TERMINATED
SOUTH GATE POLICE OFFICER REINSTATED
By
Saku E. Ethir
Lackie & Dammeier LLP
South
Gate police officer Troy Hernandez, an officer with no prior discipline,
was terminated from the South Gate Police Department for seven
allegations, which included dishonesty, failure to properly report a
traffic accident, and conduct unbecoming a police officer.
Hernandez appealed his termination to the city of South Gate
Civil Service Commission, where he was represented by this author, LDF
panel attorney Saku E. Ethir of Lackie & Dammeier LLP.
The
aforementioned allegations stemmed from an incident that occurred on May
30, 2003. Hernandez was
on-duty and responding to a call for assistance, authorized Code-3.
Evidence presented at hearing proved that there was a failure by
numerous vehicles to yield to Hernandez.
He was forced to drive slowly and attempted to maneuver his
police vehicle between two vehicles. His testimony showed that he was aware it was a tight
squeeze, but believed he had successfully cleared both vehicles.
Hernandez also testified that he never heard any contact between
his vehicle and any other vehicle, nor did he feel any unusual movement
of his vehicle consistent with a traffic collision.
A witness who observed the incident testified that he saw a
slight movement of the other vehicle involved, but saw no movement by
Hernandez’ police vehicle consistent with a traffic collision.
That witness further described the contact between the two
vehicles as a slight rubbing.
The
following day, the driver of the other vehicle involved reported a
vehicle accident to the police department.
An investigation into the matter was initiated.
The police vehicle Hernandez was driving was inspected and
numerous witnesses interviewed, including Hernandez.
Upon inspection of the police vehicle, the department observed a
slight rubber transfer mark along the lower portion of the driver side
door. I introduced
testimony at hearing however, that such rubber transfer marks are common
on police vehicles at the department.
When questioned about the incident by his supervisors, Hernandez
admitted that he had a close call while maneuvering his police vehicle,
but stated that he believed he had cleared the vehicle.
Hernandez also stated that he, at the time of the incident, and
during the remainder of his shift, did not notice the rubber transfer
allegedly caused by the contact between the vehicles.
The
department’s counsel took the position that based on the minor damage
to the police unit, and Hernandez’ own actions, Hernandez had to have
known that he had been involved in a traffic accident.
They further took the position that he subsequently failed to
properly report it, and when questioned about the accident, provided
false statements to his supervisors about his knowledge of it.
During the hearing, the commission inspected the police vehicle,
which had not been repaired since the incident, and noted only a small
scratch on the vehicle. I
argued at hearing, and the commission noted in its findings, that the
rubber transfer, that was no longer apparent on the police vehicle,
would not have been evident to Hernandez from a standing position.
I further argued, and the commission agreed, that Hernandez’
actions following the incident did not demonstrate a knowledge on his
part that he had been involved in a collision.
The
department had such limited faith in their case that they paid two
“expert” witnesses (retired Irvine Police Department Commander
Blaylock, and retired Orange County District Attorney Capizzi), to
testify at hearing that Chief Robert Todd’s administration conducted a
good investigation, and that Todd arrived at the appropriate decision,
the appearance being that the department was not confident in its own
findings. The commission
gave no weight to this expert testimony.
After
three days of hearing, testimony from 11 witnesses, and the introduction
of numerous exhibits, both parties submitted the matter for decision on
January 13, 2004. On
January 27, 2004, the Civil Service Commission issued their unanimous
5-to-0 decision, not sustaining all of the allegations against
Hernandez, reversing the discipline of termination, and ordered
Hernandez reinstated with back pay for the period since his termination.
Chief Todd elected to utilize an option afforded to him under the
city rules and regulations. He
appealed the commission’s decision to the city council, requesting
that they review the decision. Pursuant
to said rules and city ordinance, whether or not to review the
commission’s decision was solely up to the discretion of the city
council. On February 10,
2004, counsel made oral arguments to the city council as to why review
of the commission’s decision should or should not occur.
City council, in a 4-to-0 decision, voted to reject Todd’s
request for review, thus upholding the decision by the commission.
Hernandez
has been reinstated as a police officer with the city of South Gate and
will be provided back pay for the period since his termination.
Hernandez is very thankful to his attorneys at Lackie &
Dammeier, the Legal Defense Fund, and the executive board of the South
Gate Police Officers’ Association, who all stood with him and
supported him throughout this very difficult process.
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