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Arbitration Award


 

City of Fort Worth

and

Individual Grievant

 

117 LA (BNA) 1621

AAA Case No. 71-390-00207-2

 

November 27, 2002

Donald P. Goodman, Arbitrator. 

 

The Issue 

 

Did the City have sufficient evidence to support the charges against the Grievant? If not, what is the appropriate remedy? If so, was the discipline imposed to the appropriate degree? 

 

Letter of Indefinite Suspension  

Dated February 5, 2002 

 

In accordance with the City of Fort Worth Firefighters' and Police Officers' Civil Service Rules 13.004 and Regulations, the Texas Local Government Code, and the authority contained therein to the head of the Police Department to effectuate disciplinary action, I have indefinitely suspended Officer L__ ID # 2549. This indefinite suspension is to take effect on February 05, 2002. The basis for this suspension is my conclusion that a violation of the City of Fort Worth Firefighter's and Police Officer's Civil Service Rules and Regulations has been committed, as contained in 13.004, which states in part: 

 

CAUSES FOR REMOVAL OR SUSPENSION 

 

13.004 

 

The tenure of every civil service employee shall only be during good behavior, and any such employee may be suspended or indefinitely suspended from the civil service for any actions or omission involving one or more of the following grounds: 

 

d. Neglect of duty; 

 

f. Acts showing a lack of good moral character; 

 

g. Ingesting intoxicants while on duty or intoxication while off duty; 

 

I. Violation of an applicable Fire or Police Department rule, directive, general or special order. 

 

The conduct Officer L__ engaged in that shows neglect of duty, acts showing a lack of good moral character, intoxication while off duty, and that violated an applicable Police Department rule, directive, or general or special order, is as follows: 

 

On September 2, 2001, at approximately 0130 hours, Officer L__, while off duty, was involved in an altercation with his brother, M__, in the parking lot of the Second Chances Bar, located at 3121 N. Main Street, Cleburne, Texas. During the altercation, Officer L__ committed Assault—Family Violence when he struck his brother in the face several times, including pressing his thumb into one of his brother's eye sockets. Officer L__ stopped the assault when his brother's wife kicked him in the head to stop the assault. Officer L__ was the aggressor in this incident and admitted to hitting his brother and causing the bodily injury to his brother during this continued assault. 

 

These actions constitute violations of the following: 

 

FORT WORTH POLICE DEPARTMENT GENERAL ORDERS/CODE OF CONDUCT 

 

702.00 CONDITIONS OF EMPLOYMENT 

 

C. All officers and employees shall comply with the Code of Conduct, special orders, directives, procedures of the department, orders and instructions of supervising officers, federal law, state law, and city ordinances. 

 

703.00 PROFESSIONAL CONDUCT 

 

C. No officer shall engage in any personal conduct which could result in justified unfavorable criticism of that officer or the department. 

 

TEXAS PENAL CODE/CHAPTER 22: ASSAULTIVE OFFENSES §22.01. Assault. 

 

(a) A person commits an offense if the person: 

 

(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse;

 

After the physical assault ended, M__ rose to his feet and ran inside of the bar. Officer L__ immediately followed, chased his brother into the bar while cursing in a public place, “I'm going to kick your ass!” and threatened further assault upon his brother. Patrons and employees at the bar had to physically restrain Officer L__ to prevent further violence. While being restrained, Officer L__ was told that the Cleburne Police had been notified, and was advised to leave the business. Officer L__ fled the establishment, accompanied by his girlfriend and another acquaintance, and drove his personal vehicle away from the scene. 

 

These actions constitute violations of the following: 

 

702.00 CONDITIONS OF EMPLOYMENT 

 

C. All officers and employees shall comply with the Code of Conduct, special orders, directives, procedures of the department, orders and instructions of supervising officers, federal law, state law, and city ordinances. 

 

E. Officers and employees, whether on-duty or off-duty, shall follow the rules, special orders, and directives of the Department regarding good conduct and behavior and shall not commit any act in an official or private capacity that would be an applicable violation of any department rule, special order, directive, procedure, or general order. 

 

703.00 PROFESSIONAL CONDUCT 

 

C. No officer shall engage in any personal conduct which could result in justified unfavorable criticism of that officer or the department. 

 

E. No officer shall ridicule, mock, deride, taunt, or belittle any person. Neither shall the officer knowingly embarrass, humiliate, or shame any person nor do anything that might incite such person to violence. 

 

TEXAS PENAL CODE/CHAPTER 22: ASSAULTIVE OFFENSES §22.01. Assault. 

 

(a) A person commits an offense if the person: 

 

(2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; 

 

While fleeing the scene in his vehicle, Officer L__ realized that he had not retrieved his personal property from the bar, and stopped at a nearby cemetery. Officer L__ sent his girlfriend back to the bar while he and the acquaintance hid behind a brick wall in the cemetery, out of view of police officers arriving at the scene of the assault. At the bar, the police confronted Officer L__ 's girlfriend, and she directed them to the cemetery where Officer L__ and the acquaintance were hiding. Officer L__ was placed under arrest and charged with criminal Assault-Bodily Injury of a Family Member by the Cleburne Police Department. 

 

Officer L__ admitted to Internal Affairs that during a period of some five hours immediately preceding the altercation with his brother he had consumed two mixed alcoholic beverages, three beers, an undetermined number of lemon flavored alcoholic beverages, and three Vicodin tablets (a prescribed controlled substance). Officer L__ also admitted driving his personal vehicle away from the scene of the bar to the cemetery, where he and the acquaintance attempted to avoid arrest and hid until located by the Cleburne Police officers, thereby hindering the criminal justice investigative process. Officer L__ was, therefore, intoxicated while off duty, including being intoxicated in a public place, as exhibited by his actions and presenting a danger to himself or others. 

 

These actions constitute violations of the following: 

 

FORT WORTH POLICE DEPARTMENT GENERAL ORDERS/CODE OF CONDUCT 

 

702.00 CONDITIONS OF EMPLOYMENT 

 

C. All officers and employees shall comply with the Code of Conduct, special orders, directives, procedures of the department, orders and instructions of supervising officers, federal law, state law, and city ordinances. 

 

703.00 PROFESSIONAL CONDUCT 

 

B. Neglect of duty on the part of any employee is cause for disciplinary action. The offender shall be disciplined according to the severity of the violation, the commensurate responsibility or accountability of their rank or position, the results brought about by the action or inaction, and the effect it has upon the discipline, good order, and best interest of the department. Neglect of duty includes, but is not limited to, the following: 

 

2. Failure to observe and give effect to the policies of the department. 

 

C. No officer shall engage in any personal conduct which could result in justified unfavorable criticism of that officer or the department. 

 

705.00 CIVIL, CRIMINAL, JUDICIAL, AND INVESTIGATIVE ACTIONS 

 

B. Officers shall not engage in any of the following conduct: 

 

5. Taking any other action which impedes the efficiency or integrity of the administration of criminal justice. 

 

TEXAS PENAL CODE/CHAPTER 49: INTOXICATION AND ALCOHOLIC BEVERAGE OFFENSES 

 

§49.02. Public intoxication.

 

(a) A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another. 

 

Officer L__ 's conduct demonstrates serious criminal misconduct and clearly shows a lack of good moral character. As an experienced Fort Worth Police officer, Officer L__ should have known his conduct was not only inappropriate, but also illegal. Officer L__ has violated the Law Enforcement Code of Ethics which states, in part, “I will keep my private life unsullied as an example to all; maintain courageous calm in the face of danger, scorn or ridicule; develop self-restraint; and be constantly mindful to the welfare of others. 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.” Officer L__ 's actions also brought justified unfavorable criticism on himself and the police department. 

 

Officer L__ was commissioned as a Fort Worth police officer March 6, 1992. His previous disciplinary history includes a 10-day suspension for Untruthfulness/Insubordination in May 1994, and a 3-day suspension for an off-duty Criminal Violation in January 1995. 

 

The facts as stated above convince me the above-cited sections of the Firefighters' and Police Officers'Civil Service Rules and Regulations of the City of Fort Worth, the Fort Worth Police Department General Orders/Code of Conduct, and statutes of the State of Texas Penal Code, were in fact violated by Officer L__. The facts and allegations that gave rise to this disciplinary action were discussed with Officer L__, at which time he was given the opportunity to respond to the allegations prior to making a final determination. 

 

Based upon Officer L__ 's violations of General Orders and the Code of Conduct, it is my belief he has failed to maintain the high standards expected of a Fort Worth police officer. Therefore, I indefinitely suspend Officer L__ ID 2549, such suspension is effective February 05, 2002 at 1700 hours. 

 

A copy of the order of suspension that informs Officer L__ of the appeal options available under Chapter 143 of the Texas Local Government Code is attached to this letter, and, by this reference, incorporated herein for all purposes. 

 

Summary of the Charges 

 

The Charges may be summarized as follows: 

 

·        Assault—Family Violence—striking and kicking his brother 

·        Chasing brother inside a bar and threatening further assault 

·        Cursing in a public place—neglect of duty 

·        Fleeing the scene of the assault 

·        Hiding from police after fleeing the scene 

·        Intoxicated while off duty in a public place 

 

City Position 

 

In his appeal the Grievant claims: 

 

·        The facts are not true as alleged. 

·        The charges in the letter of Indefinite Suspension are not legally sufficient 

·        Even if the facts alleged were true Indefinite Suspension is not appropriate. 

 

There is more than ample evidence and testimony that the facts are true as alleged. These facts are: 

 

1. That L__, while off duty, was involved in an altercation with his brother in the parking lot of the Second Chances Bar located at 3121 N. Main Street. 

 

2. That L__ struck his brother in the face several times and pressed his thumb into one of his brother's eye sockets. 

 

3. That L__ was the aggressor during the altercation. 

 

4. That L__ committed assault/family violence. 

 

5. That, after the physical assault ended, L__ chased his brother into the bar while cursing in a public place, saying “I'm going to kick you ass.” 

 

6. That L__ threatened further assault upon his brother. 

 

7. That L__ had to be physically restrained. 

 

8. That L__ fled the scene by driving his truck away from the Second Chances Bar after being notified that the police had been called. 

 

9. That L__ attempted to hide from police by hiding behind a brick wall in a cemetery. 

 

10. That L__ was intoxicated, including being intoxicated in a public place. 

 

Certainly there was an altercation between the Grievant and his brother, M__, at the Second Chance bar in Cleburne, Texas on the night of September 2, 2001. In the investigation and at the arbitration hearing the Grievant admitted he struck his brother several times in the face. Further, while at the Cleburne jail he made several telephone calls in which he stated he had kicked his brother's ass and beat the shit out of him 

 

During the altercation, the Grievant stuck his thumb and forefinger in his brother's eye. This is substantiated by the Grievant himself by his own words. Even though the Grievant testified at the arbitration hearing that he could not recall putting his fingers in M__ 's eyes his own words belie that. While in the Cleburne jail the Grievant was video taped. The video shows the Grievant stating that during the altercation “I don't know whether his eye came out or what”. In addition, A__ (wife of M__ ) testified that when she came upon the altercation she heard M__ yelling that L__ had his hand in his eyes. 

 

Three of the witnesses testified to the condition of M__ 's eye after the altercation. Gallop testified he saw blood pooling in both eyes, Price testified M__ was bleeding out of the corner of an eye, and Burris's police report indicated the eyes of M__ were red. Burris also stated the hospital informed him M__ had severe swelling to his face and a cornea abrasion. 

 

The Grievant claims his actions were defensive. That is not true. By his conduct the Grievant's actions were intentional and met the elements of assault contained in the Texas Penal Code. Even if M__ hit him first, the Grievant was only authorized to use that degree of force he reasonably believed necessary to protect himself. His conduct exceeded that degree. Who was the aggressor? Certainly it was the Grievant. The Grievant claims M__ hit him first. M__ on the other hand remembers being struck numerous times while the Grievant had him in a headlock M__ also recalls being pinned to the ground by the Grievant as he was struck in the eyes by the Grievant. These actions by the Grievant were not defensive. As a trained police officer the Grievant was aware of the defensive techniques to stop any threatened aggression. 

 

Had it not been that A__ kicked the Grievant it is highly likely that permanent injury would have resulted to M__. 

 

The testimony of others support the fact that the Grievant was the aggressor. After the physical altercation M__ ran into the bar, three witnesses stated the Grievant continued toward M__. Two of those witnesses stated the Grievant used obscenities including the Grievant was going to kick M__ 's ass. The Grievant had to be physically restrained. At the jail the Grievant stated “I beat the shit out of M__ ”. This confirms the Grievant was the aggressor. 

 

When M__ ran back into the bar after the physical altercation, witness Dixon advised the Grievant A__ was on the phone with the police and he should leave. When so informed that the police had been called the Grievant fled the scene accompanied by his girlfriend and another friend driving to a nearby cemetery. He states he did so to avoid further trouble with M__. Upon arrival at the cemetery, the Grievant got out of the car with his other friend and hid sending his girlfriend back to the bar to retrieve a cell phone he had left behind. The Grievant claims the reason he sent his girlfriend for the phone instead of going himself was to avoid further trouble with M__. That can not be true. The real reason is that he did not want to be contacted by the Cleburne police. 

 

When questioned upon her arrival back at the bar, the Grievant's girlfriend, when questioned, informed Cleburne police of the Grievant's whereabouts. The Grievant claims he was not hiding yet Sergeant Ashton of the Cleburne police stated he did immediately see the Grievant. He did see the Grievant's friend and heard a noise in some bushes. Ashton did not see the Grievant until after he had told the Grievant to come forward. Ashton stated at that time he detected a strong odor of alcohol and that he believed the Grievant was intoxicated. 

 

Witness Wray testified he believed the Grievant was intoxicated. He also testified he had observed the Grievant drinking “quite a bit” that night. The Grievant admitted he had two strong drinks and some of his girlfriend's alcoholic beverage. In one interview the Grievant admitted he had “maybe three beers”. 

 

In addition, the Grievant testified he had taken three Vicodin, two accidentally mistaking them for ibuprofen. He had been on Vicodin for some time and should know the difference between Vicodin and ibuprofen. He stated they were in the same container. Mixing the two in the same container is reckless. If the Vicodin caused him to be intoxicated that is the Grievant's own fault.

 

The observations of Ashton coupled with the testimony of other witness and the Grievant's own testimony on what alcohol he had consumed surely supports that the Grievant was intoxicated in public in the Second Chance bar as well as at the cemetery and the Cleburne jail. 

 

Certainly the charges are true as alleged. Since they are then it can not be concluded other than the actions of the Grievant violated the Texas Penal Code in that he was guilty of (1) assault by threat, (2) intoxicated in a public place, and (3) assault/bodily injury. He, too, engaged in conduct impeding the efficiency of the administration of criminal justice by fleeing the bar. The Grievant had to be physically restrained. By struggling with those who restrained hem he could have incited those and others to violence. 

 

He showed neglect of duty and criminal behavior. His conduct at the bar, at the cemetery and in the Cleburne jail subjected the Fort Worth Police Department to unfavorable criticism. 

 

The Grievant claims the charges against him are not legally sufficient. He raises no specifics in that regard but seems to imply the investigation was not conducted in an appropriate manner. He points to the fact that one audiotape made during the investigation was not included in the material provided to him. That tape was of an interview with A__ and does nothing more than support M__. Since he raised no specifics it can be concluded that the Grievant waived any claims of an improper or incomplete investigation. 

 

Certainly the charges are in compliance with the City of Fort Worth Firefighters and police Officers Civil Service Rules and Regulations and the Texas Local government Code. 

 

Based on the circumstances the Chief reasonably believed there was criminal misconduct by the Grievant's and that conduct showed a lack of good moral character and the Grievant failed to maintain the high standards expected of a Fort Worth police officer. The Grievant can not be trusted to exhibit calm with citizens at large if he can not do so to his own brother. 

 

The only reasonable conclusion reached by Chief Mendoza was that an indefinite suspension was the only alternative. 

 

The allegation that the Charges were not legally sufficient is without merit. 

 

Certainly the discipline imposed of an Indefinite Suspension was appropriate. 

 

The charges must be sustained and the Grievant's appeal denied. 

 

Grievant's Position 

 

The appeal of the indefinite suspension is based on three grounds any one of which, if sustained, is sufficient to cause the appeal to be granted. Those three are (1) the facts are not true as alleged, (2) the action recommended does not fit the alleged offense, and (3) the charges are not legally sufficient. 

 

Each of these will be addressed. 

 

The facts as alleged are not true. The Grievant is charged with Neglect of Duty described as acts showing a lack of good moral character, being intoxicated while off duty or ingesting intoxicants while on duty and violation of General Orders. 

 

The Letter of Indefinite Suspension states the Grievant was the aggressor in a fight with his brother, M__, and admitting to hitting his brother and causing bodily harm to his brother. There were no witnesses to the start of the altercation between the Grievant and M__. All the City presented to substantiate its version was the testimony of M__. The Grievant testified he did hit his brother but that it was in self defense to stop his brother's attack. 

 

The Letter also states the Grievant admitted he had consumed two mixed drinks, three beers and an undetermined number of lemon favored alcoholic beverages in addition to three Vicodin tablets. The City then concludes that he must have been intoxicated while off duty. The Grievant made no such admission. The Grievant's statements to Internal Affairs and his testimony at the hearing were that he had two mixed drinks, one to three beers and an occasional sip of his fiance's lemon favored drink. The testimony of Burris was that he conducted no field sobriety check nor did he administer a Breathalyzer. Both the Grievant and W__, the Grievant's fiance, testified that the Grievant was not intoxicated. 

 

The Grievant is also charged with resisting arrest by hiding at the cemetery. The Grievant, W__ and a friend did drive from the bar to a cemetery. W__ did drive back to the bar. She led officers of the Cleburne police department to the cemetery. The City says the Grievant was hiding in the cemetery and attempted to evade the officers and to avoid arrest. That simply is not true. He was at a wall at the cemetery. When the officers called him he readily presented himself to the officers and was cooperative. 

 

The City further states the Grievant failed to show good moral conduct and should have known his actions were inappropriate and illegal. It was not illegal for the Grievant to defend himself. It was not illegal to consume alcohol. Granted it would have been illegal for the Grievant to become or appear in public intoxicated but the City failed to prove he was intoxicated. It was not illegal for the Grievant to wait in the cemetery while W__ returned to the bar to retrieve a phone. 

 

The Grievant admits he was in a fight with his brother and telephoned his brother later the date of the incident expressing his regrets. Indefinite suspension is certainly not appropriate. This is especially so when one looks at the discipline imposed on others. There was disparate treatment. 

 

Officer B__ was charged with public intoxication and aggregated assault and received a 156 days suspension. Officer R__ was suspended for 30 days for inappropriate sexual conduct while on duty. Officers O__ and S__ were suspended for 30 days for DWI, discharge of a weapon, leaving the scene of an accident and destruction of property. Officer F__ received a 90 days suspension for obtaining a prescription by fraud and delivery of a controlled substance and for being untruthful. Officer H__ received a 264 days suspension for theft, tampering with a government record and abuse of official capacity. Officer P__ was suspended for 375 days for three separate instances of public intoxication and for assault. Officer N__ was suspended for 188 days for DWI and public intoxication in uniform. Officer Y__ received a 189 day suspension for public intoxication and possession of a controlled substance. Officer J__ received 123 day suspension for DWI, public intoxication and an accident in which his private vehicle struck a parked car. 

 

All these officers committed serious rule violations and criminal acts. Certainly the Grievant should not receive any discipline more harsh than these officers if he should any discipline at all. The Grievant was not convicted of any criminal act. 

 

Any discipline must be imposed only for just cause. Here the City has not met its burden to prove there was just cause to indefinitely suspend the Grievant. 

 

Certainly any investigation must be conducted fairly, completely, and objectively. Here it was not. Section 102.02 of the Department General Orders requires IAD to assure a complete and impartial investigation as does the Standard operating Procedures of IAD. The IAD SOP states a complainant shall fill out and swear to and sign a sworn affidavit detailing the complaint. The complainant here was M__. Sergeant O__ was the chief IAD investigator. He did not obtain an affidavit from M__. The SOP requires all interviews to be taped and transcribed. They were not. A crucial interview of A__ was not transcribed and placed in the investigative folder. That interview was crucial because in it she contradicted much of her previous testimony. On that tape she states L__ is a crooked officer and that M__ thinks all officers are crooked. She goes further and admits kicking L__ in the head and wishes she had kicked him in the face. She gives further statements about things she did not personally observe and makes inflammatory remarks about L__ and his father, E__. 

 

Sergeant O__ was tasked to gather the facts not to make his own judgements. By excluding the transcription of the A__ interview he deprived L__ of a fair, unbiased, complete investigation. Not only that but O__ violated General Orders and possibly Section 37.09 of The Texas Penal Code. 

 

Clearly the indefinite suspension should not be sustained. The Grievant should be reinstated with full back pay and benefits. If any discipline is appropriate at all it should be consistent with any charges or allegations, if any, of which the City did meets its burden of proof. 

 

Discussion 

 

In preparation for his defense of the Charges the Grievant requested certain documents be provided. Among those was a copy of the Memoranda the chain of command prepared and submitted to the Chief commenting on the charges and recommendations for discipline. 

 

The Memoranda were provided the Grievant with certain portions redacted.  

 

The Hearing Examiner ruled that the Grievant was entitled to all those documents the Chief relied on or reviewed in arriving at his decision to discipline the Grievant. 

 

The City claims the portions redacted were related to those charges which were not sustained. The City partially relies on Section 143.089(g) of the Texas Local Government Code to justify providing only a redacted copy of the Memoranda. 

 

Section 143.089(g) reads: 

 

(g) A fire or police department may maintain a personnel file on a fire fighter or police officer employed by the department for the department's use, but the department may not release any information contained in the department file to any agency or person requesting information relating to a fire fighter or police officer. The department shall refer to the director or the director's designee a person or agency that requests information that is maintained in the fire fighter's or police officer's personnel file. 

 

The Hearing Examiner ordered the City to provide him an un-redacted copy of the Memoranda to be examined en camera. The City did so. The Hearing Examiner then related to the Grievant those redacted portions he felt the Grievant was entitled to know. 

 

Section 143.089(g) does state that information in the officer's personnel file may not be released to any person or agency or person requesting the information. But Section 143.089(g) may not be read in isolation. We must then look at all of Section 143.089, particularly (e) and (f) which read: 

 

(e) The fire fighter or police officer is entitled, on request, to a copy of any letter, memorandum, or document placed in the person's personnel file. The municipality may charge the fire fighter or police officer a reasonable fee not to exceed actual cost for any copies provided under this subsection. 

 

(f) The director or the director's designee may not release any information contained in a fire fighter's or police officer's personnel file without first obtaining the person's written permission, unless the release of the information is required by law. 

 

Section 143.089(e) provides that the officer is entitled, on request, any matter in his personnel file. Here the officer made such a request. Section 143.089(f) states information may not be released without the officer's written permission. Here the officer gave that permission. 

 

If the officer is to prepare a defense of the charges against him he MUST be provided with all those documents, including audio or video materials, relied on or reviewed by the Department Head (Chief of Police) when that individual made the decision to discipline. The Chief reviewed the Memoranda, unredacted, provided by the chain of command. The Grievant is entitled to also have an unredacted copy. 

 

Too, by providing only a redacted copy a Grievant is then left with doubts as to whether some redacted information was favorable or some unsubstantiated allegations were reviewed by the chain of command. In other words how is an appellant to know how to prepare a defense if certain information is withheld from him in the form of what was redacted? 

 

The Grievant has asked the Hearing Examiner to take notice that he first joined the Department in 1988 as a civilian employee and that he was commissioned as a police officer in 1992. 

 

Further he notes that since 1992 he has received more than 60 commendations. 

 

The Hearing Examiner also notes that the Department performs Efficiency Ratings for police officers. Officers are rated either Exceeds Standards, Standard, Below Standard or Unsatisfactory. The last four ratings of the Grievant were introduced into evidence. On one of the four he was rated Standard. On the other three he was rated Exceeds Standard. 

 

There is no question but that the Grievant was in a fight with his brother in the parking lot of the Second Chance Bar. What caused the fight is not known to this Hearing Examiner. Also is not clear who started the fight. L__ claims his brother pushed, shoved or struck first. M__ claims the opposite. We do know that on the night before the incident L__ and M__ were at the same bar. On that earlier night neither W__ nor A__ were present. L__ and M__ engaged in what has been termed inappropriate conduct with others. A__ learned of that conduct. One can speculate that A__ confronted M__ on that conduct. One can also speculate that M__ blamed L__ for A__ finding out about the conduct and that is what caused the fight. But as I said that is speculation. 

 

One wonders about the motives of A__. She testified she did not like L__ or his father, E__. She stated M__ did not like crooked cops and that L__ was a crooked cop. She gave no evidence or testimony as to why she believed L__ to be crooked. It should be remember that E__ was a retired Fort Worth police officer. 

 

The motives of A__ are also called in to question by what Burris stated A__ told him when he arrived at the bar. She told Burris that L__ would return to the bar to attack W__ when in fact W__ was not at the bar at the time. She had voluntarily left with L__. The Arrest Report by Burris states that A__ told him W__ had two guns on him. The Arrest Report states that when L__ was arrested he was unarmed. One wonders why A__ told Burris L__ was armed when he was not. 

 

At least twice A__ stated she would have M__ lose his job. 

 

A__ and M__ gave several statements to IAD. When one reads those statements and compares them with their testimony at the arbitration hearing one finds inconsistencies and contradictions. 

 

There is an allegation that L__ deliberately attempted to gouge an eye of M__. The only proof of that is the testimony and statement of A__. In a statement to O__ she says “Yeah, by God he had his finger in his eye socket ready to rip it out”. That is the only proof of that allegation. I have commented on the motives of A__. A__, again in her statement to O__, claims kicking L__ in the head would not cause him to have a concussion but that he had a concussion when he hit his head on cement when he dropped M__ to the ground. She also testified that when she came upon the scene, M__ was on the ground with L__ on top of him. How could she determine L__ hit his head on cement? A__ further states the fight was started by L__. She states she wasn't there when the fight started. How does she know how it started? 

 

A__ and M__ both stated they were concerned for W__ as L__ had stated he was going to kill W__ and perhaps that started the fight. Several persons who were interviewed said that also but their knowledge of this was obtained from A__ and M__. 

 

This contrasts sharply with what W__ stated when she was interviewed by O__ on September 25, 2001. In that interview she stated she was not afraid of L__ and was not threatened by him and had she been she certainly would not have departed the bar with him. This impinges on the credibility of M__ and A__. 

 

All that has been determined for sure is that there was a fight. Who started the fight has not been determined. There were no witnesses who saw the beginning of the fight. L__ claims the fight was started by M__ and L__ was only defending himself. 

 

There was some indication that M__ got between L__ and W__ to keep L__ from attacking W__ and that is when the fight started. That is contradicted by W__. She stated she was not even present when the fight started but was rather in L__ 's truck with her friend I__. W__ stated she got out of the truck only after a bar security guard came and got her. She then helped L__ find his glasses and then she, L__ and I left the bar with L__ driving. 

 

L__ is accused of causing serious injury to M__. It should be remembered that M__ is taller than L__. It should also be remembered that M__ spent six years in the United States Marine Corp. We do know that at one time L__ had M__ on the ground. That is when A__ came upon the scene. A__, trained in marital arts, kicked L__ in the head while wearing boots. She later stated she wished she had kicked L__ in the face. 

 

M__ claims that when he saw that A__ was there he yelled at her to call 911. If that is true we do not know whether that was to summon police or for paramedics. We do know A__ did call 911 and both police and an ambulance arrived on the scene. 

 

After A__ kicked L__, M__ ran into the bar. When the police arrived A__ was still on the phone. Supposedly A__ was concerned of M__ 's injuries. If she was so concerned why was she still on the phone and not administering to M__ ? 

 

M__ refused treatment by paramedics at the scene. 

 

L__ 's testimony is that upon advice of an employee of the bar, he left the scene with his fiance, W__ and a female friend. After traveling a short distance L__ realized he did not have his cell phone. He stopped at a cemetery near a car dealership whereupon he and the friend exited his vehicle and sat next to a wall. W__ drove back to the bar alone to retrieve the phone. He elected not to return to the bar as he did not want to get into another altercation with his brother. 

 

Upon returning to the bar W__ found police had arrived. She cooperated with the police and advised them of L__ 's location and led them to that location. When the police arrived at the cemetery L__ claims he cooperated with the police at that and at all other times. L__ was arrested and taken to the Cleburne jail. 

 

M__ also went to the Cleburne jail with A__ and W__. There was testimony that photographs were taken at the jail of M__ 's injuries. If so, those photographs were not in the investigatory package nor produced as evidence. Photographs were produced supposedly taken later by A__. Those photographs are of little value. There was no proof as to when the photographs were taken. Injuries indicated on those photographs could have been taken of injuries suffered through other than the fight with L__. 

 

M__, again, was supposedly injured yet he refused treatment at the scene and did not seek treatment until after he saw that L__ had been taken to the Cleburne jail and later transported to the County jail. As L__ was leaving the Cleburne jail for the County jail M__ was outside the Cleburne jail laughing over L__ 's predicament. 

 

M__ left the Cleburne jail for a hospital and was to return to the Cleburne jail to give a statement. He did not do so. 

 

Much of the support for the charges is based on information obtained by O__ and Jones from IAD in interviews. The investigation by IAD was not pristine. That does make the investigation fatally flawed but it does raise questions. Some interviews were not taped. In one interview he informed A__ that he was taping the taping but did not. Some interviews were by phone. Apparently the identity of those on the phone was taken at face value. 

 

It is important to note that although several persons were interviewed none gave written statements except the Grievant. None of those interviewed were under oath. 

 

In the chain of command Sergeant D. W. Gill made certain conclusions of fact and made recommendations to Lieutenant S.B. Carpenter. Gill's information and conclusions were largely based on information provided by O__ and videotape taken of the Grievant at the Cleburne Jail. In his report Gill states M__ and A__ “have been less than cooperative”. I would draw the same conclusion. 

 

Gill also writes “Officer L__ drove his personal vehicle from the scene with W__ and I__ riding with him. At some point, Officer L__ realized that he had left his cell phone at the bar... He returned to the bar and went to his brother's pick-up. W__ and I__, who both admitted to being intoxicated, stayed in Officer L__ 's vehicle”. The fight then took place. That is not supported in any of the interviews or in testimony. The Grievant did not drive away from the bar until after the fight. The Grievant's vehicle did return to the bar but it was driven by W__ who was alone. 

 

Gill goes on to write “By all witness accounts, M__ struck Officer L__ only one time or not at all”. He writes that witnesses stated M__ simply kept his hands on the ground as the Grievant pummeled him. He also writes the Grievant attempted to force M__ 's eye. How does he know what the Grievant attempted or the intent of the Grievant? Who were those witnesses? No evidence or testimony available to the Hearing Examiner indicates there were any witnesses as to how the fight started. We do have a statement from A__ that when she arrived at the scene the Grievant was on top of M__. No one knows how many blows M__ struck, if any. No witness came forth stating he witnessed the beginning of the fight. All we have is what A__ observed. 

 

Gill states that between 2100 hours and 0100 hours the Grievant consumed three Vicodin tablets, two strong mixed drinks, an undetermined number of alcoholic lemon drinks at least three beers. We do not know how “strong” the mixed drinks were. The Grievant admits having one to three beers. He also admits to sipping the lemon favored drinks ordered by W__. Gill gathers then that the Grievant was intoxicated. He relies also on the findings of Ashton and Burris that the Grievant affects of alcohol. But certainly in the five hours between 2000 and 0100 some of the alcohol consumed would have been metabolized. 

 

The consumption of alcohol certainly reflects poor judgement on the part of the Grievant since he was due to report for duty at 0530. 

 

Gill also concludes that the Grievant “fled” the scene. The Grievant did drive away. There was no indication that he did so at a high rate of speed nor that he “peeled rubber”. If he fled to avoid an encounter with police that pre-disposes that he knew police were on the way. He did send W__ back to the bar driving his personal vehicle to retrieve his cell phone. Certainly he knew his vehicle and W__ would be recognized and that W__ had been seen leaving with him. 

 

It has been concluded that the Grievant was hiding at the cemetery. Why would he hide unless he knew police were searching for him? That had not been established. 

 

Gill also states that after M__ was freed he ran into the bar and that the Grievant chased him into the bar to further attack M__. That is not supported by the credible testimony or statements. The credible testimony is that after M__ ran back into the bar the Grievant and W__ spent some time searching for the Grievant's glasses. Neither M__, A__ nor W__ stated the Grievant was back inside the bar after the fight. 

 

Captain Cook, also in the chain of command, wrote Deputy Chief Kneblick making certain conclusions and recommendations. Captain Cook also relied on information provided by O__ and the video tape. He also referred to Sergeant Gill's findings, conclusions and recommendations. His findings are substantially the same as Sergeant Gill's. Thus I need not comment on them. 

 

The Grievant asserts that the charges are not legally sufficient. 

 

Section 143.052 of the Texas Local Government Code reads, in part: 

 

(e) The written statement filed by the department head with the commission must point out each civil service rule alleged to have been violated by the suspended fire fighter or police officer and must describe the alleged acts of the person that the department head contends are in violation of the civil service rules. It is not sufficient for the department head merely to refer to the provisions of the rules alleged to have been violated. 

 

The charges clearly state which City of Fort Worth Firefighters and Police Officers Civil Service Rules and regulations are alleged to have been violated. Too, the actions alleged to have been committed which violate those rules are contained in the charges in detail. 

 

Obviously the purpose of Section 143.052(e) is so that the charged officer may prepare an adequate defense. That here has been met. 

 

There appears to be some allegation that the investigation leading to those charges was not conducted adequately or completely. All identifiable witnesses were interviewed. The investigation followed the acceptable internal police department procedures and the conclusions and recommendations followed the established chain of command. I have previously commented on what I perceive were the deficiencies in the investigation. 

 

But those deficiencies are not of such a magnitude as to fatally flaw. 

 

It may be true that an audiotape of an interview with A__ was not provided to the Grievant prior to the hearing. That is not enough to fatally taint the investigation or to inhibit the Grievant from preparing for the arbitration. A copy of that tape was provided the Grievant during the hearing and sufficient time was allowed the Grievant during the hearing to listen to that tape. 

 

The allegation that the Charges were not legally sufficient is without merit. 

 

The Grievant also alleges the charges were not true. 

 

I will now comment on each of the charges. 

 

A. Assault—family violence—striking and kicking his brother. By his own admission the Grievant was in a fight with his brother. He admits on the video tape that he “beat the shit” out of his brother. The Grievant claims he struck his brother in self-defense. The City claims the Grievant was the aggressor. What we have is the Grievant claiming M__ was the aggressor and M__ claiming the opposite. There were no witnesses who came forth who saw the beginning of the fight. It is thus not possible to accurately determine the aggressor.

 

Even A__ in her interview with Investigator Jones said that when she arrived at the scene she heard the Grievant say “Are you going to stop? Are you going to stop? If you stop I will let you up.” That hardly supports a conclusion that the Grievant was the aggressor. 

 

Regardless of who started the fight the simple fact was there was an assault. 

 

Certainly, no one, including M__ who supports a claim that the Grievant kicked M__. A__ does admit she kicked the Grievant in the head. 

 

B. Cursing in a public place. The City claims the Grievant re-entered the bar after the fight cursing and attempting to renew the attack. I have previously commented that there is no convincing testimony or evidence that the Grievant re-entered the bar after the attack. The videotape shows the Grievant cursing at the Cleburne jail. The jail is a public place. 

 

C. Fleeing the scene of the assault. My earlier comments are appropriate here. Nothing convinces me he “fled”. 

 

D. Hiding from police after fleeing the scene. I have previously stated the claim of “hiding” is not convincingly supported. 

 

E. Intoxicated while off duty in a public place. By his own admission the Grievant stated that between 2000 and 0130 he consumed two mixed drinks, sipped some of W__ 's lemon flavored drinks, consumed one to three beers and took as many as three Vicodin. Officers Ashton and Burris smelled alcohol on the Grievant's breath. The video shows him swaggering and talking loudly. Although Cleburne police gave neither a field sobriety test nor a Breathalyzer that does not rule out intoxication. Perhaps a more definite finding would be possible had either of the tests been made. The Grievant was intoxicated. 

 

I have always found the Chief to be a highly honorable man who strives to do what his best for the public, the Department and his officers. Yet the Chief must rely on his subordinates to supply accurate, reliable and proven information. Here not all the information upon which the Chief relied to make his decision was supportable by the facts, as I have commented on above. 

 

The Chief testified that it was not any one single charge which led him to indefinitely suspend the Grievant but rather their totality. 

 

Although I have commented on these factors they must now be commented on again. The Chief stated he based his decision in part because after the fight the Grievant chased M__ back into the bar in an attempt to continue the assault. W__ testified that after M__ got up from the ground and ran into the bar she helped the Grievant find his glasses and then they left the scene. Neither M__ nor A__ stated the Grievant re-entered the bar. The only ones who stated the Grievant re-entered the bar were Thomas Wray and Tim Walker neither of whom signed any statement. 

 

Wray and Walker are the same two who stated W__ was afraid the Grievant was going to kill her. W__ denies she was afraid of the Grievant. She voluntarily left the scene with the Grievant. It is interesting that when O__ interviewed Wray on September 11, 2001 O__ begins with “We talked about an incident”. When did he previously talk to Wray? Was that conversation recorded? If so, where is the transcript of that conversation? There is no sworn statement by Wray. 

 

Apparently Walker was interviewed by telephone. Walker did not make a sworn statement. 

 

In O__ 's interview with Chris Gallop, Gallop stated the Grievant did not re-enter the bar. He, too, did not make a sworn statement. 

 

The Chief also testified that he read statements from witnesses he saw the assault. That information provided him was incorrect. The only one who testified they saw the assault was A__ who came upon the scene after M__ was on the ground. 

 

The Chief was also informed that the Grievant attempted to gouge the eyes out of M__. That was supported only by A__. M__ did have injury to the eyes but that does not support the allegation that the Grievant intended to “rip the eyeball out” nor that he had his finger in M__ 's eye socket. 

 

I need not here repeat my comments regarding the allegations that the Grievant “fled” the scene or was “hiding” from the police. 

 

·        The Grievant did neglect his duty by cursing in a public place, the Cleburne jail. 

 

Indefinite suspension is too harsh under the circumstances and considering the discipline imposed on other officers. 

 

The Grievant will be reinstated without undue delay. The period between February 5, 2002 and the date of reinstatement will be classed as a disciplinary suspension. 

 

Award 

 

The Charges are legally sufficient. 

 

There was no disparate treatment. 

 

Three of the charges are true as alleged. 

 

The Grievant neglected his duty. 

 

The Grievant was intoxicated. 

 

The Grievant was engaged in an assault. 

 

The indefinite suspension is too harsh. The Grievant will be reinstated without undue delay. The period between February 5, 2002 and the date of reinstatement will be classed as a disciplinary suspension.

 


 

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