MURRIETA SERGEANT GETS
STRIPES AND 30 SUSPENSION DAYS BACK
Sergeant Scott Attebery
was recently reinstated to his position as a police sergeant and
received back pay and payment for 30-days suspension (over $20,000, plus
interest), after being cleared of the biased, and unsupported charges
made by the Murrieta Police department.
Attebery (a two time
recipient of the distinguished service award for his projects and DARE
fundraising and coordination) had been demoted and given a 30-day
suspension. Attebery was accused of allowing and encouraging personnel
to watch video movies during working hours, abandoning his post on
multiple occasions and going home for hours at a time (despite previous
warnings). He was also accused of being untruthful during the internal
affairs interview about conversations with ranking members of the
department and about allegations of sleeping on duty.
Attebery requested a Skelly
hearing, and despite the fact that the Skelly package showed that
there was no evidence that Attebery had ever slept on duty, the same
charges were used to support the imposed demotion and suspension.
Attebery maintained that the watching of videos was a department
practice on slow nights during the holidays, and were only watched when
the officers were taking code 7, writing reports or performing other
desk duties. Attebery also maintained that the time spent at home was
spent working on his home computer on department projects.
Attebery appealed and
received an administrative hearing on the suspension and demotion. At
the beginning of the hearing, panel attorney Sylvia Kellison, of
Kellison & Vasquez, LLP, issued a subpoena duces tecum requesting
documents relating to Attebery, including e-mail, computer directories
at the department and memos and computer directories from the home
computer of a police official who had allegedly given an order to
Attebery to not work at home.
These records allowed
Attebery to establish not only that the official had been maintaining
secret personnel files on Attebery in violation of Government Code
section 3305, but had backdated the very documents which the department
intended to use to establish that an order was given. A calendar of the
communications and actions taken by the official not only caused the
official’s credibility to be called into serious question, but also
established a pattern of reprisal against Attebery for exercise of his
protected rights. Using these records in cross-examination, the official
reluctantly admitted to the backdating of at least three official
documents (including his notes to the file of that meeting) and to
personally maintaining a 111-page secret personnel file on Attebery. The
secret file also established that all of the other sergeants allowed the
watching of movies on their shift.
In addition to the movie
issue, the issue of working at home was the subject of significant
testimony. Attebery maintained that the hours he was at home while
on-duty were spent working on the DARE golf tournament, and on projects
for the chief’s secretary and dispatch supervisor. He asserted that
the chief knew that he was doing that work, and that he made it no
secret that he was doing it on his home computer. Attebery also pointed
out that the department computer was constantly down, that it regularly
destroyed documents, it could not do mailing labels, newsletters, scan
or do complicated printing jobs and that it had no access to the
internet, where items for the DARE silent auction were purchased. The
former chief of police admitted that he allowed Attebery to conduct
business at his home (less than a mile from the station) because
Attebery had a computer system which could run more sophisticated
programs than the department’s system. The chief’s secretary,
dispatch supervisor and other employees testified that Attebery brought
hundreds of documents (prepared on his computer) into the station for
mailing or use, and the department newsletter and State of the
Department reports were prepared on Attebery’s computer. In fact, over
400 mailers and a number of sports memorabilia for the silent auction
were turned over to the investigator on the day of Attebery’s
interview. Finally, a leading citizen testified to the efforts that
Attebery put into the DARE golf tournament including the large number of
uncompensated hours spent in bringing in over $50,000 per year for the
DARE program.
Attebery also was accused
of making false statements in his internal affairs interview, and about
allegedly sleeping in the station. The department presented no evidence
that Attebery ever slept in the station, and the former chief admitted
that he never gave Attebery an order not to work at home. A further
issue was the form of the question raised by the interrogator. The
hearing officer found that Attebery’s answer to the actual question
asked was not untruthful because the question was vague and subject to
significant interpretation. In addition to the question, the issue of
the unlawfulness of the interrogation was raised both at the
interrogation and at the hearing. Attorney Kellison asserted that the
interrogator could not conduct the interrogation because he was not a
member of the employing public safety department as required by Calif.
Government Code section 3303 (he was a contract investigator) and also
that his conduct of the investigation was improper because he committed
a criminal act by conducting the investigation when he was not licensed
as a private investigator.
The hearing officer found
that Attebery had not made a false statement, had not disobeyed a direct
order, and that while he did allow officers to watch videos while
on-duty, no discipline was appropriate because all of the other
sergeants also allowed such a practice and received no discipline. The
hearing officer recommended that Attebery be reinstated to sergeant,
with full back pay and benefits, and receive back his 30-day suspension.
The city manager (after violating the MOU by giving the department an
opportunity to file exceptions to the hearing officer report and
extending the time to decide) upheld the hearing officer’s decision.
He also unilaterally and immediately retired Attebery on a work related
disability (at the sergeant rank).
Attebery is now in the
process of using the documents gained by the subpoena, the hearing
officer’s decision, and the testimony to sue the city for violation of
his civil rights under color of authority, for actions including the
forgery, antedated documents, numerous violations of AB301, and for the
early retirement.
LDF Home Page | News
Article Index
