue statement in and of itself. Waddell in reply said he 11 never believed he was making an untrue statement in that text. He did acknowledge though that 12 he did not talk to Smith on October 18, 2013, about coming in at 11:30 a.m. on October 19, 13 2013. (RT. 1861-1863; CX -10) 14 The portion of the text which says "he said fine, no problem" was then isolated. Smith 15 did not say "fine, no problem" on October 18, 2013. All he said was "Hi" and maybe "How's it 16 going". Nothing in his two text messages say anything about a dance class or having a child 17 supervision issue. (RT. 1863-1864; CX -10) 18 Waddell agreed that Smith had absolutely nothing to do with the reason he was late on 19 October 19, 2013. (RT. 1864) 20 He arrived at SLOPD and spoke to Pfarr at about 11:30 a.m. Waddell did not elaborate 21 on his daughter's dance class and what happened there. He did not tell Pfarr in his judgment, 22 Smith was okay with him changing the time of his arrival. He denied telling Pfarr he had 23 permission from Smith to be late that morning. It was pointed out to him in his interview with 24 Bledsoe that he said he could not recall the words he used in speaking with Pfarr but he claimed 25 his memory of their discussion is better now than it was then. He recalled also telling Bledsoe 26 in his interview that Pfarr was not lying about their conversation. Waddell took that back in his 27 hearing testimony and now claimed Pfarr is lying about it. Having so changed his mind about 28 that though, Waddell said Pfarr is not making up the fact that Waddell gave Karr no notice he 62- APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3251 I would be late; that he was indeed late for his shift and that the two had a conversation in his 2 office. (RT. 1864- 1869; CX -21, p.6) 3 Waddell admitted telling Bledsoe in his interview that he overstepped his bounds. What 4 he meant by that is that he misinterpreted the past practice meant he could at the last minute be 5 late and it would not be a problem. He disagreed with the suggestion his conclusion he could 6 do that was unreasonable. He also told Bledsoe he made a poor decision in this case as well. 7 He was asked to reconcile his conclusion that he had the tacit approval of Smith to vary his time 8 with his statement he made a poor decision. Waddell said in response the decision he made was 9 poor because they get him in the situation and he could have called Pfarr. Waddell said he takes 10 responsibility for his actions in this case, too. He stands by his previous statement that he 11 overstepped in his interpretation of Smith's permission in the past. (RT. 1869-1872; CX -21, pp. 12 8 and 14) 13 Waddell recalled sending Pfarr a picture of the Bentley parts inside the Bentley only 14 after reviewing the material that came in the Skelly packet. That information he got from 15 Pfarr's interview and it refreshed his own memory about that. Waddell acknowledged Pfarr is 16 not lying about that and his memory was better than Waddell's was about that portion of the 17 event. (RT. 1872-1873) 18 Waddell was paid by SLOPD for all his time spent doing DRMO duties and for training. 19 He was sent to all the training classes he listed by SLOPE) when he was employed. ( RT. 1875- 20 1877) 21 Waddell again on re -direct agreed he should have picked up the phone and let the 22 department know he was going to be late. (RT. 1883) 23 Finally, while Waddell is not disputing that he was late that day; is not disputing that he 24 did not have permission from Smith to come in late, he is disputing that he made dishonest 25 statements both in his text messages and in his interviews. He is also disputing he committed a 26 Vehicle Code violation and he does believe the penalty is not appropriate because all he did 27 wrong was be late to work. (RT. 1888- 1889) 28 /// 63- APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3252 I Waddell did agree, however, in re -cross that had he told Pfarr he had a problem 2 transferring the care of his children to this wife and that was what made him late, that certainly 3 would have helped his situation. (RT. 1889- 1890) 4 OFFICER BRENT INGLEHART 5 Officer Brent Indlehart ("Inglehart") is employed as a SLOPD police officer and has 6 been so employed for 11 years. He knows Waddell from working with him as a downtown bike 7 officer. Waddell told him about Pfarr catching him watching a movie in the downtown bike 8 office. Inglehart had no recollection of sending Waddell an email about this event while 9 Waddell was in Europe. Inglehart said one should not be watching a movie in the downtown 10 office; one should be tending to one's duties at work Inglehart did not recall Pfarr looking for 11 Waddell on November 9, 2013. He recalled the day Waddell was placed on leave. He was told 12 by Pfarr to stay positive and let the process play out. He did not work much overtime with 13 Waddell. (RT. 1890-1901) 14 LIEUTENANT JOHN BLEDSOE 15 Bledsoe was recalled by the appellant. He was aware that the department was 16 investigating Waddell's actions as they related to the DRMO program. He knew that he and 17 Berrios worked together on that program. (RT. 1915-1917). Bledsoe said he did not understand 18 the DRMO protocol and procedure but when he found out, he returned the boots back to the 19 room where he got them the same day the email came from Smith (RT. 1919-1920; 1924, AX - 20 PP). Other employees of SLOPD also took DRMO equipment; it was a fairly widespread in the 21 organization (RT. 1928). It was not his impression he and other were taking things which did 22 not belong to them, instead the impression which was given was that the equipment was left 23 open and available. (RT. 1928- 1929) 24 KEVIN WADDELL 25 Waddell was recalled and testified that Bledsoe's testimony that the DRMO equipment 26 was a free-for-all kind of thing was a complete misrepresentation. Instead, all the equipment 27 had to be inventoried and only given out to people after they were notified. It was never a take 28 what you want; that never, ever happened. (RT. 1932-1933) h4- APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3253 1 Waddell testified to an example of a timecard from May 23, 2013 to June 6, 2013. 2 There were two CAT shifts depicted on this timecard, both depicted as 5 -hour shifts. (RT. 3 1933- 1935; AX-QQ) 4 The article referenced by Waddell about his case was presented as an exhibit. (RT. 5 1938- 1939; AX -RR, p.4) 6 On further cross-examination, Waddell said he shared the DRMO responsibilities since 7 2009. He placed some DRMO equipment in the Sally Port area of the department which is 8 accessible to all members. At first he said all DRMO equipment must be inventoried, however, 9 he did admit that some DRMO equipment will never be re-claimed by the military. Certain 10 perishable and textile type items do not require tracking after one-year. Shirts and pants would 11 fit into that category. Indeed, there were a couple of times when he brought a box of DRMO 12 equipment to SWAT training. He brought ponchos, jackets, backpacks, and other types of 13 things which fit in the category of textiles. Waddell allowed people to sift through the 14 equipment and take what they wanted to take. He did not keep track of what was taken and who 15 took it. (RT. 1940- 1943) 16 Waddell sent his email of November 21, 2013 from his home. He sent it to an address 17 which would go to every authorized user in SLOPD. Smith echoed Waddell's email about 13 18 minutes later. Waddell did receive some responses to his email. Luca Benedetti, a SLOPD 19 officer, responded and said he took a backpack, a trenching too and a pack of shirts. Waddell 20 said those would fit in the category of "textiles". Joshua Walsh, a SLOPD officer, responded 21 and said he took a pair of boots. Caleb Kemp, a SLOPD officer, responded and said he took 22 something that Waddell could not recall. Paul Sizemore, a SLOPD officer, responded and said 23 he took a backpack, rain pants and a jacket. Those things would also be considered in the 24 "textile" category according to Waddell. Aaron Schafer, a SLOPD officer, responded and said 25 he took some boots. Finally, Waddell acknowledged that boots fit squarely within the category 26 of "textile". All these people who responded also said they returned the items. And even 27 though boots fit into a much different category which has been set up for free-for-all before, 28 65- APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3254 I Waddell after a long pause, maintained that all of these people, Kemp, Sizemore, Schafer, 2 Benedetti and Walsh were thieves just like Bledsoe. (RT. 1943-1949; AX -PP) 3 The example timecard showed the number of hours worked on particular days. So, for 4 example he would type 10 hours total for a regular shift and 5 hours total for a CAT shift. He 5 did not know if Smith was referring to this type of document when he spoke to him on October 6 21, 2013. This example timecard does not include the actual arrival time or the actual time one 7 left a shift. In fact, there is no document at SLOPD, of which he was aware, which would show 8 that information. (RT. 1952- 1956; AX-QQ) 9 CITY'S REBUTTAL CASE 10 LIEUTENANT JEFF SMITH 11 Smith was re -called in the City's rebuttal case. Waddell came into his office, Monday, 12 October 21, 2013 unannounced. At no point in that meeting did he tell Waddell that he pulled 13 Waddell's time sheets or had them pulled and it was apparent that Waddell was coming and 14 going as he pleased on CAT shifts. No discussion of that nature occurred. Indeed, there is no 15 retrievable document kept by SLOPD that one could review which would indicate when an 16 officer actually arrived for a shift or left a shift. (RT. 1958- 1960) 17 CAPTAIN CHRIS STALEY 18 Staley was re -called in the City's rebuttal case. Promotional tests and who ultimately 19 gets selected is covered by the rule of three. That rule is contained within the applicable MOU 20 as well. (RT. 1966-1968; CX -24) 21 He recalled Waddell's testimony about some observations made of him during SWAT 22 PT training. He was present when that event occurred. The PT test was being conducted. 23 Another commander pointed it out to Staley. Waddell was looking at watch continuously 24 through the testing and it was his impression that he was trying to take as much time as he could 25 and was in no hurry to complete the test. Waddell also tended to be on his phone constantly and 26 not interacting with fellow team members. Both of these caused concerns. (RT. 1968-1969) 27 Waddell had 6 minutes and 30 seconds to complete the run. ( RT. 1973) 28 66- APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3255 1 CHRISTINE DIETRICK 2 The City Attorney, Christine Dietrick, testified in the City's rebuttal case. She was 3 present on the date set for Waddell's Skelly conference. The Chief was present, as was she, 4 Waddell and his legal counsel. The Skelly did occur in the police chief s office and it was 5 recorded by both parties. Waddell did not make any substantive response. The Skelly was 6 concluded and all parties left. (RT. 1980- 1982) 7 The recording of the Skelly conference was played in the hearing and transcribed into 8 the record. It was held on September 11, 2013 at 1:30 p.m. Waddell's counsel instructed 9 Waddell not to speak at the conference. She spoke on his behalf She said he handled this 10 situation poorly partly because he had been working a lot of hours leading up to October 19, 11 2013. She also said that his joke amounted to conduct unbecoming an officer. She 12 acknowledged Waddell deserved some level of discipline but not termination in her opinion. 13 Moreover, she said Waddell understood discipline was required for the October 19, 2013 event 14 itself. (RT. 1989-1997) 15 Dietrick never heard Chief Gesell say anything in the nature of he had a moral 16 obligation to ensure Waddell was never a cop again. (RT. 1997-2998; 2001-2002) 17 18 19 20 21 22 23 24 25 26 27 28 67- APPENDIX TO POST-BEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3256 2 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is 3777 North Harbor Boulevard, Fullerton, California 92835. On December 21, 2015, I served the foregoing document described as APPENDIX TO POST -HEARING BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENT on each interested party, as follows: SEE ATTACHED SERVICE LIST X (Via Mail) I deposited such envelope, with postage thereon fully prepaid, in the mail at La Habra, California. I am readily familiar with the Law Offices of Jones & Mayer practice for collection and processing of correspondence for mailing with the United States Postal Service. Under that practice, it would be deposited with the United States Postal Service on that same day with postage thereon fully prepaid at La Habra, California, in the ordinary course of business. I am aware that on motion of the parties served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing affidavit. Overnite Express) I deposited such envelope in the depository at Fullerton, California ensure next day delivery. Via Personal Service) I caused to be delivered such envelope by hand to the offices of the addressees. Via Facsimile) I caused the within documents to be transmitted to telephonic facsimile to the addressees. X (Via E -Mail) I caused the within documents to be transmitted electronically to the address indicated above. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on December 21, 2015 at Fullerton California. G- LAURA MILLER PROOF OF SERVICE Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3257 SERVICE LIST 1 2 Christopher Cameron 3 Arbitrator and Civil Service Hearing Officer Professor of Law 4 c/o Southwestern Law School 5 3050 Wilshire Blvd. Los Angeles, CA 90010 6 Telephone: (213) 738-6749 Facsimile: (213) 738-6698 7 ccameron@swlaw.edu 8 Kasey A. Castillo, Esq. 9 Nicole A. Naleway, Esq. Castillo Harper, APC 10 3333 Concours St., Bldg 4, Ste. 4100 11 Ontario, CA 91764 Telephone: (909) 466-5600 12 Facsimile: (909) 466-5610 kasey@castilloharper.com 13 nikki@ castilloharper.com 14 Attorneys for Appellant Kevin Waddell 15 Christine Dietrick, Esq. City Attorney, 16 City of San Luis Obispo 17 990 Palm Street San Luis Obispo, CA 93401 18 Telephone: (805) 781-7140 cdietrick@slocity.org 19 20 Chris Staley Operations Police Captain 21 San Luis Obispo Police Department 1042 Walnut St. 22 San Luis Obispo, CA 93401 23 cstaley@slocity.org 24 25 26 27 28 2 PROOF OF SERVIC Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3258 REBUTTAL ON BEHALF OF APPELLANT KEVIN WADDELL - 1 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KASEY A. CASTILLO, SBN #236690 Kasey@CastilloHarper.com NICOLE A. NALEWAY, SBN #300701 Nikki@CastilloHarper.com CASTILLO HARPER, APC 3333 Concours St, Bldg 4, Ste 4100 Ontario, CA 91764 Telephone 909-466-5600 Fax 909-466-5610 Attorneys for Appellant KEVIN WADDELL BEFORE HEARING OFFICER CHRISTOPHER CAMERON In the Matter of the Appeal of the Dismissal of OFFICER KEVIN WADDELL, Appellant, and POLICE DEPARTMENT OF THE CITY OF SAN LUIS OBISPO, Hiring Authority. REBUTTAL ON BEHALF OF APPELLANT KEVIN WADDELL CSMCS Case No. ARB-14-0209 INTENTIONALLY LEFT BLANK] Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3259 REBUTTAL ON BEHALF OF APPELLANT KEVIN WADDELL - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THE HEARING OFFICER, THE SAN LUIS OBISPO POLICE DEPARTMENT AND ITS COUNSEL OF RECORD: Appellant, KEVIN WADDELL (hereinafter referred to as “Officer Waddell,” “ Waddell” or Appellant”), hereby submits its rebuttal brief to the post-hearing brief of the San Luis Obispo Police Department. I. REBUTTAL ARGUMENTS A. THE DEPARTMENT’S SKELLY VIOLATION The Department anticipatorily addresses Appellant’s allegation that the Department committed a Skelly violation in their post-hearing brief based on their failure to provide certain photographs [See Post- Hearing Brief of San Luis Obispo Police Department, p. 5]. However, this was not the Appellant’s Skelly argument. As stated in Appellant’s closing brief, the Skelly violation existed in the Department’s failure to turn over the many investigative drafts co-authored by the captains and the chief, and the penalty recommendation by Captain Storton. 1. Failure to Turn Over Materials—the Many Investigative Drafts [Appellant’s Exh. Y(a) f) and the Recommendation by Captain Storton The general pre-disciplinary requirement is that the employee be provided with notice of the proposed discipline, the reasons for the proposed discipline, a copy of the charges, the materials upon which the matter is based, and notice of the right to respond. Skelly v. State Personnel Bd. (1975) 15 Cal.3d. 194, 215. The Skelly standard is the known and accepted standard in administrative hearings statewide. Regardless of the weight of the withheld evidence, the State Personnel Board in Arnold (2002) SPB Dec. No. 02-07 stated, “pretermination due process requires strict adherence to the notice requirements that enable an employee facing discipline to respond adequately to the disciplinary action, prior to the imposition of discipline” (emphasis added); Keely v. State Personnel Board (1975) 53 Cal.App.3d. 88, 98; Kristal v. State Personnel Board (1975), 50 Cal.App.3d. 23, 240-241. Appellant Waddell should have been provided all of the materials that the Skelly officer had been provided in this case for a response…the various drafts, the initial penalty recommendation of a suspension by Captain Storton…YET he was not. It was only by virtue of exhaustive discovery efforts did the multiple drafts of the investigation and influence of the Skelly officer, Captain Staley, and City Attorney therein come to light. While the then-chief of police and Skelly Officer was unavailable for testimony in this matter by virtue of having himself been separated from the city [See Appellant’s RR, “San Luis Obispo Police Chief Comments On His Situation”], it was glaringly apparent that from the top down, the decision to terminate Officer Waddell was made, and the city administration, together, WORKED BACKWARDS, to ensure Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3260 REBUTTAL ON BEHALF OF APPELLANT KEVIN WADDELL - 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that outcome. The City Attorney so edited the investigation drafts that a version could not be turned over due to “attorney work-product.” The Skelly Officer had his initials, comments and conclusions all over the investigations, after taking Captain Storton off the CAT investigation and reassigning it to Captain Staley to get the demanded “recommended” outcome of a termination penalty, vs. one of a suspension. The City Manager was not provided all of the information, and relied only on the information provided to her by her staff (the city attorney, captain, and chief), whom she mistakenly trusted to provide her with what was provided to them. The City of San Luis Obispo and its Police Department engaged in a mockery of the pre-disciplinary procedure, and a pretense of due process. The Skelly Officer was involved in the investigation from beginning to end, “drafting” the end of Officer Waddell’s career as he, the recommending captain and the city attorney edited. B. STATUTE OF LIMITATIONS—THE BENTLEY INVESTIGATION MUST BE STRIKEN AND SUPPRESSED IN ITS ENTIRETY. In the Department’s post-hearing brief, the Department argues that the one-year statute of limitations does not begin until “discovery by a person authorized to initiate an investigation of the allegation” and that Sgt. Pfarr did not have the authority to initiate investigation of the event [See Post- Hearing Brief of San Luis Obispo Police Department, p. 8]. However, the Department has not put forward any policy indicating any specific identification as to who is authorized to initiate an investigation. Absent that, the supervisor on scene, and percipient witness, Sgt. Pfarr, was immediately aware on February 21, 2013. Further, Lieutenants Smith and Bledsoe also were made aware by Sgt. Pfarr during the time of detective selections. The testimony of the lieutenants that they were not authorized to initiate an investigation is disingenuous and false—if a member of the command staff cannot begin an investigation into misconduct, or make a report up the chain of command to do so, then no one can. The Appellant should not have to be at the “mercy” of the “awareness” of his superiors when faced with what they now assert is evidence of obvious criminal behavior. The Department was at all times on notice of this violation [See Appellant’s Exhibit T; RT, Dietrick, 10/06/15,1983], yet it still failed to conform to the rights provided to Appellant Waddell pursuant Government Code section 3304(d). As such, the “fruit” of Department’s violation, including any allegations and/or evidence of violating the City’s policies should be excluded from Appellant’s administrative hearing and review. See Section 3309.5(d)(1); Gales v. Superior Court (1996) 47 Cal.App.4th 1596, 1602. C. BENTLEY INCIDENT 1. The Department Failed to Produce Evidence that Appellant violated California Vehicle Code §10852 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3261 REBUTTAL ON BEHALF OF APPELLANT KEVIN WADDELL - 4 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Department alleges that the charges surrounding the Bentley incident was vehicle tampering in violation of California Vehicle Code §10852 and conduct unbecoming a police officer (Allegations 3 and 4). The Department’s “Evidence” In their post-hearing brief, the Department states that the term “tampering” in the vehicle code section it is not further defined, however, its “typical definition” is “To meddle, especially for the purpose of altering, damaging, or misusing” [See Post-Hearing Brief of the San Luis Obispo Police Department, p. 9]. To support their position, the Department relied on the testimony of Officer Greg Benson (hereafter Benson”) and Sgt. Chad Pfarr [See Post-Hearing Brief of the San Luis Obispo Police Department, p. 9]. a. The Testimony of Officer Benson and Sgt. Pfarr As it relates to Officer Benson, the Department claims that “there is no good reason to disbelieve or doubt Benson’s testimony or motive in providing it” and “he is a facially neutral witness” [See Post- Hearing Brief of the San Luis Obispo Police Department, p. 9]. Officer Benson testified that in the early part of 2013, prior to Sgt. Pfarr becoming sergeant, he was Officer Benson’s partner and training officer RT, Benson, 06/26/15, 379-380]. So not only was Officer Benson a probationary employee at the time of the Bentley incident, but he was under Sgt. Pfarr’s direct supervision, who was his training officer and former partner. Thus, he is not a “facially neutral” witness, as the Department calls him, as his loyalties are with Sgt. Pfarr, his former partner. Officer Benson was not just Sgt. Pfarr’s former partner, but easily could have been “in fear of” Pfarr, as his probationary supervisor, who would have held his employment future in his hands. The Department uses Officer Benson’s testimony, specifically where he states that Waddell tried to pry off the Bentley symbol off on the rear trunk lid, first with his hands [See Post-Hearing Brief of the San Luis Obispo Police Department, p. 9]. However, on cross-examination, Officer Benson admits that it could not possibly happen [RT, Benson, 06/26/15, 397], as it would be physically impossible for someone to pry off the Bentley emblem off the trunk. Additionally, the Department uses Officer Benson’s testimony that he saw Officer Waddell damage the emblem on the trunk [See Post-Hearing Brief of the San Luis Obispo Police Department, p. 9]; however, Officer Benson acknowledged that he never reported this damage to anyone—not Sgt. Pfarr, not to the insurance adjuster, and not to any lieutenant or supervisor. You would think that if Officer Benson, a probationary employee, actually witnessed an officer cause damage to a vehicle in the traffic collision, that he would have reported it to someone, and ultimately, there was, in fact, no damage to the emblem. Additionally, Sgt. Pfarr does not even remember Officer Benson being present on scene during the Bentley incident. Sgt. Pfarr’s testimony is as follows: CASTILLO Q. Who do you remember being there besides Waddell and Kevany? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3262 REBUTTAL ON BEHALF OF APPELLANT KEVIN WADDELL - 5 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PFARR A. Cudworth was there and I don't remember, at that point, who else had left or who was still around. I believe Chitty might have still been there. Q. Did you talk to Chitty? A. I don't believe so, but I think at the point of the interview you're referring to, the people I recall being there was Kevany and Cudworth. Q. Did you talk to Cudworth? A. I believe it was very briefly, but I don't know for sure, is what I said. Q. What about Benson? A. I never talked to Benson. Q. Did you -- you left with Benson, though, right? A. I don't remember Benson being at the scene [RT, Pfarr, 08/21/15, 1439]. Not only does Sgt. Pfarr not remember Benson being at the scene, but it is clear by Officer Benson’s testimony and his interview with Internal Affairs that Benson does not truly remember what happened during the Bentley incident. When Officer Benson was interviewed by Internal Affairs on February 5, 2014, he is asked specifically whether he remembered Officer Waddell trying to remove the steering wheel emblem, and he states, “I want to say I remember – like, you know how most cars have an emblem on, like, where the air bag would be?” [See Appellants Exh. E, p. 7]. He then goes on to say “For some reason, I want to say he took out his knife and cut, like, a piece out of the leather that was off the steering wheel, but I can’t remember” [See Appellants Exh. E, p. 9]. Later on he states “or maybe he just ripped it,” when speaking of the emblem on the steering wheel [See Appellants Exh. E, p. 9]. Benson’s responses to these questions highlight a lack of clear memory of what occurred during the Bentley incident. Interestingly, now, when testifying at the hearing, some three years later, he remembers a knife and cutting of the leather. Additionally, in his interview with Internal Affairs, he stated that “the cloth had come off the steering wheel” and that “the cloth had come off because of the accident.” All of this is inaccurate and false. b. The Testimony of Officer Waddell The Department then claims that Waddell’s own testimony standing alone meets the definition of vehicle tampering. However, this is not a true statement. Officer Waddell testified to his training and experience in accident reconstruction, and that he knew that he would not be causing any damage to the vehicle by removing the emblem on the hub cap. At all times, Appellant has remained consistent in Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3263 REBUTTAL ON BEHALF OF APPELLANT KEVIN WADDELL - 6 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 stating that his intention was not to cause any damage, and only to play a joke on the newly promoted sergeant. Even Sgt. Pfarr admitted that he believed that Officer Waddell was just joking. The Department then mentions that Officer Waddell’s conduct “amounts to theft.” This ridiculous and ugly departure from the truth is not only not one of the allegations against Appellant, but his behavior can in no way amount to theft. Theft requires mens rea, or a guilty mind, that the Appellant have criminal intent to deprive the owner of his/her property. Officer Waddell never intended to deprive the owner of the Bentley of any of those vehicle parts. In fact, Officer Waddell never removed the vehicle parts from the accident scene. Officer Waddell never had any intention of taking and keeping any of those vehicle parts as trophies for a “collection” of any kind [RT, Waddell, 10/02/15, 1728]. After Appellant popped off the Bentley lug nut cover, he noticed Sgt. Pfarr reacting, and he said loud enough that he thought Sgt. Pfarr could hear, “hey, man, I'm just messing around with you” as Sgt. Pfarr continued to his car and drove away [RT, Waddell, 10/02/15, 1720]. According to Officer Waddell, At that point, I took the hubcap and the other hubcap that was there with it and I put it inside the car, which is typical of these accident scenes, as the tow truck driver will clean up all the parts and just throw them inside the passenger compartment of the car because it's easier to transport them. So that's where I put them because that's been my experience where all those parts go anyway… I have regularly seen the tow truck driver sweep up things into a bucket, car parts, kitty litter that they use to clean up fluids, and dump that into an open window of a car into the passenger compartment of the car” [RT, Waddell, 10/02/15, 1720-1721]. Therefore, Appellant put the hubcaps back inside the car in the passenger compartment of the car, which was typical of these types of accidents, as the tow truck driver would clean up all the parts and put them in this location. No damage was done to any part of the Bentley by Officer Waddell, and nothing else was removed [RT, Waddell, 10/02/15, 1721-1722]. The rear and hood emblems were not touched, and contrary to the testimony of Officer Benson, the steering wheel or column area was never touched or damaged by Officer Waddell [RT, Waddell, 10/02/15, 1722]. The Department claims that “nobody else at the scene knew it was a prank” and “Pfarr did not know it was just a prank” [Post-Hearing Brief of the San Luis Obispo Police Department, p. 11]. However, there were numerous times when Sgt. Pfarr states that it was a prank. In Sgt. Pfarr’s very own interview with Internal Affairs he continued to reiterate how it was just a joke [See Appellant’s Exhibit C]. In his interview with Lt. Proll, his statement is as follows: My take on it was that it was a joke that he took a little bit too far once the – once the he involved the tow truck driver.” [See Appellant’s Exhibit C, p. 19]. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3264 REBUTTAL ON BEHALF OF APPELLANT KEVIN WADDELL - 7 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Again, later on in his interview, Sgt. Pfarr is asked about whether he believed it was a joke. His statement is as follows: PROLL: And so when Kevin came in and he said – great deal of remorse, it was a joke that went too far, and you counseled him and didn’t think it was going to be an issue again— PFARR: Correct [See Appellant’s Exhibit C, p. 21]. In their post-hearing brief, the Department goes on to speculate that no one else at the scene knew it was a prank, and that to the outside world it did not resemble a prank [Post-Hearing Brief of the San Luis Obispo Police Department, p. 11]. However, the Department failed to present any evidence to support that any singular member of the public was aware 1) of Officer Waddell’s actions and 2) had an opinion about them. The Department goes on to make an assumption about the tow truck operator, and what it “likely” looked like to him [Post-Hearing Brief of the San Luis Obispo Police Department, p. 11]. —despite absolutely no evidence being presented about what the tow truck operator thought or believed. The Department never called the tow truck driver as a witness to support their allegations against Appellant or about “his perception.” Although the tow truck driver was “interviewed” during the course of the investigation, his statement was not recorded, and he stated that he did not see any of the officers remove any hubcaps from the Bentley [See County’s Exhibit 8, p. 4]. Evidence was presented by the Appellant that the tow truck driver knew it was a prank. Officer Waddell’s testimony was that he had a conversation with the tow truck driver when he returned the screwdriver. Officer Waddell’s testimony is as follows: CASTILLO: Q. When you talked to the tow truck driver, other than saying could you borrow the screwdriver, what was your conversation like? WADDELL: A. Well, when I returned the screwdriver to him, I made some casual comment to the effect of, hey, I don't know if you were watching, or whatever, but we were just joking around. Q. Did he say anything to you? A. He kind of awkwardly chuckled as if he didn't really know what I was talking about or he was confused about what I was saying. Q. Did you have any knowledge as to whether or not he had witnessed what you had done? A. I didn't have any specific knowledge [RT, Waddell, 10/02/15, 1723]. Even Sgt. Pfarr’s statement to Internal Affairs investigators was that Officer Waddell told him he had a conversation with the tow truck driver. His statement is as follows: Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3265 REBUTTAL ON BEHALF OF APPELLANT KEVIN WADDELL - 8 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROLL Q: Did Kevin say he had a conversation – other than asking the tow truck driver for a screwdriver, did he – when he put them back, did he say, “I was just kidding”? Did he – PFARR A: Oh, you know what, yeah. He did say that he kind of brushed it over with the tow truck driver and let him know that it was a new sergeant. It was just a joke and all that stuff. In the Department’s Post-Hearing Brief, the Department states, “even if he was truly just kidding, his conduct was the product of such poor judgment and conveyed such an objectively poor image of him and the department that it warrants disciplinary action” [See Post-Hearing Brief of the San Luis Obispo Police Department, p. 11]. However, it is clear based on both Sgt. Pfarr’s testimony and Officer Waddell’s testimony that Appellant was disciplined for his conduct and actions in the Bentley Incident—a verbal counseling from Sgt. Pfarr. During that office conversation, Sgt. Pfarr indicated to Officer Waddell that he had already talked to the other officers on the scene, that he made sure that they knew that he handled it with him, and that it was done [RT, Waddell, 10/02/15, 1729]. Officer Waddell took the overall conversation that to mean that he “got verbally disciplined for doing something wrong and [Sgt. Pfarr] made sure that everybody else knew that he disciplined [Waddell] or counseled [Waddell]. Officer Waddell apologized to Sgt. Pfarr that night for “putting him in the position and playing a prank, and when he left the office, he believed the issue had been resolved [RT, Waddell, 10/02/15, 1729]. In their post-hearing brief, the Department also argues that Officer Waddell apologized to Sgt. Pfarr, and never told him that he and Amoroso had discussed pranking him while both were at the scene Post-Hearing Brief of the San Luis Obispo Police Department, p. 11]. However, Officer Waddell explains that Sgt. Pfarr was already upset about what was going on. After Officer Waddell returned to the station on the night of the Bentley incident, he reported to the office to speak with Sgt. Pfarr. The conversation was as follows: WADDELL A: So when I walked in, I said, hey, what's up, because I'm there, and he quickly spun around in the chair and went right back into the same stuff he was saying on the phone about you put me in a bad spot, and we went through all the possible scenarios of what was not good about that and how it could look bad for him, us, the department, all those kinds of things. He, pretty much, chewed my ass. CASTILLO Q. Okay. What was your response, if you had one? A. I was apologetic to him. I was apologetic to the fact that how it could have been perceived, that was not my intention, I was just messing with you, there was no hard feelings, those kinds of things. Q. Did you tell him that it was a joke? A. I believe that was the message that I conveyed by, I was messing with you, and he didn't seek clarification. So I got that he knew what that meant. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3266 REBUTTAL ON BEHALF OF APPELLANT KEVIN WADDELL - 9 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Q. Okay. And at that time, did you tell him that you had had that conversation with Sergeant Amoroso that evening about, hey, wouldn't it be funny to play a joke on Chad because he's a new sergeant? A. I did not tell him that. Q. Why not? A. I felt like, based on Sergeant Pfarr's response, how upset he was about it, at that point, I was in a position to just lay on the grenade, so to speak. I didn't want to, necessarily, compromise Sergeant Amoroso for something he said that was my responsibility in making the decision to play the prank. I didn't want to make things worse in the situation, I didn't want to make things worse between he and Sergeant Amoroso, he being Sergeant Pfarr. So I figured, at that point, just drop it, leave it, let the whole thing go away and we'll all move on with it just being a poor decision of a bad prank [RT, Waddell, 10/02/15, 1727-1728]. Contrary to the assertions of the Department, Officer Waddell was aware that Sgt. Pfarr was already upset about the prank, and Waddell chose to mitigate the situation, and leave well enough alone, and not involve Sgt. Amoroso in his decision to play the prank. c. The Department’s Attempt to Discredit Sgt. Amoroso1 The Department mightily attempted to discredit Sgt. Amoroso’s testimony based on Amoroso being Waddell’s friend and neighbor. However, Sgt. Pfarr testified that he also considered Sgt. Amoroso a friend, and once in awhile they rode motorcycles together, outside of work [RT, Pfarr, 08/21/15, 1453]. Additionally, there were no inconsistent statements or “cross-examination issue” elicited from Sgt. Amoroso that would cause doubt in any of his statements. On cross-examination, he testified as follows: PALMER: And, yet, while you were there, you and Mr. Waddell started to conspire to prank Sergeant Pfarr? AMOROSO: Yes, that’s correct. Q: And you had this conversation with Mr. Waddell while both of you were at the scene? A: Yes. Q. That did not—that conversation didn’t include Sergeant Pfarr, did it? 1 The Department then attempts to discredit Sgt. Amoroso claiming that it showed “a high level of cognitive dissonance in his testimony” in that he was angry that Pfarr dumped the movie incident involving Waddell on him to handle, and he was angry that Pfarr did not tell him about the movie even when it occurred [See Post-Hearing Brief of the San Luis Obispo Police Department, p. 13]. However, this argument is weak in that it is clear that if Sgt. Pfarr witnessed Officer Waddell watching a movie during the C.A.T. shift, and it truly bothered him, then Sgt. Pfarr should have handled it directly with Officer Waddell. In the alternative, if he felt incapable of doing his job, then he should have told Sgt. Amoroso or another supervisor, closer in time when the event actually occurred. It is understandable that Sgt. Amoroso would be irritated that Sgt. Pfarr would coming to him months later requesting that he now address the issue with Officer Waddell. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3267 REBUTTAL ON BEHALF OF APPELLANT KEVIN WADDELL - 10 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A: Uh, no, no. He wasn’t there yet. Q: And you discussed joking – it would be a nice joke to play? A: Sure. Q: And the reason for that was because Pfarr was, again, so new as a sergeant? A: Yes. Q: And, unfortunately, I have to quote you here, not trying to be vulgar, but you said in your interview, “It would be funny to fuck with Pfarr.” A: Yes, it would. Or that’s what I said. I’m sorry [RT, Amoroso, 08/20/15, 1158-1159]. His testimony continues: PALMER: All right. And so it’s my understanding that you started discussing with Mr. Wadell doing something so ridiculous as to make Sergeant Pfarr react with an, oh, my God, what are you doing? AMOROSO: Yes. Q: And you both laughed about the idea? A: Yes [RT, Amoroso, 08/20/15, 1160]. Sgt. Amoroso’s testimony corroborates Officer Waddell’s testimony in that (1) the conversation occurred between Waddell and Amoroso immediately before the Bentley incident, and (2) that therefore, Officer Waddell was joking or pranking Sgt. Pfarr because he was a new sergeant. Sgt. Amoroso also testified that he told Sgt. Pfarr about the conversation he had with Officer Waddell on the night of the Bentley incident [RT, Amoroso, 08/20/15, 1169]. Sergeant Amoroso also testified that this type of prank was of the kind which would be what they would have considered a funny joke” to play on a new sergeant. Sgt. Amoroso’s testimony is as follows: PALMER Q. Now, at some point, when Sergeant Pfarr is discussing this, my impression, again, of your interview could be wrong, tell me if I'm wrong, at some point when you and Sergeant Pfarr were discussing this, it dawns on you what we're talking about? AMOROSO A. Yes. Q. Tell me how that evolution occurred. A. Well, again, initially, you know, my thought was, no way, why would anybody do that, it doesn't make any sense, and, again, it was such an insignificant one-line conversation that Officer Waddell and I had at 2:00 in the morning on a night, and then as I'm recalling the incident, it dawns on me, oh, yeah, we did have this conversation about it would be fun to screw with Chad, and that's all -- that was the end of it. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3268 REBUTTAL ON BEHALF OF APPELLANT KEVIN WADDELL - 11 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 So I said that to him, we did have this conversation before you got there, and that's the only common sense explanation that makes any sense to me. Q. And so when you connected the two things up in your head with what Sergeant Pfarr was telling you, you told him some part of the conversation you had with Mr. Waddell on the scene? A. I told him the whole part of the conversation. Q. Okay. And later on in your interview, you told Lieutenant Proll that Mr. Waddell's acts on the scene after your conversation would be the activity which would be exactly what would have been -- you two have been referring to as a funny joke planned on the sergeant. Do you recall that? A. Yes. Q. Those choice of words? A. Yeah. It would be that type of over-the-top thing, would be, sort of, what we were referring to [RT, Amoroso, 08/20/15, 1169-1170]. While Officer Waddell and Sgt. Amoroso were talking about “pranking the new sergeant” (before it happened) as a matter of course, the Department, in its post-hearing brief, argues that Sgt. Pfarr “did not have to report the Bentley event to his supervisors” [See Post-Hearing Brief of the San Luis Obispo Police Department, p. 13]. Such an argument would seem to suggest that 1) it was in fact actually a prank or 2) that he did not have to “do the right thing”? or 3) that the Department advocates it is okay for the Department to cover-up a “crime” in this section of the post-hearing brief. The Department cannot have a variety of ways —either the Bentley incident was a joke or it was a potential crime, which Sgt. Pfarr and the Department covered up for ten (10) months. After the Department’s argument that the Bentley event was considered a theft and a violation of CVC section 10852—opposing counsel seems to be implying that Sgt. Pfarr committed no wrongdoing for failing to report, and covering- up this theft or crime. This argument alone proves Appellant’s disparate treatment. Apparently, the Department believes that Sgt. Pfarr can do no wrong, but Officer Waddell should be punished. This was also evident in the statements made during the interview of Sgt. Pfarr where he was essentially told by Lt. Proll to downplay the Bentley incident in order to make it easier on himself [Appellant’s Exhibit C: Interview with Sergeant Chad Pfarr (January 25, 2014), p. 26:16-28:12]. Unbelievably, the Department attempts to argue with a straight face that Sgt. Pfarr’s reporting of the Bentley incident (10 months later) makes him a credible witness. However, the fact that Sgt. Pfarr waited ten (10) months to report this incident, where the timing was Officer Waddell attempting to promote, shows exactly where Sgt. Pfarr’s motivation is—he did not want Officer Waddell to further his career. . In fact, during Sgt. Pfarr’s Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3269 REBUTTAL ON BEHALF OF APPELLANT KEVIN WADDELL - 12 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 interview with Lt. Proll on January 25, 2014, Pfarr stated that if Officer Waddell had not applied for the detective position, he probably would not have said anything about the Bentley incident—Waddell would have just remained downtown [Appellant’s Exhibit C: Interview Sgt. Pfarr, dated January 25, 2014, p. 35]. Sergeant Pfarr testified that the Bentley incident lay dormant for some time in his mind until the Department had openings for narcotics investigator position, at which time Pfarr “suddenly” became concerned that the Bentley incident might not have been a joke and that Officer Waddell might have been stealing those parts [RT, Pfarr, 06/25/15, 78-80]. Based on Sgt. Pfarr’s reasoning, it is evident that Sgt. Pfarr’s sole motivation was to prevent Officer Waddell from promoting to detective and has a clear bias against Officer Waddell, not that he was decidedly “doing the right thing” and reporting a possible crime. Ultimately, Sgt. Pfarr is not a credible witness, nor reliable historian of events. During the course of the Hearing, it was clear that Sgt. Pfarr had issues with his timeline of the Bentley incident2. D. THE CAT SHIFT EVENT The Department’s “Evidence” In their post-hearing brief, the Department alleges that Officer Waddell was dishonest about the facts surrounding the October 19, 2013 C.A.T. shift because on three occasions Officer Waddell requested permission to vary either the start time, vary the end time or swap a C.A.T. shift [See Post- Hearing Brief of the San Luis Obispo Police Department, p. 15]. The Department claims that if Officer 2 His testimony is as follows: CASTILLO Q. When did the Bentley event occur? PFARR A. On February 22nd. Q. What year? A. Of 2012. Q. Okay. And you wrote this memo December 20th, 2013? A. I'm sorry. It happened in 2013. Q. Okay. Wait. When -- when did it happen? A. Now I think I'm confusing myself. THE HEARING OFFICER: The memo says 2013. So is your testimony that it was some other day? THE WITNESS: It was 2013. CASTILLO: Q. Okay. Wait. February 22nd, 20 -- A. I think I mistyped it in this memorandum and it should have been -- it should correctly state 2012. THE HEARING OFFICER: So the incident was February 22nd, 2012; is that right? THE WITNESS: Correct. That's the date of the actual incident. THE HEARING OFFICER: Go ahead. BY MS. CASTILLO: Q. So you wrote the memo December 20th, 2013? A. Correct. Q. Okay. So the time period that we're talking about is -- how much later did you write the memo after the incident? A. The accident happened on February 22nd of 2012. Q. Okay. So are we talking two years later that you wrote this memo? A. Basically, yes. [RT, Pfarr, 06/25/15, 183-184]. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3270 REBUTTAL ON BEHALF OF APPELLANT KEVIN WADDELL - 13 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Waddell was under the impression that he could show up when he wanted or leave when he wanted, he would have no need to request permission from Lt. Smith on these three occasions [See Post-Hearing Brief of the San Luis Obispo Police Department, p. 15]. However, this argument ignores the fact that those three instances that the Department is citing were future planned events. The events surrounding October 19, 2013 regarding Officer Waddell’s childcare needs and his reason for being late, were unplanned, unforeseen, and sudden. Officer Waddell testified that there was flexibility on the C.A.T. shift, not only for emergencies, but for small adjustments of 15 minutes to a half an hour [RT, Waddell, 10/02/15, 1748]. Officer Waddell’s testimony is as follows: CASTILLO Q. We've heard some testimony of the duration period of the CAT shift, that it's typically from 11 to 4. Was that fairly set in stone, based on your experience? WADDELL A. No, it wasn't. Q. Can you describe what your experience was? A. My experience with it was that there was extreme flexibility, not only with emergencies, small adjustments of 15 minutes to half an hour, but I also had personal experiences where other officers that I was scheduled to work with had significant childcare issues related to a shift that they were assigned and I was informed by those officers that the entire time frame had been adjusted, not that we were going to work a half-hour less or half-hour over, it was going to be, instead of working 11 to 4, we were going to work 10 to 3 or noon to 5. And I never verified this, I never double-checked who or if they ran that by anybody. I just showed up when that officer -- my partner officer told me to show up and we worked those hours. Q. When that occurred, were you ever notified that that was inappropriate by the watch commander of the day? A. No. Q. Were you ever told by the lieutenant who was in charge of the C.A.T. shift that that was inappropriate or unacceptable? A. No [RT, Waddell, 10/02/15, 1748-1749]. It is clear that Officer Waddell’s testimony about the flexibility of the C.A.T. shift was referring to emergency-type situations, and small adjustments of 15 minutes, unlike the examples that the Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3271 REBUTTAL ON BEHALF OF APPELLANT KEVIN WADDELL - 14 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Department cited in their brief, where officers were either switching for a C.A.T. shift, or occasions where Officer Waddell knew he would need to be one-hour early or late to his C.A.T. shift. In their post-hearing brief, the Department states that there is “no evidence in the record anywhere that supports a reasonable conclusion that Smith was perfectly fine with changing start and stop times without his approval;” however Officer Waddell’s own testimony is undisputed that there was implied consent based on the fact that small adjustments to the C.A.T. shift times were common occurrences, and no supervisor had ever told Waddell that that was inappropriate or unacceptable [RT, Waddell, 10/02/15, 1749]. The Department further argues that Appellant did not bring in any witnesses to testify about the flexibility of the C.A.T. shift; however, Lt. Smith himself testified as to the flexibility of the C.A.T. shift and where officers needed to come in a couple shifts late or needed adjustments for a couple shifts, he would be flexible as long as it was reasonable” [RT, Smith, 07/23/15, 483]. Additionally, Appellant would have brought every C.A.T. officer to testify, but as it is this was already 10-day hearing, and Appellant accommodated the City’s time constraints. Additionally, the Department did not bring any witnesses to refute what Officer Waddell said. They attempt to use Officer Stahnke’s testimony; however, Officer Stahnke stated that he did not work the C.A.T shift that often, indeed less than 5 shifts total. Further, at issue is only the understanding and experience of Officer Waddell, who at no time testified that there was a “blanket permission” to unilaterally shift adjust or flex the shift at-will. His testimony was only that he had personally experienced accommodations made by Lt. Smith, and that he had expected that on this date, due to this unexpected issue, that there would have be no problem, as in the past. In their post-hearing brief, the Department first discusses how Officer Waddell was allegedly late for a C.A.T. shift and left early on October 12, 2013 (which was not a charged allegation), and Sgt. Pfarr took that information to Lt. Smith [Post-Hearing Brief of the San Luis Obispo Police Department, p. 17]. However, what the Department failed to mention was the conflicting testimony between Sgt Pfarr and Lt. Smith, as to Waddell arriving late and leaving early. According to Sgt. Pfarr, he told Lt. Smith that this occurred on October 12, 2013, and that Sgt. Pfarr should speak to Waddell about it. However, according to Lt. Smith’s testimony, he never told Sgt. Pfarr to put anything in writing to convey his concerns about Waddell coming late or leaving early, because Sgt. Pfarr hadn’t directly observed it [RT, Smith, 07/09/15, 550]. These contradictory statements will be discussed in further detail below. Additionally, neither Sgt. Pfarr nor Lt. Smith said anything to Officer Waddell about coming in late or leaving early on October 12, 2013, and Lt. Smith did no follow-up with Sgt. Pfarr about this incident. You would think if this was actually an issue, then Sgt. Pfarr would have raised this issue with Waddell, and that Lt. Smith would have followed-up with Pfarr regarding this issue, and requested Sgt. Pfarr to put in writing his concerns Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3272 REBUTTAL ON BEHALF OF APPELLANT KEVIN WADDELL - 15 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 about Waddell coming in early or leaving late. However, nothing happened regarding the October 12, 2013 incident. In their post-hearing brief, the Department goes on to discuss October 18, 2013, and how Officer Waddell and Lt. Smith were in the same locker room and said “Hi” to each other and that was it [Post- Hearing Brief of the San Luis Obispo Police Department, p. 18]. The Department fails to mention that Lt. Smith was already aware that Officer Waddell was allegedly a “problem officer,” as Sgt. Pfarr had already told him that Waddell had arrived late for the C.A.T. shift or left early. Lieutenant Smith had an opportunity to see if Sgt. Pfarr had spoken with him; however, Lt. Smith said nothing. The Department goes on to discuss how there was no reason for Lt. Smith to do anything, as he was now out of the loop, because Smith told Pfarr to do his job and speak to Waddell about October 12, 2013 [Post-Hearing Brief of the San Luis Obispo Police Department, p. 18]. Interestingly, the Department seems to give Sgt. Pfarr lots of responsibility in dealing with Waddell, when they previously argued in the Bentley incident that Sgt. Pfarr had no authority to initiate an investigation and no responsibility to report. Apparently, the Department wants it both ways—to determine when Sgt. Pfarr should be doing his job (speaking with Waddell in the C.A.T. incident), and making up excuses for him when he fails to do his job by explaining that it is not his responsibility (Bentley incident). The Department then blames Officer Waddell for not typing his text message to Sgt. Pfarr more carefully [Post-Hearing Brief of the San Luis Obispo Police Department, p. 21]. Perfect grammar, spelling and punctuation may have indeed saved the day. Sergeant Pfarr following the tenets of the Peace Officers’ Bill of Rights would have also been preferred. City of Los Angeles v. Superior Court Labio 1989) 212 Cal.App.3d 363. The Department then claims that Officer Waddell created a “blanket authority to flex the house without approval story” when he is interviewed by Bledsoe [Post-Hearing Brief of the San Luis Obispo Police Department, p. 25]. However, when reviewing the transcript of Officer Waddell’s interview with Lt. Bledsoe, it is clear that Lt. Bledsoe concocted this “blanket authority” term which has become the Department’s primary argument [See Appellant’s Exhibit KK, p. 15: 14-17]. a. Issues with Sgt. Pfarr’s Credibility The Department relies on the credibility of Sgt. Pfarr to support their position regarding the events that took place on October 19, 2013. However, as shown throughout the 10-Day hearing, Sgt. Pfarr is not a credible witness, nor a reliable historian of events. As discussed in the California Evidence Code section 780: Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3273 REBUTTAL ON BEHALF OF APPELLANT KEVIN WADDELL - 16 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: a) His demeanor while testifying and the manner in which he testifies. b) The character of his testimony. c) The extent of his capacity to perceive, to recollect, or to communicate any matter about which he testifies. d) The extent of his opportunity to perceive any matter about which he testifies. e) His character for honesty or veracity or their opposites. f) The existence or nonexistence of a bias, interest, or other motive. g) A statement previously made by him that is consistent with any part of his testimony at the hearing. h) The existence or nonexistence of any fact testified to by him. i) His attitude toward the action in which he testifies or toward the giving of testimony. j) His admission of untruthfulness. Between Sgt. Pfarr’s inconsistent statements between his interview with Internal Affairs and his testimony at the hearing, as well as his “timeline” of events, the evidence is overwhelming that Sgt. Pfarr is not a credible witness. First Sgt. Pfarr stated that he had been promoted in February of 2013, and then he states he was promoted in the beginning of 2012 [RT, Pfarr, 06/25/15, 87]. i. Pfarr’s “Watching” Waddell Additionally, Sgt. Pfarr had a clear bias against Officer Waddell. It is clear that Sgt. Pfarr had been “watching” Officer Waddell, since the moment he had become sergeant, and that his intent was to get rid of Officer Waddell. Sgt. Pfarr testified that because Officer Waddell signed up for so many overtime C.A.T. shifts, that it seemed as though he was getting “burnt out,” and that Sgt. Pfarr recommended to Lt. Smith that they have another officer, not Officer Waddell, work these shifts [RT, Pfarr, 06/25/15, 98]. Sgt. Pfarr testified that his opinion was based on seeing Officer Waddell late once or twice, that he saw him watching a movie on his lunch break, and that Sgt. Pfarr couldn’t hear him on the radio during the C.A.T. shift [RT, Pfarr, 06/25/15, 138]. Sgt. Pfarr never pulled Officer Waddell’s statistics to determine his productivity; his opinion was purely based on lack of radio traffic. At the hearing, he testified that he intended on speaking with Officer Waddell about arriving late and not hearing any radio traffic on Waddell’s shift. He testified that on October 12, 2013, So I checked the sign-up sheet, saw it was Mr. Waddell, went down to the locker room to see if he was there or if he just hadn't come to see me yet because I was ready to go back out into the field. So I found him in the locker room. He was still changing, getting ready to finish, getting ready to go out and he commented that he didn't realize he needed gas. So he had -- he was late because of the gas situation. That was the end of it. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3274 REBUTTAL ON BEHALF OF APPELLANT KEVIN WADDELL - 17 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Later in that week, there was another shift that he worked where we hadn't heard any activity, and, typically, these shifts are a very proactive type of assignment. We expect to hear a lot of radio traffic. I hadn't heard that. There was a -- we used to have a downtown satellite office. It was a small one-room office, no windows. It was kind of a way to get away from the public and work on reports and whatnot. So I responded to that office, I can't remember which day it was, but it was in between the 12th and the 19th, and found Mr. Waddell watching a movie, while eating his lunch. So based on that, I -- we didn't have any conversation about it, but it was -- I could tell he was tired. I offered to buy him a coffee. So we walked out of the office and I bought him a coffee and he went out and completed patrol some more. Based on those two incidents, I decided to have a conversation with the day watch lieutenant, who was in charge of scheduling all that overtime. That was Lieutenant Smith. Kevin had been preparing for a family vacation and had signed up for quite a lot of this overtime leading up to that vacation, and based on the expectations that Lieutenant Smith had given me for the activity level that was expected of the officers, I went to Lieutenant Smith and suggested that perhaps Kevin wasn't the best officer to be working these overtime shifts. Rather than reassign another officer at that point, Lieutenant Smith asked me to have a conversation with Kevin on the 19th to address the issue and see if that fixed the problem prior to us reassigning those remaining shifts to another officer.” [RT, Pfarr, 06/25/15, 30-32]. Sgt. Pfarr’s bias is evident by his attempt to make it appear that Officer Waddell had a pattern of behavior of lateness and work ethic issues, and yet on cross-examination Pfarr testified that Officer Waddell was only late two days, and on October 12, 2013, he was only “about 10 to 15 minutes late” RT, Pfarr, 06/25/15, 132-133]. He goes on to state that he did not reprimand Officer Waddell on October 12, 2013 [RT, Pfarr, 06/25/15, 135]. First of all, a problem of lateness implies the Officer was late more than one time. Second, the fact that Sgt. Pfarr did not even mention to Officer Waddell that lateness was a problem on October 12, 2013 is also questionable. Then Sgt. Pfarr mentions that Officer Waddell was watching a movie at the downtown bike office on his lunch break [RT, Pfarr, 06/25/15, 136]. Interestingly, after Sgt. Pfarr saw that Officer Waddell was on his lunch break and watching a movie, he then took Officer Waddell to coffee at Starbucks [RT, Pfarr, 06/25/15, 137]. Further, Sgt. Pfarr did not discipline Officer Waddell for watching the movie—there was no verbal counseling [RT, Pfarr, 06/25/15, 137]. ii. Problems with Timeline In Sgt. Pfarr’s hearing testimony, he states that on October 19, 2013, at 11:05 a.m. he goes to find out who is C.A.T. shift for the day and goes to reference the schedule [RT, Pfarr, 06/25/15, 124]. Then Sgt. Pfarr indicates that he then saw Stahnke, and he asked him if he knew where his partner was, and Stahnke indicates that he received a text message from Mr. Waddell indicating that he was going to be 30 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3275 REBUTTAL ON BEHALF OF APPELLANT KEVIN WADDELL - 18 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 minutes late [RT, Pfarr, 06/25/15, 125]. Sgt. Pfarr then states that he stopped to talk to Stahnke at “five minutes after 11:00” [RT, Pfarr, 06/25/15, 117] However, Sgt. Pfarr then testifies at hearing: I left my office to go see if I could find them, saw that Waddell was going to work on the sign- up sheet. So I sent him the text message asking him if he was still going to come in today. After I sent that message, Officer Stahnke –or Detective Stahnke came out of the whatever room he was in into the hallway and I saw him, also knowing that he was there to work CAT. I asked if he had seen his partner yet because I still had not heard from Waddell” [RT, Pfarr, 06/25/15, 127]. This timeline of events makes absolutely no sense. It is well established that Sgt. Pfarr texted Officer Waddell at 11:11, as that is the time stamp on the text messages. It is not possible that Sgt. Pfarr spoke to Stahnke at 11:05 a.m., which was AFTER he texted Officer Waddell at 11:11 a.m. Sgt. Pfarr’s timeline of events in the C.A.T. incident during his interview with Internal Affairs contradict with his memorandum, and contradicts with his own testimony during the hearing. In Sgt. Pfarr’s interview with Internal Affairs on November 15, 2013, he states: So that shift was supposed to start at 11:00 a.m. He – at 11:15 I’d noticed that nobody was here. I hadn’t seen anybody yet that was supposed to be in working CAT” [See Appellant’s Exhibit FF, p. 2]. Later on in this interview he again states the time he realized no one was working CAT was at 11:15 a.m. His statement is as follows: So at around 11:15 I hadn’t been contact by anybody yet to get their equipment out of the cupboards downstairs from the patrol box or anything like that. So I started wondering if they were here or not. ” [See Appellant’s Exhibit FF, p. 3]. According to his interview, he then made a phone call to Lt. Smith to make sure that Lt. Smith hadn’t already cancelled the shift, but he received no response from Smith [See Appellant’s Exhibit FF, p. 5]. After his call to Lt. Smith was unanswered, Sgt. Pfarr states that he shoots a text message to Waddell asking him, “Are you still working today?” [See Appellant’s Exhibit FF, p. 6]. When asked what time he texts Waddell, Sgt. Pfarr stated that “it’s about ten after or so” [See Appellant’s Exhibit FF, p. 6]. There is a clear dissonance between Sgt. Pfarr’s statements even in his interview. Sgt. Pfarr could not have just realized that no one was working C.A.T. shift at 11:15, if he texted Waddell at 11:11 a.m. asking him if he was working today. According to Sgt. Pfarr’s memorandum to Lt. Smith about this incident, dated October 19, 2013, it was “at approximately 1105 hours” when he went to find Officer Waddell and could not [See Department’s Exhibit 9: Memorandum From Sgt. Pfarr to Lt. Smith, dated October 19, 2013]. He then Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3276 REBUTTAL ON BEHALF OF APPELLANT KEVIN WADDELL - 19 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 checked the schedule and noted no CAT overtime had been entered for today,” and he placed a phone call to Lt. Smith “to determine if the CAT overtime shift had been altered” but he received no answer See Department’s Exhibit 9]. He then sent Officer Waddell a text message if he was still planning to work the shift. During this memorandum, he claims that as he began this text message exchange, he saw Detective Stahnke walk down the hall, and asked him if he had seen Officer Waddell, at which time he stated that Officer Waddell advised him that he would be 30 minutes late to work [See Department’s Exhibit 9]. Sgt. Pfarr’s interview and memorandum contradicts with his own testimony at the hearing. In his testimony on June 25, 2015, he states: So at 11:00, I went out to see if anybody was there. I’d come back in from the field so I could assign the patrol box. Nobody was there yet. So I went into my office and checked the digital calendar scheduling program that we use” [RT, Pfarr, 06/25/15, 33]. According to his testimony, Sgt. Pfarr then went out into the hall to look at the CAT overtime shifts, and on his way to do that, he called Lt. Smith to confirm that the shift hadn’t been canceled [RT, Pfarr, 06/25/15, 33-34]. He goes on to state that, “As I went out to check the hard copy in the hall, I saw Detective Stahnke and then we were able to confirm who his partner was for sure and asked if he knew where he was and he told me he had talked to Kevin and Kevin was running 30 minutes late” [RT, Pfarr, 06/25/15, 34]. Then he goes back to say “prior to going out and meeting with Detective Stahnke, I had placed a text message to Kevin, asking if he was still coming in to work that shift” [RT, Pfarr, 06/25/15, 35]. According to Sgt. Pfarr’s testimony, Mr. Waddell showed up for the shift around 11:30, 11:35 [RT, Pfarr, 06/25/15, 42]. Sgt. Pfarr’s timeline of events also contradicts with Detective Stahnke’s timeline of events, as to what time he spoke to him. According to Detective Stahnke’s testimony, Sgt. Pfarr approached him BEFORE the CAT shift had event started, prior to 11:00 a.m. Sgt. Pfarr testified that he texted Waddell at 11:11 a.m., and some text messages went back and forth within five (5) minutes [RT, Pfarr, 06/25/15, 143]. Sgt. Pfarr then called Lt. Smith sometime between 11:11 a.m. and 12:14 p.m. [RT, Pfarr, 06/25/15, 144], the time at which Sgt. Pfarr took a screen-shot of the text message exchange. After the conversation with Lt. Smith, Sgt. Pfarr called Officer Waddell on the radio and asked him to come back to the police station [RT, Pfarr, 06/25/15, 144]. Then Sgt. Pfarr states that his impression was that Officer Waddell Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3277 REBUTTAL ON BEHALF OF APPELLANT KEVIN WADDELL - 20 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 was nervous during this conversation; however, when he was asked to explain why, he testifies as follows: PFARR: A. When he walked into the door, my impression was he was nervous. Any time an officer gets called into the sergeant's office, they always come up and appear a little uneasy about why they're there, even when we're just having a casual conversation and it has nothing to do with any sort of discipline. So I think it's like when you were a kid getting called to the principal's office, not necessarily knowing why you were there and just an uneasy feeling. [RT, Pfarr, 06/25/15, 148]. Ultimately, Sgt. Pfarr admits that Officer Waddell appeared normal when he walked into the room [RT, Pfarr, 06/25/15, 149]. Then Sgt. Pfarr admits that Officer Waddell attempted to start talking about the text messages and being late, and that Sgt. Pfarr told him not to say anything about it. Sergeant Pfarr’s testimony is as follows: CASTILLO: Q. Okay. Thank you. You talked to Lieutenant Smith, you talked about the conversation. What else was said? PFARR: A. With Kevin? Q. Correct. A. I told him not to say anything because he wanted to start talking about it. Q. Kevin wanted to start talking about it with you? A. Yes. Q. Okay. And what do you mean by that? A. He said something to the effect of, sorry, what I meant, and I cut him off. Q. So sorry, what I meant -- A. Something to that effect. Q. Okay. A. He was going to go in and start talking about what transpired. Q. Okay. And you cut him off and said, this will be fleshed out later, we're not going to have this conversation, something to that effect, correct? A. Yes. Q. Okay. And then did you send him back out on -- bike patrol, CAT patrol? Sorry. A. Yes. He went back to work. Q. On overtime? A. Yes, he was being paid overtime. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3278 REBUTTAL ON BEHALF OF APPELLANT KEVIN WADDELL - 21 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Q. And you believed at this point that he had lied to you? A. Yes [RT, Pfarr, 06/25/15, 151-152]. Sergeant Pfarr admitted that he never let Officer Waddell explain the misunderstanding that occurred in the text messages. However, in Sgt. Pfarr’s interview with Lt. Bledsoe on November 15, 2013, he stated that the text message he received from Officer Waddell was jumbled up and did not make any sense [See Appellant’s Exhibit FF, p. 6-7]. Sgt. Pfarr stated the following in his interview: PFARR Q: So the response I got from him was – it looked like he was fat-fingered his typing, like he was texting it and just didn’t look at what he’d texted. So the words were a little jumbled up, but the meat of the message was that he had met with Lieutenant Smith the day before in the locker room and discussed him coming in late at 11:30 instead of at 11:00, and Lieutenant Smith had authorized that, basically. And those – so I shot him a text back saying that his text didn’t make any sense and to come see me when he got to the station and was ready to work so I could discuss the issue with him” [See Appellant’s Exhibit FF, p. 6-7]. Nevertheless, in the hearing Sgt. Pfarr admitted that he never let Officer Waddell explain the misunderstanding, and he already believed the Officer Waddell had lied to him. Despite believing that Officer Waddell had lied to him and that may warrant discipline, Sgt. Pfarr sent Officer Waddell back to work to finish his overtime shift. Sergeant Pfarr then wrote his memo regarding this C.A.T. incident on October 19, 2013, allegedly because he was ordered to by Lt. Smith during their phone conversation [RT, Pfarr, 06/25/15, 154]. Sergeant Pfarr’s testimony contradicts with Lt. Smith’s testimony. In regards to the memorandum that Sgt. Pfarr wrote regarding the C.A.T. incident, dated October 19, 2013, Sgt. Pfarr testified that Lt. Smith ordered him to write that memorandum [RT, Pfarr, 06/25/15, 154]. However, Lt. Smith states that it was Sgt. Pfarr’s decision to write this memorandum [RT, Smith, 07/09/15, 471]. Lieutanent Smith’s testifies that during his conversation with Sgt. Pfarr about Waddell arriving late that he wanted to ensure that this wasn’t a misunderstanding. His testimony is as follows: Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3279 REBUTTAL ON BEHALF OF APPELLANT KEVIN WADDELL - 22 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PALMER Q: During that conversation with Sergeant Pfarr, did you discuss what potential steps were in play? SMITH A: Yeah. We talked about it and I just said, you know, I wanted him to ensure it wasn’t a misunderstanding. I told him to, you know, ensure, you know, his conversation with him was bad information and that I trusted him to handle it appropriately. I didn’t know if he needed to further talk with Kevin for clarification because we hadn’t talked specifics on how he lied to him or how the lie occurred. He just said he had lied to him and Chad said he was going to think about it and try to determine how he wanted to address it at that time [RT, Smith, 07/09/15, 470]. Lieutenant Smith’s testimony continues: PALMER Q: And do you remember when in time – the timing of the events that had occurred? SMITH A: It was shortly after the initial conversation that we discussed it. He called me back and he said he felt strongly that Kevin had just blatantly lied to him regarding his reason for being late and that he was going to complete a memo to me regarding the incident [RT, Smith, 07/09/15, 471]. Lieutenant Smith told Sgt. Pfarr to ensure it wasn’t a misunderstanding, but did not do so. Sergeant Pfarr never clarified with Officer Waddell what he had meant by the text messages. In fact, when Officer Waddell tried to explain what he meant, Sgt. Pfarr cut him off and told him not to say anything [RT, Pfarr, 06/25/15, 151]. It was Sgt. Pfarr who did not want clarification from Officer Waddell because of his own personal bias against Officer Waddell, he had already determined that Officer Waddell was lying. Sergeant Pfarr had already poisoned Lt. Smith’s mind, as to what had occurred on October 19, 2013, and Officer Waddell never had an opportunity to clear up the misunderstanding. b. Lieutenant Smith’s Testimony Sergeant Pfarr came to Lt. Smith about his “concerns” with Officer Waddell watching a movie in the downtown office, leaving early or coming in late for shifts [RT, Smith, 07/09/15, 575]. However, Lt. Smith was inconsistent and contradictory during his testimony relating to Sgt. Pfarr’s concerns. His testimony is as follows: CASTILLO Q. Okay. Now, earlier, you testified that Sergeant Pfarr made you aware that Officer Waddell had been late to CAT overtime. Do you recall that testimony? SMITH A. Yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3280 REBUTTAL ON BEHALF OF APPELLANT KEVIN WADDELL - 23 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Q. And what shifts were those? What dates? A. I don't remember if he gave me specific dates. Q. You didn't document it anywhere, as the supervisor of CAT? A. No. Q. Okay. Did you ask Sergeant Pfarr to document those dates that he noticed Officer Waddell was late? A. I don't believe that I said -- or during that questioning that he was concerned that he was leaving early or coming in late. He didn't have any specific examples or times. So I had instructed Sergeant Pfarr to keep an eye on it and to address it appropriately. Q. Okay. So let me see if I paraphrase this right. Tell me if I get it correct. Sergeant Pfarr tells you, I believe Officer Waddell is late to CAT, but I have no specific examples or dates, and you say, okay, monitor it? A. Late or leaving early. Q. Okay. A. I don't remember specific, and he -- again, field supervisors are often out in the field and not on location and he felt that there was times he may have left before a shift or came in late, I don't know, because he could be out in the field. So, that time, without specific information, I told Sergeant Pfarr to monitor it and address it appropriately [RT, Smith, 07/09/15, 544-545]. First, Lt. Smith doesn’t remember if Sgt. Pfarr gave him specific dates that Officer Waddell arrived late to CAT shift or left early. Then, he clarifies and states that Sgt. Pfarr DID NOT HAVE SPECIFIC EXAMPLES or dates when Officer Waddell was arriving late or leaving early, so he told Sgt. Pfarr to monitor it. His testimony continues: CASTILLO Q. Did you see anything in writing from Sergeant Pfarr that would convey his concerns regarding -- SMITH A. No. Q. -- the timeliness of -- Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3281 REBUTTAL ON BEHALF OF APPELLANT KEVIN WADDELL - 24 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. If he hadn't directly observed it, I would not want him to write up Officer Waddell for something like that. He would need to directly observe the violation and be able to confirm that it happened. For Sergeant Pfarr, when he came to me, you know, it was more of he was coming back to the station close to 4:00 and Kevin would already be gone or there was a concern that he would see his partner here and Kevin was not yet here, but he hadn't observed the exact time that Kevin showed up or left. So for him to complete documentation on that would be inappropriate and that's why I asked him, from that point forward, to monitor and try to be in the department to see when he's showing up and when he's leaving [RT, Smith, 07/09/15, 550-551]. It is clear based on Lt. Smith’s testimony that either he NEVER followed-up with Sgt. Pfarr about the specificities about Sgt. Pfarr’s so-called “concerns” of Officer Waddell and purely took Sgt. Pfarr’s words at face value, or did not consider them serious enough to have him document and address the concerns with Officer Waddell. Later in his testimony, Lt. Smith testified on cross-examination that Sgt. Pfarr raised the issue of Officer Waddell watching the movie in the downtown office. However, Lt. Smith NEVER asked Sgt. Pfarr what kind of movie it was [RT, Smith, 07/09/15, 566]. You would think that if this conduct was truly concerning or a violation of policy, that Lt. Smith would have followed-up with Sgt. Pfarr about what type of movie Officer Waddell was watching. His testimony is as follows: CASTILLO Q. Well, it was enough of an issue for Sergeant Pfarr to be concerned with this movie. You didn't ask what kind of movie it was? SMITH A. No. Q. Certain movies would be violations of policy, right? A. Correct. Q. Big violations of policy, right? A. Correct. Q. You didn't follow up, at all? A. No [RT, Smith, 07/09/15, 566]. Not only did Lt. Smith not follow-up with what type of movie it was, but he admitted that officers are not discouraged from watching work-related training videos at work [RT, Smith, 07/09/15, 567]. His testimony is as follows: Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3282 REBUTTAL ON BEHALF OF APPELLANT KEVIN WADDELL - 25 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASTILLO Q. Have you, today, or up to this period, learned what type of movie this was? SMITH A. No. Q. But the inference Sergeant Pfarr gave you was it was an unacceptable movie; otherwise, it wouldn't have been brought to your attention, right? A. He didn't make an inference. Q. Are officers discouraged from watching work-related training videos at work? A. No [RT, Smith, 07/09/15, 567]. So although it would have been acceptable for Officer Waddell to watch a training video—Lt. Smith did not inquire into what type of movie he was actually watching. According to Officer Waddell’s testimony, he was watching a video relating to building an AR-15, assault riffle, which is something that Waddell used on the S.W.A.T. team [RT, Waddell, 10/02/15, 1736]— obviously a work-related training video. Lieutenant Smith testified that Officer Waddell was not real high on Sgt. Pfarr’s list, and he had become a “problem officer”; however, he was not a “problem officer” to anyone else [RT, Smith, 07/09/15, 578]. The clear bias Sgt. Pfarr had was evident throughout the hearing, even in Lt. Smith’s testimony. Officer Waddell attempted to explain the misunderstanding to Lt. Smith the following Monday, October 21, 2013. Lt. Smith testified that Officer Waddell voluntarily came his office on said date to discuss the C.A.T. shift incident. Lt. Smith’s testimony relating to this conversation is as follows: PALMER Q. And what did he say following that? SMITH A. He didn't give a lot of details. He just said it was, basically, a misunderstanding. He was driving to work and Sergeant Pfarr misunderstood his text messages regarding a conversation he had with me. Q. Is that the sum total of the stuff that he said to you that day? A. To my recollection, yeah. Q. Mainly about the text messages? A. Yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3283 REBUTTAL ON BEHALF OF APPELLANT KEVIN WADDELL - 26 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Q. Did he talk to you about his verbal interaction with Sergeant Pfarr after the text messages? A. No. Q. Did you ask him any questions? A. No. I didn't want to ask any questions, again, based on, you know, what might proceed [RT, Smith, 07/09/15, 478-479]. It was during this conversation that Officer Waddell was attempting to explain the misunderstanding to Lt. Smith, as Sgt. Pfarr refused to allow him to speak with Lt. Smith or conference call him on October 19, 2013, and Sgt. Pfarr refused to listen to his explanation as to the text messages. However, at this point, Sgt. Pfarr had already poisoned Lt. Smith’s mind as to what occurred on October 19, 2013. During the course of the hearing, it became clear that Lt. Smith was the supervisor of the C.A.T. overtime shift, and he was responsible for scheduling the officers for the overtime shifts. According to Sgt. Pfarr’s testimony, Lieutenant Smith would choose which days those shifts were available and who would staff them. He was, typically here and supervised them directly, gave them assignments, problem areas to go and work on, if you would, but in the event Lieutenant Smith was gone, particularly on Saturdays, that would be whoever the day watch sergeant was” [RT, Pfarr, 06/25/15, 93]. Additionally, all of these C.A.T. overtime shifts had to be approved by a supervisor, and so Lt. Smith signed off on all of the overtime shifts Officer Waddell registered for [RT, Pfarr, 06/25/15, 102]. Interestingly, Lt. Smith continued to schedule Officer Waddell after the October 19, 2013 C.A.T. shift incident [RT, Smith, 07/09/15, 579]. You would think that if Officer Waddell’s alleged misconduct was an issue for Lt. Smith, than he would not have continued to schedule Officer Waddell for C.A.T. shifts, an overtime shift, presumably a privilege. When Lt. Smith was asked about what level of discipline arriving 5, 10 or 15 minutes late without prior supervisor approval, he stated that it would have been a low level of discipline, such as a supervisors note. His testimony was as follows: CASTILLO Q. As a sergeant and as a lieutenant, have you ever had an officer appear for a shift 5, 10 or 15 minutes late without having called you? SMITH A. Yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3284 REBUTTAL ON BEHALF OF APPELLANT KEVIN WADDELL - 27 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Q. And what happened? A. I don't recall the specific incident. There's been times where officers have been given a supervisor's note. If it was related to they're on the freeway and there's a traffic accident and they're unable to call, maybe they're just verbally counseled regarding it. So I don't recall what would have been done during those incidents. Q. But you would agree with me that the penalty at that point for arriving without calling would be a very low level, it would either be a verbal counseling or a supervisor's note if there was an explanation that was acceptable, correct? A. Correct. Q. So there's not some great big motivation to avoid this kind of discipline; is that your understanding? A. Yes [RT, Smith, 07/09/15, 709-710]. Clearly, this is a case where, if any discipline was warranted, it would be a low level of discipline, including a supervisors note. As such, Officer Waddell would have no motivation to lie to one supervisor about an easily verifiable conversation with another in order to avoid such a small penalty, if any, versus the total annihilation of his career and family’s livelihood. c. Officer Stahnke’s Testimony Officer Stahnke’s testimony does not support the Department’s position. Officer Stahnke testified that Sgt. Pfarr was looking for Officer Waddell prior to the 11:00 a.m. start time. Officer Stahnke’s testimony is as follows: CASTILLO Q. Okay. Do you recall having a conversation with Officer Waddell, asking Officer Waddell why Sergeant Pfarr was looking for him before 11:00? STAHNKE A. I believe I mentioned it to him, yes. Q. Because you had gotten there early, right? A. Correct. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3285 REBUTTAL ON BEHALF OF APPELLANT KEVIN WADDELL - 28 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Q. Okay. And do you remember what Officer Waddell's response was? A. I don't. I don't. It was just a -- as you mentioned earlier, it was just a courtesy, letting him know that the sergeant was looking for him. Q. And that was before you had told him that you were aware Officer Waddell was going to be a little bit late, right? A. It was after. So I had run into Sergeant Pfarr in the hallway, he told me -- he asked me if I had seen Kevin, I told him that I'd received a text message he was going to be late, and then, at some point in time, I ran into Kevin and I told Kevin the sergeant was looking for him. Q. And this was before 11:00? A. It would have been after 11:00. Q. What time was it around? A. Probably when he got there. I can't pinpoint it. Q. No. I mean not when you talked to Kevin Waddell. When you had the conversation with Sergeant Pfarr. I'm sorry. A. The only time that I recall talking to Sergeant Pfarr was five to ten minutes before 11:00. Q. Before 11:00? A. Correct [RT, Stahnke, 06/26/15, 272]. Detective Stahnke admits that Sgt. Pfarr was looking for Officer Waddell before 11:00 a.m., prior to the shift actually starting. Then Officer Stahnke discusses his conversation with Officer Waddell after the two of them went into service and were on the C.A.T. shift. He states that it was his impression that Officer Waddell was discussing the prior approval by Lt. Smith—not that Waddell had specific permission on that date. The Department attempts to discredit Waddell’s belief that there was flexibility with the C.A.T. shift by Officer Stahnke’s testimony that “it’s scheduled from 11:00 to 4:00;” however, Officer Stahnke testified that he did not work the C.A.T. shifts that often--fewer than five (5) times [RT, Stahnke, 06/26/15, 256]. d. Officer Waddell’s Testimony Regarding Being Late for C.A.T. Shift Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3286 REBUTTAL ON BEHALF OF APPELLANT KEVIN WADDELL - 29 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Department states that the testimony of Officer Waddell regarding being late for the C.A.T. shift to support their position [Post-Hearing Brief of the San Luis Obispo Police Department, p. 19]. The brief goes on to discuss how Officer Waddell texted Officer Stahnke at 10:15 a.m. on October 19, 2013 to notify him that he might be late that day [Post-Hearing Brief of the San Luis Obispo Police Department, p. 19], and that he should have called the watch commander to notify them of his late arrival. Yet, at all times Officer Waddell acknowledged that he should have called into dispatch, and notified the watch commander of the day that he was running late on the 19th, when he became aware he wasn’t going to make it by 11:00 [RT, Waddell, 10/02/15, 1855]. He does not contest that would have been a better course of action. He is remorseful for his tardiness on that date, but that is not a termination offense. E. OFFICERS HIGH OPINIONS OF OFFICER WADDELL Most of the officers that testified at the hearing had high opinions of Officer Waddell, including those about his professionalism and integrity. Sergeant Janice Goodwin supervised Officer Waddell both in patrol and in traffic [RT, Goodwin, 07/24/15, 1016]. She testified about attending an awards ceremony in Pismo Beach, where Officer Waddell received the Foot Printers award [RT, Goodwin, 07/24/15, 1017]. Sergeant Goodwin testified that Officer Waddell received the award for his work in a lot of the Department’s technology, having to do with electronic citations, and electronic traffic reporting, and forward thinking things he was working on at the time [RT, Goodwin, 07/24/15, 1017]. When Sgt. Goodwin was asked to speak about her opinions of Officer Waddell’s professionalism and integrity, her testimony is as follows: CASTILLO Q. Based on your observations of Officer Waddell, do you have an opinion on his professionalism? GOODWIN A. I can speak to my own experiences -- Q. Yes, please. A. -- working with Officer Waddell. I've never had a problem working with him, personally. I have enjoyed supervising him. We've always had a professional, positive -- I mean, in addition to a professional, positive relationship, we've also had a personal friendship, and I've never had a problem with Kevin. Q. Do you have an opinion as to his integrity? A. He's never lied to me, that I'm aware of. I have no concerns about that [RT, Goodwin, 07/24/15, 1026]. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3287 REBUTTAL ON BEHALF OF APPELLANT KEVIN WADDELL - 30 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Officer Berrios worked with Officer Waddell as field partners, and then both went into the motor unit for almost three years [RT, Berrios, 07/24/15, 973]. They also worked other assignments together, including but not limited to, bicycle, rodeos, traffic safety events, special events throughout the city [RT, Berrios, 07/24/15, 974]. Additionally, Officer Waddell being on the S.W.A.T. team when Berrios was on crisis negotiation team [RT, Berrios, 07/24/15, 973]. Officer Berrios testified that he believed Officer Waddell was a truthful person, an ethical person, and he believes that Officer Waddell has a high level of integrity [RT, Berrios, 07/24/15, 986]. His testimony is as follows: CASTILLO Q. And in the eight years that you were here, you, obviously, worked with Officer Waddell? BERRIOS A. Correct. Q. Do you have an opinion about his integrity? A. I do. Q. And what is it? A. I hold it where I hold my own, at a high level of integrity. That's all we have in law enforcement, is integrity. Q. Do you think he's a truthful person? A. I do. Q. Do you think he is an ethical person? A. I do. Q. And an honest person? A. Yes. Q. Had you ever heard that Sergeant Pfarr or anyone else had concerns about Officer Waddell removing anything from the DRMO locker or the DRMO program up until the point you were asked about it by Lieutenant Proll? A. No. Q. When you spoke to Sergeant Pfarr that day at coffee, or any other day, did he ever indicate to you that he had concerns about Officer Waddell's integrity? Did he communicate that to you? A. No [RT, Berrios, 07/24/15, 985-986]. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3288 REBUTTAL ON BEHALF OF APPELLANT KEVIN WADDELL - 31 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Officer Inglehart also testified to Officer Waddell’s work ethic. Inglehart has worked for the San Luis Obispo Department for eleven (11) years now. He worked with Officer Waddell as his partner for almost two (2) years. Officer Inglehart testified to Officer Waddell’s good work ethic and that they were a pretty active unit when they worked together. Officer Inglehart’s testimony is as follows: CASTILLO Q: How often did you work downtown bike patrol with Officer Waddell? INGLEHART: A. Well, we worked four days a week together. Q. Okay. What was your impression of his work ethic? A. I thought it was fine, I thought it was good. We were a pretty active unit, him and I, with Sergeant Amoroso, we were always downtown doing our checks, visiting the bars, felt we ran a really good unit. Q. Did you -- were you proactive? A. Yes. Q. What were your stats like? A. Um, I think I pride myself on being active. That's what the community expects. So I think, by far, we had one of the more active units for a patrol, slash, specialty unit for proactivity. We enjoyed our job. We liked it. Q. Would you be surprised that it would be the opinion of Sergeant Pfarr that Officer Waddell was not proactive while he was on the downtown bike patrol? THE WITNESS: I would be surprised by that, yeah. I think we were pretty active. BY MS. CASTILLO: Q. Would you also work CAT? A. Yes. Q. So when you worked with CAT with an officer and Sergeant Pfarr was the supervisor, would you -- would you be surprised if you heard that that was the opinion, that there was no proactivity going on with Officer Waddell? A. Would I be surprised? I wasn't working with Officer Waddell every CAT shift. So I don't know that, specifically. I can't say, but on the shifts that I worked with him, the couple that I did work, we were very proactive and we had a lot of contacts during our shift. Q. Would all those contacts be reflected over the radio? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3289 REBUTTAL ON BEHALF OF APPELLANT KEVIN WADDELL - 32 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Not all of them, no [RT, Inglehart, 10/02/15, 1898-1900]. Sgt. Amoroso also testified that he was Officer Waddell’s supervisor for two years and three months, and that Officer Waddell was a “great officer” and was “proactive” [RT, Amoroso, 08/20/15, 1123]. Sgt. Amoroso’s testimony is as follows: CASTILLO Q. Okay. And during that time period as his direct supervisor, did you have the occasion to write evaluations for him? AMOROSO A. Yes. Q. Okay. And can you give a general opinion of his work product or work ethic? A. Sure. He was a great officer. I had no problems with him and we -- the unit that we were in, we all got along well, which is important for a small unit that works together day in and day out. Both he and his partner were motivated, did the things they were supposed to do as far as writing tickets and making arrests and contacting drunks, which is most of that job, as well as some public relations. So, yeah, I had no problems with him. Q. In terms of proactivity, do you have an opinion on that? A. Yeah. He was proactive, and, again, you know, that position, proactivity is kind of expected because a large portion of that shift, we're not on calls. So it's a matter of, literally, riding our bikes downtown and looking for work. So we would do that frequently. So he was proactive, as he should have been. Q. Okay. What about on that particular assignment? And you were the sergeant, correct? A. Yes [RT, Amoroso, 08/20/15, 1123]. Honesty is not considered an isolated or transient behavioral act; it is more of a continuing trait of character.” Gee v. California State Personnel Board (1970) 5 Cal.App.3d. at 719. According to his co- workers, Officer Waddell exhibits that continuing trait of character. F. SERIOUSNESS OF THE MISCONDUCT In cases such as the matter before the Hearing Officer, the extent to which the employee’s conduct resulted in, or if repeated, is likely to result in, harm to the public service, should be considered, as well as other relevant factors, including the circumstances surrounding the misconduct and the Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3290 REBUTTAL ON BEHALF OF APPELLANT KEVIN WADDELL - 33 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 likelihood of its recurrence. See Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 217-218. This is known as the Skelly standard. The Department has failed to provide credible evidence that the actions and statements of Officer Waddell are of a grave matter resulting in public harm or trust such that he such suffer termination as a penalty. At the time of his termination in October 2014, Appellant Waddell had an approximate twelve (12) year law enforcement career, and seven (7) year history of employment with the San Luis Obispo Police Department. There had been no similar instances of misconduct and there is no likelihood of recurrence. Moreover, there has been no discipline of any kind with respect to Officer Waddell. The Department relies on multiple extreme cases in comparison in order to demonize Officer Waddell, and attempt to bring him down to the level of the Department’s own administrators. Ackerman v. State Personnel Board (1983) 145 Cal.App.3d 395 is one such example used by the Department, when in fact, there can be no comparison. Ackerman involved a CHP motorcycle officer who utilized his connections with the CHP’s motorcycle dealer to obtain parts directly from the dealer’s suppliers for his own personal motorcycle thereby avoiding the payment of sales tax and the retail markup. Additionally, Ackerman misled his Department by stating he needed new parts for his CHP motorcycle, since they were damaged, but then placed the new parts on his personal motorcycle. He later obtained damaged parts from another department’s motorcycle to return to the CHP academy to show that he had allegedly replaced the parts on his CHP motorcycle. Ackerman subsequently lied about his actions to investigators during the criminal investigation. After this well-thought out and elaborate scheme unfolded, Ackerman in a subsequent follow-up interview, Ackerman finally admitted to what he did. Id. at 398. In the court’s decision, the court noticed a newspaper article was published regarding Ackerman’s activities and filed misdemeanor charges, which affected the public’s trust for the CHP. Id. at 400. The court in Ackerman cited to Wilson v. State Personnel Board (1976) 58 Cal.App.3d 865, 882 (hereinafter referred to as “Wilson” [Wilson involved time card fraud and overtime theft from the Police Department]) finding that “dishonesty in such matters of public trust is intolerable” (emphasis added) in its decision to uphold the termination of Ackerman. The facts regarding the miscommunications via text to Sgt. Pfarr and the subsequent short conversation wherein Appellant Waddell attempted to clarify, but was shut down, are not matters of public trust. There was no news article published nor criminal charges as in Ackerman or Wilson. While Lt. Smith and Sgt. Pfarr will likely opine that their trust for the Appellant is gone, both were forced to admit that they 1) did not have a conversation with the Appellant about the text messages, 2) hear his explanation/rationale, and 3) that they formulated their opinion based on their conversation with each other only, exclusive of the Appellant. The only time it was disputed that the Bentley incident was not a Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3291 REBUTTAL ON BEHALF OF APPELLANT KEVIN WADDELL - 34 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 joke was when Sgt. Pfarr became invested in preventing the furtherance of Officer Waddell’s career. It too, was not a matter of public trust or harm. Ackerman and Wilson require a showing of loss of public trust, an event that affects the officer’s duties as a police officer, and mens rea or intent to deceive, which requires some type of gain by the officer. None of those factors are found in the case against Appellant. Thus, Ackerman and Wilson are not analogous to the matter at hand. The Department has failed to provide credible evidence that the actions and statements of Appellant Waddell are of a grave matter resulting in public harm. The Department also cites to Nicolini v. County of Tuolumne (1987) 190 Cal.App.3d 619. In Nicolini v. County of Tuolumne (1987) 190 Cal.App.3d 619 (hereinafter referred to as “Nicolini”), the court upheld a deputy’s termination on the basis of dishonesty for altering and filling, while in uniform, a prescription for an excessive amount of pain medication. In reviewing the appropriateness of the discipline, the court referenced the decision in Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 217 by which the conduct, or the likelihood of its reoccurrence, caused public harm. The court also focused on the fact that Nicolini had the prescription filled while in uniform and the pharmacist testified he had doubts about the authenticity of the prescription, but filled it based on the trustworthiness of police officers. Nicolini required a showing of public harm and the fact that the deputy’s position as a peace officer was utilized in the dishonest act. These facts are substantially different to the facts outlined in Appellant’s case. As previously stated, the Department has failed to show by credible evidence that the public was harmed by Appellant’s actions and statements. The facts involved with the case at hand do not rise to the same level as outlined in Nicolini where a deputy used his police officer authority to exert influence. The Department also cites to Cranston v. City of Richmond (1985) 40 Cal.3rd 755, a case about off-duty misconduct including reckless driving which endangered the lives of others, and Kolender v. Civil Service Commission (Berry) (2005) 132 Cal.App.4th 716, a case where a deputy lied about and covered up the conduct of another deputy who repeatedly inflicted injury on an inmate. The Department finally hypothesizes that a “future criminal defendant may be able to bring a Pitchess motion prior to his trial” [see Post-Hearing Brief of the San Luis Obispo Police Department, pg. 29, lns.19-23.]. Indeed, this is the right of any criminal defendant, as to any peace officer, in any case, and is subject to the same in camera good cause and materiality review that occurred in this case. Yet, California Evidence Code section 1045(b)(1) specifically exempts from disclosure “information of complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigation in aid of which discovery or disclosure is sought." Given the Bentley incident Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3292 REBUTTAL ON BEHALF OF APPELLANT KEVIN WADDELL - 35 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 occurred in February of 2013 and the CAT incident in October 2013, the relevant time periods have almost passed should the Department sincerely be concerned about this. VII. CONCLUSION The Department attempted to portray Officer Waddell fraught with issues of untrustworthiness. In fact, Officer Waddell is an excellent officer with an exemplary career who made the human error of being late for a shift, failing to call ahead, and sending a cryptic, autocorrected text to a supervisor he had upset 10 months prior after a really bad joke fell flat. Those decisions were bad---but not career-ending bad, even by any standard, and especially with the mitigating facts before this Hearing Officer. A. The Appropriate Remedy is Reinstatement, to Include Making Officer Waddell Whole. For all of the reasons set forth herein, Appellant Waddell asks for a finding that the Department failed to meet its burdens as to each allegation based on the information contained herein. Should the Hearing Officer find that the Department did meet its burden on one or more of the charges, Appellant asks for a finding that termination is excessive based on the evidence before the Hearing Officer. In the alternative, should the Hearing Officer make a finding that the sustaining of lesser charges is justified, Appellant Waddell asks that discipline be commensurate with the charges found to be proven, such that a termination is not the appropriate penalty. Further, based on the evidence provided related to the violations of Officer Waddell’s Peace Officer and Skelly rights, Appellant Waddell requests the Hearing Officer make findings on those issues. Ultimately, Appellant Waddell respectfully requests that the Hearing Officer find the discipline should be set aside and Appellant be reinstated to his position as an Officer, with full reimbursement of back pay (to include wages and benefits), from the date of his wrongful termination on October 2, 2014. Pereyda v. State Personnel Bd. (App. 3 Dist. 1971) 92 Cal.Rptr. 746, 15 Cal.App.3d 47. Dated: December 30, 2015 Respectfully submitted, CASTILLO HARPER, APC KASEY A. CASTILLO NICOLE A. NALEWAY Attorneys for Appellant KEVIN WADDELL Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3293 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3294 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3295 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3296 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3297 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3298 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3299 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3300 1 2 3 4 5 6 7 8''' 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JONES & MAYER Gregory P. Palmer, Esq., SBN 133647 3777 North Harbor Boulevard Fullerton, California 92835 714)446-1400/Telephone 714) 446-1448/ Fax e-mail: gpp@jones-mayer.com BEFORE CHRISTOPHER DAVID RUIZ CAMERON HEARING OFFICER IN THE MATTER OF THE APPEAL OF THE DISMISSAL OF OFFICER KEVIN WADDELL, Appellant, MR POLICEDEPARTMENT OF THE CITY OF SAN LUIS OBISPO, Hiring Authority. CSMCS Case No. ARB -14-0209 REBITTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENT TO HEARING OFFICER CHRISTOPHER DAVID RUIZ CAMERON, APPELLANT KEVIN WADDELL AND HIS ATTORNEY KASEN A. CASTILLO: The San Luis Obispo Police Department hereby submits its rebuttal brief in support of the decision imposing termination of employment on Kevin Waddell. 1- REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3301 1 1. PREPONDERANCE OF THE EVIDENCE IS THE APPLICABLE 2 STANDARD OF PROOF. 3 Preponderance of the evidence is the quantum of proof by which the charge and the 4 evidence in support thereof are to be measured and weighed in this matter. "Preponderance of 5 the evidence" means that evidence which persuades a reasonable person that the fact or event at 6 issue is more likely than not true. Glade v. Hawes Firearms Co., (1990) 226 Cal. App. 3d 314, 7 276 Cal.Rptr. 430; John A. v. San Bernardino City Unified School District (1982) 33 Ca1.3d g 301, 187 Cal.Rptr. 472. 9 The leading case holding that the preponderance of evidence applies to administrative 10 proceedings on disciplinary appeals of public employees is Chamberlain v. Ventura County 11 Civil Service Comm'n (1977) 69 Cal.App.3d 362, 138 Cal. Rptr. 155. 12 In Chamberlain, the Petitioner challenged the commission's finding on the ground that 13 the charges against him were not proven "to a reasonable certainty." The court held that the 14 term "weight of the evidence," as used in C.C.P. §1094.5(c) is synonymous with 15 "preponderance of the evidence" and, therefore, the burden of proof in such an administrative 16 proceeding is the "preponderance of the evidence," not the "clear and convincing" test. 69 17 Cal.App.3d at 367-69. Accord Gardner v. Comin'n On Professional Competence (1985) 164 lg Cal.App.3d 1035, 210 Cal. Rptr. 795. 19 This has been stated again by the courts as recently as 1995 when the State Supreme 20 Court held that, in disciplinary proceedings, the City "bears the burden of proof of a 21 preponderance of the evidence that the employee engaged in the conduct on which the 22 discipline charge is based and that such conduct constitutes a cause for discipline." California 23 Correctional Peace Officers Assn. v. State Personnel Board (1995) 10 Cal. 4t' 1133, 1153. (See 24 also Fukuda v City of Angels (1999) 20 Cal 4`h 805) 25 Moreover, this is true whether or not the nature of the charges to be proved at the 26 administrative hearing are criminal in nature. In Western Electric Co. v. Workers' 27 Compensation Appeals Board (1979) 99 Cal. App. 3d 629, the question at the administrative 28 hearing upon that matter was whether Western Electric Company (" Western") had violated 2- REBUTTALREBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3302 I section 132a of the Labor Code by denying continued employment to Ms. Smith because she 2 filed a Workers' Compensation claim. Section 132a is a criminal statute which can be 3 prosecuted as a misdemeanor. Western contended that since section 132a is a criminal statute, 4 the administrative hearing should have been conducted as a criminal proceeding. 5 The court rejected that argument, explaining first that section 132a has a 6 civil/administrative remedy in addition to its criminal sanctions. The court held that "the 7 finding of a misdemeanor violation of section 132a is not [a] condition precedent to assertion of 8 the civil/administrative remedy of section 132a." (Id. at p. 641). Since the civil/administrative 9 remedy was separate and apart from any criminal sanction, criminal proceedings need not be 10 involved and most importantly, "the [civil/administrative penalty] is not tantamount to finding 11 Western guilty of a misdemeanor". (Emphasis added). 12 After holding such, the court said "inasmuch as this was an administrative determination 13 of the civil/administrative provisions of section 132a, the usual `preponderance of the evidence' 14 standard of proof utilized in administrative proceedings applies..." Western at p. 641). 15 (Emphasis added). 16 Waddell argues the charges and discipline in this matter amount to economical capital 17 punishment and are thus deserving of a higher quantum of proof. Waddell's sole authority for 18 that proposition are labor arbitration cases. This is not a labor arbitration and thus those cases 19 are inapplicable to this matter. Moreover this view is in the minority. 20 On some occasion in the faraway past an arbitrator, momentarily intoxicated by his 21 own eloquence, referred to the discharge of an employee as "economic capital punishment." Unfortunately, the phrase stuck and is now one of the most honored 22 entries in the Arbitrator's Handy Compendium of Cliches. A sentence of death is, of course, almost invariably associated in people's minds with a verdict of guilty 23 beyond a reasonable doubt, a fact that has been systematically exploited in arbitration cases arising out of alleged wrongful discharges of employees. Indeed, 24 the criminal -law analogy, of somewhat dubious applicability even in this restricted form, has been argumentatively extended in some cases far beyond the reaches of 25 logical thinking .... 26 Evidence In Arbitration Hill & Sinicropi, 2nd Ed., BNA Books, 1987. 27 28 3- REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3303 I Applying all of the above, we turn to this case. Waddell raised for the first time in this 2 hearing, after the evidentiary portion was completed, in his post hearing brief, that the quantum 3 of proof in this matter should be clear and convincing evidence. Too late. It is quite unfair and 4 quite sneaky to save such an important issue for the post hearing brief. The clear weight of 5 authority supports a preponderance standard of proof in the employment context. The fact that 6 some of the charges may or may not be stigmatizing does not alter the quantum of proof. It was 7 with that understanding that the city put on its case. It is manifestly improper to argue after the 8 evidentiary portion of the case is completed that a higher standard of proof should be imposed. 9 This is an example of "gunny sacking." If Waddell intended to make this argument it should 10 have been brought up at the beginning of the hearing. It should have been brought up in an 11 opening statement. This is pure and simply "hiding the ball" and it should not be allowed. 12 This is especially true where the applicable rules governing this hearing specifically 13 state that the quantum of proof in employee disciplinary appeals is preponderance of the 14 evidence. San Luis Obispo Municipal Code §2.36.350 governs the conduct of the very hearing 15 Waddell requested by his appeal. Subdivision F governs the action to be taken by the hearing 16 officer following the conclusion of the hearing. Subsection 2 of subdivision F, clearly states, in 17 pertinent part, that the "hearing officer shall find whether the city has substantiated the charges 18 in support of the disciplinary actions." And in doing so, the section further states: "It shall base 19 its findings on the preponderance of the evidence." This should have ended the inquiry before 20 the hearing even began. There is no carve out in the section for a higher burden of proof based 21 on the type of charge against the appellant. (CX -1). 22 In accordance with the applicable personnel rules of the city and the overwhelming body 23 of applicable decisional law, in particular as was held in Chamberlain and Western, supra, the 24 usual preponderance of the evidence standard applies. 25 2. OFFICER WADDEL'S EXPERIENCE ON THE CAT SHIFT 26 Using the headnote provided in Waddell's Brief (Waddell's Post Hearing Brief "PHB", 27 p.8) it must be said that this entire section is decidedly presented solely from Waddell's point of 28 4- REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3304 I view. Excluded from any analysis here is any discussion of the evidence and/or testimony 2 which contradicts this summarized testimony of Waddell. 3 Among the many illustrations of this point is the summarized testimony of Inglehart. 4 Inglehart was asked whether watching movies in the downtown bike office was an issue. In 5 response, Inglehart said "we shouldn't do it on duty, we should attend to our duties." (RT. 6 1894). Inglehart was also unable to corroborate sending an email to Waddell while Waddell 7 and his family were vacationing in Europe concerning Karr. This is something only Waddell 8 testified to that Inglehart did not support. Additionally, what is glossed over in the portion of 9 Waddell's PHB is that Inglehart's experience with Waddell on the CAT shift was very limited. 10 Waddell's PHB states "this opinion carried over to the CAT shifts." (Waddell's PHB, p.8). But 11 a careful reading of the full text of Ingelhart's testimony indicates that he only worked "a 12 couple" of CAT shifts with Waddell. (RT. 1894) Thus, Inglehart is not as supportive of 13 Waddell's CAT shift experience as one may think reading the brief. 14 Waddell points out in this section of the PHB that it was a "regular occurrence" to add 15 time to the end of a CAT shift to compensate for being late and that he "had people all the time" 16 swapping shifts, all seemingly done without any specific approval. (PHB, pp 8-9). Again, the 17 sole support for this claim is Waddell. Waddell did not present even one witness; one fellow 18 officer who varied the CAT shift hours or assignment without approval; to support his claim. 19 One would think if it was such a "regular occurrence" which happened "all the time" that 20 Waddell could have produced one, two even, witnesses to support him. He produced none. The 21 logical inference then is that there is no producible witness who would support his claim 22 because it is not true. 23 A. THE TEXT MESSAGES (CX-10) 24 In this section of Waddell's PHB there are several things to rebut. First, Waddell claims 25 that "at no time did Sergeant Pfarr ever ask Officer Waddell for clarification as to what his text 26 messages meant". (PHB 11/19-20). That statement is neither true nor accurate. Waddell's first 27 text message to Pfarr said this: 28 /// 5- REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3305 1 "Yes. Sorry. I had worked out ahead of one with It Smith. I'm on 2 the way in now." 3 (CX -10) 4 To that Pfarr texted back saying that Waddell's text made no sense and to stop by when 5 he arrives. Implicit in that text is "I don't understand what you just wrote so come in and 6 explain it to me when you get here." Thus, it is not accurate to say Pfarr never asked for 7 clarification. He did so in his text. 8 Moreover, it is not at all clear that Waddell could ever have clarified any of his text 9 messages. Between the time they were composed and sent and the time of his testimony in the 10 hearing, he had two years to figure out how to articulate some other true meaning in his texts 11 and he still cannot do it. As to his first message the only change he would make to it now to try 12 to clarify it is to change the word "one" to the word "others". This would make it say: 13 "Yes. Sorry. I had worked out ahead of others with It. Smith. I'm 14 on the way in now." 15 (PHB, 12/2-6) 16 This change does nothing to clear up the ambiguity from his first text. He has had two 17 years to come up with a way to clarify this text and he still cannot do it. What makes anyone 18 believe he could have done any better clarifying it to Pfarr on October 19, 2013. Waddell even 19 admitted on cross-examination that this amendment does nothing to clarify his message. (RT. 20 1858- 1859) 21 Add to that the fact that Waddell actually did take Pfarr up on the implicit request 22 seeking clarification of his first message by sending his second text message. One has to 23 conclude that, at least from Waddell's point of view, Pfarr was seeking clarification in his text 24 to him because it is in clarification of his first text message that Waddell provides his second 25 text message. Waddell wrote: 26 `Basically, I had talked to Smith yesterday about coming in at 27 11:30. He said fine no problem. But I will stop by." 28 (CX -10) 6- REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3306 I The use of the word "basically" as the first word in his text tends to indicate (1) Waddell 2 realized his first message did not make sense and (2) he is seeking to clarify it with the second 3 text message. And it does clarify it. It is unambiguous. It states unequivocally that he spoke to 4 and sought permission from Lieutenant Smith the day before (October 18, 2013) about coming 5 in at 11:30 and he approved it. There is really no other logical and reasonable conclusion to be 6 drawn from Waddell's word and phrase choice here. It did, indeed, clarify his first message. 7 Pfarr understood and accepted it as fact. There is no need for Pfarr to seek any further 8 clarification of either of Waddell's texts at that point. So it is disingenuous to fault Pfarr for not 9 engaging in what would have been an idle act. Pfarr was entitled to rely upon the accuracy and 10 truthfulness of Waddell's second text message. And he did rely on it until it was shown to be 11 false approximately one hour later when Smith returned his phone call. 12 So, now, Waddell has to figure out a way to get around the clear, unambiguous message 13 in his second text message. So, Waddell blamed the auto -correct function on his 14 communication device and comes up with the following as representative of his true intent in 15 this message: 16 "Basically, I had talked to Smith yesterday. About coming in at 17 11:30. He's fine no problem. But I will stop by." 18 (PHB, 12/18-13/1) 19 To be blunt, this is parsing on a level hardly seen before. It is not the truth. It does not 20 represent the true meaning of his text here. The true meaning of his text was to intend to 21 deceive Pfarr into thinking he had Smith's approval to be late on October 19, 2013 when he, in 22 fact, did not. It is really that simple. 23 But let's break down the message as parsed by Waddell and see if it makes any more 24 sense, is itself the truth and resolves the issues. "Basically, I had talked to Smith yesterday." 25 Waddell said there should have been a period after "yesterday". (PHB, 12/18- 13/1) Let's 26 accept that. This change does not resolve the underlying untruthfulness of his text. Waddell did 27 talk with Smith "yesterday" (October 18, 2013) but all they said was "hi" to each other. There 28 was no discussion of the next day's CAT shift. There was no substantive discussion about 7- REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3307 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 anything beyond an "exchange of pleasantries". Waddell does not dispute that was the sum total of his discussion with Smith on October 18, 2013. So, in placing, even the amended phrase "Basically, I had talked to Smith yesterday.", in his clarifying text message to Pfarr about him being late for his CAT shift, creates in the reader of it an impression that he spoke to Smith the day before about being late the next day. The truth is he had no such discussion with Smith the day before. This is what is known as a "half- truth".' It is a half-truth because (1) it is true that Waddell talked to Smith the day before but 2) it is not true that they talked about him being late for the CAT shift the following day. About coming at 11:30". According to Waddell this should also be a separate sentence and was simply designed to be an estimate of when he was going to be suited up ready to work. PHB, 12/21-27) That is giving that sentence too much credit. That new modified sentence does nothing to articulate it meant that is when he will be ready to work. This just again illustrates the extraordinary parsing going on here. He said fine no problem" becomes "IIe's fine no problem" according to Waddell's auto -correct error. This is a trick designed solely for one reason: to try to get around the very real problem in the original text wording. The original text said, "He said fine no problem." Obviously, in the context of the message "he" would be Smith. Smith did not say fine no problem. All he said was "hi". By changing "He said..." to "He's" Waddell is simply trying to dishonestly avoid the original text which summarized and attributed something that Smith said to him that Smith did not say. At the risk of pointing out the obvious here, Waddell seeks to blame the wording of his second text on the auto -correct feature of his communication device. It would be fair to say that the auto -correct feature usually does not result in a coherent understandable message. The auto - correct feature usually unintentionally corrects what is being typed into something not intended resulting in an incomprehensible, and sometimes funny message, different from what was intended. Here, in order to believe Waddell, one has to believe that the auto -correct feature of his communication device resulted in a completely comprehensible message. A half-truth is a whole lie". Yiddish proverb. 8 REBUTTAL BRIEF OF THE, SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3308 1 Waddell claims in his testimony, copied in the PHB, that he did not think there would 2 have been any problem being slightly late on October 19, 2013. (PHB, 13/7-9) Had he been 3 truthful regarding the reason he was late rather than trying to deceive Pfarr into believing he had 4 the specific approval of Smith, there probably would have been little trouble with him being late 5 beyond a mere discussion ofit. Even Waddell agreed with that premise. During cross - 6 examination he was asked if he had told Pfarr that he had a problem transferring the care of his 7 children to his wife and that was what made hire late, we would only be talking about a penalty 8 for being late? In response, Waddell said, "That would have helped my situation." (RT, 1889- 9 1890) 10 But he did not do that. It would have been so simple to do that. It would have been the 11 truth to do that. For some reason, known only to Waddell, he did not do that. Instead, he 12 deceived Pfarr into thinking he had Smith's permission to be late when that was not the case. 13 B. THE FIRST CONVERSATION WITH SERGEANT PFARR 14 The rendition of the substance of the first conversation with Pfarr has certainly morphed 15 over the pendency of this case and it now bears very little resemblance to what Waddell told 16 Bledsoe about that conversation and even less resemblance to how Pfarr described it. As 17 illustration of this point, here is how Pfarr described this first conversation with Waddell during 18 the interview on November 15, 2013. This conversation occurred at about 11:30 a.m. right after 19 Waddell arrived for work. Waddell said to him: 20 "Hey, I talked to Lieutenant Smith yesterday. We talked in the 21 locker room and I told him that my daughter had a dance function. 22 It was her first one for this dance season and that he wanted to go 23 to that, and Lieutenant Smith had authorized him to come in late so 24 he could attend that dance function of his daughters." 25 (RT. 43-46; CX -12, p.6) 26 Note the wording attributed to Waddell in this conversation. It is remarkably identical 27 to Waddell's second text message which was so heavily influenced by auto -correct. This just 28 n REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3309 1 confirms that Waddell's second text was exactly what he wanted to send and not a mistaken 2 word choice or the product of auto-correct. 3 Pfarr also testified, under oath, in the hearing as to how this first conversation with 4 Waddell went. He said Waddell arrived at about 11:30 a.m. that day. He seemed nervous to 5 Pfarr. Waddell spoke first. He told Pfarr he ran into Smith on October 18, 2013 in the locker 6 room. Waddell told Pfarr that he told Smith his daughter had a dance function, a recital or 7 practice, at which Waddell wanted to be present and he asked Smith if it was all right if he came 8 in late. Waddell told Pfarr that Smith gave him permission to do so. (RT. 42-43) Moreover, 9 Pfarr reviewed his description of his encounter with Waddell in his interview transcript with 10 Bledsoe and confirmed the accuracy thereof. (RT. 43-46; CX-12, p.6) I I What follows is how Waddell described this first conversation with Pfarr during his 12 interview with Bledsoe on December 12, 2013. 13 Bledsoe: Okay. Um, after you arrived at work, after these text 14 messages, did you speak with Sergeant Pfarr in his office? 15 Waddell: Yes, I did. 16 17 Bledsoe: And what did ya tell him? Waddell: Uh, again, I, I don't remember exactly what words I 18 woulda used or phrasing but I, I know the overview of the conversation and what the conversation was was 19 that, ya know, he asked me, ya know, if I got approval from Smith, and I said, well, I, again, I said that I had 20 approval before. Um, I think that what I probably tried, what I conveyed to him was probably that I had got 21 permission for this incident, but I, I don't remember exactly what the conversation was in detail of what I 22 would have said to him or how I worded things. 23 Bledsoe: Did you tell Sergeant Pfau that you spoke with Lieutenant Smith in the locker room the day before? 24 Waddell: Yeah. 25 Bledsoe: On the 18tH? 26 Waddell: Yeah, I, I told him that I talked to Lieutenant, I saw 27 Lieutenant Smith in the locker room, but — 28 to- REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3310 I Bledsoe: Did you tell Sergeant PfwT that Lieutenant Smith gave you permission to come in late so that you could attend 2 your daughters' dance recital? 3 Waddell: I don't, I don't, I could see, I don't, I don't think I expressed it that way. I, I, 1 felt like what my 4 expression was trying to be was that I had saw yesterday. I was trying to say, uh, that I thought it 5 would be okay based on other situations, and, ya know, I don't, I don't think I explained myself well enough to 6 him in that situation. 7 Bledsoe: I mean it appears that from what the others have explained to me, Lieutenant Smith and Sergeant Karr, 8 that you gave Sergeant Pfarr reason to believe that you spoke with Lieutenant Smith and that Lieutenant Smith, 9 you had a conversation with him about comin' late for work because you were gonna go to your daughters', 10 daughters' dance recital. And are, now you're tell, I, I'm not quite sure what you're tellin' me. You either did or 11 you didn't, and so I wanna ask that question one more time just to clarify. Did, when you were in 12 Sergeant Pfarr's office that morning of the 19th, did you tell him that Lieutenant Smith gave you permission to 13 come in late so you could attend your daughters' dance recital? And I mean come in late for the 19th not any 14 previous times. 15 Wilkinson: Are you askin' him if he used those specific words? 16 Bledsoe: I'm asking if that is an accurate, maybe not those specific words, but if he told Sergeant Pfarr that he had 17 permission by Lieutenant Smith to come in late for the 19th so that you could attend your dance, daughters' 18 dance recital? 19 Waddell: Uh, I, I,1, 1 didn't say to him that he gave me permission for that day. I said that Smith's okay with 20 me coming in late. I believe that's how I said it, Smith's okay with me coming in late." I, that was my 21 recollection of how I said it, um, and I said I talked to him. I saw him in the locker room yesterday, and he's 22 okay with me coming in late. I believe that's how I worded it. Um, 1, I can easily see how that would be 23 my implication that he gave me specific permission for that day. 24 Bledsoe: Well, did you mention to Sergeant Pfarr anything about 25 your daughters' dance recital? 26 Waddell: Uh, I believe I told that that's where I was, um, but there would have not been the opportunity the day 27 before for me to ask him about that because the situation arose that morning. That's why I texted 28 Stahnke about it. I, like I said when I conveyed that to 11- REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3311 2 H 0 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sergeant Pfarr it was that, ya know, I, I felt like, I, I felt a little nervous talking to him about it so I, I may have not been as clear as I shoulda been. I feel like I could have explained the situation better, but I felt like he was upset with me that he wasn't told, and I see that now, ya know, looking back that I could of easily just called him about it'cause he was workin' that day. Um, and I, I, I get that. I see that, um, and I think that when I was there how I conveyed to him was just that was that I talked, I saw Smith yesterday and that he's, he's okay with me corrin' in late. I, that simple, poorly -explained explanation to him at the time, I can see how he — I'm not sayin' he's lyin', but I'm sayin' that — Bledsoe: So has Lieutenant Smith given your permission in the past, on past dates to come in late? Waddell: Yes. Bledsoe: How many other times? Waddell: There, there's been, I can think of two times particularly where I've sought permission to come, to either get off, generally to get off early, so rather than leave at 4 be, get off at 3:30 is generally what it would be. Bledsoe: So when he told ya you could come in late on those other occasions, did you think that that was a blanket statement that it's okay that you come in late all the time then? Waddell: That, that, that's kinda the way I construed this situation, and I think that's my, my mistake in overstepping my bounds, um, of, ya know, taking that upon myself and making a poor decision on, that that would okay that, uh, uh, a small amount of time comin' in late, I can just adjust it to another time because it's been okay not just for myself but for other people that I've talked to for cat shifts where it's, it's been really flexed around, ya know, when they come in and when they get off. Um, so I kinda, again, like I said, I, I, that's my fault for overstepping that and, and inferring that that would be something that would be okay without asking him that it would be okay. Um, I see that now looking back. Bledsoe: So was Sergeant Pfarr, did he mis, I mean, was be wrong or is he not being honest when he tell, told me that you came in and specifically told him that Lieutenant Smith told you you could come in late so that you could attend your daughters' dance recital? Waddell: Uh, I, I'm not saying that he's makin' that up, I, it, uh, that can very well be what he thought he heard, but I, I, 12- REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3312 I I don't remember exactly what I said, and I don't remember the exact words that I said, but I, I don't 2 believe that that would've been something that 1 3 would've said in that kind of a situation. I, I think that something that I would have said in a situation like that 4 would have been just that was something that was vague that I said that 1, I'm gonna, he's, 1, I, he's okay 5 with me comin' in late. If, if I put those two things 6 together that I talk, I saw him yesterday, and Pm comin' in, he's okay with me comin' in late that to him, 7 obviously, meant that, that he said it was okay yesterday, 'cause I saw him yesterday, but I don't 8 believe that I said it specifically like that. 9 (CX -21; p.6-8) 10 Notice how many times Waddell professes to have very little or insufficient memory to I1 allow him to articulate the details of his conversation with Parr that day. Whatever memory he 12 had about that conversation appears to have faded in less than two months from the event at the 13 time of his interview on December 12, 2013. Nevertheless, Waddell does not fault Pfarr in his 14 interpretation of their conversation and even says he can see how Pfarr would interpret it the 15 way he did. 16 Now, compare the above explanation of this first conversation with Pfarr from his 17 interview to his remarkably detailed hearing testimony about the same conversation two years 18 later. 19 A. When I got to work and got my uniform on, I went to the office, as 20 Sergeant Pfarr requested. When I got to the office, again, it's the same 21 setup as before. There's the L -desk, he's facing away from the 22 doorway. When I walked in, I said, hey, what's up. He spun around in 23 his chair, he was visibly upset with me, and I got from that, from the 24 tone in his voice because he immediately started asking me questions 25 and was interrogating me about where I was, and he asked me where I 26 was, I said I was at my daughter's dance class . 27 Q. Were you at a dance recital? 28 A. There was no dance recital. 13 REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3313 I Q. What happens next? 2 A. He next asked me, you saw Smith yesterday? I replied, I saw Smith 3 yesterday. He next asked me, he's okay with you coming in late? My 4 reply was, he's okay with it. He said, okay, Stahnke's been waiting a 5 while, get out there, and that was the end of our conversation in the 6 office. (RT. 1764-1765) 7 Now, some two years later, not only does Waddell profess to have a clear recollection of 8 exactly how this first conversation with Pfarr went, he is able to quote it question by question 9 along with his answers to those questions Indeed, Waddell calls it an interrogation. 10 Not only was he unable to provide this level of detail back at a time closer to the event, 11 he certainly did not fault Pfarr back then and call what he did an interrogation. For reasons 12 which are forthcoming, we believe the couching of Pfarr's inquiries here is not only false but is 13 also intended to dovetail with the specious allegation that Pfarr violated Waddell's POBOR 14 rights. 15 The version of this first conversation with Pfarr provided by Pfarr has been consistent 16 throughout his interview to his hearing testimony and it is the version that sounds more 17 reasonable and in line with Waddell's own text messages. Waddell's version of this same 18 conversation has morphed from his interview to his hearing testimony. It started with Waddell 19 not being critical of Pfarr's interpretation of their conversation, admitting that it was he who 20 "overstepped" his bounds and to having very little detailed recall of what was said to being able 21 to recall the conversation with tremendous detail and to faulting Pfarr for interrogating him. It 22 should be abundantly clear that Pfarr's version of their first conversation is much more reliable 23 than Waddell's. 24 OCTOBER 21, 2013 25 Below this heading in Waddell's PHB, (PHB, 17) Waddell recounts from his point of 26 view, his conversation with Smith on October 21, 2013. Following that, Waddell states that 27 "Waddell, never having been in a situation like this before, believed that Lieutenant Smith 28 would have at least listened to his side of the story, believing that he could at least have a 14- REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3314 1 2 3 4 5 6 71 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 conversation that would have been received a little more neutrally." (PHB, 17/25- 27; italics provided in original; RT. 1777) This characterization of the October 21, 2013 conversation is different from how Smith described it, not accurate and suffers from more cognitive dissonance. Smith described this October 21, 2013 encounter as follows: Waddell came into his office uninvited. He asked to speak to Smith. Before Waddell continued, Smith told Waddell that Pfarr submitted a memorandum about the event which would be going through the chain of command and it would be better if he did not speak about it. Smith gave him this admonishment because he respects the POBOR rights of officers. Waddell said he understood Smith's advisement but he still wanted to talk to him. Waddell then tried to call the whole situation nothing more than a misunderstanding between he and Pfarr in their text messaging only. He did not bring up he and Pfarr's verbal discussion when he arrived to work. Smith did not ask any questions. He simply made the statement, "Kevin, you know, that we had no conversation yesterday and that's a lie." Waddell acknowledged that and said, "Yes, he knew." (RT. 476-479) It is not accurate to say that Smith did not listen to Waddell's side of the story. After admonishing Waddell that his POBOR rights had already attached and that he should not say anythingz, Waddell wished to still speak to Smith. Smith said okay and let him speak. So it is not accurate to say that Smith should have "at least listened to his side of the story". Because he did listen to his side of the story. Unfortunately, and contrary to the manner in which Waddell characterized it, Waddell's focus was on how the text message exchange with Pfarr had been misunderstood. Waddell completely ignored the follow up conversation he had with Pfarr after he arrived to work. z This will later be compared to Waddell's claim that Pfarr violated his POBOR rights in his first conversation with him as more cognitive dissonance in his PUB. 15- REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3315 I After all, this was not the time for Smith to ask question. Waddell requested that Smith 2 listen and he did. That he chose to focus on the text messages and nothing else is not Smith's 3 fault. 4 After listening to Waddell for some time, Smith told Waddell that he and him had no 5 conversation yesterday and that was a lie. Waddell said, "Yes, he knew". Waddell has 6 admitted all along that he did not have specific approval from Smith given to him on October 7 18, 2013. So, to characterize this end of the discussion point as not listening to him; as he and 8 Pfarr being already off to the races is not a fair characterization. 9 Smith adamantly denied that he said to Waddell on October 21, 2013 that he had pulled 10 his timesheets and it was apparent he was coming and going as he pleased. (RT. 1958-1960). 11 Indeed, no retrievable document maintained by SLOPD would indicated the actual arrival time 12 and leaving time of an officer on any shift Qd). So, timesheets would not disclose information 13 on which to base a claim that he was coming and going as he pleased. 14 All Smith knew prior to October 18, 2013 was that Pfarr had told him he had been late 15 for a previous CAT shift, had left early and that maybe he was not the best fit for a CAT shift. 16 Smith told Pfarr to speak to Waddell about it. That conversation was to take place on October 17 19, 2013. Being late and leaving early on one CAT shift is a far cry from coming and going as 18 one pleases. It does not indicate in any way to Smith that Waddell has a belief he can vary his 19 hours of a CAT shift without approval such that Smith has to bring it up to him and correct him 20 after saying `hi" to him in the locker room on October 18, 2013. That whole notion is nonsense. 21 And Smith made it clear that the discussion of such subject matter is for the Sergeant and not 22 him to do, respecting the chain of commence. (RT. 573-576; 681-682) 23 Footnote 7 of Waddell's PHB attributes fault to Smith for continuing to assign him CAT 24 shifts following the events of October 19, 2013 to the tune of some additional 160 hours of 25 overtime. It is presented in such a way as to support some claim of incongruity in making those 26 assignments knowing what Smith laiew about Waddell. This gets back to the discussion in the 27 City's PRE; about the City not rushing to judgment in this case. Following the submission of 28 Pfarr's memo up the chain of command, an administrative investigation was ordered by the 16 - REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3316 I Chief of Police and assigned to Bledsoe. To be sure, Smith likely had his own thoughts as to 2 what Waddell did in this case but he did not know what the outcome of the investigation would 3 be. Maybe it would turn out to be just a big misunderstanding. Until and unless some formal 4 finding of misconduct is made or an administrative leave decision is made, Waddell is a 5 member of SLOPD, entitled to overtime pursuant to the MOU. That's how one would expect 6 Smith to act and this how he did act. Being under investigation does not change his status as a 7 member of the SLOPD. Between October 19, 2013 and December 12, 2013 when he was 8 placed on administrative leave, he was just under investigation. Thus, if he put in for overtime 9 and his seniority entitled him to it, he should get it. (RT. 682- 683). Guaranteed if Smith denied 10 him these overtime opportunities while he was under investigation, Waddell would be 11 screaming about that as well. 12 C. THE BENTLEY INVESTIGATION 13 Waddell points out in his PHB that he told the tow truck operator when he returned the 14 screwdriver to him that he was just joking around. (PHB, 21/6-9) From the City's point of 15 view this shows a consciousness of guilt. The underlying premise to the comment is that 16 Waddell engaged in conduct which could easily be interpreted as improper, perhaps even 17 criminal in nature, and he better head that off quickly with the only civilian present at the scene 18 by calling it all a joke. 19 Waddell also points out in his PHB that following the Bentley event, "He never had 20 another conversation with Sergeant Pfarr, or anyone else about that night, until it became, 21 almost a year later, an issue..." (PHB, 22/20-23) This is one of many factual inaccuracies in 22 Waddell's PHB. The above statement is not true. Waddell did indeed have a conversation, 23 brief as it was, with another person between his discussion with Pfaff and a year later. He 24 briefly discussed it with Amoroso the night after the Bentley event telling him the prank did not 25 go very well. Now, Amoroso has no apparent recollection of this conversation, but Waddell 26 sure recalled it. (RT. 1834-1836) 27 28 17- REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3317 1 TIME BARRED 2 The City correctly anticipated that Waddell would claim that any disciplinary action 3 upon Waddell is time-barred pursuant to the provisions of POBOR under Government Code 4 §3304(d)(1) and we addressed it in the City's PHB. What could not be anticipated is that 5 Waddell's sole legal support for the claim would be State Personnel Board ("SPB") Precedent. 6 This matter is not governed by State Personnel Board Precedent. This is a local matter 7 governed by Local Rules. The City of San Luis Obispo does not employ individuals in State 8 Employment Service. Any State Personnel Board Precedent should be ignored by the hearing 9 officer in this case as being completely inapplicable to the issues to be resolved herein. Lastly, 10 if resorting to inapplicable SPB Precedent is all Waddell has, that is pretty desperate. 11 Additionally, Waddell claims that the City put forth no policy indicating in whom the 12 authorization to initiate an administrative investigation resides and states in the absence of such 13 policy, the supervisor on this scene, Pfarr, being aware of the Bentley event began the statute of 14 limitation clock. What this claim completely ignores is what evidence, apart from a specific 15 policy in the issue, the city did put forward on the issue. In anticipation of the issue being 16 raised, Pfarr was specifically asked if he had the authority to initiate an administrative 17 investigation. He said he did not have such authority. To be sure, he had the authority to 18 prepare a memorandum to go up the chain of command which may lead one with such authority 19 to initiate an investigation, but he did not have that independent authority and he failed to 20 prepare the memorandum for 10 months, until December 20, 2013 and was disciplined for that 21 failure. (AX -A) Bledsoe was asked if he had the authority to initiate an administrative 22 investigation. He said he did not have such authority. Bledsoe also confirmed Sergeants do not 23 have that authority. (RT. 287-288) Smith was asked the same question. He did not have the 24 authority. Staley was asked who had the authority at SLOPD to initiate an administrative 25 investigation. He said that authority resides with the Chief of Police. There is no dispute that 26 the Chief did not become aware of the Bentley event until sometime after Pfarr prepared his 27 memo about that event on December 20, 2013. The disciplinary action having been proposed 28 on September 9, 2014 was not tine -barred pursuant to 3304(d). That there was no specific As - REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3318 I policy on the precise issue does not mean there was a paucity of other reliable evidence on the 2 issue. 3 LABOR CODE §432.7 4 Appellant is again trying to confuse the reader with this argument that the City violated 5 Labor Code §432.7 when it administratively charged Waddell with violating Vehicle Code 6 § 10852. The argument is specious. Labor Code §432.7 does not apply to this situation for the 7 following reasons. 8 All Labor Code §432.7 prohibits is an employer from utilizing as a factor any condition 9 of employment including... termination... any record of arrest or detention that did not result in 10 conviction. In other words, had Waddell been arrested for violating Vehicle Code §10852, the 11 city would have been prevented from using the arrest record as the sole evidence against him in 12 terminating his employment. Put another way, the applicability of Labor Code §432 turns on 13 the fact that an arrest was made and the use to which the record of the arrest can be put in a 14 subsequent disciplinary matter based on the same parallel criminal charges. It does not apply 15 when no arrest is made. 16 This is not a new or novel concept. It has been evolving for decades. It is axiomatic 17 that not all arrests result in a conviction. Thus, the statute was intended to prevent too much 18 emphasis being placed on an employee being arrested for a criminal offense. The statute 19 requires an employer to wait until the employee is convicted or pleads guilty or to conduct an 20 independent internal investigation of the event which led to the arrest and base any disciplinary 21 action on the result of that independent investigation, not just the arrest record. 22 In Walker v. City of San Gabriel (1942) 20 Cal. 2d 879, a licensed automobile wrecking 23 business owner was faced with the revocation of his local license to operate within the city. At 24 the revocation hearing before the city council, a city police officer read from a letter authored by 25 the police chief which set forth the charges against the business owner and the reasons to revoke 26 the license. The city put on no other evidence in support of the decision. The court said that it 27 was improper to just rely on the letter. The letter itself was hearsay and the city needed to put 28 1 on other competent evidence ofjust cause for the revocation of the license. 19 REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3319 1 In Piutau v Federal Express Corp. (2003 U. S. D. C. Northern District) 2003 U. S. Dist. 2 LEXIS 6830, a Federal Express employee was suspended after being arrested for driving under 3 the influence of an alcoholic beverage. The court held `California law provides that an 4 employer may not suspend an employee without pay solely on the ground that the employee has 5 been arrested.' (id at 20, citing Labor Code Section 432.7(a)). Federal Express policy did not 6 allow for a suspension without pay merely because of an arrest for driving under the influence, 7 but only where `evidence confirms that the employee was in fact driving under the influence.' 8 The court found that policy did not violate California law. (id) 9 The case of Cranston v City of Richmond (1985) 40 Cal. 3d 755, resolves this issue once 10 and for all. Cranston, while off duty, led fellow police officers on a high speed chase late at 11 night, over wet and slippery streets, in a car that was mechanically unsound. The court held 12 Cranston's conduct was not only recldess, but clearly violated the very laws which, as a traffic 13 officer, it was his job to enforce, it also endangered his life, the life of his passenger and the 14 lives of the pursuing officers, showed carelessness and poor judgment and demonstrated a 15 blatant disregard of the law and of the responsibilities of a peace officer. (id at 788). The same 16 can be said of Waddell's misconduct in the Bentley event at least as it pertains to the violation 17 of the law and the incredibly poor judgment. Beyond that, however, Cranston also argued his 18 dismissal was in violation of the Labor Code Section 432.7(a) based on his "detention" by 19 officers following the conclusion of the pursuit. The Supreme Court dealt with that claim in 20 one succinct paragraph: 21 "Contrary to appellant's assertion, his discharge was not based on 22 any `record' of detention within the meaning of Labor Code 23 Section 432.7. Rather, appellant's discharge was based on the 24 City's independent investigation of the facts surrounding the 25 April 4 incident. The fact that this incident happened to involve 26 a `detention' (if such it was) by police officers does not bring the 27 City's subsequent decision to terminate appellant within the 28 proscription of Labor Code Section 432.7" (Cranston at 774-775) in REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3320 1 The point to be made by this line of cases is that where a California employer seeks to 2 discipline an employee for what could also be considered a parallel criminal charge, the 3 employer must rely on competent evidence establishing some just cause for the action separate, 4 apart and supplementary to the fact that the employee was arrested. In other words, it may not 5 solely rely on the fact that an employee has been arrest for a criminal offense. Instead, it may 6 use the arrest information as a starting point for a separate and independent investigation of the 7 facts and if the result of that separate investigation reveals misconduct, even of a criminal 8 nature, a disciplinary action is justified by the results of the entire inquiry, not just the arrest 9 information and such action will not violate Labor Code Section 432.7. 10 Applying all of the above to this matter and one can readily see that none of this 11 occurred in this case, because Waddell was not arrested for violating Vehicle Code § 10852. 12 Since he was not arrested, there is no record of arrest. Since there is no record of arrest, 432.7 is 13 inapplicable. Waddell would have one to believe that any time a police employee is going to be 14 charged administratively with a criminal offense, he must first be arrested for that offense and 15 thereafter convicted. That is a false statement of the law. There is no such requirement. 16 Indeed, Waddell could have been arrested for the Vehicle Code violation, tried for it 17 twice in a jury trial and acquitted and the City still would have been able to administratively 18 terminate him for the very same criminal conduct. He could have been arrested and the District 19 Attorney declined to prosecute and the City still could terminate him for that criminal offense. 20 Many cases over the years have recognized this distinction. In Szmaciarz v. State 21 Personnel Board (1978) 79 Cal. App. 3d 904, a Corrections Officer was suspended for bringing 22 marijuana onto the grounds of San Quentin Prison. On appeal, he argued a civil service 23 employee may not be disciplined for alleged criminal conduct without a criminal conviction. 24 The court held that a public employee may be disciplined "whether or not his conduct is 25 criminal in nature and whether or not he has suffered a criminal conviction. To hold otherwise 26 would mean a public agency would be precluded from disciplining an employee merely 27 because, for whatever reason, a criminal conviction was not obtained." (Szmaciarz, supra at 28 p.921) (Emphasis added). 21- REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3321 I Similarly in Warren v. State Personnel Board (1979) Cal. App. 3d 95, a CHP officer was 2 dismissed for participating in a sexual act at an advertised commercially sponsored transvestite 3 "party." On appeal, appellant emphasized that he was not charged with or convicted of any 4 crime in connection with the incident. In discussing that, the court said "in determining whether 5 appellant was guilty of (the charges) as to warrant discipline it is not necessary that the 6 employed be convicted of a crime nor that it appear that the actions of the employee are illegal." 7 (Warren, supra at 104) 8 Another CHP officer was terminated for stealing state owned motorcycle parts and using 9 a dealer's name to order wholesale parts without the dealer's consent in Ackerman v. State 10 Personnel Board (1983) 145 Cal. App. 3d 395. The Court of Appeal noted in the administrative 11 record a newspaper article describing the misdemeanor charges filed against Ackerman. The 12 court then said "[a]lthough the criminal charges were subsequently dismissed, the public's 13 respect for, and trust of, the CHP was affected." (Ackennan, supra at p. 400) 14 To the same effect is Anderson v. State Personnel Board (1987) 194 Cal. App. 3d 761, 15 in which a CHP officer was dismissed for appearing nude in sight of neighborhood women and 16 children. No charges were filed against Anderson, but the court on appeal was unaffected by 17 that fact and cited the language from Warren, supra. 18 Appellant cites the case of Pitman v. City of Oakland (1988) 197 C.A. 3d 1037, for the 19 proposition that what the City did here is contrary to its holding. The case is inapplicable to this 20 matter. Pitman was a dispatcher for the Oakland Police Department. He was arrested for a DUI 21 by the CHP. When the arresting officer discovered Pitman's employment, he phoned Pitman's 22 employer and informed them about his arrest. Oakland PD then used the arrest information and 23 terminated Pitman's employment. The court held that since Pitman ultimately pled guilty to a 24 lesser included offense the use to which Oakland police Department put the arrest information 25 was not in violation of Labor Code §432.7 26 That is not what occurred in this matter. Again, there was no arrest in this case so there 27 was no improper disclosure and/or use of arrest information. 28 22_ REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3322 I And consider the revision made to Labor Code §432.7 in direct response to the Pitman 2 case. Several years later Labor Code §432.7(b) was enacted to specifically allow for an 3 arresting agency to inform an employing agency of an arrest of one of its police officer for a 4 criminal offense, however the employing agency may only use the arrest information as the 5 starting point for an independent internal investigation and if any disciplinary action is 6 contemplated for the event it must be based on the findings of that independent investigation 7 and not just the arrest record. Here, Waddell was never arrested and such was not required. 8 Instead, he was terminated following an independent internal affairs investigation and not based 9 solely on an arrest. Thus, there is not violation of Labor Code §432.7. 10 GOVERNMENT CODE §3303 VIOLATION 11 Just like many of Appellant's other claims, this one is disingenuous. It alleges that Pfarr 12 violated Waddell's pre -interrogation rights under Government Code §3303 in their first 13 conversation. The claim must fail. 14 There are times when POBOR applies and when it does not. POBOR applies at the 15 point in time when an officer is under investigation and subject to interrogation on a matter 16 which could lead to punitive action (Government Code §3303). In citing to this section, 17 Appellant italicized the word "could" in the phrase could lead to punitive action. The emphasis 18 added by Appellant is on the wrong word in the statute. It should not be on the word "could" 19 lead to punitive action. It should be instead on two other phrases from the statute. The 20 emphasis should be "under investigation" and "subject to interrogation". Waddell was not 21 `under investigation" and "subject to interrogation" as those phrases are used in the statute 22 during his first conversation with Pfarr. Instead, Pfarr's contact was nothing more than the type 23 of contact which occurs all the time among supervisors and employees to which POBOR rights 24 do not apply. Those are the types of contacts referred to as "routine, unplanned contacts with a 25 supervisor". (See Government Code Section 3303( i)) 26 The case of City of Los Angeles v. Superior Court ("Labio") (1997) 57 C.A. 4' 1506 27 (hereinafter referred to as "Labio"), governs and resolves this issue. Labio was a police officer 28 for the City of Los Angeles Airport Police. One night, a fatal accident occurred on Imperial REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DFPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3323 1 Highway outside the airport. Following the accident an Airport Police Lieutenant and Sergeant 2 were visiting Lucky's Donut Shop. The doughnut shop owner told the Sergeant and the 3 Lieutenant that he observed a male Filipino Airport Police Officer drive past the scene of the 4 accident in a marked Airport Patrol Car without stopping to render aid and then proceeded to 5 Dough Boy's Donut shop. The Sergeant and Lieutenant noted that information, returned to the 6 department and reviewed the Deployment Log for that night. They noted that Labio was the 7 only male Filipino officer on duty that night. They also noticed that Labio should not have been 8 driving an Airport patrol car during that shift because he was assigned to a fixed post that night. 9 The Lieutenant told the Sergeant to return back to the corner where the accident occurred to 10 interview the proprietor of Dough Boy's Donut shop. An employee of the shop confirmed a 11 Filipino officer had been there at the time of the accident. Later that same night, Labio was 12 called into the station and was asked questions about his whereabouts at the time of the fatal 13 accident. 14 Having now recounted the underlying facts which led to the very existence of the Labio 15 case, one can easily see how those facts bear very little resemblance to what Pfaff knew prior to 16 and during the text exchange and the first conversation with Waddell. 17 The City of Los Angeles tried to claim POBOR did not apply to the conversation with 18 Labio that night because it was a routine, unplanned contact. The Court of Appeal rejected that 19 argument and held that even though it occurred that same night Labio was "under investigation" 20 and "subject to interrogation". The Lieutenant and Sergeant were informed by the first 21 doughnut shop owner that Labio had driven by the scene of a fatal traffic accident without 22 stopping to render aid. Upon being told that Labio failed to stop and render aid, that planted the 23 belief, objectively and subjectively, in the Lieutenant and Sergeant that Labio had possibly 24 committed a rule violation. They then returned to the department and reviewed the Deployment 25 Logs. That review indicated another possible rule violation; that of leaving a fixed post and 26 taking a patrol car without permission. Then the Lieutenant asked the Sergeant to go interview 27 another potential witness at a second doughnut shop. In sum, therefore, Airport police 28 supervisors had at least two witness statements and a review of department documents which 24 - REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3324 I revealed two real possible rule violations that night. So when Labio was called into the 2 department, his questioning was undoubtedly during a time when he was `under investigation" 3 and thus, in violation of POBOR. 4 Comparing those facts to what Pfarr knew, both objectively and subjectively, on October 5 19, 2013 and there is no comparison whatsoever. In the beginning of the unfolding events 6 which occurred near the 11:00 a.m. hour on October 19, 2013, Pfarr was not sure if there even 7 was a scheduled CAT shift that day. He phoned Smith to confirm the CAT shift had not been 8 cancelled. He did not reach him. He checked the computer scheduling program and did not 9 find any reference to a CAT shift. He met Stahnke in the hall who informed him for the first 10 time that Waddell was running late by about 30 minutes. At that point, all Pfarr knew was that 11 Waddell was late for his shift. That does not mean the reason for Waddell being late to his shift 12 was the product of misconduct. Waddell could have had an accident on the road and been 13 injured. He could be dealing with a family emergency. There are any number of reasons for his 14 tardiness, many of which would not constitute misconduct in the end. 15 Pfarr sent the text message to Waddell and the text exchange which has been the product 16 of so much discussion in this case ensued. Waddell communicated back to Pfarr that he had 17 spoken to Smith the day before and had received approval from Smith to arrive late for the shift. 18 At that point, Pfarr accepted that representation as being factual. That resolves any potential 19 that the reason Waddell was late was misconduct. Indeed, if Smith had authorized him to come 20 in late, Waddell's tardiness was excused and there was no rule violation. 21 That belief remained constant through the time Waddell came into his office at 22 approximately 11:30 a.m. that day. Objectively and subjectively, at that moment Pfarr was in a 23 way different position than the Lieutenant and Sergeant were when they questioned Labio. 24 Potential misconduct was not in Pfarr's mind. Excused tardy was in his mind. There was no 25 "under investigation" and "subject to interrogation" as those phrases were used in POBOR. 26 Moreover, the conversation between Pfarr and Waddell was not an interrogation. 27 According to Pfarr, Waddell reiterated the same information contained in his text message; that 28 is that Smith had given him permission to be late the day before because he wanted to attend his 25- REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3325 I daughter's dance practice. When first asked about that same conversation he professed to have 2 little memory about it but did not describe it as an interrogation. It did not become an 3 interrogation until his hearing testimony. In order to claim the conversation was taken in 4 violation of POBOR, it had to be called an interrogation and thus, it became an interrogation in 5 his hearing testimony. 6 This was not a conversation governed by POBOR. It was not even close to the very 7 suspicious situation confronting the supervisors in the Labio case. This was more of a routine, 8 unplanned contact with a supervisor without any overarching belief that misconduct may be 9 responsible for Waddell's tardiness. 10 Waddell's PUB states that the first conversation with Pfarr was not a routine, unplanned 11 casual contact with a supervisor allowed for in Steinert v. City of Covina (2006) 146 Cal. App. 12 4th 458. (Waddell PHB, p.26) A review of that case reveals just the opposite. Indeed, the facts 13 of the Steinert, supra case more closely resemble the first conversation with Pfarr than does the 14 Labio case. 15 Steinert was a police officer with the Covina Police Department. Her name arose from a 16 routine audit performed by the California Department of Justice. Steinert had performed a 17 records search on a man named Robert Tirado and had designated the search "TRNG", 18 signifying training. Both the Justice Department and Covina prohibit records searches for 19 training purposes. 20 The Covina Support Services Manager examined the records run that day by Steinert 21 and noticed that she had taken a vandalism report from a Wendy Roff at about the same time the 22 record search on Tirado was conducted. While Tirado was not mentioned in the report a link 23 between a location on the report and Tirado's rap sheet indicated a connection between Tirado 24 and the victim. This information was given to Steinert's commanding officer, Sergeant John 25 Curley. 26 Curley believed that Tirado's name came up during Roff's vandalism report even though 27 Tirado's name was not mentioned in the report. If it had been brought up in the vandalism 28 /// 26 - REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3326 I report, the record search would have been proper. The only problem would have been the 2 coding error to "TRNG" instead of the vandalism crime report number. 3 Curley called Steinert into his office. Steinert confirmed that Roff did mention Tirado 4 when she took the vandalism report and that is what prompted her records check. Curley 5 instructed Steinert to include the names of persons mentioned in future crime reports and use 6 the case number instead of "TRNG" when she performed record searches on individuals. 7 Steinert took the instruction well. Curley also asked Steinert if she had disclosed any of 8 Tirado's confidential information to Roff. Steinert replied that she had not. Curley had always 9 intended their conversation to be instructional. 10 Curley is required, as a supervisor, to perform audits of two crime reports taken by 11 officers per week to ensure its officers respond courteously and appropriately. Since he had 12 already reviewed the vandalism report, he decided to make the report one of the two he audited 13 that week. When he contacted Roff, he discovered that Steinert had disclosed confidential 14 information about Tirado when she made the report. An internal affairs investigation of Steinert 15 ultimately led to her dismissal. 16 Steinert filed a writ petition seeking suppression of her statements to Curley on the 17 ground that it was elicited as part of an interrogation in violation of POBOR. The decision 18 turned on whether the discussion between Curley and Steinert was made while under 19 investigation and subjected to interrogation by their commanding officer... that could lead to 20 punitive action." (Government Code, §3303) or if it was the product of "any interrogation of a 21 public safety officer in the normal course of duty, counseling, instruction or informal verbal 22 admonishment by, or other routine unplanned contact with, a supervisory or any public safety 23 officer (§3303(i)). (id at 462). The former requires certain admonishments before questioning; 24 the latter does not. The trial court found the conversation between Curley and Steinert was 25 routine communication between a supervisor and subordinates not subject to POBOR's 26 requirements. The Court of Appeal affirmed that ruling finding abundant evidence in support of 27 the trial court's finding. Curley thought he was solely dealing with a coding error; something 28 he could easily correct with Steinert with proper instruction rather than discipline. Indeed, if 27_ REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3327 I Tirado's name came up in the vandalism report, as it did, Steinert, as a police officer, had every 2 right to run the records check, she just had to account for it in the search, rather than use the 3 training designation. 4 Curley's question about whether Steinert had discussed any confidential information 5 about Tirado to Roff was solely in an effort to be thorough. Curley's subsequent audit of the 6 crime report revealed Steinert's dishonesty. Had Curley not audited that report, he would have 7 never discovered that fact and the matter would have been resolved. 8 The same is true of the first conversation with Pfarr. All Pfarr knew was that Waddell 9 was late for his CAT shift. He knew nothing of the reason why Waddell was late. Arriving 10 late, by itself, is not necessarily misconduct. The tardiness could be excused for any number of 11 reasons. When Waddell responded in his text messages that he had permission to be late from 12 Lieutenant Smith, there is no more tardiness misconduct. Permission to be late given by Smith 13 excuses his tardy. Thus, misconduct was not on Pfarr's mind at all during their first 14 conversation. 15 It was not until approximately 30 minutes or so later during his phone conversation with 16 Smith that Pfarr discovered Waddell had lied. By then their first conversation was long over. 17 This subsequent conversation with Smith is similar to Curley's audit conversation with Roff. 18 The conversation with Pfarr prior to his subsequent conversation with Smith is routine, 19 unplanned contact with a supervisor during a time when POBOR did not apply. 20 And, again, we have to point out the cognitive dissonance contained within their own 21 post hearing brief. On the one hand, Waddell chides the department for respecting his rights 22 under POBOR when Smith failed to "at least listen" to his side of the story on October 21, 23 2013, when POBOR undoubtedly applied to such conversation. Indeed, POBOR applied at the 24 point at which Pfarr spoke to Smith on the phone when he called back at approximately 12:30 25 p.m. on October 19, 2013 but not before. And the department supervisors respected those 26 rights. Yet, incongruously Waddell chides the department for not respecting his POBOR rights 27 when those rights so clearly had not yet attached. 28 REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3328 I Finally, Appellant has badly misstated the law on what is required under POBOR pre- 2 interrogation. Appellant states the City violated Waddell's POBOR rights "when questioning 3 Appellant about his conduct without asking if he wanted a representative present..." (Waddell 4 PHB, 27/24-25) POBOR does not require an employer to ask if an employee under questioning 5 regulated by the act if he/she would like a representative. All POBOR requires is that an 6 employer allows an employee a reasonable opportunity to obtain representation, "at his or her 7 request". It is not a required that the employee affirmatively ask that question. Appellant has 8 misstated the law. (Government Code Section 3303(i) and see Watson v County of Riverside 9 (1997 U. S. D. C. Northern Dist.) 976 F. Supp 95 1) 10 ALLEGED SKELLY VIOLATION 11 The City correctly anticipated a potential Skelly violation being argued in Appellant's 12 PHB but it could not have anticipated, beyond the photographs, which materials Appellant 13 would target as the subject matter of the alleged violation. In yet another act of "gunny 14 sacking", Appellant attempts to argue for the first time in its PI-IB that the City violated his 15 Skelly rights by failing to provide the drafts to the administrative investigative reports (AX-Ya- 16 f) and the recommendation memo prepared by Storton, (AX-II) prior to the Skelly. The 17 argument in support set forth by Appellant lacks merit. 18 Again, Appellant is using inapplicable State Personnel Board Precedent in support of his 19 argument. As stated before, any use of State Personnel Board Precedent should be ignored 20 because Waddell was not employed in State service. This is especially true if the inapplicable 21 SPB Precedent does not support the position. In the matter of K.A., SPB Board Decision No. 22 12-07 (2002), the SPB held in a precedent decision that "due process also requires that 23 Appellant be provided with all `materials upon which the adverse action is based' at the time the 24 notice of adverse action is served." (SPB Dec. 02-07, p.6) The decision continues and explains 25 "the Board has clarified that the `materials upon which the action is based' referred to in 26 Skelly... is not all the material in the possession of the department at the time the adverse action 27 is taken. It is rather, all the material relied upon by the individual who makes the ultimate 28 decision to take adverse action against an employee." (SPB Dec. 02-07, pp.6-7, italics applied) REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3329 I Thus, the key element is reliance in determining whether a document should be 2 considered part of the "materials upon which an action is based" under both State law, case law 3 and SPB Precedent. When judged by that standard neither document argued by Appellant as a 4 Skelly violation, qualifies as "material upon which that action was based". 5 a. Drafts 6 Drafts are drafts. The fact that each of the two administrative investigation reports went 7 through any number of reviews and revisions, by either its author or another reviewer, illustrates 8 that they should not be considered part of the materials upon which the decision was based. The 9 reason for the very existence of a draft with former revisions is because the reviewer is 10 attempting to create a final document on which the department can rely for its proposed adverse 11 action. It is not the previous drafts the department relies on to support the decision; it is the 12 final product. Here, Waddell was provided the final product of each investigative report prior to 13 his Skelly and that was all that was required by due process. 14 b. Storton Memo 15 The argument is even stronger that the Storton recommendation memo is not to be 16 considered part of the materials on which the action was based. Indeed, it was specifically 17 rejected by the Chief of Police. It was rejected for a lot of good reasons. The previous case 18 which drove Storton to make this errant recommendation took place 6 years earlier, under a 19 different Chief and made by one who had never made such a recommendation before. Chief 20 Gesell is not required to follow what he perceived as an inappropriately lenient level of 21 discipline imposed by a prior Chief of Police. Add to that Storton now repudiates his own 22 previous recommendation and there can be little doubt that his memo was never relied upon by 23 the department and does not constitute part of the materials upon which the action is based. 24 Waddell was not facing a suspension; he was facing the termination of his employment. 25 Waddell was provided with all the materials upon which the termination of his employment is 26 based. Due process required that Waddell be provided with the materials that enable him to 27 respond adequately to the disciplinary action proposed. The department complied with that 28 mandate. There was no Skelly violation. 30- REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3330 I BIAS OF PFARR 2 Pfarr was not "out to get" Waddell. Had Waddell not lied about having Smith's 3 approval to be late on October 19, 2013, Pfarr would have discussed with Waddell him being 4 late and leaving early on a prior CAT shift and the movie incident with him and assuming a 5 positive response by Waddell that would have been the end of it. This case is the responsibility 6 of Waddell, not Pfarr. 7 Appellant discusses the movie incident as if it was proven to be an AR -15 building 8 video. The sole support for that conclusion is Waddell. Pfarr said it was a theatrical movie of 9 some sort based on the Marvel comics. Waddell's description of the type of movie was 10 obviously motivated by the desire to make it closer to a work related subject matter than a 11 Marvel movie. 12 DRMO 13 Waddell described an incident when several employees took boots meant for the DRMO 14 program without permission. One of the employees was Bledsoe. He compared that to his own 15 honesty issues. Many officers returned the boots they took. (RT. 1781-1782) 16 It seemed to us that there was a level of desperation in Waddell's case as the hearing 17 wore on month after month. The best example of this desperation is the pedestrian attempt to 18 discredit Bledsoe with the DRMO equipment issue. First, the DRMO set of questions in the 19 investigation were simply designed to ensure that Waddell was indeed doing what he was 20 supposed to do in co -managing that program with Berrios. Ultimately, nothing was discovered 21 which indicated otherwise and there were no charges against Waddell based on anything he did 22 in the DRMO program. Thus, the only reason for Waddell to ask questions about that area in 23 the hearing is to obfuscate because they went to no pending charges. 24 Waddell decided to use the DRMO issue to try to cast Bledsoe as a thief for taking some 25 boots which were provided under the DRMO program to SLOPD. At first, Waddell tried to 26 claim that every single piece of equipment under the DRMO program has to be accounted for in 27 perpetuity in case the military at some point in the future wants to reclaim it. Therefore, the 28 taking of something without the proper accounting by Bledsoe amounts to theft. And because 31- REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3331 I of that Waddell never at any point just brought out a bunch of DRMO equipment and let 2 officers take items without any oversight. 3 Well, what came out later was he had done exactly that at no less than two SWAT 4 training sessions. In fact, there were certain items which required much less stringent 5 accounting than others. Those items were called "textiles" and boots fit squarely within the 6 definition of "textiles". One at least two occasions, Waddell brought a box of "textiles" to 7 SWAT training and allowed those present to pick and choose what they wanted without making 8 a note of each transaction. 9 Moreover, Bledsoe was not the only SLOPD officer to take some DRMO items. Indeed, 10 many officers believed it was a take what you want proposition. About a half a dozen names of 11 officers who took some "textile" items at the same point in time Bledsoe did, were sent an email 12 from Waddell asking that the items be returned .3 Those officers did return those items. The 13 names of those officers were presented to Waddell in the hearing to see if all of those officers 14 were thieves as well. Before answering that question, Waddell paused a long time and then said 15 they were all thieves. It should have been obvious to Waddell that with so many officers taking 16 items that there might have been a misunderstanding of the availability to do so, but no, he had 17 called Bledsoe a thief for doing that so he had to be consistent and call every other officer who 18 took an item a thief as well. (RT. 1940- 1949; AX-PP) 19 IMPARTIAL SKELLY OFFICER 20 This section is designed to confuse and obfuscate. There is no requirement in the law 21 that the Skelly officer be impartial. In fact if you think about it, it is a practical impossibility. 22 Prior to a proposed decision to impose a disciplinary action, an appointing authority (Skelly 23 officer) typically conducts a review of the investigative materials upon which that decision will 24 25 26 27 s Smith, 13 minutes later, sent his own email to these officers echoing Waddell's request. This occurred on 28 November 13, 2013, roughly a month after the CAT shift events occurred. Smith's email demonstrates he did nothaveanybiasagainstWaddellasWaddellisnow alleging. (RT. 1944) 32- REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3332 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 be based. Most reviewers rely on the witness interview summaries rather than listen to the actual recorded interview4. That review also typically contains assessments made by the investigators and reviewers concerning the credibility or lack thereof of certain witnesses. Those reports also contain a set of findings of misconduct and perhaps even a recommendation for discipline. The review of all that material takes place before the appointing authority even decides to propose a disciplinary action. Then, assuming the appointing authority concurs with the judgment of the investigators and reviewers, a proposed disciplinary action is prepared in written form and communicated to the involved employee. It is thereafter that the Skelly is held. Looked at in this way, it could never be conceived that the Skelly officer would be impartial at all. Inasmuch as the appointing authority has already reviewed the materials and proposed to terminate an employee for charges of misconduct, requiring the Skelly officer thereafter to be impartial is nonsense. Moreover, the law recognizes the inherent problem in requiring the person who proposed the disciplinary action to suspend reality and become impartial and does not require it. Titus v. Civil Service Com. (1982) 130 Cal.App.3d 357). In fact, such a proposition would effectively categorically disqualify any official initiating disciplinary action against an employee from presiding over the Skelly. There is no authority that precludes an officer from performing such a dual function. (Flippin v Los Angeles City Bd. of Civil Service Commission 2007) 148 Cal app. 4th 272, 282 citing Titus v. Civil Service Com. (1982) 130 Cal.App.3d 357 and Bollinger v. San Diego Civil Service Com. (1999) 71 Cal.App. 4th 568). Neither of those cases challenged the impartiality of a Skelly hearing officer because that same officer had 4 This goes to the criticism levied against Lichtig for not listening to the actual interviews. This claim has no merit when one considers that no evidence was put forth by Waddell to indicate that any of the interview summaries provided in the reports by either of the two investigators were inaccurate in any way. Indeed, the interview transcripts of the recorded interviews were admitted into the record. The comparison of the summaries to the transcripts could be accomplished simply by reviewing the record. REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3333 I initially recommended imposing the employee discipline. Flippin v. Los Angeles City Bd. of 2 Civil Service Commission, supra). No authority prohibits such dual function, when the 3 employee receives subsequent levels of administrative review, including a full evidentiary 4 hearing before a neutral hearing examiner. On this record, appellant has not met his burden of 5 establishing any due process violation in the conduct of the Skelly hearing. All that is required 6 is that the Skelly officer, who is aware of all the evidence used to support the proposed decision, 7 at least listen to and consider response made by the employee to the proposed decision. There is 8 no evidence that Chief Gesell did not do that in the Skelly conference. 9 There is no evidence that Chief Gesell authored an email to a leadership school in which 10 he listed Waddell's termination at an accomplishment. This is yet another factual inaccuracy in I I Waddell's PHB. Waddell's name was never listed in that communication (AX -RR) and 12 Footnote 23 in Waddell's PHB does not correct the error. The number of people who would 13 know Chief Gesell's reference to "an officer" as being Waddell are too few to number. 14 PROGRESSIVE DISCIPLINE 15 Progressive discipline is inapplicable in this case. It is said to be "axiomatic that the 16 degree of penalty should be in keeping with the seriousness of the offense." (Capital Airlines, 17 25 LA 13, 16 (Stowe, 1955)). In this regard, Arbitrator Whitley P. McCoy explained: 18 "Offense are of two general classes: (1) those extremely serious 19 offenses such as stealing, striking a foreman, persistent refusal to obey a 20 legitimate order, etc., which usually justify summary discharge without 21 the necessity of prior warnings or attempts at corrective discipline; (2) 22 those less serious infractions of plant rule or of proper conduct such as 23 tardiness, absence without permission, careless workmanship, insolence, 24 etc., which all not for discharge for the first offense (and usually not 25 26 27 28 34- REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3334 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 even for the second or third offense), but for some milder penalty aimed at correction." 5 Moreover, in adopting a corrective discipline program a company was held not to have surrendered its rights to invoke summary discharge for serious offenses warranting such action. Inland Steel Products Co., 47 LA 966, 970 (Gilden, 1966)). Applying these standards to the present case, the words of Justice Paras in Wilson v. State Personnel Board (1976) 58 Ca1.App. 3d 865, are particularly persuasive. In analyzing a case involving a state peace officer who was terminated for filing a series of eight false time slips, the court said, "Short of physical violence, it is hard to image a more serious offense by an employee against an employer." (Id at p. 883). In addition, the Wilson court said that only one of the acts of filing a false time slip would have been enough to support a disciplinary discharge. (Id. at p. 883) The charge of dishonesty and violating the law in this matter makes this case one of such extreme seriousness as to make progressive discipline inapplicable and one which usually justifies summary discharge without the necessity of prior warnings or attempts at corrective discipline. DISPARATE TREATMENT Smith did not do anything wrong. Smith did nothing to deserve discipline in this matter. There is no disparate treatment in this matter at all, let alone based on anything Smith did. 5 Huntington Chair Corp. 24 LA 490, 491 (1955). For other cases recognizing the propriety of summary discharge for serious offenses, see Arbitrator Nicholas in 80 LA 891, 893; Cantor in 74 LA 1084, 1090 (threatening a foreman); Axon in 73 LA 164, 168 (disloyalty to employer by using contacts and information obtained on the job to turn a personal profit at their employer's expense"); Layboume in 71 LA 148, 151 (extorting $20 as condition for allowing truck to be unloaded); Fitch in 70 LA 1088, 1091 (false statements concerning safety maliciously made to regulatory agency); Glendon in 70 LA 696, 699; Duff in 70 LA 625, 627-628 (refusal of public sector employee to work overtime in an emergency); Powell in 70 LA 146, 149 (striking a foreman); Kaufman in 69 LA 776, 779 (possession of marijuana and giving it to fellow employees at work); Turkus in 68 LA 351, 352 ("openly defiant and egregiously insubordinate" conduct); Schmidt in 52 LA 1019, 1021-1022; Keefe in 52 LA 709, 713; Daugherty in 50 LA 83, 90; Livengood in 47 LA 1170, 1175; Tsukiyama in 43 LA 1218, 1223-1224; Jaffee in 27 LA 768, 772-773; McCoy, Schneider & Alexander in 25 LA 270, 276; Stowe in 25 LA 13, 16; Marshall in 22 LA 573, 576; Seward in 19 LA 210, 212; Updegraff in 17 LA 224, 225. In some of these cases the arbitrator expressly stated that summary discharge is permissible even though the employee has long seniority with a good record. 6 Department of Fish and Game Warden 35- REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3335 1 After the third attempt to obtain confidential police personnel file information, Appellant 2 finally obtained the discovery of the fact that Pfarr was disciplined for his failure to properly 3 supervise Waddell as it related to the Bentley event. (AX -NN) That Hart's written reprimand 4 was found relevant enough to be disclosed to Appellant, does not mean that it supports the 5 disparate treatment claim. 6 As the issue presented in this Pitchess motion is one based upon a disparate treatment 7 claim, some discussion of the contours of that claim are in order here. In order to prevail on a 8 claim of disparate treatment one must show that similarly situated employees were treated 9 differently and that the reason for the existence of this disparity in treatment is some 10 impermissible reason. (Vasquez v. County of Los Angeles (9t1' Circ. 2003) 349 F.3d 635) This 11 can be a difficult claim to support because the reasons that an employer imposed specific 12 sanctions on certain employees will almost never be sufficient to permit the conclusion that the 13 officer who seeks the records was truly similarly situated, because the agency has broad 14 discretion to take almost innumerable factors into account in determining an appropriate 15 sanction for a particular officer. (See generally Talmo v. Civil Services Commission (1991) 16 231 Cal. App. 3d 210.) 17 Disparate treatment of similarly situated employees may be an abuse of discretion on the 18 part of the public agency and consequently may provide a basis for rescinding or modifying 19 discipline (Pegues v. Civil Service Commission (1998) 67 Cal. App. 4' at 104- 106; Talmo, 20 supra at 229-231; See Harris v. Alcohol Beverage Control Appeals Board (1965) 62 Cal. 2d at 21 594- 595.) While the claim that the punishment imposed is excessive in comparison with 22 punishment imposed on other personnel in similar circumstances is a valid claim to make either 23 in the employment discipline context or in a retaliation claim, there is "no requirement that 24 charges similar in nature must result in identical penalties." (See Talmo, supra at 230; Peguues, 25 supra at 104-106.) 26 The entirety of this body of law consistently refers to "similarly situated employees." In 27 Vasquez v. County of Los Angeles, supra, "Individuals are similarly situated when they have 28 similarjobs and display similar conduct." (Vasquez at 641). Disparate treatment can come up REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3336 I when "other employees with qualifications similar to (another employee) were treated more 2 favorably." (Vasquez, supra at fn 5 citing McDonnell Douglas v. Green (1973) 411 U.S. 792, 3 802). Employees in supervisory positions are generally deemed not to be similarly situated to 4 lower level employees (Vasquez, supra at 641-642). A showing is required that the 5 "problematic conduct be of comparable seriousness" to be considered similarly situated (id). To 6 be similarly situated, an employee must have the same supervisor, be subject to the same 7 standards and have engaged in the same conduct. (Vasquez, supra at fn 17 citing Hollins v. 8 Atlantic Co., Inc. (6h Circ., 1999) 188 F.3d 652, 659). 9 After carefully considering the above, it should appear inescapable that there is no 10 disparate treatment present in this case. Hart's disciplinary action was based upon his failure to 11 properly supervise Waddell. Since the disciplinary action taken against Pfau was based upon 12 his conduct as a supervisor, it bears no relationship to Waddell's misconduct. 13 Appellant was terminated for lying to his supervisor and his misconduct in the Bentley 14 event. There is no evidence in the record to suggest that Sgt. Pfarr did anything wrong in the 15 CAT shift event. There has been some evidence that Sgt. Pfarr may have done something wrong 16 as it relates to failing to properly supervise appellant as it relates to the Bentley event. 17 Any misconduct at all committed by Sgt. Pfarr was of a completely different character 18 than Appellant's. Appellant actually engaged in the acts alleged to have violated the rules, Sgt. 19 Pfarr was not a participant in the same, or even similar, misconduct as compared to appellant. 20 At most, Sgt. Pfarr could arguably be criticized for not taking appropriate action as a sergeant of 21 police at the Bentley accident scene. Such misconduct would be in the nature of a failure to 22 supervise and thus, as a sergeant, he is not a similarly situated employee to that of the appellant 23 who actually engaged in the misconduct. 24 It is again disingenuous to state that there was no administrative investigation of Pfarr's 25 misconduct. (Waddell PHB, 49/ 16-17) That is not a true statement. The investigation of 26 Pfarr's inertia in failing to report and therefore supervise Waddell was the Proll investigation of 27 the Bentley event. Indeed, Pfarr inasmuch as admitted he failed to timely report to his 28 /// 2, REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3337 I supervisor what Waddell did. The Proll Bentley investigation constituted the investigation 2 which led to Pfarr's discipline. 3 CONCLUSION 4 For all the above reasons and those reasons stated in the City's Post Hearing Brief, the 5 termination of Kevin Waddell from SLOPD shoukDepartment 6 Dated: December 30, 2015 JON 7 8 9 By. Luis Obispo 10 t 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 O REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENTWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3338 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is 3777 North Harbor Boulevard, Fullerton, California 92835. On December 30, 2015, I served the foregoing document described as REBUTTAL BRIEF OF THE SAN LUIS OBISPO POLICE DEPARTMENT on each interested party, as follows: SEE ATTACHED SERVICE LIST X (Via Mail) I deposited such envelope, with postage thereon fully prepaid, in the mail at La Habra, California. I am readily familiar with the Law Offices of Jones & Mayer practice for collection and processing of correspondence for mailing with the United States Postal Service. Under that practice, it would be deposited with the United States Postal Service on that same day with postage thereon fully prepaid at La Habra, California, in the ordinary course of business. I am aware that on motion of the parties served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing affidavit. Overnite Express) I deposited such envelope in the depository at Fullerton, California 1 ensure next day delivery. Via Personal Service) I caused to be delivered such envelope by hand to the offices of the addressees. Via Facsimile) I caused the within documents to be transmitted to telephonic facsimile to the addressees. X (Via E -Mail) I caused the within documents to be transmitted electronically to the address indicated above. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on December 30, 2015 at Fullerton, California. 4LAUMILLE Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3339 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Christopher Cameron Arbitrator and Civil Service Hearing Officer Professor of Law c/o Southwestern Law School 3050 Wilshire Blvd. Los Angeles, CA 90010 Telephone: (213) 738-6749 Facsimile: (213) 738-6698 ccameron@swlaw.edu Kasey A. Castillo, Esq. Nicole A. Naleway, Esq. Castillo Harper, APC 3333 Concours St., Bldg 4, Ste. 4100 Ontario, CA 91764 Telephone: (909) 466-5600 Facsimile: (909) 466-5610 kasey@castilloharper.com nikki@ castilloharper.com Attorneys for Appellant Kevin Waddell Christine Dietrick, Esq. City Attorney, City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401 Telephone: (805) 781-7140 cdietrick@slocity.org Chris Staley Operations Police Captain San Luis Obispo Police Department 1042 Walnut St. San Luis Obispo, CA 93401 cstaley@slocity.org SERVICE LIST 2 PROOF OF SERVICE Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3340 BEFORE THE CITY COUNCIL OF THE CITY OF SAN LUIS OBISPO In the Matter of the Appeal of the Termination of ) OFFICER KEVIN WADDELL, ) REPORT AND Appellant, ) RECOMMENDATION OF HEARING OFFICER and ) CSMCS Case No. ARB-14-0209 POLICE DEPARTMENT OF THE CITY OF ) SAN LUIS OBISPO, ) Hiring Authority.+ ) Hearing Officer Professor Christopher David Ruiz Cameron Southwestern Law School Advocates For the Appellant For the Hiring Authority Kasey A. Castillo, Esq. Gregory P. Palmer, Esq.** Castillo Harper APC Jones & Mayer Hearing Dates June 25 and 26, July 9, 23, and 24, August 20 and 21, September 2, and October 2 and 6, 2015 San Luis Obispo, California Also referred to as “Appointing Authority” in Section 2.36.320 of the City’s Municipal Code (Dept. Ex. 1). Attended by Nicole Naleway, Esq., of Castillo Harper APC. Attended by City Attorney Christine Dietrick, Esq. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3341 TABLE OF CONTENTS R E P O R T INTRODUCTION ................................................................................................................................1 ISSUES ..............................................................................................................................................2 STATEMENT OF CHARGES ...............................................................................................................2 SKELLY REQUIREMENT...................................................................................................................3 EVIDENCE SUBMITTED ....................................................................................................................7 STANDARD OF REVIEW ....................................................................................................................8 DISCOVERY ISSUES ..........................................................................................................................9 Two Subpoenas Duces Tecum .....................................................................................................9 Pitchess Motions ........................................................................................................................10 SUMMARY OF POSITIONS TAKEN BY PARTIES ..............................................................................14 By the Department .....................................................................................................................14 By the Appellant .........................................................................................................................15 STATUTE OF LIMITATIONS ISSUE ..................................................................................................17 FACTS .............................................................................................................................................19 About the Appellant ...................................................................................................................19 About the Charges ......................................................................................................................23 The CAT Shift Event ..............................................................................................................23 The Bentley Event ..................................................................................................................33 DISCUSSION ....................................................................................................................................43 About the Charges ......................................................................................................................43 Dishonesty ..............................................................................................................................44 Failure to Be Punctual ............................................................................................................53 Conduct Adverse to Department ............................................................................................54 Wilfully Tampering with or Removing Part(s) from Vehicle ................................................59 About the Discipline ...................................................................................................................63 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3342 R E C O M M E N D A T I O N FINDINGS OF FACT ........................................................................................................................73 CONCLUSIONS OF LAW ..................................................................................................................75 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3343 1- R E P O R T INTRODUCTION This appeal (“the Appeal”) challenges the termination of Officer Kevin Waddell Appellant”) by the Police Department of City of San Luis Obispo (“Hiring Authority” or Department”) (collectively “the Parties”). It came before me pursuant to a mutual appointment by the Parties, who acted through the auspices of the California State Mediation and Conciliation Service (“CSMCS”) and under Sections 2.36.290 to 2.36.380 of the Municipal Code of the City of San Luis Obispo (“the City”). At duly-noticed hearings held on June 25 and 26, July 9, 23, and 24, August 20 and 21, September 2, and October 2 and 6, 2015, and in accordance with the procedures set forth in Section 2.36.350 of the City’s Municipal Code (Dept. Ex. 1), the Parties appeared before me and offered witness testimony and documentary evidence that I marked and admitted as discussed below. There was sufficient opportunity for direct and cross-examination of all witnesses. The Parties were well-represented by experienced counsel: the Appellant, by Kasey A. Castillo, Esq., who was attended on several hearing dates by Nicole Naleway, Esq., of Castillo Harper APC; and the Department, by Gregory P. Palmer, Esq., of Jones & Mayer, who was attended by City Attorney Christine Dietrick, Esq. On or about December 21, 2015, the Parties contemporaneously submitted closing briefs; on or about December 30, 2015, they contemporaneously submitted rebuttal briefs. Various appendices were included with the briefs. Each was submitted and served by email attachment. These arrangements were agreed to by stipulation. Having received the briefs and appendices, I hereby admit them into the record, along with all witness testimony and documentary evidence admitted at the hearings. The record having been completed, I hereby declare it closed. The Appeal is now ripe for resolution. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3344 2- ISSUES1 1. Are the charges against Officer Kevin Waddell substantiated by just and proper cause? 2. If so, was termination the appropriate disciplinary action? STATEMENT OF CHARGES In the Notice of Decision of Disciplinary Action (Dept. Ex. 4), Appellant was charged with four counts of misconduct: three violations of the Department’s Personnel Rules and Regulations Manual (“the Personnel Rules”) (Dept. Ex. 2) and one violation of the California Vehicle Code (Dept. Ex. 3). The four counts included: 1. Violation of Personnel Rules Standard of Conduct Section IV-I: “A Department employee shall not knowingly or wilfully make a false verbal statement or give false information to a Department supervisor or investigator.” 2. Violation of Personnel Rules Duty Section III-B: “Employees of the Department shall be punctual in reporting for duty at the time and place designated by their supervising officer.” 3. Violation of Personnel Rules Standard of Conduct Section IV-LL: “Department employees shall not conduct themselves in a manner than reflects adversely on the Department, or which discredits the Department, or is detrimental to the reputation or professional image of the Department.” 4. Violation of California Vehicle Code Section 10852: “No person shall either individually or in association with one or more persons, wilfully injure or tamper with any vehicle or the contents thereof or break or remove any part of a vehicle without the consent of the owner.” 1 The issues are stated in accordance with Section 2.36.350-F-2 of the City’s Municipal Code (Dept. Ex. 1). Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3345 3- SKELLY REQUIREMENT In the absence of a stipulation, I received evidence on the question whether Appellant timely was afforded his procedural due process rights under state law (Skelly v. State Personnel Board, 15 Cal. 3d 194 (1975)). By memorandum dated September 9, 2014, Appellant was served with a Notice of Intent to Administer Disciplinary Action that stated the charges against him, provided voluminous supporting documentation, and notified him of his right to respond Dept. Ex. 5). The supporting documentation included nine (9) sets of materials, including the recordings of all investigative interviews conducted by the Department. On September 11, 2014, Appellant attended a Skelly meeting with Chief Stephen Gesell at which Appellant was represented by Nicole Quintana Winter, Esq. Ms. Winter was Appellant’s counsel of record at the time. Appellant had an opportunity to respond to the charges at this meeting. By memorandum dated October 1, 2014, the Department rejected Appellant’s arguments, sustained the charges, and terminated him (Dept. Ex. 4). Without contradiction, the foregoing information was confirmed by City Attorney Christine Dietrick. City Attorney Dietrick also testified that Appellant, through Ms. Winter, was given an opportunity at the Skelly meeting to respond to the charges. On the advice of Ms. Winter, Appellant himself exercised his right to remain silent. But Ms. Winter made a presentation arguing for reduction of the discipline from termination to a lesser penalty. In addition, the Department offered into evidence a recording of the Skelly meeting by playing it at the hearing. In lieu of accepting the recording as a separate exhibit, I directed that it be taken down by the court reporter and reproduced in the transcript with the rest of the proceedings (10/06/15 T.R.2 1989-96). 2 Transcript of Record (T.R.). Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3346 4- The Skelly rule requires that, prior to termination, the employee must be provided with four things: “notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based,” and “the right to respond, either orally or in writing, to the authority initially imposing discipline” (Skelly, 15 Cal. 3d at 215). The burden of proving a Skelly violation rests with the employee. A review of the foregoing record as a whole shows by a preponderance of the evidence that Appellant was afforded all four things. Nevertheless, Appellant argues that the Skelly process was tainted by several defects. Principal among these defects was the Department’s failure to produce several pre-final drafts App. Ex. Ya to Yf) of Lt. Proll’s February 28, 2014 memorandum reporting the results of his investigation of the Bentley Event (Dept. Ex. 8); City Manager Katy Lichtig’s failure to review or consider certain facts or materials supporting the Department’s decision to terminate Appellant (Closing Brief of Appellant at 30-32); the inadequacy of the Skelly meeting insofar as Chief Gesell, the Skelly officer, went into the meeting with a closed mind and advised that he had a “moral obligation” to make sure Appellant was never a cop again; and an off-the-record settlement conference that was held between Ms. Winter and City Attorney Dietrick outside the presence of Appellant during the Skelly meeting. None of these things matters, even if any or all of them is true. As to the pre-final drafts of Lt. Proll’s report, I am aware of no principle of due process – and none was cited – that requires an employee to be given every draft of a disciplinary investigation memo before he can be terminated. It would place an unreasonable burden on a municipal employer to impose such a requirement. The only draft that counts is the final draft, and this indisputably was provided to Appellant. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3347 5- To the extent that other supporting materials, such as photographs of the accident scene at the Bentley Event, were not produced prior to termination, I find any such defect in the Skelly process to be insubstantial or de minimus. As to the participation of City Manager Lichtig, the record is replete with evidence that she took her role as final decision maker seriously and undertook a comprehensive review of the Department’s investigative files (07/24/15 T.R. 932-44, 963). The fact that she may not have read, or may not have recalled reading, each and every relevant document or piece of information is harmless error at best, if it can be considered error at all. As to the role of Chief Gesell, procedural process requires that the Skelly officer be “a reasonably impartial, noninvolved reviewer” (Williams v. County of Los Angeles, 22 Cal. 3d 731, 737 (1978)). This standard does not require strict neutrality; it is satisfied if the Skelly officer has neither participated in the investigation of the underlying misconduct nor recommended the penalty to be imposed. It is undisputed that Chief Gesell performed neither function; those roles were filled, respectively, by Lt. Bledsoe (for the CAT Shift Event) and Lt. Proll (for the Bentley Event), and by Capt. Storton (for the CAT Shift Event) and Capt. Staley (for the Bentley Event). The facts that Chief Gesell may have been aware of the investigation of Appellant before it concluded, or disagreed with the penalty recommendation, or even kept a closed mind at the Skelly meeting, are immaterial. In any event, strict neutrality is a requirement of the hearing officer in the final stage of the appeal process, not a Skelly officer at the notice-and-opportunity-to-be-heard stage. Besides, it may not be sound human resources practice for the Skelly officer to be closed-minded, but it is hardly a violation of the law. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3348 6- Finally, as to the off-the-record settlement conference, this arrangement was agreed to by Ms. Winter in her capacity as Appellant’s counsel of record at the time. The Department cannot be found to have acted improperly b y proposing or participating in an arrangement to which Appellant effective consented. In sum, Appellant has not carried his burden of proving any Skelly violations. Therefore, I find that Appellant was afforded his procedural due process rights. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3349 7- EVIDENCE SUBMITTED The Parties called a grand total of twenty-two (22) witnesses whose testimony produced 2,004 pages of transcripts. The Department called six (6) witnesses: Sgt. Chad Pfarr; Det. Adam Stahnke; Lt. John Bledsoe; Officer Greg Benson; Lt. Jeff Smith; and Capt. Chris Staley, the operations captain and acting chief of police. The Appellant called twelve (12) witnesses: Capt. Keith Storton, the administrative captain, who was called twice; Capt. Staley, who was also called twice; Katie Lichtig, city manager; Officer George Berrios; Sgt. Janice Goodwin; Sgt. Brian Amoroso; Lt. Bill Proll; Sgt. Chad Pfarr; Lt. Jeff Smith; Appellant himself, who was called twice; Officer Brent Inglehart; and Lt. Bledsoe. On rebuttal, the Department called three 3) witnesses: Lt. Smith; Capt. Staley; and City Attorney Christine Dietrick, who was called twice. On sur-rebuttal, Appellant called one (1) witness: Appellant himself. The Parties also submitted sixty-eight (68) pieces of documentary evidence: twenty-four 24) exhibits offered by the Department (Dept. Ex. 1 to 24), and forty-four (44) exhibits offered by the Appellant (App. Ex. A to RR). Each of these exhibits was admitted into the record. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3350 8- STANDARD OF REVIEW In accordance with Section 2.36.350-F-2 of the City’s Municipal Code (Dept. Ex. 1), I required the Department to prove the charges against Appellant by a preponderance of the evidence. As explained below, I find that this standard was satisfied as to Counts No. 1, 2, and 3. To the extent that Count No. 4 accuses Appellant of a crime, however, Appellant argues that traditional arbitral and/or administrative law practice requires the Department to prove the charge by clear and convincing evidence (Closing Brief of Appellant at 4). I agree. Count No. 4 accuses Appellant of violating the California Vehicle Code (see Cal. Vehicle Code § 10852). As explained below, I find that this standard was not satisfied as to Count No. 4. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3351 9- DISCOVERY ISSUES3 During the course of the Appeal, two sets of discovery issues were presented: (1) two subpoenas duces tecum (“SDTs”) that were served on the Department by the Appellant under the authority of Sections 1985(b) and 1987.1 of the California Code of Civil Procedure (“CCP”), which the Department moved to quash; and (2) four discovery motions that were directed to the Department by the Appellant under the authority of Sections 1043 and 1045 of the California Evidence Code, as interpreted by Pitchess v. Superior Court, 11 Cal. 3d 531 (1974), and its progeny (“the Pitchess Motions”). More complete consideration of both sets of discovery issues was placed on the record and can be found in the transcript of record for the hearing dates July 23, August 20, and October 2, 2015 (07/23/15 T.R. 723-69; 08/20/15 T.R. 1103-21; 10/02/15 T.R. 1659-62). A brief summary is provided here. Two Subpoenas Duces Tecum The first SDT, served on or about June 17, sought any and all emails from January 2013 through October 2014 referencing the terms “CAT,” “downtown foot patrol overtime,” “OT,” and variations on those terms. The second SDT, served on or about June 16, sought any and all drafts of the internal affairs (“IA”)4 packet prepared by Department employees regarding the pending charges against Appellant; any and all narratives and/or synopses included in such IA packet; any and all attachments to the emails dated January 15 and February 5, 2014, between Lt. Bledsoe and Lt. Proll; and a privilege log. The Department’s motion to quash, which was served on or about July 7, objected on the grounds that the information sought is irrelevant, immaterial, 3 Unless otherwise noted, all dates discussed in this section are in 2015. 4 The initials “IA,” referring to “internal affairs,” and “AI,” referring to “administrative investigation” or administrative inquiry,” were often used interchangeably by the witnesses and in the exhibits, but here I refer only to the initials “IA.” Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3352 10- and/or unsupported by good cause. The Appellant’s opposition, which was served on or about July 16, offered rebuttal as to these points. With two exceptions, I enforced both SDTs and denied the Department’s motion to quash. Regarding the first SDT, the material sought in the emails appeared to be relevant and material to the CAT Shift Event. Regarding the second SDT, this posed a closer question, but nevertheless I decided to give Appellant the benefit of the doubt, and found both the email attachments and the drafts of AI materials sought to be relevant, and accordingly, ordered their production. The two exceptions were these: a single email attachment relating to a draft of the document that became Department Exhibit No. 8, which had been extensively marked up and commented upon by the City Attorney; and the police report and related materials containing the name and address of the owner of the Bentley, which were to be used to take or obtain additional photographs of the vehicle. I denied enforcement of the SDT as the former document on the ground that it was protected from disclosure in its entirety by the attorney-client privilege, and denied an oral motion to compel production of the latter documents on the ground that they were irrelevant. In reaching these conclusions, I made no finding as to either the admissibility of the information sought, or the weight properly to be given such information if it were to be made part of the record. Pitchess Motions Four5 Pitchess Motions were originally made. On or about June 25, the Appellant filed with me and served on various persons the first Pitchess Motion relating to the personnel file of 5 As explained below, Appellant later withdrew one of the Pitchess Motions and refiled the other three. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3353 11- Sgt. Chad Pfarr, plus related supporting documents. On or about June 29, the Appellant filed with me and served on various persons three other Pitchess Motions relating to the personnel files of Lt. Jeff Smith, Lt. John Bledsoe, and Lt. Bill Proll, also with related supporting documents. In response, on or about July 7, the Department filed with me and served its opposition to the Pitchess Motions, also with related documents. On or about July 16, the Appellant filed with me and served on various persons his reply to the Department’s opposition. As to Sgt. Pfarr and Lt. Smith, the object of the Pitchess Motions was to obtain information relating to any allegation, investigation, and/or discipline of Sgt. Pfarr, Lt. Smith, or both, for failure properly to supervise Appellant. As to Lt. Bledsoe and Lt. Proll, the object of the Pitchess Motions was to obtain information relating to the personnel files of each Lt. Bledsoe and Lt. Proll, including information about any IA investigation or inquiry of him, any and all complaints (formal or informal) filed against him, and any complaint and/or investigation involving misleading or false statements in any official matter, malicious treatment of witnesses, improper use of law enforcement power, and propensity and motivation to retaliate and/or fabricate by either or both Lt. Bledsoe and Lt. Proll. It was established that, in my capacity as Hearing Officer, I have the authority to rule on these motions in this administrative appeal (See Riverside County Sheriff’s Department v. Stiglitz Drinkwater), 60 Cal. 4th 624 (2014)). It was also established that peace officer personnel records maintained by any state or local agency are confidential, and may not be discovered except in accordance with the procedures set forth in the Evidence Code. At least two basic requirements must be met: first, under Section 1043(b)(3), the applicant must show good cause for the discovery sought; second, under Section 1045(a), the information sought must be relevant to the subject matter of the Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3354 12- pending proceeding (See City of Santa Cruz v. Municipal Court (Kennedy), 49 Cal. 3d 74 1989)). Information for which there is good caused established must be reviewed in camera for relevancy, materiality, and privilege. At the hearing on July 23, I denied each of the Pitchess Motions on the ground that they were not properly served upon the Department and/or its custodian of records. Although I expressed my preliminary views as to how I would likely resolve the merits of these Pitchess Motions, I did not actually reach the merits. The denials were without prejudice to the Appellant’s refiling them. On or about July 28, the Appellant refiled and reserved three Pitchess Motions relating to the personnel files of Sgt. Pfarr, Lt. Smith, and Lt. Proll only. (The motion relating to the personnel file of Lt. Bledsoe was not refiled, and service of the refiled motions was not contested.) On or about August 7, the Department filed and served its opposition to these motions. On or about August 13, the Appellant filed and served its reply. At the hearing on August 20, I again denied each of the Pitchess Motions, this time on the ground that good cause was not shown. In particular, I found the declaration accompanying each motion to be defective for failure to state facts showing good cause, whether based on personal knowledge or information and belief. Although I expressed my preliminary views as to how I would likely resolve the merits of these Pitchess Motions, I did not actually reach their merits, either. The denials were without prejudice to the Appellant’s refiling them. On or about September 10, the Appellant refiled and reserved three Pitchess Motions relating to the personnel files of Sgt. Pfarr, Lt. Smith, and Lt. Proll only. On or about September 18, the Department filed and served its opposition to these motions. On or about September 23, the Appellant filed and served its reply. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3355 13- During a telephone hearing on September 29, I granted the Pitchess Motions related to the personnel files of Sgt. Pfarr and Lt. Smith, and set a date for in camera review of those files. I also denied the Pitchess Motion related to the personnel file of Lt. Proll, once again on the ground that good cause was not shown. Meanwhile, on October 2, I conducted the in camera review of the personnel files of Sgt. Pfarr and Lt. Smith. Following this review, I ordered a single document – a memorandum reprimanding Sgt. Pfarr for failure to supervise Appellant in connection with the Bentley Event – to be produced and marked as Appellant Exhibit No. NN. Later, this document was admitted into evidence.) As to my in camera review, a confidential record of the proceeding was made and the transcript thereof was ordered sealed, both in accordance with applicable law. As to the document produced, Appellant stipulated that it would not be used for any purpose other than this Appeal, also in accordance with applicable law. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3356 14- SUMMARY OF POSITIONS TAKEN BY PARTIES By the Department The Department takes the position that Appellant engaged in both dishonesty and conduct reflecting adversely on the Department by making a false statement to supervisors, and by removing or attempting to remove without the owner’s permission one or more parts of a privately-owned vehicle that was involved in a serious accident. As to dishonesty, Appellant lied by claiming to have the permission of Lt. Smith, the CAT shift supervisor, to report for duty up to 30 minutes late on October 19, 2013 (“the CAT Shift Event”). Appellant represented in a text message to Sgt. Pfarr, at a follow-up or report-for- duty meeting with Sgt. Pfarr, and in a subsequent IA interview with Lt. Bledsoe, that he had a conversation in which he had obtained Lt. Smith’s prior approval to report by 11:30 a.m. for an overtime shift that was scheduled to begin at 11:00 a.m. But no such conversation ever occurred and or no such permission ever was sought or obtained. As to conduct reflecting adversely on the Department, Appellant not only engaged in dishonesty but also removed or attempted to remove the “B” emblem from at least one and perhaps three different parts of a Bentley automobile that had been involved in a serious injury traffic accident on February 22, 2013 (“the Bentley Event”). His motive was either to pull a prank or to collect a “trophy.” But the items were not material evidence relating to the Department’s investigation of the accident, and the Appellant had no cause or permission to remove them. Besides, tampering with or removing or attempting to remove the private property of an accident victim was a crime. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3357 15- Therefore, the penalty of termination is warranted due to the severity of these offenses. Dishonesty is an especially serious offense for a sworn police officer, whose true word is relied upon in almost everything he says and does. By the Appellant The Appellant takes the position that he engaged in no misconduct, but rather is the victim of two unfortunate misunderstandings as well as his own poor judgment. As the CAT Shift Event, Appellant was misunderstood in that he did not intend to state to Sgt. Pfarr that he had Lt. Smith’s permission to report to work late on October 19 in particular. Rather, he meant to convey that Lt. Smith had been “okay” with Appellant’s reporting to work late in general. The CAT Shift was a flexible shift having adjustable hours. In the past, Lt. Smith did not object to officers’ adjustment of these hours. Appellant interpreted this non- objection as giving tacit permission. As it turned out, this was a misunderstanding too, but on Appellant’s part; he misinterpreted this “past practice” of being allowed to adjust his schedule as meaning that it was permissible for him to do in the CAT Shift Event too. So he was not dishonest, and did not engage in conduct adverse to the Department. But he may have exercised poor judgment in adhering to his misinterpretation. As to the Bentley Event, all evidence relating to this event should be suppressed as time- barred by the one year statute of limitations codified by law (see Cal Gov’t Code § 3304(d)). If the charge was not time-barred, then Appellant was misunderstood as to his motive. Appellant was merely trying to pull a prank on Sgt. Pfarr, not attempting to collect a “trophy” or to steal private property. Sgt. Pfarr was a newly-promoted sergeant, and Appellant was just “messin’ with him” by appearing to remove the items in Sgt. Pfarr’s presence, and waiting to see how he would react (Dept. Ex. 22, p. 11). In hindsight, it was a poor joke. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3358 16- As to both events, Appellant alleges that the Department violated a number of his procedural rights under the Public Safety Officers Bill of Rights (POBRA) (Cal. Gov’t Code §§ 3300-3312).6 Even if Appellant engaged in misconduct, termination was too severe under the circumstances. First, Appellant was the victim of disparate treatment. Second, he had a strong work record and no record of prior discipline. Third, the investigation of his misconduct was inadequate or unfair. Therefore, the penalty of termination is not warranted. It should be set aside or reduced to a lesser form of discipline, such as suspension, and Appellant should be restored to his position in the Department. 6 After careful consideration, I find no merit in Appellant’s argument that one or more of his POBRA rights was violated (Closing Brief of Appellant at 28-29). In general, the procedural rights codified in POBRA attach only when a public safety officer is “under investigation and subjected to interrogation . . . that could lead to punitive action,” including termination (Cal. Gov’t Code § 3303). POBRA could not have been implicated at the pre- investigation, pre-interrogation stage during which Appellant was communicating about the CAT Shift Event and/or the Bentley Event with Sgt. Pfarr, Lt. Smith, or any other supervisor. In fact, it is undisputed that, once Appellant was suspected of wrongdoing, both Sgt. Pfarr and Lt. Smith cut off any attempt by Appellant to explain himself precisely to avoid implicating his POBRA rights (see infra p. 30 & note 15). Thus, insofar as this Appeal is concerned, POBRA is a non-issue. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3359 17- STATUTE OF LIMITATIONS ISSUE As noted above, Appellant argues that all evidence relating to the Bentley Event only should be suppressed, and the corresponding charges in Counts No. 3 and 4 dismissed, as time- barred by the one-year statute of limitations codified by law (Closing Brief of Appellant at 23- 24). For the reasons given below, I disagree. Under Section 3304(d), which is part of POBRA, no punitive action, nor denial of promotion on grounds other than merit, shall be undertaken for any act, omission, or other allegation of misconduct [by a peace officer] if the investigation of the allegation is not completed within one year of the public agency’s discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct. Cal. Gov’t Code § 3304(d)(1) (emphasis added).) Under Section 3303, “punitive action” includes “any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.” (Cal. Gov’t Code § 3303). Citing Section 3304(d)(1), Appellant argues that the discipline of Appellant for his role in the Bentley Event is untimely because the one-year period during which the Department was required to complete its investigation expired on or about February 22, 2014. The Department missed this deadline by at least six days; Lt. Proll, who was assigned to conduct the investigation, did not submit his report until February 28, 2014 (Dept. Ex. 8). Appellant’s argument turns on the assumption that the one-year period began to run on February 22, 2013, when Sgt. Pfarr, Appellant’s functional supervisor, observed and became aware of his alleged misconduct in connection with the Bentley Event. (Initially, Sgt. Pfarr chose to issue a verbal counseling rather than report the Bentley Event to the chain of command.) This assumption is incorrect, because Sgt. Pfarr was not “a person authorized to initiate an investigation” of Appellant or anyone else. The position taken by the Department was that only Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3360 18- the chief of police could initiate a disciplinary investigation. Although the record was unclear on this point,7 the record was clear that a sergeant could not initiate such an investigation (although he may receive and report information to the chain of command that could trigger one). Without contradiction, Lt. Bledsoe and Sgt. Amoroso so testified (06/26/15 T.R. 287-88; 07/24/15 T.R. 1070). The one-year statute of limitations could not begin to run until “a person authorized to initiate an investigation” knew or should have known that an IA investigation may be warranted. In this Appeal, that trigger occurred, at the earliest, sometime during the period August to October 2013 – the precise date was not established – when Sgt. Pfarr advised Lt. Bledsoe and Lt. Smith of the Bentley Event and Appellant’s role in it.8 Or it occurred, at the latest, in December 2013, when Chief Gesell became aware of it, after Capt. Storton directed Sgt. Pfarr to submit a written report (App. Ex. A). In either case, the investigation of Appellant was completed well within one year. Therefore, I reject the argument that all evidence relating to the Bentley Event should be suppressed, and the corresponding charges in Counts No. 3 and 4 dismissed, as time-barred by the one-year statute of limitations. 7 The Department relied on Capt. Staley’s testimony for the proposition that only the chief of police could initiate such an investigation, but did not cite the portion of the record wherein he so testified (Closing Brief of Department at 18). I was unable to find it. 8 The details are set forth in the discussion of the Bentley Event (see infra pp. 38-39). Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3361 19- FACTS Most of the material facts about the Appellant and the charges against him are not in dispute. They are set forth below. About the Appellant At all relevant times, Appellant was a veteran police officer assigned to the Department’s patrol division. He had twelve (12) years of experience: seven (7) years with the Hiring Authority and before that five (5) years with the Santa Maria Police Department. Appellant is a graduate of the Napa Valley Regional Police Academy. In 2007, Appellant was hired by the Hiring Authority. Initially, he worked patrol. After passing probation, he was selected to be a motorcycle officer in the traffic enforcement unit and then to be a bicycle officer in the downtown bicycle unit. Appellant also sought training for and took on collateral assignments as an accident reconstructionist, motorcycle trainer, and SWAT team member. In addition, he volunteered to work with Officer George Berrios in collecting and managing reused military equipment, a program known as DRMO.9 For all this, he received over twenty (20) commendations, certificates, and other good notices. He had no record of formal discipline (10/02/15 T.R. 1663-76; App. Ex. JJ). When Appellant was assigned to the bicycle unit, he volunteered to work substantial overtime on a special foot patrol shift staffed by the Community Action Team (“CAT”). This shift, which ran on weekends and other busy days from 11:00 a.m. to 4:00 p.m., was known as the “CAT shift.” Appellant volunteered frequently for CAT shift duty. An event that occurred during Appellant’s CAT shift assignment gave rise to two of the four charges against him (“the CAT Shift Event”), and is discussed below. 9 DRMO stands for Defense Reutilization Marketing Office, an agency affiliated with the U.S. Defense Department. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3362 20- Appellant gave at least two reasons why he volunteered to work the three collateral assignments described above, plus DRMO, plus substantial overtime on the CAT shift. The first reason was, “I love being a cop. I love this whole business and wanted to make our department better” (10/02/15 T.R. 1676). The second reason was his desire to rebut the accusation by then- Chief Gesell that Appellant had a “lack of commitment” to the Department (10/02/15 T.R. 1690). A dispute arose as to the lack of commitment accusation, which Appellant vehemently denied. This accusation was first made during an exit interview with Chief Gesell held at Appellant’s request to learn why he had been passed over for promotion to sergeant in favor of Chad Pfarr. Appellant disputed the reasons given by Chief Gesell, which included a report that Appellant had looked at his watch during a SWAT physical training or “PT” test. Appellant explained that keeping track of one’s time is part of the PT test. Besides, the accusation made no sense because Appellant had undergone no PT test for a year and-a-half; he was out on disability leave for much of the period leading up to the exit interview (10/02/15 T.R. 1690, 1691-95). Appellant found Chief Gesell’s reasons “completely perplexing”; he was “flabbergasted” by them (10/02/15 T.R. 1694). In the end, Appellant unsuccessfully tested twice for promotion to sergeant. Although Chief Gesell was not called to testify about these events, Capt. Staley was. Capt. Staley confirmed his own suspicions that Appellant did not seem focused while undergoing the PT test. It is not necessary to resolve this dispute of fact. Appellant’s level of commitment to the Department is not under scrutiny in this Appeal; only his conduct relating to the CAT Shift Event Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3363 21- and the Bentley Event is at issue. The existence or non-existence of such peripheral facts does not affect or alter the verity of the charges against Appellant. A dispute also arose as to whether Appellant had an informal record of reporting to work late and not being proactive enough while on duty, two things which Appellant also strenuously denied. According to the Department, Sgt. Pfarr, one of Appellant’s functional supervisors, testified that, on October 19, when the CAT Shift Event occurred, he had planned to counsel Appellant on that very date about having reported late for a prior CAT shift. But the CAT Shift Event happened before Sgt. Pfarr could do so. Also according to the Department, sometime between October 12 and 19, Sgt. Pfarr found Appellant eating his lunch and watching an unidentified movie of the type released by Marvel Studios in the Department’s old downtown satellite office. Officers working the CAT shift were expected to be outside walking foot patrol and engaging the public; they were not permitted to be spending time in the office relaxing or catching up with other duties. Sgt. Pfarr observed that Appellant was participating in little or no radio traffic during his shift. This was odd because Appellant was assigned to patrol an area that required him to be proactive in dealing with the public. Sgt. Pfarr went looking for him. But when Appellant was found, he appeared to be tired, so Sgt. Pfarr bought him a coffee and saw him off to resume his patrol. It was undisputed that Appellant often worked the CAT Shift right before or after having worked his regular shift in the bicycle unit, which was a physically demanding assignment that could be tiring. Appellant was neither written up nor disciplined for this incident. According to Appellant, however, the “movie incident” transpired differently. It occurred in May rather than October. Appellant was on a break in the middle of his shift. He Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3364 22- was eating a barbeque slider that he had bought for a snack and was watching a training video on how to build an AR-15 assault rifle for his use as a sniper on the SWAT team. In other words, he was working on his own time, not avoiding work (10/02/15 T.R. 1736-37). It is not necessary to resolve this dispute of fact either. Appellant is not charged with dereliction of duty. The testimony of Sgt. Pfarr on this score is relevant only insofar as it sheds some light on his state of mind on October 19 – when he was concerned about Appellant’s reporting late for duty – and does not alter the undisputed facts about what actually happened on that date. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3365 23- About the Charges The four counts of misconduct charged arise out of two separate events in which Appellant is accused of misconduct: (1) an incident on October 19, 2013, when Appellant is alleged to have lied about having the approval of his supervising lieutenant to report late for overtime duty on the CAT shift (“the CAT Shift Event”); and (2) a prior incident on February 22, 2013, when Appellant is alleged to have removed or attempted to remove at least one and perhaps three car parts incorporating the “B” emblem affixed to a Bentley automobile that had been involved in a major injury traffic accident (“the Bentley Event”). Each event was investigated separately, and the separate investigation was overseen by a different supervisor. I find the key facts underlying the first, second, and third counts of misconduct to be established by a preponderance of the evidence. These facts are summarized below. 1) The CAT Shift Event The CAT Shift Event occurred on October 19, 2013.10 The material facts relating to the CAT Shift Event are not in dispute. On that date, Appellant stated to Sgt. Pfarr by text message that he had been authorized by Lt. Smith to report up to 30 minutes late for CAT shift duty. But the preponderance of the evidence relating to the CAT Shift Event shows that Appellant’s statement was untrue. As to this date, Appellant never asked Lt. Smith for permission to report for work late, and Lt. Smith never granted such permission. The preponderance of the evidence also shows that Appellant repeated this false statement at least twice, in both a follow-up meeting with Sgt. Pfarr on October19, and in a subsequent IA interview with Lt. Bledsoe on December 12. 10 Unless otherwise indicated, all events relating to the CAT Shift Event occurred in 2013. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3366 24- The CAT program was created in response to pressure from business owners who wanted to curb troublesome conduct involving the transient population in the City’s downtown area. This troublesome conduct included but was not limited to public drunkenness and aggressive panhandling. So the Department drew up plans to increase police patrols. The patrols were to be highly visible and proactive. A special shift, called the “CAT shift,” was created for weekends and other days when increased numbers of visitors were expected in the downtown area. At all relevant times, the CAT shift ran from 11:00 a.m. to 4:00 p.m., when this troublesome conduct was most prevalent.11 Patrol officers were paid overtime for CAT shift duty, which made it a desirable assignment. Usually, the officers worked in teams of two. If more officers than needed happened to sign up for a given CAT shift, then the work was awarded by seniority. Appellant signed up for numerous CAT shifts, and due to his seniority, was frequently awarded the work. After taking sign-ups, Lt. Smith would award the assignments and enter the information into the Department’s digital calendar, known as “speed shift.” Sometimes he would confirm assignments by circulating an email to affected officers; sometimes he would confirm them by directing Sgt. Pfarr to do so. Although Lt. Smith was the CAT shift supervisor, Sgt. Pfarr sometimes would act as its functional supervisor when he was serving as watch commander. On Saturday, October 19, Appellant was scheduled to work the CAT shift with Det. Stahnke. Their names appeared on a hard copy sign-up sheet for the CAT shift (App. Ex. H). This sheet was posted in the hallway outside the sergeant’s office at the police station. Shortly 11 Since 2013, the CAT program has been updated. As of 2014 and 2015, the CAT shift became a regular assignment running from 7:00 a.m. to 5:00 p.m., primarily on Thursdays through Saturdays. Following the submission of interest memoranda by officers wishing to have this assignment, the Department assigned Officers Jim Behrens and Jeremy Fellows to the CAT shift on a permanent basis. From time to time, additional officers may be added to the CAT shift to deal with the influx of visitors to the downtown area on certain weekends or holidays. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3367 25- after 11:00 a.m., Sgt. Pfarr, who was serving as watch commander, noticed that Appellant had not yet reported for duty. This was of particular concern to Sgt. Pfarr because recently he had observed Appellant to be late to work and had planned to counsel him about it that very day. But when Sgt. Pfarr checked the Department’s “speed shift” calendar, the entry for October 19 was blank. Sgt. Pfarr wondered whether this meant that the CAT shift had been canceled for that day, so he telephoned Lt. Smith to find out. The call went unanswered because Lt. Smith was mowing his lawn and did not detect the ring on his mobile telephone. At 11:11 a.m., Sgt. Pfarr texted Appellant12 to ask if he was still coming in. Appellant responded as follows: Appellant: Yes. Sorry. I had worked out ahead of one with lt smith. I’m on the way now Sgt. Pfarr: That made no sense. Stop by when u get here Appellant: Basically I had talked to smith yesterday about coming in at 1130 he said fine no problem. But I will stop by Dept. Ex. 10, pp. 1-2 (emphasis added).) Sgt. Pfarr testified that he understood the words “he said fine no problem” to mean that Lt. Smith, supervisor of both himself and Appellant, had authorized Appellant to report up to 30 minutes late for the CAT shift on October 19. Appellant testified, however, that the words that appeared in these messages did not convey the meaning that he intended. This was because he inadvertently omitted certain words or punctuation that changed the meaning of his texts; or because the “auto correct” function on his cellular telephone did so; or because he was distracted by having to deal with a last-minute child care issue that required him to supervise his daughters at a dance class, and caused him to 12 Initially, Sgt. Pfarr was confused as to whether he had contacted the “right Kevin,” because Appellant was not the only Department officer whose first name was Kevin; soon thereafter, Sgt. Pfarr confirmed that he had indeed contacted the correct officer: the Appellant (06/25/15 T.R. 37). Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3368 26- be late for work on October 19. In any event, the words actually used in the texts quoted above caused Appellant to be misunderstood by Sgt. Pfarr. For example, Appellant testified that the words “I had worked out ahead of one with lt smith should have read, “I had worked out ahead of others” with Lt. Smith about adjusting his schedule (10/02/15 T.R. 1758). Moreover, the words “he said fine no problem” really meant that Lt. Smith was “okay” with officers adjusting their CAT Shift hours (10/02/15 T.R. 1759-60). This had “been going on for months and months on this shift” without contradiction by Lt. Smith 10/02/15 T.R. 1765). Appellant summarized what he had meant to say to Sgt. Pfarr this way: I was trying to communicate to him my understanding from the past practices that I had [been] operating with in this program, that shift-adjusting was acceptable and I’m on the way now and I’ll explain when I get there. 10/02/15 T.R. 1758-59.) In addition, Appellant testified about what he meant by his use of the phrase, “Basically I had talked to smith yesterday about coming in at 1130 he said fine no problem” (Dept. Ex. 10, pp. 1-2) (emphasis added). Appellant did not mean that he and Lt. Smith actually had discussed coming in late on October 18, or that Lt. Smith had given his permission to do so, or even that the two men had had a “conversation.” Rather, Appellant testified: It wasn’t much of a conversation. It was exchanging pleasantries. We saw each other in the locker room and, to me, in saying that, at that time, was me trying to convey that he didn’t say anything to me. I had been operating in this program with an understanding of how things were going and no one had said anything to me about I was doing anything, anything should change, and yesterday I saw him and that was an opportunity for him to correct something that was going on that as unapproved. 10/02/15 T.R. 1760 (emphasis added).) Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3369 27- Furthermore, Appellant testified that this locker room encounter gave Lt. Smith “an opportunity to correct” Appellant’s practice of self-adjusting his schedule sometimes to come in late, but that Lt. Smith failed to do this (10/02/15 T.R. 1847). The Department’s practice was to allow police officers “extreme flexibility” in working the CAT shift (10/02/15 T.R. 1748). When it came to adjusting schedules, however, Lt. Smith’s “communication was poor” (10/02/15 T.R. 1753). Appellant added that it would have made no sense to attempt to ask Lt. Smith on October 18 for permission to be late on October 19 because he did not know that he was going to be late to work until shortly after 10:00 a.m. on October 19. All of this could have cleared this up, if only Appellant had been given the chance to explain things. But Sgt. Pfarr and Lt. Smith were already “off to the races” to open an IA investigation of Appellant, and neither would discuss the matter with him. Appellant felt that he was not being listened to (10/02/15 T.R. 1777). Meanwhile, Det. Stahnke, who had signed up to work the same CAT shift on October 19, received from Appellant a text message to the effect that Appellant would be late or might be late to work. (Det. Stahnke was not Appellant’s supervisor, and did not have authority to grant permission to report for duty late.) Det. Stahnke texted back that he would see Appellant when he got there. This occurred 45 minutes to one hour before shift began. Det. Stahnke then timely reported for duty. In fact, he came to the police station early. Five or 10 minutes before 11:00 a.m., while walking through the hallway to get a uniform item, Det. Stahnke ran into Sgt. Pfarr. Sgt. Pfarr confirmed with Det. Stahnke that both he and Appellant were scheduled to work the CAT shift. Sgt. Pfarr also stated that he was looking for Appellant and asked if Det. Stahnke had seen him. Det. Stahnke responded by sharing the gist of Appellant’s text message stating that he Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3370 28- would be late to work. Sgt. Pfarr asked Det. Stahnke to tell Appellant when he arrived to see Sgt. Pfarr. According to Det. Stahnke, when Appellant arrived at the police station about 11:15 a.m., Det. Stahnke passed the message that Sgt. Pfarr was looking for him. Appellant went to Sgt. Pfarr’s office. Although Det. Stahnke could have left then to start the pair’s CAT shift patrol as scheduled, he decided to wait for Appellant to finish his meeting with Sgt. Pfarr, because if Det. Stahnke left then, he would have had to return shortly thereafter anyway to pick up Appellant. The practice was for CAT shift officers to drive a shared patrol car downtown, then to walk the beat on foot.) According to Sgt. Pfarr, at about 11:35 or 11:40 a.m., Appellant appeared in his office. As recorded in a memorandum from Sgt. Pfarr to Lt. Smith, which was written by Sgt. Pfarr on October 19 to confirm the events of that date, and of October 18, when Appellant claimed to have received permission from Lt. Smith to come to work late on October 19: At 1140 hours Officer Waddell arrived in the sergeant’s office as I requested. I asked him if everything was okay. Office Waddell responded by telling me he saw you in the locker room last night October 18] as you were both leaving for work. According to Officer Waddell he requested he be allowed to come in at 1130 hours today because he wanted to attend his daughters [sic] first dance event.13 Officer Waddell told me you authorized his coming in at 1130 hours today. Dept. Ex. 9, p. 2 (emphasis added).) The content of Sgt. Pfarr’s October 19 memo was substantially confirmed by the testimony of Sgt. Pfarr at the hearing (06/25/15 T.R. 38-45). 13 It does not appear to be in dispute that Appellant’s daughters attended separate dance classes at the same studio on the date in question. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3371 29- But shortly thereafter, Sgt. Pfarr received a return telephone call from Lt. Smith. During the call, Sgt. Pfarr relayed the details of his conversation with Appellant. As recorded in Sgt. Pfarr’s October 19 memo to Lt. Smith, Lt. Smith replied: Officer Waddell never spoke to you [Lt. Smith] about coming in late for his shift today. I confirmed the events as they were given to me by Officer Waddell and you again told me that conversation never took place. During our conversation we decided I needed to immediately address the issue with Officer Waddell and you requested I complete [this] memorandum documenting what had taken place. Dept. Ex. 9, p. 2 (emphasis added).) The content of Sgt. Pfaff’s October 19 memo was substantially confirmed by the testimony of Sgt. Pfarr (06/25/15 T.R. 45-48). The testimony of Lt. Smith was to the same effect. Lt. Smith testified that his interaction with Appellant on October 18 consisted merely of a brief exchange of pleasantries; Appellant appeared to be texting or otherwise using his mobile telephone and did not engage Lt. Smith in an actual conversation. Moreover, Lt. Smith was not okay” with Appellant’s reporting late without having specific permission for the shift in question. He did not grant any “blanket” permission to come in late in general, not to Appellant or any other officer (09/02/15 T.R. 1610-12). Upon learning that he had been lied to by Appellant, Sgt. Pfarr was “pretty upset.” When asked why, he testified: I think, from day one in the academy, we were trained that all we have is our word and, to me, whether it was on the stand [in] court or just in my office, Mr. Waddell lied to me and that made me angry. He made something that would have been a supervisor’s note,14 at worse, documenting a verbal conversation, had he just been late and owned up to that, he made it into a much more significant issue than it needed to be. 14 Without contradiction, Lt. Smith testified that a supervisor’s note would have resulted in minor discipline at best; neither the charges relating to the CAT Shift Event nor Appellant’s termination would have followed. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3372 30- 06/25/15 T.R. 48-49.) In response, Sgt. Pfarr radioed Appellant and directed him to return to the sergeant’s office. When Appellant arrived, Sgt. Pfarr told him he knew that Appellant did not have the locker room conversation with Lt. Smith that he had claimed, and added that Lt. Smith would be contacting Appellant in the near future to determine how to proceed. Appellant “started to apologize and started to make excuses for what happened and I cut him off. I said it’s best that you not say anything right now, just stop talking” (06/25/15 T.R. 49). Sgt. Pfarr did this because he knew that a disciplinary investigation of Appellant was likely to follow and that Appellant had certain procedural rights under POBRA that should be respected.15 Afterward, Lt. Bledsoe was assigned by Capt. Storton to conduct an IA investigation into the CAT Shift Event. Lt. Bledsoe reviewed Sgt. Pfarr’s October 19 memo to Lt. Smith (Dept. Ex. 9) and conducted and recorded interviews with Sgt. Pfarr (Dept. Ex. 12); Lt. Smith (Dept. Ex. 13; App. Ex. M16), Det. Stahnke (Dept. Ex. 14), and Appellant (Dept. Ex. 21; App. Ex. KK). Later, Lt. Bledsoe conducted and recorded follow-up interviews with Lt. Smith (Dept. Ex. 15); Sgt. Pfarr (Dept. Ex. 16); and Shannon Freeby,17 the owner of the dance studio in Grover Beach attended by Appellant’s daughters (Dept. Ex. 7, pp. 12-13). On December 12, Lt. Bledsoe conducted the recorded interview with Appellant (Dept. Ex. 21). During the interview, Appellant appeared to contradict himself as to whether he had Lt. 15 Nevertheless, Appellant argues that one or more of his POBRA rights was violated. For reasons summarized elsewhere (see supra p. 16 note 6), I find no merit in this argument. 16 As to some interviews cited herein, two versions of the transcript of the interview were made part of the record: the Department’s version, which was a “verbatim” transcription of the recording as produced by Department personnel; and the Appellant’s version, which was a certified transcription of the recording as produced by a certified court reporter. Where two versions were made part of the record, I have attempted to cite both. As to those interviews, I found no material difference between the two versions of the affected transcripts. 17 This interview was not recorded. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3373 31- Smith’s prior approval to report for duty late on October 19. On the one hand, Appellant appeared to assert having told Sgt. Pfarr that he had seen Lt. Smith and had gotten such approval: Bledsoe: [To Appellant’s counsel:] I’m asking if that is an accurate, maybe not those specific words, but if he told Sergeant Pfarr that he had permission by Lieutenant Smith to come in late for the 19th so that you could attend your dance, daughter’s dance recital. Waddell: Uh, I, I, I, I didn’t say to him that he gave me permission for that day. I said that Smith’s okay with me coming in late. I believe that’s how I said it, “Smith’s okay with me coming in late.” I, that was my recollection of how I said it, um, and I said talked to him. I saw him in the locker room yesterday, and he’s okay with me coming in late.” I believe that’s how I worded it. Um, I, I can easily see how that would be my implication that he gave me specific permission for that day. Dept. Ex. 21, p. 7 (emphasis added).) On the other hand, Appellant appeared to deny having gotten such approval from Lt. Smith: Bledsoe: Okay. Let’s go back to the 18th through when you were in the locker room with, with Lieutenant Smith and he was in there. Did you have a conversation with him that day? Waddell: No. Bledsoe: Did you see him in the locker room at all? Waddell: Yes. Bledsoe: Didn’t you tell Sergeant Pfarr that you had a conversation in the locker room with lieutenant Smith though? Waddell: I think I might have said that I talked to him. Well, we exchanged pleasantries. I mean, we didn’t have a conversation, per se. I, the conversation, we didn’t talk at length about anything. We might of said hi and hey, how’s it goin,’ but it wasn’t a – Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3374 32- Bledsoe: When you were in the locker room on the 18th, did you ask Lieutenant Smith for permission to come in late for work on the 19th? Waddell: No, I didn’t. Bledsoe: You had no conversation with him at all? Waddell: No, I didn’t. Dept. Ex. 21, pp. 11-12 (emphasis added).) In fact, at one point, Appellant admitted: “I know that I didn’t have permission for this day [October 19] to come in late” (Dept. Ex. 21, p. 6). Instead, it was suggested that he had some type of “blanket” permission from Lt. Smith to report for duty late. (Appellant testified, however, that he never used this term, and never claimed to have “blanket” permission to be late.) This suggestion appears to be based on the fact that, on at least two prior occasions, Lt. Smith had given prior approval for Appellant to be late. During the IA interview with Lt. Bledsoe, Appellant stated: Bledsoe: So has Lieutenant Smith given your permission in the past, on past dates to come in late? Waddell: Yes. Bledsoe: How many other times? Waddell: There, there’s been, I can think of two times particularly where I’ve sought permission to come, to either get off, generally to get off early, so rather than leave at 4 be, get off at 3:30 is generally what it would be. Bledsoe: So when he told you could come in late on those other occasions, did you think that that was a blanket statement that it’s okay that you come in late all of the time then? Waddell: That, that, that’s kinda the way I construed this situation, and I think that’s my, my mistake in overstepping my bounds, um, of, ya know, taking that upon myself and making a poor decision on, that that would be okay that, uh, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3375 33- uh, a small amount of time comin’ in late, I can just adjust it to another time because it’s been okay not just for myself but for other people that I’ve talked to for CAT shifts where it’s, it’s been really flexed around, ya know, when they come in and when they get off. Um, so I kinda, again, like I said, I, I, that’s my fault for overstepping that and, and inferring that that would be something that would be okay without asking him that it would be okay. Um, I see that now looking back. Dept. Ex. 21, p. 8 (emphasis added).) After completing his investigation, Lt. Bledsoe reported the results in a March 3, 2014 memorandum to Capt. Staley and Chief Gesell (Dept. Ex. 7). Lt. Bledsoe’s memo concluded that Appellant was dishonest in both his text and verbal interactions with Sgt. Pfarr on October 19, and was late to work on that date too (Dept. Ex. 7, p. 14). 2) The Bentley Event The Bentley Event occurred on February 22. Most of the material facts relating to the Bentley Event are not in dispute. On that date, between 4:55 a.m. and 5:08 a.m., Appellant removed or attempted to remove at least one and perhaps three different parts of a Bentley automobile that incorporated the “B” emblem associated with that vehicle make or model. The Bentley had been involved in a serious injury traffic accident, and Appellant and other officers were working the accident scene. But the car parts were not evidence and had nothing to do with the Department’s accident investigation, and Appellant had no cause or permission to remove them. After removing these parts, Appellant put them back by leaving them on the floorboard of the vehicle. On February 22, around 1:25 a.m., police and fire units were dispatched to the scene of a major injury traffic accident at the corner of Orcutt Road and Johnson Avenue. A single vehicle, a Bentley convertible, had rolled over. The Bentley had two occupants: a female driver and a Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3376 34- male passenger. The initial assessment of the dispatched units was that the female driver, who was under the influence of alcohol, had suffered moderate injuries, but the male passenger had suffered major injuries that appeared to be fatal. (A special roll-bar apparently saved their lives; even the male passenger survived.) But the occupants were trapped and had to be extricated from the vehicle. Sgt. Pfarr was on duty as the night watch field supervisor, and responded on the assumption that there would be a crime scene that had to be investigated. He was responsible for supervising the investigation and giving appropriate notifications. It was his first “call out” to a traffic accident as a supervisor; he had been promoted to sergeant only a few weeks earlier. Sgt. Pfarr visited the accident scene twice: a first time at either 1:15 or 2:15 a.m., shortly after he was called about the accident, and a second time around 4:45 a.m., when he returned to the scene after having left to assist with the hospital arrest of the female driver. The Bentley Event occurred during Sgt. Pfarr’s second visit, when the scene was wrapping up and the vehicle, which was still sitting on its roof, was about to be turned over and towed away. According to a report subsequently filed by Sgt. Pfarr: While at the scene, I observed Officer Waddell Appellant attempt to remove an emblem from the Bentley. My first thought was that he needed the emblem for the accident investigation. I saw Officer Waddell looking for a tool to help in the removal of the emblem. During his hunt for a tool Officer Waddell contacted the tow truck driver about borrowing a screwdriver so he could take the Bentley emblem to add to his collection. The tow truck driver provided Officer Waddell with a screwdriver to aid in the removal of the car parts. App. Ex. A, p. 1.) Sgt. Pfarr testified that he observed Appellant as he attempted to remove three separate car parts on which the winged “B” emblem was incorporated: a part on the vehicle’s rear deck or Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3377 35- trunk, the steering wheel cover, and a hub cap18 (Dept. Ex. 11, pp. A-C). Appellant crouched down beside the vehicle and appeared to use the borrowed screwdriver to remove the hub cap, and perhaps, one or both of the other two parts. As he was doing this, Appellant said something to the effect that the emblem “will go well with my collection” (06/25/15 T.R. 68). Appellant admitted that he borrowed a screwdriver from the tow truck driver and that with it he “popped off the hubcap.” He also admitted making a “reference” to the hood emblem and approaching it. And he admitted taking the “popped off” hubcap, and another hubcap he found lying on the ground, and putting them both inside the passenger compartment of the vehicle. But he denied touching any other car parts, including the hood emblem, the trunk emblem, and the steering wheel cover (10/02 T.R. 1718-22). Sgt. Pfarr did not know what to make of the Appellant’s behavior during the Bentley Event, but he tried to figure it out, and his opinion changed over time. Initially, Sgt. Pfarr thought that Appellant was playing a practical joke on him. He thought this because neither Appellant nor anyone else had need of the Bentley emblems to complete any investigation of the traffic accident. They were irrelevant to establishing either how the accident occurred or who was injured. Moreover, when Sgt. Pfarr had first arrived on the scene, he was “saluted” by members of the roll out team and others who already were present there. The group even stood at attention. Sgt. Pfarr had recently worked with most of them as a peer, but now he was a supervisor, and the group appeared to be teasing him about his promotion. The group included not only Appellant but also Officers Christopher Chitty, Robert Cudworth, and Colleen Kevany, as well as Sgt. Janice Goodwin. 18 This car part was variously identified by the witnesses as a hub cap, wheel cover, or lug nut cover. Although I refer her to “hub caps,” I treat these terms as interchangeable. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3378 36- Eventually, however, Sgt. Pfarr came to believe that Appellant might have stolen or attempted to steal private property. He was trying to collect some sort of “trophy,” either to hang on the wall of the Traffic Division, or to add to his own “personal collection” of car parts. (No evidence was offered tending to prove – and therefore, I cannot find – that Appellant ever had such a collection.) He thought this odd because Appellant did not timely try to defend himself by explaining that his intention was to tease Sgt. Pfarr about his recent promotion by playing a practical joke on him – not even when it became obvious that Sgt. Pfarr was upset by Appellant’s joke.”19 Moreover, seeing a Bentley in San Luis Obispo was a rare occurrence – a fact remarked upon by Sgt. Goodwin, Officer Berrios, and others. Appellant himself called the Bentley emblem “a cool, cool emblem” (Dept. Ex. 22, p. 8). Even officers who were not working on the roll out team came by to see this unique vehicle, despite the early morning hour. So Appellant’s wanting a “trophy” emblem was consistent with this view. In any case, while he was still on the scene, Sgt. Pfarr confronted Appellant about what he was doing with the Bentley car parts by stating something to the effect of, “Ha ha, funny, joke’s over. I am leaving now. I don’t want to see you actually do this” (Dept. Ex. 8, p. 13). He did not believe Appellant actually would remove the car parts. But as he walked to his car, or perhaps as he drove away, Sgt. Pfarr observed Appellant place two or more of the items into a large brown evidence bag. Then Sgt. Pfarr immediately recognized the problem this created for the department in the eyes of the tow truck driver even if Officer Waddell’s actions were still an attempt at a joke. I immediately telephoned Officer Waddell, reprimanding his actions and ordered 19 Nor did Appellant relate the Bentley Event to Sgt. Amoroso, his friend and fellow officer who, when they first arrived on the scene, had suggested that “[i]t would be funny to fuck with Pfarr” by pulling some type of practical joke on the new sergeant (08/20/15 T.R. 1159). It was undisputed, however, that Sgt. Amoroso never proposed engaging in either the Bentley Event or any other particular practical joke, and did not witness Appellant’s role in pulling off the joke. Indeed, Sgt. Amoroso claimed that he learned of the Bentley Event after the fact from others; Appellant never told him about it. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3379 37- him to return the car parts to the vehicle which he did. [Shortly thereafter] I received a text message photograph from Officer Waddell of the car parts on the driver’s floor board of the Bentley. This image was seen by me but not saved. I met with Officer Waddell in the Sergeants office at the station to further discuss his actions at the accident scene. App. Ex. A, p. 2.) Officer Benson confirmed much of Sgt. Pfarr’s version of events. In his IA interview with Lt. Proll, Officer Benson stated that he observed Appellant as he was trying to remove a wheel cover with a screwdriver, to pry off an emblem on the trunk, and perhaps, to cut the emblem from the steering wheel cover, although Officer Benson was unsure about the last item. Appellant may have been unable to remove the trunk emblem because it was part of the locking mechanism (Dept. Ex. 8, p. 21; Dept. Ex. 19, pp. 3, 12). While this occurred, Officer Benson was standing next to Sgt. Pfarr. Officer Benson stated: “Yeah, and I remember Sergeant Pfarr and I looked at each other like, is he really doing this?” (Dept. Ex. 19, p. 3). He also testified that Sgt. Pfarr said “something to the effect of let’s get out of here before we get involved in his IA” – the term “IA” referring to a potential internal affairs investigation into Appellant’s misconduct (06/2/15 T.R. 381). Afterward, Sgt. Pfarr and Appellant met at the police station. Sgt. Pfarr was upset with Appellant. When asked why, Sgt. Pfarr testified: We had been partners on the SWAT team, we had spent a lot of time together and for him to put me in a position like that in front of other officers, but more importantly, in front of a tow truck driver that is a civilian and doesn’t get how that could have been interpreted, it made me angry that he would cause me to be in that situation and have to deal with that situation. 06/25/15 T.R. 74.) Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3380 38- So Sgt. Pfarr “chewed his ass” (09/02/15 T.R. 1528; App. Ex. C, p. 37). He explained to Appellant that it “was a pretty sensitive time” because Officer Cory Pierce, a former employee of the Department, had been arrested and indicted on various federal charges. Given this “media spotlight,” Appellant’s removing car parts from the Bentley was “the last thing we need right now.” If the tow truck driver “was to get arrested for DUI” and tried to call in a favor, or if “he decided he wanted to make a couple of bucks by contacting one of our local rag newspapers,” it could make the Department look bad (06/25/15 T.R. 75). In response, Appellant showed “a great deal of remorse” (App. Ex. C, p. 19). He apologized, said he took it too far, he was just messing around, just joking, that sort of thing.” He put the car parts back, and told the tow truck driver – but not Sgt. Pfarr – that “they were just messing with the new sergeant” (06/25/15 T.R. 74). Six to eight months passed. From time to time, Sgt. Pfarr thought about the Bentley Event, but neither wrote up Appellant nor reported the event to Department supervisors. But sometime during the period August to October – Sgt. Pfarr could not recall exactly when – the Department announced that examinations for promotion to detective or investigator would be held. Appellant made it known that he planned to apply, and was asking around for advice that would help him prepare. This caused Sgt. Pfarr to recall the Bentley Event and to wonder whether Appellant’s poor judgment should be shared with the people who would be considering him for promotion. After all, as a detective, Appellant would have less day-to-day scrutiny than he did as a patrol officer. And in October, when the CAT Shift Event occurred, Sgt. Pfarr also wondered: “If he lied about this silly thing that he didn’t need to lie about, why wouldn’t he also lie about the Bentley parts?” (06/26/15 T.R. 241). So Sgt. Pfarr sought out Lt. Bledsoe, who would be the direct supervisor of anyone promoted, and Lt. Smith, who was a supervisor in Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3381 39- Appellant’s chain of command, and reported the Bentley Event and Appellant’s role in it. Lt. Bledsoe thanked Sgt. Pfarr for the information and said he would take it under submission in determining promotions (06/25/15 T.R. 79-81). More time passed. In December, when Appellant was out on administrative leave due to the IA investigation of the CAT Shift Event, Sgt. Pfarr was called into Capt. Keith Storton’s office. Capt. Storton asked some questions about the Bentley Event. The questions included asking Sgt. Pfarr to relate the details of the Bentley Event. After answering these questions, Sgt. Pfarr was directed to write a memorandum documenting what he knew about the event. By memorandum dated December 20, 2013, Sgt. Pfarr did so (App. Ex. A). Afterward, Lt. Bill Proll was assigned by Capt. Storton to conduct the IA investigation into the Bentley Event. Lt. Proll reviewed Sgt. Pfarr’s December 20 memo to Capt. Storton App. Ex. A) and conducted and recorded interviews with Sean Brady,20 the tow truck driver; Officer Josh Walsh; Officer Colleen Kevany (App. Ex. AA); Officer Robert Cudworth (App. Ex. Z); Sgt. Brian Amoroso (Dept. Ex. 23, App. Ex. W); Officer George Berrios (App. Ex. U); Sgt. Janice Goodwin (App. Ex. V); Sgt. Pfarr (App. Ex. C); Appellant (Dept. Ex. 22; App. Ex. LL); Lt. Bledsoe (Dept. Ex. 18); Officer Greg Benson (Dept. Ex. 19, App. Ex. E); and Lt. Smith Dept. Ex. 20, App. Ex. I, N). During Appellant’s interview with Lt. Proll, Appellant conceded that he had borrowed the screwdriver and that he removed at least one car part: a wheel cover. But he denied removing or attempting to remove any other car parts. He stated: Proll: Did you ask the tow truck driver that, that showed up to take, to tow the Bentley away, did you ask him for a screwdriver? Waddell: Yes, I did. 20 This interview was not recorded. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3382 40- Proll: And why did you ask him for a screwdriver? Waddell: I was gonna use it to take a hubcap off the car. Or the wheel cover, hubcaps per se of a Bentley. Proll: And whose idea as it to remove the wheel cover? Waddell: It was mine. Proll: And whose idea was it to ask the two truck driver for a screwdriver? Waddell: That was my idea. Proll: Okay. Did you ultimately get a screwdriver from the tow truck driver? Waddell: Yes I did. Proll: Okay. And after getting the screwdriver, what did you do with it? Waddell: Uh, I remember, uh, definitely takin’ off a wheel cap, hubcap. Uh, I remember at one point making reference to an emblem on the car. I, I don’t recall. Just, I remember talking about the emblem itself, and getting one of the car. Uh, but I, I never took an emblem other than the, other than the hubcap off. Dept. Ex. 22, pp. 5-7 (emphasis in original).) Appellant placed inside the passenger compartment of the Bentley the popped off hubcap and another hubcap that apparently had come off during the accident and that he had retrieved from the scene. He does not recall placing the car parts into an evidence bag (Dept. Ex. 22, pp. 8-9). Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3383 41- Appellant made no effort to hide his conduct; in fact, “I was trying to be very vocal about what I was doing. I was being, uh, dramatic” (Dept. Ex. 22, p. 6). Presumably, this was to highlight the prank. Appellant said his motive was “messing with” Sgt. Pfarr; it was a “prank” (Dept. Ex. 22, p. 11). During his interview with Lt. Proll, Appellant explained: I was playing a prank on Sergeant Pfarr. I was trying to do something to get him to respond and react to me, to get him to tell me to stop doin’ it. I was tryin’ to get a reaction from him with what I was doing. I never had any intention in taking the items for anything, had no need for them whatsoever. My sole reason for that was, was, just that I was messin’ around with Sergeant Pfarr[.] Dept. Ex. 22, p. 11.) Pranks were part of the workplace culture at the Department. For example, Appellant himself was once “pranked” by fellow officers when he was working a bicycle assignment. He and his partner were dispatched to a call at a party where it was reported that there was a fight with a knife. The party was in a neighborhood where there lived a number of students attending California State University at San Luis Obispo. It was odd that bicycle rather than patrol officers were dispatched because the call “was up a very significantly large hill” and patrol officers could get there faster. When Appellant and his partner arrived, “the entire night shift patrol [was] in their cars and the supervisor was laughing at us, as we’re pouring down sweat and breathing deeply” (10/02/15 T.R. 1707). The prank at the center of the Bentley Event, however, did not go over well. None of the officers present commented on it, either to say it was funny or not. Others who heard about it seemed to think it looked like Appellant was stealing hub caps. For example, during her IA interview, Sgt. Goodwin, who was present at the scene but did not recall witnessing the incident, said “it’s just a stupid thing to do” (App. V, p. 10). Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3384 42- Afterward, Appellant considered Sgt. Pfarr’s negative reaction to be a verbal counseling. When he walked out of the sergeant’s office, however, Appellant felt the incident had been resolved and put behind him. He did not hear about the Bentley Event again until December 30, when he was having a conversation at home with Sgt. Amoroso, who mentioned it as the probable reason why Appellant had not yet been returned to duty. By then Appellant was on administrative leave due to the IA investigation of his role in the CAT Shift Event, and now his role in the Bentley Event was under investigation too. After completing his investigation, Lt. Proll reported the results in a February 28, 2014 memorandum to Capt. Staley and Chief Gesell (Dept. Ex. 8). Lt. Proll’s memo concluded that Appellant knowingly and willfully attempted to remove a vehicle part without the permission of the owner, and that he knew or should have known that this violated the California Vehicle Code Dept. Ex. 8, p. 25). Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3385 43- DISCUSSION About the Charges In the Notice of Decision of Disciplinary Action (Dept. Ex. 4), Appellant was charged with four counts of misconduct: three violations of the Department’s Personnel Rules and Regulations Manual (“the Personnel Rules”) (Dept. Ex. 2) and one violation of the California Vehicle Code (Dept. Ex. 3). The four counts include: 1. Violation of Personnel Rules Standard of Conduct Section IV-I: “A Department employee shall not knowingly or wilfully make a false verbal statement or give false information to a Department supervisor or investigator.” 2. Violation of Personnel Rules Duty Section III-B: “Employees of the Department shall be punctual in reporting for duty at the time and place designated by their supervising officer.” 3. Violation of Personnel Rules Standard of Conduct Section IV-LL: “Department employees shall not conduct themselves in a manner than reflects adversely on the Department, or which discredits the Department, or is detrimental to the reputation or professional image of the Department.” 4. Violation of California Vehicle Code Section 10852: “No person shall either individually or in association with one or more persons, wilfully injure or tamper with any vehicle on the contents thereof or break or remove any part of a vehicle without the consent of the owner.” These four counts can be summarized as (1) dishonesty; (2) failure to be punctual; (3) conduct adverse to the Department; and (4) wilfully tampering with a vehicle and/or removing part of such vehicle without the owner’s consent. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3386 44- The Department argues, and I find, that Appellant is liable as charged in Counts No. 1, 2, and 3. These findings are supported by a preponderance of the evidence. But I find that Appellant is not liable as charged in Count No. 4. The Department failed to prove this count by clear and convincing evidence. 1) Dishonesty The CAT Shift Event is the centerpiece of the Department’s case against Appellant for dishonesty. As noted above, the material facts relating to the CAT Shift Event are not in dispute. Only the significance of these facts is contested, and vigorously, by Appellant. On October 19, Appellant stated to Sgt. Pfarr by text message that he had been authorized by Lt. Smith on October 18 to report up to 30 minutes late for CAT shift duty. But the preponderance of the evidence relating to the CAT Shift Event shows that Appellant’s statement was untrue. As to this date, Appellant never asked Lt. Smith for permission to report for work late, and Lt. Smith never granted such permission. The preponderance of the evidence also shows that Appellant repeated this false statement at least twice: in both a follow-up or report- for-duty meeting with Sgt. Pfarr on the same date, and in a subsequent IA interview with Lt. Bledsoe on December 12. These facts were established by the content of the text messages as well as the testimony of Sgt. Pfarr, Lt. Smith, Lt. Bledsoe, and most important, Appellant himself. As to the text messages, at 11:11 a.m., Sgt. Pfarr texted Appellant to ask if he was still coming in. Appellant responded as follows: Appellant: Yes. Sorry. I had worked out ahead of one with lt smith. I’m on the way now Sgt. Pfarr: That made no sense. Stop by when u get here Appellant: Basically I had talked to smith yesterday about coming in at Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3387 45- 1130 he said fine no problem. But I will stop by Dept. Ex. 10, pp. 1-2 (emphasis added).) It is true that this message was somewhat cryptic and perhaps inarticulate in nature, as text messages often can be. Yet its meaning was unambiguous to any reasonable supervisor, which Sgt. Pfarr appeared to be. The words “I had worked out ahead of one with lt smith” reasonably can be understood to state that that Appellant had sought and obtained the permission of Lt. Smith. The words “I had talked to smith yesterday about coming in at 1130” reasonably can be understood to state that Appellant and Lt. Smith had had a conversation on October 18 about Appellant’s wish to report to work at 11:30 a.m. rather than the scheduled start time of 11:00 a.m. And the words “he said fine no problem” reasonably can be understood to state that Lt. Smith had granted permission to be late on October 19. Sgt. Pfarr credibly testified that this is what he understood these words to mean. He thought these words were “clear and unambiguous.” In fact, the only word in Appellant’s text that Sgt. Pfarr did not understand was the abbreviation “lt,” which he thought meant “it” rather than “lieutenant” ( 09/02/15 T.R. 1524- 25). This minor misunderstanding is immaterial to the Department’s case against Appellant. Appellant repeated the essence of these statements at least twice afterward: in his report- for-duty conversation with Sgt. Pfarr on October 19, before Sgt. Pfarr had spoken to Lt. Smith, and in his IA interview with Lt. Bledsoe on December 12. But it is undisputed by everyone, including Appellant, that each of these statements was untrue. Appellant never spoke to Lt. Smith on October 18, except to exchange pleasantries; he never sought or obtained the permission of Lt. Smith to report for duty 30 minutes late on October 19; and Lt. Smith never granted Appellant permission to be late on October 19. Indeed, by the time of his IA interview, Appellant agreed that he never had Lt. Smith’s permission to Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3388 46- report to work on October 19 in particular, and did not mean to convey that he did (Dept. Ex. 21, pp. 6, 11-12). It is also undisputed by everyone, including Appellant, that Appellant alone was at fault for his decision-making in the CAT Shift Event. In his IA interview with Lt. Bledsoe, he admitted to “overstepping my bounds”: Bledsoe: So when he told you could come in late on those other occasions, did you think that that was a blanket statement that it’s okay that you come in late all of the time then? Waddell: That, that, that’s kinda the way I construed this situation, and I think that’s my, my mistake in overstepping my bounds, um, of, ya know, taking that upon myself and making a poor decision on, that that would be okay that, uh, uh, a small amount of time comin’ in late, I can just adjust it to another time because it’s been okay not just for myself but for other people that I’ve talked to for CAT shifts where it’s, it’s been really flexed around, ya know, when they come in and when they get off. Um, so I kinda, again, like I said, I, I, that’s my fault for overstepping that and, and inferring that that would be something that would be okay without asking him that it would be okay. Um, I see that now looking back. Dept. Ex. 21, p. 8 (emphasis added).) And in his testimony during this Appeal, he admitted that he “overstepped my bounds,” misinterpreted that past practices of the program” regarding adjusting his own schedule, and made a poor decision” (10/02/15 T.R. 1869-71). Thus the question is whether, in the words of Count No. 1, Appellant knowingly or wilfully made a “false” verbal statement or gave “false” information to a Department supervisor or investigator. The answer is yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3389 47- The term “false” as used in Count No. 1 is not defined by the Department’s Personnel Rules. But the commonly-accepted definition of the term requires proof of intent by the employee to misrepresent or mislead the employer; that is, an element of dishonesty or deception by the writer or speaker is implied. For example, a reputable law dictionary defines “false” in pertinent part as follows: Not true. * * * A thing is called “false” when it is done, or made, with knowledge, actual or constructive, that it is untrue or illegal, or is said to be done falsely when the meaning is that the party is in fault for its error. Black’s Law Dictionary 540 (5th ed. 1979) (emphasis added).) Similarly, a popular online dictionary defines “false” as follows: a: [I]ntentionally untrue <false testimony> b: adjusted or made so as to deceive <false scales> <a trunk with a false bottom> c: intended or tending to mislead <a false promise> Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary/false, downloaded Dec. 24, 2015 (italics in original).) By these definitions, I must conclude that Appellant falsely stated that he had Lt. Smith’s permission to report for work late on October 19. Appellant and no one else was “the party . . . in fault for [the] error” in these untrue statements. He alone chose and wrote the words in question and transmitted them to Sgt. Pfarr. He alone chose to stick by them afterward, in both his report-for-duty conversation with Sgt. Pfarr on October 19 and in his IA interview with Lt. Bledsoe on December 12. Yet Appellant knew – and admitted – that he did not talk with Lt. Smith on October 18, and that he had neither sought nor obtained Lt. Smith’s permission to be late on October 19. Therefore, the foregoing statements were false and Appellant knew them to be false. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3390 48- Against the weight of the foregoing evidence of his dishonesty, Appellant argues that he was misunderstood. The words appearing in these messages did not convey the meaning that he intended. This was due to his inadvertent omission of certain words or punctuation that changed the meaning of his texts; the “auto correct” function on his cellular telephone, which changed the words and therefore the meaning of his texts; and/or the distraction of having to deal with a last- minute child care issue that required him to supervise his daughters at a dance class, which caused him to be late for work on October 19. In any event, the words actually used in the texts quoted above caused Appellant to be misunderstood by Sgt. Pfarr and others. I reject Appellant’s “misunderstanding” argument for three reasons. First, this argument is too elliptical and self-contradictory to be credited. An important example will suffice to illustrate the point. Appellant testified about what he meant by his use of the sentence, “Basically I had talked to smith yesterday about coming in at 1130 he said fine no problem” (Dept. Ex. 10, pp. 1-2) (emphasis added). Appellant testified that, despite the plain meaning of these words to most reasonable readers, he did not mean that he and Lt. Smith on October 18 actually had discussed his coming in late on October 19, or that Lt. Smith had given his permission to do so, or even that the two men had had a “conversation.” Rather, Appellant testified: It wasn’t much of a conversation. It was exchanging pleasantries. We saw each other in the locker room and, to me, in saying that, at that time, was me trying to convey that he didn’t say anything to me. I had been operating in this program with an understanding of how things were going and no one had said anything to me about I was doing anything, anything should change, and yesterday I saw him and that was an opportunity for him to correct something that was going on that as unapproved. 10/02/15 T.R. 1760 (emphasis added).) Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3391 49- This is revisionist history that I cannot credit. In essence, Appellant is arguing that his text to Sgt. Pfarr about what Lt. Smith said was really “me trying to convey that he [Lt. Smith] didn’t say anything to me.” How can it be true that Lt. Smith both “talked to” Appellant yet didn’t say anything” to Appellant? Appellant cannot have it both ways. Either he “talked to smith yesterday about coming in at 1130” or he did not talk to him yesterday about this; either they had a conversation or they did not have a conversation; either Lt. Smith “said fine no problem” or he did not say this. It would appear that this tribunal is being asked to understand that Appellant meant the opposite of what he actually said. This ask would be dubious coming from practically any employee; a reasonable supervisor must be able rely on the plain meaning of the words actually used by subordinates. It is unreasonable to expect a supervisor to read between the lines of every routine communication from a subordinate about when he plans to report for duty. But this ask is particularly suspect coming from a police officer, whose true word is a critical part of everything he says and does. Second, I reject Appellant’s “misunderstanding” argument because his takeaway from the locker room encounter with Lt. Smith is too fantastic to believe. Appellant testified that, even though the two men did not actually have a conversation, their locker room encounter gave Appellant the green light to be late because Lt. Smith had passed up “an opportunity to correct” Appellant’s practice of self-adjusting his schedule (10/02/15 T.R. 1847). According to Appellant, the Department permitted “extreme flexibility” in scheduling, not only as to emergencies, but also as to “small adjustments of 15 minutes to half an hour” (10/02/15 T.R. 1848). As Appellant put it: “No one, at any time, told me anything related to what I was doing was not okay” (10/02/15 T.R. 1762). Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3392 50- It is patently unreasonable for an employee to assume that he is free to report for duty late at his own discretion in the future, based on either his supervisor’s silence on the matter, or the supervisor’s having granted such permission on certain occasions in the past. Silence is inherently ambiguous; it requires mind-reading skills that most of us do not possess. So it is unreasonable to jump to the conclusion that silence here meant affirmative permission. And as to prior permission, the record showed that Appellant was given permission by Lt. Smith to come in late “two times” (Dept. Ex. 21, p. 8). No reasonable employee standing in Appellant’s shoes could infer that Lt. Smith’s having granted specific permission to be late two times in the past equaled permission to be late whenever Appellant chose in the future. Nor does it matter whether Lt. Smith’s “communication was poor” when it came to adjusting schedules (10/02/15 T.R. 1753). The burden is on the employee to ask for permission to be late, not on the supervisor to tell the employee that his practice of being late is out of line. Besides, Appellant knew it was unreasonable to draw such a conclusion from his locker room encounter with Lt. Smith. If anything, the record shows that Appellant was aware of the proper procedure for asking his supervisor for permission to be late, and knew how to use it when he wanted to (App. Ex. J, K, L). Yet he failed to ask for such permission in connection with the CAT Shift Event. Third, I reject Appellant’s “misunderstanding” argument because it is untimely. Appellant failed to raise this explanation with superiors when it might have mattered. Instead of advising either Sgt. Pfarr at their report-for-duty meeting on October 19 (before Sgt. Pfarr’s call had been returned by Lt. Smith), or Lt. Bledsoe in the IA interview on December 12, that his texts were inadvertently garbled, Appellant doubled down on the assertion that he had Lt. Smith’s permission to be late. Only now, some two years after the events in question, does Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3393 51- Appellant offer the explanation that the context of his interactions with Lt. Smith, or the “auto correct” function, or the distraction of daughters’ dance lessons, may have caused him to say certain things but not mean them. The delay makes Appellant’s already unpersuasive argument seem even less so. So to the extent Appellant denied having told Sgt. Pfarr that on October 18 he had obtained permission from Lt. Smith to be late for the start of his shift on October 19 (10/02/15 T.R. 1765, 1774), I do not credit such denial. Instead, I credit the contents of the text messages and Sgt. Pfarr’s testimony to the contrary. Also against the weight of the foregoing evidence of dishonesty, Appellant suggests that the testimony of Sgt. Pfarr, the Department’s principal witnesses against him, should not be credited. Appellant attempted to impeach Sgt. Pfarr on the grounds that Sgt. Pfarr had engaged in misconduct himself relating to the Bentley Event, or was jealous of Appellant and did not want him promoted, or had other nefarious motives. I disagree. I credit Sgt. Pfarr’s testimony, at least in part, precisely because he owned up to his mistakes in handling the Bentley Event. In the Bentley Event, which is more fully described above, Appellant was accused of removing or attempting to remove one and perhaps three parts of a privately-owned Bentley automobile without cause and without the owner’s permission. He claimed it was a prank on Sgt. Pfarr. Sgt. Pfarr, however, came to view the Bentley Event as an indicator of Appellant’s poor judgment and perhaps as evidence that Appellant had committed a crime. But instead of timely reporting Appellant’s misconduct to Sgt. Pfarr’s supervisor, which would have exposed Appellant to serious discipline much sooner, Sgt. Pfarr gave Appellant the equivalent of a verbal counseling. About six to eight months passed before Sgt. Pfarr mentioned the Bentley Event to supervisors, and another two to four months passed before he filed a written report. For this Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3394 52- delay, Sgt. Pfarr received a written reprimand for “an unacceptable lapse in supervision” (App. Ex. NN). Instead of denying or minimizing his mistake, however, Sgt. Pfarr owned up to it, both in his interview during the IA investigation of the Bentley Event, and in his testimony during this Appeal. He admitted that he should have reported the incident to his own supervisor (App. Ex. C, pp. 32, 33). Sgt. Pfarr conceded: “[H]ey, I screwed up. I’ll be the first one to say that” (App. Ex. C, p. 27). He said that, if he had it to do over again, he would have contacted Lt. Smith immediately, and that it was “stupid” not to have done so. That is why Sgt. Pfarr decided, “Hey, I got to fall on my sword” (App. Ex. C, p. 43). In so doing, he exposed himself to discipline, and in fact received the written reprimand discussed above. As to Sgt. Pfarr’s alleged jealousy or other nefarious motives, I found the record to be devoid of any credible evidence that he was “out to get” Appellant. For example, Appellant argued that Sgt. Pfarr was trying to micro-manage Appellant. Supposedly, the motive was Sgt. Pfarr’s having been promoted over Appellant. This makes no sense; if Sgt. Pfarr already got the promotion, then he had no need to worry about competing with Appellant. In any event, as evidence of micro-management, Appellant pointed to statements by Sgt. Amoroso, who was one of Appellant’s closest friends in the Department. According to Appellant, Sgt. Amoroso advised Appellant that Sgt. Pfarr was scheduled to become Appellant’s immediate supervisor in the bicycle unit in January 2014, and warned Appellant to be careful because Sgt. Pfarr “had it out” for him. But Sgt. Amoroso did not recall having a conversation in which he used those words. He testified to something much less ominous: “I, certainly, would have said, hey, you need to make sure that they see you out there working,” and “this sergeant is starting to keep track of Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3395 53- what’s going on,” “so make sure you’re doing what you’re supposed to be doing out there,” which was “something I would have told any of my guys” (08/20/15 T.R. 1133-34). Besides, even if Appellant was being closely managed by Sgt. Pfarr, this does not change the undisputed facts surrounding the CAT Shift Event or Appellant’s dishonesty in it. Appellant did what he did and said what he said, irrespective of whether Sgt. Pfarr “had it out” for him. Accordingly, the preponderance of the evidence establishes, and I find, that Appellant engaged in dishonesty during the CAT Shift Event. 2) Failure to Be Punctual The CAT Shift Event is also the centerpiece of the Department’s case against Appellant for failure to be punctual. As noted above, the material facts relating to the CAT Shift Event are not in dispute. On October 19, Appellant stated to Sgt. Pfarr by text message that he had been authorized by Lt. Smith on October 18 to report up to 30 minutes late for CAT shift duty. The substance of this message was repeated by Appellant to Sgt. Pfarr in a report-for-duty meeting, and to Lt. Bledsoe during a subsequent IA interview. As noted above, however, the preponderance of the evidence relating to the CAT Shift Event shows that Appellant’s statement was untrue. As a result, he did not have permission to report for duty 30 minutes late. He did so anyway. These facts were established by the content of the text messages as well as the testimony of Sgt. Pfarr, Lt. Smith, Lt. Bledsoe, and most important, Appellant himself. His own brief conceded: “Officer Waddell was not on time for the CAT shift on October 19, 2013” (Closing Brief of Appellant at 11). Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3396 54- Although the Department offered evidence that Appellant had had problems reporting for duty on time in the past, he was not given formal discipline for any prior lateness. In any event, evidence of prior lateness was not needed to prove that Appellant was late on October 19. Thus the question is whether, in the words of Count No. 2, Appellant violated the rule requiring that he “shall be punctual in reporting for duty at the time and place designated by [his] supervising officer.” The answer is yes. On the date in question, Appellant was required to report for duty on the CAT Shift by 11:00 a.m., but did not do so until about11:30 a.m. As established above, he did not have Lt. Smith’s permission to do this. Therefore, Appellant failed to be “punctual.” Against the weight of the foregoing evidence, Appellant argues that he was misunderstood as to his intentions, that Sgt. Pfarr was impeached and therefore his testimony should not be believed, that he was unfairly being micro-managed, and various other grounds. For the reasons cited above, I reject each of these arguments. In any event, they do not change the undisputed facts establishing Appellant’s failure to be punctual. Accordingly, the preponderance of the evidence establishes, and I find, that Appellant engaged in failure to be punctual during the CAT Shift Event. 3) Conduct Adverse to Department The CAT Shift Event and the Bentley Event are each centerpieces of the Department’s case against Appellant for engaging in conduct adverse to the Department. As noted above, most of the material facts relating to these events – which are summarized above – are not in dispute. Only the significance of these facts is contested by Appellant. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3397 55- As to the CAT Shift Event, on October 19, Appellant stated to Sgt. Pfarr by text message that he had been authorized by Lt. Smith on October 18 to report up to 30 minutes late for CAT shift duty. But the preponderance of the evidence relating to the CAT Shift Event shows that Appellant’s statement was untrue. As to this date, Appellant never asked Lt. Smith for permission to report for work late, and Lt. Smith never granted such permission. The preponderance of the evidence also shows that Appellant repeated this false statement at least twice: in both a follow-up or report-for-duty meeting with Sgt. Pfarr on the same date, and in a subsequent IA interview with Lt. Bledsoe on December 12. These facts were established by the content of the text messages as well as the testimony of Sgt. Pfarr, Lt. Smith, Lt. Bledsoe, and most important, Appellant himself. As to the Bentley Event, on February 22, between 4:55 a.m. and 5:08 a.m., Appellant removed or attempted to remove at least one part of a Bentley automobile that incorporated the B” emblem associated with that vehicle make or model. The Bentley had been involved in a serious injury traffic accident, and Appellant and other officers were working the accident scene. But the car part was not material evidence and had nothing to do with the Department’s accident investigation, and Appellant had no cause or permission to remove it. After removing these parts, Appellant put them back by leaving them inside the passenger compartment of the vehicle. Although Sgt. Pfarr and Officer Benson testified that Appellant removed or attempted to remove three separate parts from the Bentley, Appellant disputed this. But Appellant did admit a number of key facts to which Sgt. Pfarr and Officer Benson testified, including that he had removed at least one car part: a hub cap. Appellant admitted that he borrowed a screwdriver from the tow truck driver and that with it he “popped off the hubcap.” He also admitted making a “reference” to the hood emblem and approaching it. And he admitted taking the “popped off” Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3398 56- hubcap, together with another hubcap he found lying on the ground, and putting them both inside the passenger compartment of the vehicle. But he denied touching any other car parts, including the hood emblem, the trunk emblem, or the steering wheel cover (10/02 T.R. 1718-22). It is unnecessary to resolve this dispute of fact. For purposes of this Appeal, I will find and assume that the Bentley Event consisted of Appellant’s removal of only one vehicle part: the popped off” hubcap. Thus the question is whether, in the words of Count No. 3, Appellant conducted himself in a manner than reflects adversely on the Department, or which discredits the Department, or is detrimental to the reputation or professional image of the Department.” The answer is yes. There is little question that Appellant’s role in each the CAT Shift Event and the Bentley Event reflected “adversely” on the Department, or “discredit[ed]” the Department, or was “detrimental” to its reputation or professional image. As to the CAT Shift Event, Appellant’s dishonesty reflected adversely on the Department, or discredited the Department, because of its potential to undermine the work of everyone employed there. As Captain Staley put it, honesty is “absolutely the cornerstone of our business.” He testified: It’s a vital piece of what we do. We have to testify in court and we have to be believed by our own people that we’re telling the truth. It’s a crucial piece of – bringing any evidence into court is a crucial piece of police reports. It’s just a fundamental part of the job. 07/23/15 T.R. 775.) Even a single, documented instance of dishonesty can call into question an officer’s veracity in a seemingly endless variety of critical job-related communications. These communications include routine conversations with other officers, representations to supervisors, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3399 57- interviews with IA investigators, interactions with the public, statements made to witnesses, written reports and other official paperwork, sworn declarations presented to magistrates, and sworn testimony presented to judges and juries in the courts of law – in other words, practically everything the officer says and does. As to testifying in the courts of law, a special problem can arise: an officer who has been adjudicated to have been dishonest is subject to having his personnel records discovered by a defendant making a Pitchess motion of the very type Appellant made here. Those records could be used to impeach him, thereby imperiling the investigative work of the Department, the prosecutorial work of the District Attorney, and potentially, the welfare of the public. So an officer’s dishonesty has the potential to be detrimental to not only his department but also the entire community. As to the Bentley Event, Appellant’s removal of the “popped off” hub cap reflected adversely on the Department because of its potential and actual detrimental effects on the reputation or professional image of the Department. These detrimental effects were found in the reactions of Appellant’s colleagues in the Department in general, and the reaction of Sgt. Pfarr in particular. In general, Appellant’s prank did not go over well with his colleagues. None of the officers who were present for the Bentley Event commented on it, either to say it was funny or to say it was not. Others who heard about it seemed to think it looked like Appellant was stealing hub caps. For example, during her IA interview, Sgt. Goodwin, who was present at the scene but did not recall witnessing the incident, said “it’s just a stupid thing to do” (App. V, p. 10). In particular, Sgt. Pfarr was upset with Appellant. When asked why, Sgt. Pfarr testified: We had been partners on the SWAT team, we had spent a lot of time together and for him to put me in a position like that in front Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3400 58- of other officers, but more importantly, in front of a tow truck driver that is a civilian and doesn’t get how that could have been interpreted, it made me angry that he would cause me to be in that situation and have to deal with that situation. 06/25/15 T.R. 74.) So Sgt. Pfarr “chewed his ass” (09/02/15 T.R. 1528; App. Ex. C, p. 37). He explained to Appellant that it “was a pretty sensitive time” because Officer Cory Pierce, a former employee of the Department, had been arrested and indicted on various federal charges. Given this “media spotlight,” Appellant’s removing a car part from the Bentley was “the last thing we need right now.” If the tow truck driver “was to get arrested for DUI” and tried to call in a favor, or if “he decided he wanted to make a couple of bucks by contacting one of our local rag newspapers,” it could make the Department look bad (06/25/15 T.R. 75). Against the weight of the foregoing evidence, Appellant argues that he was misunderstood as to his intentions, that Sgt. Pfarr was impeached and therefore his testimony should not be believed, that he was unfairly being micro-managed, and various other grounds. For the reasons cited above, I reject each of these arguments. In any event, they do not change the undisputed facts establishing that Appellant engaged in conduct adverse to the Department. Accordingly, the preponderance of the evidence establishes, and I find, that Appellant engaged in conduct adverse to the Department during both the CAT Shift Event and the Bentley Event. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3401 59- 4) Wilfully Tampering with or Removing Part(s) from Vehicle The Bentley Event is the centerpiece of the Department’s case against Appellant for wilfully tampering with and/or removing one or more parts of a private vehicle without the owner’s consent. As noted above, most of the material facts relating to the Bentley Event are not in dispute. As noted above, for purposes of this Appeal, I have found and assumed that the Bentley Event consisted of Appellant’s removal of only one part of the vehicle: the “popped off” hubcap. Thus the question is whether, in the words of Count No. 4, Appellant “wilfully . . . tamper[ed] with any vehicle or the contents thereof or . . . remove[d] any part of a vehicle without the consent of the owner.” Because answering this question yes would effectively state that Appellant is guilty of a crime governed by the California Vehicle Code (see Cal. Vehicle Code § 10852), I agree with Appellant that the Department must prove the answer to this question alone by clear and convincing evidence. Although the question is close, I find the answer to be no. The term “tamper” as used in Count No. 4 is not defined by the Department’s Personnel Rules. But the commonly-accepted definition of the term requires proof of intent by the employee to alter something. For example, a reputable law dictionary defines “tamper” in pertinent part as follows: To meddle so as to alter a thing, especially to make illegal, corrupting, or perverting changes; as, to tamper with a document or test; to interfere improperly. Black’s Law Dictionary 1305 (5th ed. 1979) (emphasis added).) Similarly, a popular online dictionary defines “tamper” as follows: 2a : to interfere so as to weaken or change for the worse —used with with <did not want to tamper with tradition> Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3402 60- Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary/tamper, downloaded Dec. 28, 2015 (italics in original).) By these definitions, I must conclude that Appellant did not “tamper” with the Bentley. The Bentley was a convertible that rolled over. Photographs taken of the vehicle at the accident scene suggest that it was totally wrecked and would not be put back in service (Dept. Ex. 11). It would be a stretch to conclude that popping off the hub cap from a totally wrecked vehicle could be said to “alter” it in any material way, or to “interfere” with it “so as to weaken or change it for the worse.” A totaled vehicle is already in the worst possible condition. Besides, a hub cap readily can be replaced on the wheel from which it was removed; it is a type of cover that is meant to come off and go back on. Nor is the term “remove” as used in Count No. 4 defined by the Department’s Personnel Rules. But a popular online dictionary defines “remove” as follows: to move or take (something) away from a place Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary/remove, downloaded Dec. 28, 2015 (italics in original).) By this definition, I must conclude that Appellant did not “remove” the popped off hub cap, at least not within the meaning of Section 10852 of the Vehicle Code. It is undisputed that Appellant did not have the owner’s permission to do anything with the vehicle or its parts. That aside, although Appellant popped off one hub cap, he put it back inside the vehicle before leaving the accident scene. He did not “move” it or “take [it] away from a place.” It is of no moment that Sgt. Pfarr ordered him to put it back. The point is that he did put it back, and did not take it away from the accident scene. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3403 61- Nevertheless, the question is close due to conflicting evidence offered as to Appellant’s intentions. Prank or not, the Department – if not Appellant himself – offered substantial evidence tending to show that Appellant’s behavior gave the appearance that he was tampering with or removing car parts for no good reason. It looked like he was stealing. As noted above, this reflected badly on the Department. And with the benefit of hindsight, even Appellant agreed that it was a poor joke and the product of poor judgment. But the Appellant offered evidence suggesting that pranks were part of the workplace culture of the Department, and Appellant’s conduct was consistent with that culture. This evidence, which tended to minimize Appellant’s intentions, took some of the edge off the criminal nature of Appellant’s conduct. As noted above, the question is whether Appellant’s admitted removal of a Bentley hub cap constitutes either tampering or removal within the meaning of Section 10852. Because answering this question yes would make Appellant guilty of a crime, it has to be supported by clear and convincing evidence. This means that, to the extent the question is close, Appellant is entitled to the benefit of the doubt. For the reasons set for above, I find that his misconduct constituted neither tampering nor removal under Section 10852. Finding that popping off the hub cap was not a crime, however, is not the same thing as finding such behavior to constitute good police conduct. As discussed above with regard to Count No. 3, I found that it was not. That is why Sgt. Pfarr “chewed his ass”; why Sgt. Goodwin said “it’s just a stupid thing to do”; and why Officer Benson wondered “is he really doing this?” And that is why Appellant himself showed “a great deal of remorse,” apologized, and admitted that he had taken it too far. He should not Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3404 62- have done it. So this misconduct still supports Count No. 3, even though it may not support Count No. 4. Accordingly, clear and convincing evidence fails to establish, and I cannot find, that Appellant “wilfully . . . tamper[ed] with any vehicle or the contents thereof or . . . remove[d] any part of a vehicle without the consent of the owner.” Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3405 63- About the Discipline In accordance with Section 2.36.290 of the City’s Municipal Code (Dept. Ex. 1, p. 1), Appellant could not be removed from City service absent just and proper cause. The record establishes by a preponderance of the evidence, and I so find, that Appellant’s termination satisfied this standard. As noted above, Appellant was found to have engaged in three separate counts of misconduct: (1) dishonesty; (2) failure to be punctual; and (3) conducting himself in a manner reflecting adversely on the Department. Although each count of misconduct is troublesome, dishonesty is by far the most serious count proven here. I would be hard-pressed to recommend that Appellant’s termination be upheld based solely upon his having reported to work late, or solely upon his conduct reflecting adversely on the Department. So the appropriateness of Appellant’s termination ultimately turns on whether his proven dishonesty constituted just and proper cause to remove him from employment. For the reasons set forth below, I find that it did. Serving as a sworn peace officer is one of the most difficult jobs there is. It requires a fine balance of physical and mental skills that is without equal. But the important work accomplished by these skills can be destroyed if the police officer is found to be dishonest. Nearly everything he says and does depends on his true word. As Captain Staley put it, honesty is “absolutely the cornerstone of our business.” He testified: It’s a vital piece of what we do. We have to testify in court and we have to be believed by our own people that we’re telling the truth. It’s a crucial piece of – bringing any evidence into court is a crucial piece of police reports. It’s just a fundamental part of the job. 07/23/15 T.R. 775.) Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3406 64- Even a single, documented instance of dishonesty can call into question an officer’s veracity in a seemingly endless variety of critical job-related communications. These communications include routine conversations with other officers, representations to supervisors, interviews with IA investigators, interactions with the public, statements made to witnesses, written reports and other official paperwork, sworn declarations presented to magistrates, and sworn testimony presented to judges and juries in the courts of law – in other words, practically everything the officer says and does. As to testifying in the courts of law, a special problem can arise: an officer who has been adjudicated to have been dishonest is subject to having his personnel records discovered by a defendant making a Pitchess motion of the very type Appellant made here. Those records could be used to impeach him, thereby imperiling the investigative work of the Department, the prosecutorial work of the District Attorney, and potentially, the welfare of the public. The importance of honesty to police work is a major reason why it is often said that a police officer in the public service is held to a higher standard of conduct than a similarly- situated civilian employee in the private sector. The standard is higher because the stakes are higher. An officer’s word has the potential to affect not only his department but also the entire community. As a result, the offense of dishonesty is singled out for special attention in the context of officer discipline. For example, the Department’s Code of Ethics states: “Honest in thought and deed in both my personal and official life, I will be exemplary in obeying the laws of the land and the regulations of my department” (Dept. Ex. 2) (emphasis added). Moreover, Section IV-I of the Department’s Personnel Rules states that a Department employee “shall not knowingly or willingly make a false verbal statement or give false information to a Department supervisor or Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3407 65- investigator” (Dept. Ex. 2). And Section VII-C-5 of the Personnel Rules specifically identifies both “[d]ishonesty” and “[k]nowingly making . . . a false statement” as constituting cause for discipline (Dept. Ex. 2). Insofar as the CAT Shift Event is concerned, it hardly can be said that Appellant was h]onest in thought and deed” or that his behavior was “exemplary.” No wonder Sgt. Pfarr was “pretty upset” when learned that he had been lied to by Appellant. When asked why, he testified: I think, from day one in the academy, we were trained that all we have is our word and, to me, whether it was on the stand [in] court or just in my office, Mr. Waddell lied to me and that made me angry. He made something that would have been a supervisor’s note,21 at worse, documenting a verbal conversation, had he just been late and owned up to that, he made it into a much more significant issue than it needed to be. 06/25/15 T.R. 48-49.) This is Appellant’s case in a nutshell: instead of simply owning up to being late, and taking responsibility for the consequences, he lied about having Lt. Smith’s permission to be late, and in the process “made it into a much more significant issue than it needed to be.” By lying, Appellant compromised “all we have” – namely, his “word” – and thereby caused Sgt. Pfarr and other supervisors to doubt whether they could trust Appellant afterward. Such doubts are precisely why lying by police officers is so hard to overlook. Nearly as troubling is Appellant’s poor judgment. It was almost inevitable that he would be caught in his lie. It did not take long for Sgt. Pfarr to confirm directly with Lt. Smith that the conversation cited by Appellant never took place, much less that it never resulted in receiving 21 Without contradiction, Lt. Smith testified that a supervisor’s note for being tardy would have resulted in minor discipline at best; neither the charges relating to the CAT Shift Event nor Appellant’s termination would have followed. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3408 66- permission to be late. The record fails to explain in any meaningful way how or why Appellant thought he could get away with lying to one supervisor about something that so easily could be confirmed as not having been said by another supervisor. Therefore, under the circumstances, dishonesty alone constituted just and proper cause to remove Appellant from employment. And if any additional reasons were needed, Appellant provided threat least two of them by failing to be punctual and conducting himself in a manner reflecting adversely on the Department. Appellant’s adverse conduct, as the more serious offense, is especially deserving of removal from employment. Like dishonesty, adverse conduct is an offense that affects how the police and their work are viewed in the eyes of the entire community. As a result, this offense too is singled out for special attention in the context of officer discipline. For example, the Department’s Code of Ethics states: “I recognize the badge of my office as a symbol of public faith, and I accept it as a public trust to be held so long as I am true to the ethics of police service” (Dept. Ex. 2) emphasis added). Moreover, Section IV-LL of the Department’s Personnel Rules states that Department employees “shall not conduct themselves in a manner that reflects adversely on the Department, or which discredits the Department, or is detrimental or damaging to the professional reputation or professional image of the Department” (Dept. Ex. 2). Insofar as both the CAT Shift Event and the Bentley Event are concerned, it hardly can be said that Appellant wore his badge as a “symbol of public faith” or accepted it as a “public trust.” The problems attendant on the offense of adverse conduct were illustrated by a recent event of which Appellant was aware. One of the reasons that Sgt. Pfarr “chewed his ass” over Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3409 67- the Bentley Event was due to the termination of Officer Cory Pierce, a former employee of the Department who had been arrested for and indicted on various federal charges (App. Ex. C, p. 37). Sgt. Pfarr explained to Appellant that it “was a pretty sensitive time” for the Department. Given the “media spotlight,” Appellant’s having removed or attempted to remove any car parts from the Bentley was “the last thing we need right now.” The Bentley Event was witnessed by at least one member of the public: the tow truck driver. If he “was to get arrested for DUI” and tried to call in a favor, or if “he decided he wanted to make a couple of bucks by contacting one of our local rag newspapers,” then, as Sgt. Pfarr explained, it could make the Department look bad (06/25/15 T.R. 75). There is little doubt that Appellant’s behavior in both the CAT Shift and Bentley Events was conduct that “reflects adversely on the Department, or which discredits the Department, or is detrimental or damaging to the professional reputation or professional image of the Department” Dept. Ex. 2). Therefore, under the circumstances, the offense of adverse conduct also constituted just and proper cause to remove Appellant from employment. In mitigation of the penalty, Appellant argues numerous alleged defects in the Department’s case against him. Most of these alleged defects can be classified as failing into one of three sets of arguments: first, he was the victim of disparate treatment; second, termination was too severe a penalty because he had a strong work record and no record of prior discipline; and third, the Department’s investigation of his misconduct was inadequate or unfair. In light of these arguments, the termination should be reduced to a lesser form of discipline, such as a suspension. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3410 68- I disagree. None of the proffered arguments carries substantial weight or warrants reduction of the penalty. As to disparate treatment, there appear to be two strands of Appellant’s argument: first, that he received more severe punishment than Sgt. Pfarr or other personnel who were involved in the same incident; and second, the Department had some sort of a track record of punishing similar misconduct with suspension rather than termination. I reject both strands of Appellant’s argument because neither properly implicates the principle of disparate treatment. Disparate treatment is a principle of procedural due process in the workplace that governs the proper penalty to be imposed once misconduct has been adjudicated. It holds that similarly- situated employees should be given similar punishments. An employer is not entitled arbitrarily to pick and choose which perpetrators of the same offense are to be terminated and which are to be suspended or given lesser penalties. Regarding the first strand of Appellant’s disparate treatment argument, it is true that, whereas Sgt. Pfarr22 received a written reprimand for his involvement in the Bentley Event, Appellant was terminated for his involvement in the same event. But this was not disparate treatment, because Sgt. Pfarr and Appellant were not similarly-situated. For example, Sgt. Pfarr was a supervisor; Appellant was a rank-and-file officer. Their duties were not comparable. Sgt. Pfarr was found to have engaged in a single offense of failure to supervise Appellant; Appellant was found to have engaged in two serious offenses: removing private property without cause in the Bentley Event, plus dishonesty in the CAT Shift Event. Their offenses were not comparable; 22 To the extent that Appellant argues that Lt. Bledsoe, Lt. Proll, Sgt. Amoroso, Officer Benson, or any other employee was treated more favorably than Appellant, I reject the argument as too vague and in any event unproven. No material evidence of actionable misconduct by any other Department personnel in connection with the CAT Shift Event, the Bentley Event, or any other event, was introduced. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3411 69- dishonesty was the more serious offense, and treated accordingly, as noted above. And Sgt. Pfarr owned up to the consequences of his misconduct; Appellant sought to avoid those consequences. Their behavior was not comparable, either. So it would be unreasonable to conclude that Sgt. Pfarr and Appellant were similarly-situated. Regarding the second strand of Appellant’s disparate treatment argument, it appears to be true that at least one supervisor once thought that Appellant should be suspended rather than terminated. But this was not disparate treatment; it was merely the preliminary recommendation of a non-decisionmaker. It was undisputed that Chief Gesell alone had the final word as to the disposition of disciplinary cases in the Department. (City Manager Lichtig had the final word on behalf of the City.) And Chief Gesell felt that Appellant should be terminated. Originally, Capt. Storton reviewed the investigation of the CAT Shift Event and recommended that Appellant be suspended for 80 hours and removed from the SWAT team 07/23/15 T.R. 873). He was influenced by what he understood to be the disposition of an earlier disciplinary case, decided under a prior chief, in which an officer lied on a police report. The officer in question was said to receive a suspension of 40 hours (07/23/15 T.R. 872). But Capt. Storton’s recommendation was rejected. It was “shocking” to both Capt. Staley (07/23/15 T.R. 872) and Chief Gesell (07/23/15 T.R. 885). They felt that Appellant’s dishonesty called for termination. Regarding the 40-hour suspension case, Chief Gesell explained to Capt. Storton that that was the direction under different chief at a different time and his idea of what the discipline should be was [also] different” (07/23/15 T.R. 880-81). In light of his subsequent training and experience – he was a relatively new captain at the time of his review of the CAT Shift investigation – Capt. Storton testified that he came to agree with Capt. Staley and Chief Gesell. Today, he too would recommend termination (07/23/15 T.R. 888). Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3412 70- Besides, the only potentially useful evidence of disparate treatment – the 40-hour suspension case itself – was never made part of the record. No Pitchess motion was ever made and no relevant personnel records were ever introduced (07/23/15 T.R. 871-72, 889). All the record contains is Capt. Storton’s hearsay testimony as to what he understood the prior case to be about. In the absence of confirmatory information, I cannot make a finding that the 40-hour suspension case even existed, much less that it made a useful comparator to Appellant’s case. As to Appellant’s work record, there is no doubt that, the pending charges aside, Appellant had a strong work record. In addition to his regular assignment in the bicycle unit, Appellant sought training and volunteered for collateral assignments as an accident reconstructionist, motorcycle trainer, and SWAT team member; he volunteered to help collect equipment for and manage the DRMO program; and he volunteered to work substantial overtime on the CAT shift. For all this, and more, he received over twenty (20) commendations, certificates, and other good notices. Plus he had no record of formal discipline (10/02/15 T.R. 1663-76; App. Ex. JJ). Nevertheless, I reject the strong work record argument for at least two reasons. First, commendable as it may be, Appellant’s strong work record is too brief to merit much weight in mitigation of the penalty. Appellant had only seven (7) years of seniority with the Department. I would be inclined to give more weight to a strong work record had it been carried on for 20 or 30 years, as opposed to just seven years, with the Hiring Authority. Second, and more important, no work record, however strong, can compensate for the gravity with which the offense of dishonesty is treated in this context. As more fully explained above, dishonesty is one of most serious offenses a police officer can commit, because it undermines not only his own work, but also the work of entire Department – and potentially, the Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3413 71- welfare of the whole community. It is hard to know where to assign an officer whose honesty has been compromised, because honesty is critical part of everything a police officer says and does. Finally, as to the inadequacy or unfairness of the investigation, Appellant argues that various and sundry defects in the Department’s treatment of him, or in its handling of his case, somehow undermined the imposition of the penalty of termination. I disagree. None of these supposed defects, even if true, alters the facts or gravity of Appellant’s misconduct. For example, Appellant suggests that the evidence supporting the dishonesty charge was weak, or that the charge was not so serious, if he could be approved to work 59 overtime hours over 15 dates on the CAT shift, even after the CAT Shift Event occurred, and before being placed on administrative leave (App. Ex. B). Even if true, this fact proves nothing. It takes time to conduct investigations. Witnesses must be interviewed and evidence must be gathered before cause can be determined and discipline can be imposed. On the other hand, if the Department had denied CAT shift hours to Appellant before developing cause to believe that he had violated the rules, then no doubt it would have been accused of rushing to judgment while arbitrarily denying a police officer a chance to earn overtime. In addition, Appellant suggests that City Manager Lichtig, Capt. Staley, or both, failed properly to review the discipline of Appellant when they conceded to not having interviewed Appellant personally, or to not having listened to every audio recording of every interview of the witnesses interviewed by the lieutenant in charge of each investigation. Even if true, these facts prove little. Their de minimus nature aside, a supervisor is under no obligation to undertake his or her own personal investigation, or to review each piece of evidence in an investigatory file. He or she may rely on the written or verbal summaries submitted by subordinates. It is Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3414 72- undisputed that City Manager Lichtig and Capt. Staley each did this as part of their respective reviews. Finally, Appellant suggests that a hodgepodge of micro-aggressions by supervisors showed that they were out to get him. These things were unfair because, as Appellant put it, “All I’ve ever done is work hard for them” (10/02/15 T.R. 1781). They included: An email by Chief Gesell in which he claimed as one of his accomplishments, Terminating an officer for untruthfulness despite external encouragement to levy a lesser level of discipline” (App. Ex. RR). Appellant was not identified as the “officer.” Tensions with Sgt. Pfarr and/or others who may have accused him of stealing a rifle from the Department. Lt. Bledsoe’s sending a draft copy of his memorandum summarizing his findings as to the CAT Shift Event to Lt. Proll, which memo arguably tainted Lt. Proll’s investigation of the Bentley Event. Lt. Bledsoe testified that he did this to provide Lt. Proll with a timely exemplar of the Department’s new report format. Various and sundry other incidents too numerous to mention. None of these micro-aggressions, even if true, alters the facts or gravity of Appellant’s misconduct, either. Therefore, I find that termination was appropriate disciplinary action, and that the Department was within its discretion to impose this penalty. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3415 73- R E C O M M E N D A T I O N Wherefore, in light of the foregoing Report, I hereby make the following Recommendation as to Finding of Fact and Conclusions of Law: FINDINGS OF FACT 1. The Department provided Appellant with notice of the proposed action against him, the reasons therefor, a copy of the charges and materials upon which the action was based, and the right to respond, either orally or in writing, to the authority initially imposing discipline. By memorandum dated September 9, 2014, Appellant was served with a Notice of Intent to Administer Disciplinary Action that stated the charges, provided voluminous supporting documentation, and notified him of his right to respond. The supporting documentation included nine (9) sets of materials, including the recordings of all investigative interviews conducted by the Department. On September 11, 2014, Appellant attended a meeting with Chief Stephen Gesell at which Appellant was represented by Nicole Quintana Winter, Esq. Ms. Winter was Appellant’s counsel of record at the time. An opportunity to respond to the charges at this meeting was afforded and Ms. Winter did so. By memorandum dated October 1, 2014, the Department rejected Appellant’s arguments, sustained the charges, and imposed a penalty of termination. 2. Appellant falsely represented that he had talked with Lt. Smith, the CAT shift supervisor, and obtained his permission to report for duty up to 30 minutes late on October 19, 2013. 3. Appellant failed to be punctual when he reported for duty about 30 minutes late on October 19, 2013. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3416 74- 4. Appellant conducted himself in a manner than reflected adversely on the Department, or which discredited the Department, or was detrimental to the reputation or professional image of the Department, when he falsely represented that he had the permission of Lt. Smith, the CAT shift supervisor, to report for duty up to 30 minutes late on October 19, 2013. 5. Appellant engaged in the foregoing misconduct when he stated to Sgt. Pfarr by text message that he had been authorized by Lt. Smith on October 18 to report up to 30 minutes late for CAT shift duty on October 19. But Appellant’s statement was untrue. As to October 18, Appellant never asked Lt. Smith for permission to report for work late, and Lt. Smith never granted such permission, on that date. Appellant repeated this false statement at least twice: in both a follow-up or report-for-duty meeting with Sgt. Pfarr on October 19, and in a subsequent IA interview with Lt. Bledsoe on December 12, 2013. So Appellant did not have permission when he reported for duty about 30 minutes late on October 19, 2013. 6. Appellant also conducted himself in a manner than reflected adversely on the Department, or which discredited the Department, or was detrimental to the reputation or professional image of the Department, when he removed – without the owner’s permission, and without cause related to his work – a hub cap from a Bentley automobile that had been involved in a serious injury traffic accident on February 22, 2013. 7. Appellant engaged in the foregoing misconduct on February 22, 2013, when he a borrowed screwdriver to “pop off” one of the hub caps on which the automobile’s “B” emblem was imprinted. Later, he put the hub cap back inside the vehicle at the direction of Sgt. Pfarr. The hub cap was neither evidence nor part of the Department’s investigation of the accident, and Appellant had no cause or permission to remove it. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3417 75- 8. But the foregoing misconduct did not constitute wilfully tampering with or removing part of a vehicle without the consent of the owner. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3418 76- CONCLUSIONS OF LAW 1. Appellant was timely afforded his procedural due process rights required by state law Skelly v. State Personnel Board, 15 Cal. 3d 194 (1975)). 2. As to Count No. 1, Appellant violated Personnel Rules Standard of Conduct Section IV-I: “A Department employee shall not knowingly or wilfully make a false verbal statement or give false information to a Department supervisor or investigator.” 3. As to Count No. 2, Appellant violated Personnel Rules Duty Section III-B: Employees of the Department shall be punctual in reporting for duty at the time and place designated by their supervising officer.” 4. As to Count No. 3, Appellant violated Personnel Rules Standard of Conduct Section IV-LL: “Department employees shall not conduct themselves in a manner than reflects adversely on the Department, or which discredits the Department, or is detrimental to the reputation or professional image of the Department.” 5. As to Count No. 4, Appellant did not violate California Vehicle Code Section 10852: No person shall either individually or in association with one or more persons, wilfully injure or tamper with any vehicle on the contents thereof or break or remove any part of a vehicle without the consent of the owner.” 6. Therefore, the charges against Officer Kevin Waddell in Counts No. 1, 2, and 3 are substantiated by just and proper cause. 7. But the charge against him in Count No. 4 is not substantiated by just and proper cause. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3419 77- 8. Termination was the appropriate disciplinary action due to the severity of the offenses stated in Counts No. 1, 2, and 3. Dishonesty is an especially serious offense for a sworn police officer, whose true word is relied upon in almost everything he says and does. 9. Accordingly, the Appeal should be denied. Christopher David Ruiz Cameron Hearing Officer Los Angeles, California January 4, 2016 ArbsMisc/SLO Waddell Report Recommendation by Cameron FINAL Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3420 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3421 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3422 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3423 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3424 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3425 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3426 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3427 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3428 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3429 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3430 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3431 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3432 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3433 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3434 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3435 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3436 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3437 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3438 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3439 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3440 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3441 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3442 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3443 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3444 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3445 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3446 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3447 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3448 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3449 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3450 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3451 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3452 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3453 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3454 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3455 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3456 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3457 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3458 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3459 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3460 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3461 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3462 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3463 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3464 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3465 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3466 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3467 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3468 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3469 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3470 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3471 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3472 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3473 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3474 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3475 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3476 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3477 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3478 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3479 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3480 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3481 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3482 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3483 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3484 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3485 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3486 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3487 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3488 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3489 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3490 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3491 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3492 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3493 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3494 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3495 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3496 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3497 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3498 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3499 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3500 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3501 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3502 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3503 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3504 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3505 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3506 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3507 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3508 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3509 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3510 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3511 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3512 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3513 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3514 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3515 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3516 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3517 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3518 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3519 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3520 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3521 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3522 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3523 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3524 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3525 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3526 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3527 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3528 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3529 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3530 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3531 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3532 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3533 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3534 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3535 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3536 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3537 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3538 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3539 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3540 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3541 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3542 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3543 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3544 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3545 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3546 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3547 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3548 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3549 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3550 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3551 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3552 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3553 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3554 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3555 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3556 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3557 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3558 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 3559