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HomeMy WebLinkAbout20130503_CityCouncil-FinalOrder_McDow1 2 3 · 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ReceIVED MAY -3 2013 SlO CITY A1TORNEY DISCIPLINARY APPEAL HEARING BEFORE THE SAN LUIS OBISPO CITY COUNCIL In the matter of the Appeal of DANIEL McDOW Appellant, v. SAN LUIS OBISPO POLICE DEPARTMENT; CITY OF SAN LUIS OBISPO DepartlnentlEmployer. ) CITY COUNCIL FINDINGS OF FACT; ) DECISION AND FINAL ORDER ) ) ) ) ) ) ) ) ) ) ) ) This Appeal arises out of the disciplinary action imposed on Police Officer Dan McDow for an incident that occurred on September 15, 2009 at the US-Mexico Border. Based upon the incident and actions associated with the incident, Dan McDow was terminated from his elnployment with the San Luis Obispo Police Departlnent for violation of City and Police Department Rules and Regulations. The primary reason for the termination of Police Officer Dan McDow was the fact that he was fOUlld guilty of a . Federal Misdelneanor for the possession of prescription drugs without a prescription. Police Officer Dan McDow timely appealed his tennination pursuant to San Luis Obispo Personnel Rules and Regulations Section 2.36.350. The .parties selected JamesG. Merrill as the Hearing Officer to make Findings and Recolnmendations to the City Council. DANIEL McDOW v. SAN LUIS OBiSPO FINDINGS AND FINAL ORDER - 1 - POLICE DEPT.; CITY OF SAN LUIS OBISPO 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 The Appeal Hearings were held on June 11, 12 and October 8 and 9, 2012. Appellant was represented by Andrew M. Dawson, Esq. The Department/City was represented by David Fleishman, Esq. Both parties, through their respective representatives, were provided an opportunity to present evidence through exhibits and the sworn testimony of witnesses who were subject to cross-exatnination. A stenographic record of the hearing was Inade by a Certified Court Reporter. Department/City called four (4) witnesses which included: (1) Sonia Tapia, ICE Special Agent; 2) Police Chief Deb Linden, City of San Luis Obispo; (3) Captain Christopher Staley, City of San Luis Ohispo;'(4) Lieutenant Thomas De Priest, City of San Luis Obispo. Appellant Dan McDow caned 2 witnesses which included: (1) Police Chief Deb Linden, City of San Luis Obispo and (2) Appellant Dan McDow. The Department/City entered into evidence Exhibits C 1-15. Dan McDow entered into evidence ExhibitsA-1,4, 5,6, and 9. On December 4,2012, the Hearing Officer issued his Findings and Recommendations. The Hearing Officer recommended that charges 1, 3,5,6, and 7 listed below he sustained. The Hearing Officer detennined that charges 2 and 4 listed below were not supported by the preponderance of evidence and were unfounded. 1. Violation of San Luis Obispo Police Department Rules and regulations Section IV. LL. Conduct detrimental to the Department. 2. Violation of san Luis Obispo Police Department Rules and regulations Section IV. KK. 5. Neglect of duty -failure to report information regarding critninal acti vity or criminal violation involving a department elnployee. 3. Violation of San Luis Obispo Police Department rules and Regulations section IV.Y. -Absence from Duty. DANIEL McDOW v. SAN LUIS OBJSPO FINDINGS AND FINAL ORDER -2-POUCE DEPT.; CITY OF SAN LUIS OBISPO 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 4. Violation of San Luis Obispo Police Department Rules and regulations Section VIlC. 1. Causes for Disciplinary Action -conviction of a felony or misdetneanor under the law of the State of California. 5. Violation of San Luis Obispo Police Department Rules and regulations Section VII C. 6. -Causes for discipJinary action -Unauthorized or inexcusable absence without leave or unauthorized use of sick leave. 6. Violation of San Luis Obispo Police Departtnent rules and regulations section VII C. 10. Causes for disciplinary action -violation of any of the provisions of the Personnel rules and regulations Manual or of any department policy, directive, or rule or regulation. 7. Violation of San Luis Obispo Municipal code 2.36.380 A-Code of Ethics ­ An official or employee of the City shall not engage in conduct which would tend to discredit or dishonor his/her position with the city. The Hearing Officer recommended that Appellant be returned to duty as a police officer on a Last Chance Agreement which includes a provision that any future violation of the Policies of the Police Department would result in immediate termination. The Hearing Officer recommended that the Last Chance Agreement be in effect for a 2 year period. The Hearing Officer's findings and recomlnendations were then fOIWarded to the City Council pursuant to San Luis Obispo Personnel Rules and Regulations Section 236.350 F. The City Council now has jurisdiction over this matter pursuant San Luis Obispo Rules and Regulations Section 236.350 G. The City Council Inay affinn, reverse, or modify the DepartlnentlCity decision. The City Council met in Closed Session on April 8 and April 24, 2013 to review the Hearing Officer's findings and recorn.tnendations and the record of the hearing. The Attorney for DANIEL McDOW v. SAN LUIS OBISPO FINDINGS AND FINAL ORDER -3-POLlCE DEPT.; CITY OF SAN LUIS OBISPO 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 Dan McDow was notified prior to the Closed Session of the opportunity to speak to the City Council during the public comment period. No one appeared or spoke during public comment period. FINDINGS OF FACT The City Council has considered the exhibits, the reporter's transcript, the post briefs and the Hearing Officer~s findings and recoffi1nendations, and makes the following findings of fact, which were established by a preponderance of the evidence. L Police Officer Dan McDow (hereinafter McDow) started his employment with the San Luis Obispo Police Department in 2002 as a dispatcher. (Reporter's transcript of Proceedings, Page 556, lines 6-7 (hereinafter 556:6-7». 2. McDow started as a dispatcher for the City of San Luis Obispo in 2002. He w.as a . dispatcher for about a year and a half before going to the police academy to become a police officer. (556:7-10) 3. On September 15, 2009 McDow took a less than 24 hour trip to Mexico with fenow police officer Armando Limon. (Employer Exhibit, C 11 hereinafter C-l1, page 16) 4. Both Limon and McDow testified during the Administrative Investigation that shortly after arriving in Mexico, they visited a pharmacy to get diet pills for Limon's wife. (C­ 11, pages 12-13 and 16-17) 5. McDow testified during the Administrative Investigation that Lhnon's wife had been given the diet pill "Yeduc" by her parents, and she wanted to get some more. (C-ll, pages 16-17) 6. McDow testified that while at the pharmacy he knew Limon was also buying Ritalin, because he saw him put it down on the counter at the phannacy and was close enough to DANIEL McDOW v. SAN LUIS OBISPO FINDINGS AND FINAL ORDER -4-POLICE DEPT.; CITY OF SAN LUIS OBISPO 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 the counter to be able to see both the size of the boxes, and the word "Ritalin" on the boxes. (649:18-11) 7. While waiting for Limon to purchase the diet pills and Ritalin, McDow bought 'f.diet pills" called Tenuate, or Diethylpropion, a Schedule IV controlled substance (C-5, page 4) and a bottle of SOlna (carisoprodol). 8. McDow acknowledged buying a bottIe of SOlna was ~ "stupid~' thing. (C-11, page 17) 9. During the Administrative Investigation, Lilnon testified that he asked the pharmacist if they would get in trouble taking the pills across the border and the pharmacist said there was nothing to worry about unless they had prescription medication. (C-11, page 13) 10. McDow testified that the phannacist who sold him the phannaceuticals said "it's okay, as long as you're not taking prescription medications across." (624:18-22) 11. McDow testified that the bottle that he had in his pocket when he crossed the border had Methylphenidate Hydrochloride on it. (641 :8-642:6) 12. Methylphenidate Hydrochloride is the generic form of Ritalin. (642:7-25) 13. McDow testified he should have known that the tablet was Ritalin. (581:8) 14. There were 34 tablets of Methylphenidate Hydrochloride in the bottle in McDow's pocket when he was detained at the border. (643:1-5) 15. There were 165 tablets of Tenuate, or Diethylpropion, in McDow's possession when he crossed the border. (C-5, page 3) 16. Methylphenidate hydrochloride is a Schedule II controlled substance. Tenuate is a Schedule IV controlled substance. (C-5, page 3). 17. McDow testified that he possessed Soma, another prescription medication, when he came across the border. (653:23-25) DANIEL McDOW v. SAN LUIS OBISPO FINDINGS AND FINAL ORDER -5-POLICE DEPT,; CITY OF SAN LUIS OBISPO 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 18. McDow testified that he knew that Soma required a prescription at the time he was at the border. (623 :21-624: 17) 19. McDow testified that he became worried the pins he was carrying could have been "ecstasy". (655:13-20) 20. When McDow arrived at the US border inspection area, he was greeted by a unifonned border officer at the driver's door of the car McDow was driving, and McDow was asked ifhe had anything to declare. McDow responded "No." (C~ll, page 18) 21. Upon further questioning of the two officers, Limon admitted he had Ritalin in the trunk of the car. (C-ll, page 18) 22. McDow and Limon were then asked to exit the vehicle, and they were escorted to an interview room. McDow was searched, and a plastic bottle was found in his front pocket, which contained numerous unidentified pills. (C-4, page 4) 23. McDow was given the opportunity to make a telephone call. He called his girlfriend, Holly Hovore. (C-l1, page 19) 24. Border Agent Sonia Tapia was :in the room when McDow Inade the telephone call; Tapia testified that she overheard McDow ask Hovore to call in to the police department and tell them he wasn't going to be in to work that day, and that he was going to be sick. (66:13­ 17) 25. The Adtninistrative Investigation detennined that the San Luis Obispo Police Department Communications Technician who answered the call frOln Hovore, con tinned that McDow's girlfriend reported that McDow was sick. (C-l1 page 27) 26. At no time during the evening did McDow tell Tapia he was feeling sick. (66:18­ 21) 27. Tapia overheard McDow say to his girlfriend he was an "idiot", .and the situation he was in was a '~massive case of ignorance". (C-ll, page 24) DANIEL M-cDOW v. SAN LUIS OBISPO FINDINGS AND FINAL ORDER -6-POLlCE DEPT.; CITY OF SAN LUIS OBISPO 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 28. Tapia further heard McDow say to his girlfriend "I'm going to jail, and it all goes down from here." (64:20-22) 29. Tapia noticed text messages on Lhnon~s phone from "My Love". The text messages were: "Have you passed the line yet?" and "Hey Mondo are you guys okay? Dan was going to text me when u were thru the border and he hasn't been responding so I just wanted to be sure ...thx'~. (C -4, page 6) 30. The pills seized from the bottle in McDow's pocket were analyzed by a laboratory, and they ultimately were detennined to be 165 tablets of Diethylpropion (Tenuate) and 34 tablets of Methylphenidate HeI (Ritalin). (C-5, page 3) 31. McDow failed to declare medications that he was bringing frOln Mexico. (C-2) 32. The medication seized from McDow was hidden among personal items in the vehicle, and on McDow. (C-2) 33. McDow was uncooperative during the investigation part of the seizure. (C-2) 34. McDow refused to answer questions made by the Duty Agent during the interview phase. (C-2) 35. McDow and Limon were released by the border officials on the morning of September 16,2009. (C-l1, page 19) 36. McDow and Limon rented a vehicle to drive back home, as their vehicle had been impourided by the border officials. (C-11, page 19) 37. When McDow and Limon arrived at Limon's house in Santa Maria, they were met by Captain Staley and Lieutenant Tolley. Staley gave McDow a notice placing McDow on administrative leave effective that day, pending completion of an investigation regarding McDow's conduct. (C-3) DANIEL McDOW v. SAN LUIS OBISPO FINDINGS AND FINAL ORDER -7-POLICE DEPT.; CITY OF SAN LUIS OBISPO 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 38. McDow was later charged with a violation of United States Code Title 21, Section 331, introduction and delivery for introduction into interstate commerce a Inisbranded drug. McDow pleaded guilty to the charge and the plea agreement was entered on April 28, 2010~ (C­ 7) 39. As part of the plea agreement, McDow admitted that on Septelnber 15, 2009, when he crossed the border, he was in possession of Methylphenidate, a Schedule II controlled substance and Diethylpropion, a Schedule IV control1ed substance. (C-7, page 2) 40. As part of the plea agreement, McDow admitted that on September 15, 2009, all of the pharmaceuticals in McDow's possession were labeled in Spanish and not in English. McDow did not have instructions for using the pharmaceuticals either on his person or in the vehicle. McDow did not have a prescription for any of the phannaceuticals . (C-7, page 2) 41. As part of the plea agreement, McDow admitted that the phannaceuticals were misbranded for the purpose of21 U.S.C. Section 331 (a). (C-7, page 2) 42. On May 12, 2010, McDow was infonned that a personnel investigation was ,being conducted into the events that resulted in his guilty plea to a federal misdemeanor conviction. (C-8) 43. Lieutenant Tom De Priest conducted the internal investigation and he provided McDow notification of his Miranda and Lybarger rights. McDow waived his rights and agreed to talk with De Priest about the incident. (C-9) 44. An internal affairs investigation was completed on June 28, 2010. The internal investigation included interviews of key witnesses and of Officer McDow. (C-11) 45. The internal affairs investigation report issued by De Priest sustained seven of the nine allegations filed against McDow. (C-ll) 46. Captains Parkinson and Staley reviewed the facts of the investigation and they both concluded that McDow had violated numerous provisions of the San Luis Obispo Police DANIEL McDOW v. SAN LUIS OBISPO FINDINGS AND fINAL ORDER -8-POUCE DEPT.; CITY OF SAN LUIS OBISPO · , 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2 a 21 22 23 24 25 Department Rules and Regulations, as well as the City's municipal code. They provided their review and recommendations in a written memoranduln to Police Chief Deborah Linden. (C-I0) 47. Based on Police Chief Deborah Linden's review of the Internal Investigation, McDow was served with a Notice of Intent to Adlninister Disciplinary Action and Right to Respond, dated Ju1y 2, 2010. The disciplinary action being proposed in this notice was tennination of employment. (C-12) 48. On July 30, 2010, McDow participated in a "Skelly" Ineeting with Police Chief Deborah Linden to anow hiln an opportunity to try and convince the Police Chief to modify or rescind the proposed disciplinary action. McDow's attorney contested the findings on two of the charged policy violations; one being the improper use of sick leave and the other being the failure to report criminal conduct to the police department. (C-12, page 1) 49. After the Skelly meeting, Police Chief Linden did not find any basis to change the proposed discipline, stating that "the seriousness of the other sustained violations constituted cause for termination with or without the two violations questioned by your attorney_" (C-13, page 2) 50. Police Officers are responsible to uphold the laws of the United States and not violate them. (Hearing Officer's Findings & ReCOlmnendations, page 16 (hereinafter HOF&R, page 16» 51. Law Enforcement Officers must maintain high levels of integrity in order to Inaintain credibility with the public. Integrity is considered the 111eaSUre of an individual, an agency, an institution, a discipline, or an entire nation. Incidents of Police Officers being detained at the Border are of concern because these situations tarnish and create a negative image of Law Enforcement Officers in the eyes of the public and the law enforcement community. (C­ 2) DANIEL McDOW v. SAN LUIS OBISPO FINDINGS AND FINAL ORDER -9-POLICE DEPT.; CITY OF SAN LUIS OBISPO 5 10 15 20 25 1 2 3 4 6 7 6 9 11 12 13 14 16 1 7 18 19 21 22 23 24 52. The actions of McDow were the subject of public infonnation which reflected negatively on the image of the San Luis Obispo Police department. (HOF&R, page 16) 53. McDow testified that it was not a positive thing for a police officer to have a federal misdeJ.neanor conviction. 605:23-606:4. 54. McDow testified that police officers shouldn't get convicted for federal Inisdelneanors of any kind. (606:7-10) 55. McDow testified his conduct "soiled his fatnily tree" and "tarnished" himself by his conduct and said '-if I tamish Inyself I tarnish them" (referring to the Police Department). (603:5-12) 56. The charge that McDow violated San Luis Obispo Police Department Rules and Regulations Section IV.LL -Conduct detrhnental to the Department -is supported by the preponderance of evidence. The conviction of a Federal Misdemeanor is sufficient evidence that McDow's actions consisted of conduct which is detrimental to the Department. (HOF&R, page 16) 57. The charge that McDow violated San Luis Obispo Police Department Rules and Regulations Section IV.KK.5. -Neglect of duty -failure to report information regarding criminal activity or criminal violation involving a department employee -is not supported by the preponderance of evidence. The Department was notified and since McDow was not charged at that time, there was no basis to conclude that he was required to report that he was involved with criminal activity. (HOF&R, page 16) 58. The charge that McDow violated San Luis Obispo Police Department Rules and Regulations Section IV. Y -Absence frOIn Duty -is supported by the preponderance of evidence. In reviewing the evidence as a whole, it appears that McDow was untruthful in regard to the charges that he was absent from duty on Septelnber 15, 2009. McDow did not receive authorization in advance to be excused from duty on September 16, 2009, nor did he request DANIEL McDOW v. SAN LUIS OBISPO FINDINGS AND FINAL ORDER -10-POLlCE DEPT.; CITY OF SAN LUIS OBISPO 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 official leave. The testimony of special Agent Tapia supports that McDow did in fact advise his girlfriend to tell the department he was sick. In addition, the internal investigation disclosed that the COIDlnunications Technician confirmed that McDow's girlfriend reported that McDow was sick. McDow's testimony that he did not tell his girlfriend to tell work that he was sick is not credible. (HOF&R, page 16) 59. The charge that McDow violated San Luis Obispo Police Departtnent Rules and Regulations Section VII.C.I. -Causes for Disciplinary Action -Conviction of a felony or misdemeanor under the laws of the State of California -is not supported by the preponderance of evidence as this Department Rule requires conviction of felony or misdemeanor under the laws ofCalifomia. McDow was never convicted understate law. (HOF&R, page 16-17). 60. The charge that McDow violated Violation of San Luis Obispo Police department Rules and Regulations Section VII.C.6. -Cause of Disciplinary Action -Unauthorized or inexcusable absence without leave or unauthorized use of sick leave -is supported by the preponderance of evidence. (HOP &R, page 17) 61. The charge that McDow violated San Luis Obispo Police Department Rules and Regulations Section VIL.C.I0. -Causes for disciplinary Action -violation of any of the provisions of the Personnel Rules and Regulations Manual or of any departmental policy, directive, or rules or regulations -is supported by the preponderance of evidence. (HOF&R, page 17) 62. The charge that McDow violated San Luis Obispo Municipal Code 2.36.380 A ­ Code of Ethics -An official or elnployee of the city shall not engage in conduct which would tend to discredit or dishonor hislher position with the city -is supported by the preponderance of evidence. The conviction of a Federal Misdemeanor is sufficient evidence that McDow's actions consisted of conduct which would tend to discredit or dishonor hislher position with the City. (HOF&R, pagel7) DANIEL McDOW v. SAN LUiS OBISPO FINDINGS AND FINAL ORDER POLlCE DEPT.; CITY OF SAN LUIS OBISPO 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 CONCLUSION OF LAW AND DECISION The effectiveness of the San Luis Obispo Police Department depends on cOlnmunity respect and confidence. The trust earned by the Police Department allows its employees to operate efficiently. It is vitally itnportant that all elnployees of the San Luis Obispo Police Departlnent conduct thelnselves in a manner denl011strating unquestionable integrity, reliability, and honesty consistent with public expectations. The success of the San Luis Obispo Police Department rests in the reliability and credibility of its police officers -whether interacting with citizens, making arrests, testifying in any court or legal proceeding, or providing infonnation in any official setting. A police officer's job is a position of trust and the public has a right to the highest standard of behavior from those they invest with the power and authority of a law enforcement officer. Honesty, credibility and temperament are crucial to the proper perfonnance of an officer's duties. Dishonesty is incompatible with the public trust. Kolender v. San Diego County Civil Service Com .. 149 Cal. App. 4th 464,471 (Cal. App. 4th Dis!. 2007). The rationale that public trust is inherent in the role of a law enforcement officer, the breach of which is grounds for employee discipline was applied in Hankla v. Long Beach Civil Service Commission (1995) 34 Cal.App.4th 1216, in which the Court of Appeal opined that law enforcement officers "are guardians of the peace and security of the community, and the efficiency of our whole systeln, designed for the purpose of maintaining law and order, depends upon the extent to which such officers perfonn their duties and are faithful to the trust reposed in them." In considering whether an abuse of discretion occurred in the context of public employee discipline, the City Council notes that the overriding consideration in these cases is the extent to which the employee's conduct resulted in, or if repeated is likely to result in hann to the public service. Other relevant factors include the circumstances surrounding the misconduct and the DANIEL McDOW v. SAN LUIS OBISPO FINDINGS AND FINAL ORDER -12-POLlCE DEPT.; CITY OF SAN LUIS OBISPO 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 1"6 1 7 1 B 19 20 21 22 23 24 25 likelihood of its recurrence. Skelly v. State Personnel Ed., supra, 15 Ca1.3d at p. 218. The public is entitled to protection from unprofessional employees. whose conduct places people at risk of injury and the government at risk of incurring liability. County of Santa Clara v. Willis (1986) 179 Cal.App.3d 1240,1252. 111 Talmo v. Civil Servo Comm In ofLos Angeles County. 231 Cal. App. 3d 210 (2d Dist. 1991, shnilar to McDow~s situation, the court rejected a police officer's claims that a lesser discipline should have been imposed and that discharge was out of proportion to the lnisconduct. Just as with McDow, the court also rejected the deputy's assertion that the department had not fired other deputies alleged to have committed similar Inisconduct. Noting that even if the deputy had proved this, which the court found he did not, the court held "there is no requirement that charges similar in nature must result in identical penalties." In upholding the deputy's discharge, the court opined that "when an officer of the law violates the very law he was hired to enforce .....he forfeits the trust of his department and the public." Further, the court emphasized that a "deputy sheriffs job is a position of trust and the public has a right to the highest standard of behavior from those invested with the power and authority of a law enforcement officer. Honesty, credibility and temperament are crucial to the proper perfonnance of an officer's duties." By committing a federal crime and subsequently being untruthful about what he knew or should have known, McDow caused harm to the public service. To further emphasize the City Council's point, in Ackerman v. State Pers. Rd., 145 Cal. App. 3d 395 (lst Dis!. 1983) the court ruled, that the officer's discharge was proper because police officers "lnust be held to higher standard than other employees." "The credibility and honesty of an officer are the essence of the function." Consequently, the court reasoned that "[a]ny breach of trust must therefore be looked upon with deep concern," Just as in Ackennan, McDow was convicted of a crime and was not cooperative during the investigation, which caused hann to the public service and justified his discharge. DANIEL McDOW v. SAN LUIS OBISPO FINDINGS AND FINAL ORDER -13-POLICE DEPT.; CITY OF SAN LUIS OBISPO 5 10 15 20 25 1 2 3 4 6 7 8 9 11 12 13 14 16 1 7 18 19 21 22 23 24 Based upon the above body of law, the City Council finds and determines that San Luis Obispo Police Officers must be held to a higher standard of conduct than most, to ensure the confidence and respect of the citizens they serve. In McDow's case, the City Council finds and determines that McDow knew~ or reasonably should have knowll, based upon his knowledge and experience as a Police Officer, that it is illegal to bring into the US, foreign-made drugs without a valid prescription in your own name from a U.S doctor. Furthennore, McDow knew, or should have known that any such drugs Inust be declared to U.S. Customs. To find otherwise, given the relevant facts would defy logical reasoning that a Police Officer should not be required to know the law. Daniel McDow, while possessing many fine qualities, has demonstrably failed to meet that higher standard of conduct for a law enforcement officer by his cqnduct and action. With respect to the question of penalty, the City Council cannot agree with the Hearing Officees recommendation to allow McDow to return to work under a Last Chance Agreement. An experienced Police Lieutenant, two experienced Police Captains, the Chief of Police, and the Hearing Officer all conducted a thorough review of the facts and applicable departmental policies and each concluded that McDow's charges were "serious misconduct" that violated departmental policy and was detrimental to the Department. The internal' investigation was fair and adequate and all recommended tennination. It is the City COWlcir s. decision that a Last Chance Agreelnent is simply inappropriate considering the seriousness of McDow being convicted of a Federal crime. Having concluded that McDow in fact cOlnlnitted the offenses alleged against him and that his actions were detrimental to the Deparbnent and public service, the superior court will be required to uphold the City's punishment if there was any reasonable basis for sustaining it. Kazensky v. City ofMerced (1998) 65 Cal.App.4th 44, 54, 76 Cal.Rptr.2d 356; oCounty ofLos Angeles v. Civil Service Com., supra, 39 Cal.App.4th at p. 634, 46 Cal.Rptr.2d 256; 0 West Valley-Mission Community College Dist. v. Concepcion (1993) 16 Cal.App.4th 1766, '1778-1779, DAN IEL McDOW v. SAN LUIS OBISPO FINDINGS AND FINAL ORDER POLICE DEPT.; CITY OF SAN LUIS OBISPO 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 21 Cal.Rptr.2d 5; OTalmo v. Civil Service Com. (1991) 231 Cal.App.3d 210,226, 282 Cal.Rptr. 240; DSchmitt v. City of Rialto (1985) 164Cal.App.3d 494, 500-501, 210 CaL Rptr. 788. It is only in the exceptional case, when it is shown that reasonable minds cannot differ on the propriety of the penalty, that an abuse of discretion is shown. West Valley-Mission Community College Dis,t. v. Concepcion, supra, 16 Cal.App.4th at p. 1779. 21 Cal.Rptr.2d 5; DCounty of Santa Clara v. Willis (1986) 179 Cal.App.3d 1240,1250-1251,225 Cal.Rptr. 244. It is the decision of the City Council that the tennination of Dan McDow is justified and, therefore, sustained. None of this is intended to suggest that this has been an easy decision. The City Council is well aware of the impact of tennination frOln employment for a police officer. However, police officers are critically important to the community and their work is entitled to the highest respect from citizens. Part of that foundation of trust, though, must be premised on the assumption that they will not violate the law. FINAL ORDER The Department/City carefully weighed the evidence and its options in this matter and acted in good faith to tenninate Dan McDow. The City Council sustains this detennination on not only the facts but as to the discipline as well. The integrity of the discipline system demands this result in light of Dan McDow's conviction of a federal crime and the severity of his wrongful acts. In making this decision, a clear Inessage is being sent that ethical behavior on the part of all police employees is a lnain priority of the City Council. Ethical behavior on the part of police officers is something that the public and our political system insist on and is required, if we are to lnaintain our system of justice. Without consistent highly ethical behavior on the part of officers, which exceeds the nann of the community, we will see a rapid undercutting of our traditional social/political values and a descent in the confidence of the public in the abilities and reputations of our Police Department. DANiEL McDOW v. SAN LUIS OBISPO FINDINGS AND FINAL ORDER -15-POLlCE DEPT.; C1TY OF SAN LUIS OBISPO 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 Pursuant to California Code of Civil Procedure Section 1094.6, this Decision is final upon the date it is mailed by first class lnail, postage prepaid, including a copy of the affidavit or certificate of Inailing, to the party seeking the writ. Please also note that pursuant to section 1094.6, subdivision (b): "Subdivision (a) of Section 1013 does not apply to extend the time, following deposit in the mail of the decision of the findings, within which a petition shall be filed." For further details regarding procedures to be followed, please refer to the California Code of Civil Procedure including, but not lilnited to, sections 1094.5 and 1094.6 The foregoing Decision and Final Order is adopted by a vote of 4-0, with one Council Member position vacant. Mayor Jan Marx, and Councll Members Ashbaugh, Carpenter and Smith voting in favor thereof. Dated: tk t Ld-{J/2 ! 7 160 /0<.c)GDated: Dated: (!~f;3 t/ja CJ /:Dated: ~a Approved as to Form: Dated: 5/ I \ 1.3 DANIEL McDOW v. SAN LUIS OBISPO FINDINGS AND FINAL ORDER -16 POLICE DEPT.; CITY OF SAN LUIS OBISPO , • .. PROOF OF SERVICE BY MAIL STATE OF CALIFORNIA } } COUNTY OF sAN LUIS OBISPO } I, the undersigned, declare that I am an active member of the State Bar of California and I am over the age of 18 years and am not a party to the within action. My busmess address is 595 Harbor Street, Morro Bay, CA 93442. On May 2, 2013, I served in the manner indicated below the foregoing documents, described as: CITY COUNCIL FINDINGS OF FACT; DECISION AND FINAL ORDER: DANIEL McDOW V. SAN LUIS OBISPO POLICE DEPARTMENT, CITY OF SAN LUIS OBISPO on the interested parties in this action by placing a true copy(ies) thereof in a sealed envelope( s) addressed as follows: Andrew Dawson David Fleishman Lackie,Dammeier & McGill Hanley & Fleishman, LLP 367 N. Second Avenue 8930 Morro Road Upland, CA 91786 Atascadero, CA 93422 J ames Merrill Christine Dietrick 2479 Rivers Bend Circle City Attorney's Office Livermore, California 94550 990 Palm Street San Luis Obispo, CA 93401 I personally caused such envelope(s) to be deposited in the United States Mail at Morro Bay, California, with postage ther~on fully prepaid [CCP §1013(a)(2).] I declare under the penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on May 2,2013, at Morro Bay, California.