HomeMy WebLinkAbout20160719_CityCouncil-FinalOrder_WaddellThis matter arises out of a challenge to a disciplinary action resulting in the termination
of employment of former city employee/police officer Kevin Waddell ("Waddell"). The issue
before the City Council is whether to uphold the disciplinary action recommended and
implemented by the City of San Luis Obispo ("City") or alternatively, based on the
administrative record of the proceedings, make other findings of facts and take other action.
While employed as a City of San Luis Obispo police officer, Kevin Waddell
("Waddell"), was charged with four counts of misconduct as set forth in the Notice of Decision
of Disciplinary Action. A copy of the Notice is attached hereto and incorporated by reference as
Exhibit A. The Notice recommended termination of employment.
Waddell timely appealed his termination pursuant to Personnel Rules and Regulations
Section 2.36.350 (City of San Luis Obispo Municipal Code). The parties (City and Waddell)
selected Professor Christopher David Ruiz Cameron from Southwestern School of Law as the
independent Hearing Officer to make Findings and Recommendations to the City Council.
The Appeal Hearing consisted of 10 days of proceedings from June - October 2015
including the following dates: June 25 and 26, 2015; July 9, 23, and 24, 2015; August 20 and 21,
2015; September 2, 2015; and, October 2 and 6, 2015. Waddell was represented by attorney
Kasey A. Castillo of Castillo Harper APC and attorney Nicole Naleway was in attendance. The
City was represented by attorney Gregory A. Palmer of Jones & Mayer and City Attorney
Christine Dietrick was in attendance. The parties were provided an opportunity to present
evidence through sworn testimony of witnesses who were subject to cross-examination and
through exhibits. Following the conclusion of the hearings, both parties submitted Post -Hearing
Briefs on December 211, 2015.
The Report and Recommendation of the Hearing Officer dated January 4, 2016 denied
Waddell's appeal. Based on the entirety of the proceedings, the Hearing Officer made the
Recommendations attached hereto and incorporated as Exhibit B (pages 73-75 of the Report and
Recommendation). Based on the entirety of the proceedings, the Hearing Officer made the
Conclusions of Law attached hereto and incorporated by reference as Exhibit C (pages 76-77 of
the Report and Recommendation). The Hearinc, Officer concluded that Waddell violated the
following City Personnel Rules Standard of Conduct Sections:
1. Section IV -1 "A Department employee shall not knowingly or willfully make a false
verbal statement or give false infort-nation to a Department supervisor or
investigator."
2. Section 111-B "Employees of the Department shall be punctual in reporting for duty at
the time and place designated by their supervising officer."
3. Section IV -LL "Department employees shall not conduct themselves in a manner that
reflects adversely on the Department,, or which discredits the Department, or is
detrimental to the reputation or professional image of the Department."
The Hearing Officer further concluded that Waddell did not violate California Vehicle Code
Section 10852 - 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 Hearing Officer concluded
that the charges against Waddell in Counts 1, 2, and 3 of the Notice of Discipline were
substantiated by Just and pro -per cause and that the charges in Count 4 was not substantiated or
sustained. The Hearing Officer concluded that termination was the appropriate disciplinary
action due to the severity of the offenses.
The Hearing Officer's Report and Recommendation was forwarded to the City Council in
accordance with Personnel Rule and Regulation Section 2.36.350F. The City Council has final
authority over this administrative matter (Personnel Rules and Regulation Section 2.36.3500).
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Based on the entire administrative record, the City Council may affirm, reverse, or modify the
City's decision to terminate the employment of Kevin Waddell.
The City Council members had the opportunity and reviewed the record of the
administrative proceedings. The City Council met in Closed Session on July 14, 2016 and July
19, 2016 to review the Hearing Officer's report, findings, recommendations and. conclusions and
the record of the hearing. A Special Meeting of the City Council was timely noticed. City
provided notice to Kasey Castillo, the attorney who represents Waddell, prior to the Special
Council Meeting. Ms. Castillo and her client, Kevin Waddell, appeared before the City Council
during the public comment period. Ms. Castillo submitted the Appellant's Written Exceptions to
the Hearing Decision (C SMS Case No. ARB- 14-029) on July 14, 2016 and made oral comments
to the City Council. City Council then meet in Closed Session to consider this matter.
The CITY COUNCIL of the City of San Luis Obispo considered the written and oral
evidence of the administrative hearings, all briefs submitted by counsel for the parties and the
Hearing Officer Report and Recommendations and hereby adopts the following findings of fact
in support of a decision to uphold the termination of employment of Kevin Waddell:
1. Ado -pts the Recommendation as to Finding of Fact by Hearing Officer (Exhibit B) in
its entirety.
Decision and Final Order.
The effectiveness of the San Luis Obispo Police Department depends on community
respect and confidence. The trust earned by the Police Department allows its employees to
operate efficiently. It is vitally important that all employees conduct themselves in a manner
demonstrating unquestionable integrity, reliability, and honesty consistent with public
expectations. The success of the Police Department rests with reliability and credibility of its
police officers — whether interacting with citizens making arrests, testifying in court or in any
legal proceeding, or providing information in any official setting. The Department's Code of
Findings/Decision/Order (Waddell)
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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 the police service."
The City Council carefully weighed and considered the evidence, the findings, and its
options in this matter. The decision to terminate a police officer is not an easy decision and, the
City Council understands the impacts of such a decision. On balance, police officers are
critically important to the community and, the community expects them to be trustworthy and
ethical.
used on the Findings of Fact set forth above, the CITY COUNCIL of the City of San
Luis Obispo accepts and adopts the Hearing Officer Conclusions of Law (Exhibit C) in Its
entirety and upholds the termination of Kevin Waddell.
Pursuant to California Code of Civil Procedure Section 1094.6, this Decision is final
upon the date it is mailed by first class mail, postage prepaid, including a copy of the affidavit or
certificate of mailing to the party seeking a writ. Please also note that pursuant to Section
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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 limited to, Sections 1094.5 and 1094.6
The foregoing Decision and Final Order is adopted by a vote of 4-1
with Jan Marx, Dan Carpenter, Carlyn Christianson, and Dan Rivoire voting in favor
thereof and John Ashbaugh voting against®
Dated:
Dated:
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Dated:
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Approved as to form:
Date.-
Judith yPropp, Of C I
Renne oan Holtzman Sakai LLP
Special Counsel to City Council of San Luis Obispo
Findings/Decision/Order (Waddell)
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0" Memorandum
"Service, Pride, 11111-19rily
Date: October 1, 2014
,To: I Officer Kcvl*n Waddell
From: Stephen Gesell, Chief of Police
Subject: Notice of Decision of DisciplinatT Action
Reference: Al -13-004P and 13-005P
Exhibit A
city of san Luis oi3ispo
Police Departinent
104'.). WalflUt
SLO, CA 93401
(805) 781-7317
After carel"Lil consideration of the inf'oralation presented during your Skelly meeting held on
September 11, 2104 in response to the Notice of Intent to Administer Disciplinary Action dated
July 7, 2014, you are hereby notified pUrSUant to Personnel Rules and Regulations, Section
2.36.320, 1 am imposing tile following disciplinary action agaillSt YOU e1'1*eCttVC October 2nd,
201 4 s
Termination as a Police Officer with the City of San Luis Obispo
Thi .s aetion is being taken fir the fiollo��Jng vtolattons ot'City and Police Department Rulesi and
reg 4 91h
,ulations asst dated with youc
r onduct oil O 1 ctober 2013 ) and FebrUary 22"'J 2013 and
actions that would constitute a violation ot'California Vehicle Code section 10852 Vehicle
Tampering. As a basis for the imposition of the proposed discipline, I have thoroughly reviewed
dic complete Administrative Inquiry records refierenced above and illClUded here and I expressly
C at'firm U nd adopt the conclusions and recommendations therein and find that the rullegations of
the following violations are SUSTAINED-.
Violation of San Luis Obispo Rules sand Regulations Standard of Conduct section IV. 1 6 A
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Deprartment employee shall not knowkigly or willfully make a t'Lllse verbal statement oi- give
false information to a Department SUI)CI-Visor oi- investigator."
Violation of S4an Luis Obispo Rules and Regulations Standard of Conduct section M.
"Employees of the Department shall lie PUnctual in reporting foi- duty 'It thea tin'ie and place
designated by their supervising off ccr."
Violation of San Luis Obispo Rules and regulations Standard of Conduct section IV -1 -
which stcates in part Department employees shall not conduct theinselves in �i maiincr dic,it retlects
adversely on the Department, or which discredits tile Department, or is detrimental or damagincy
to the reputation or professional imiigye ofthc Department,
cmy of un Us ceispo
Police Mpanment
Violation of California Vehicle Code Section 10852. No person shall either individually or
in association with one or more other 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
Pursuant to Municipal Code Section 2.36.320, the City Manager has affirmed the imposition of
this discipline.
During your Skelly hearing on September I I th 2014 you chose not to refute the findings of the
Administrative Inquiry. You were represented by legal counsel who did not deny on your behalf
that you engaged M* the alleged conduct However your legal counsel argued that the weight of
your professional duties and circumstances of your personal life should be considered as
mitigating circumstances in determining the appropriate level of discipline. After significant
consideration regarding those facts and circumstances, I find that you engaged in the conduct
alleged, demonstrated a continuing pattern of dishonesty and lack of accountability for
misconduct during *Internal investigations of your alleged conduct, and that termination is the
appropriate discipline for the conduct.
Pursuant to Municipal Code Section 2.36.3401, Disciplinary action — Right of Appeal, you have
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the right to appeal this decision to a hearing oincer. You must file the appeal in writing with the
Director of Human Resources, Monica Irons, at 990 Palm Street, San Luis Obispo, CA 93401
within fifteen business days following the effective date of this notice, by close of business
October 23, 2014.
Warm R -a aipst retaliation: 'Phis provision is to notify you that it is illegal and inappropriate to
retaliate against any person who has provided information pursuant to the investigation
referenced in this Notice. You may not make any adverse comments to, or in any other manner
retaliate against, any individual who has provided information to the City of San Luis Obispo
regarding your conduct.
Stephen Gesell
Chief of Police
City of San Luis Obispo
Exhibit B
Wherefore, in light of the foregoing Report, I hereby make the following
Recommendation as to Finding of Fact and Conclusions of Law:
I
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 Scptcmber It, 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,
3. Appellant failed to be punctual when he reported for duty about 30 minutes late on
*ctober 19,, 2013:
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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.
S. 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.
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8. But the foregoing misconduct did not constitute wilfully tampering with or removing
part of a vehicle without the consent of the owner.
H
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MOM
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 -1: "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.
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M
7. But the charge against him in Count No. 4 is not substantiated by just and proper
M
8. Tennination 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
ArbsMise/SLO Waddell Report Recommendation by Cameron FINAL
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a
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I am employed in the County of San Luis Obispo, State of California. I am over the age
of 18, and not a party to the within action. My business address is 990 Palm Street, San Luis
Obispo, California 93401.
On July 21, 2016, 1 caused the foregoing document described as Decision and Final
Order to be served on the interested parties in this action by placing true copies thereof enclosed
in sealed envelopes, addressed as follows:
Kasey A. Castillo
3333 Concours Street
Bldg. 4 Ste. 4100
Ontario, CA 91764
Kevin Waddell
175 Walnut Street
Arroyo Grande, CA 93420
[X] By United States Mail: I enclosed the documents in a sealed envelope addressed as
indicated above. I am readily familiar with the office's practice of collection and
processing documents for mailing. It is deposited with the U.S. postal service on that
same day in the ordinary course of business. I am aware that on motion of the party
served, service is presumed invalid if the postal cancellation date or postage meter date is
more than one day after the date of deposit for mailing in affidavit.
By Personal Delivery: I personally delivered a true copy in a sealed envelope addressed
as indicated above.
[ ] By E-mail: I caused this document to be transmitted via e-mail to the e-mail address
listed above.
[ ] By Overnight Delivery.- I enclosed the documents in an envelope provided by an
overnight delivery carrier and addressed as indicated above. I placed the envelope for
collection and overnight delivery at an office of the overnight delivery carrier.
By Facsimile Transmission: I personally sent a true copy to the parties authorized to
accept service as set forth above at the fax numbers indicated above. The transmission
was reported as complete and without error, and a transmission verification report was
properly issued by the transmitting facsimile machine, stating the time and date of such
transmission.
I declare under penalty of pedury under the laws of the State of California that th4
foregoing is true and correct. Executed on July 21, 2016, at San Luis Obispo, California.
PROOF OF SERVICE
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