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Newsletters
Justice Delayed is
Justice Served
by Michael D. Lackie
PORAC Panel Attorney
Garden Grove Police Officer Patrick Ryan's fight to overturn his termination became one of the most unusual and lengthy administrative appeals in recent history. Mr. Ryan, a Master Officer in this Orange County Police Department, survived two police chiefs, two hearing officers, two administrative appeal hearings and nearly four years of battle with Garden Grove to eventually win back his job. The road was long and arduous but Officer Ryan prevailed in the end.
Officer's Ryan journey began in November 1996 when he observed another officer (who is no longer with the department) threaten an arrestee in an inappropriate manner. As a Master Officer and nine year department veteran, Officer Ryan admonished the officer that his actions were misconduct under department rules and could be viewed as criminal conduct.
At the time of this incident, it was very common for senior officers to verbally counsel other officers and to take remedial action, such as training, to insure that future conduct conform with department rules. In 1996, it was also prevalent for officers in Garden Grove (as well as many other police departments in this country) to use peer pressure as a behavior modification tool rather than reporting every incident of potential misconduct to management. It is unlikely Ryan would have survived the peer pressure had he reported his fellow officer rather than handle it in the manner that he did.
Officer Ryan, like most every officer who works hard, had a supervisor who did not like him. Ryan knew that this sergeant would have a field day with any bad news regarding Ryan, including his failure to report another officer's misconduct.
As it turned out, the officer whose misconduct started this saga was involved four months later in another arrest that was marginal at best. Word soon leaked out that Ryan was present during the earlier incident. Of course, Ryan's "favorite sergeant" was initially assigned to investigate, even though the sergeant was not Ryan's supervisor. Ducking for cover, Ryan told his immediate supervisor of the November 1996 incident and prepared a memorandum outlining the other officer's actions and what Ryan did in response.
Ryan's discussion of the incident with his immediate supervisor and writing a memo upset the investigating sergeant because he thought he told Ryan not to discuss it with anyone else and viewed it as an act of defiance. On March 28, 1997, the investigating sergeant called Ryan into his office and began yelling at him. Finger-pointing and harsh words were exchanged. The arrival of another sergeant calmed things down. However, Ryan chose to file an internal complaint against the investigating sergeant for his conduct while attempting to question Ryan. Ryan thought his rights had been violated (which they had) and believed the investigating sergeant was on a vendetta against Ryan. Approximately three months later Ryan discovered that the internal affairs division gave the investigating sergeant a copy of Ryan's internal complaint without having given Ryan a copy of the sergeant's response. Ryan has then accused of finding his complaint memo in the investigating sergeant's briefcase, claiming that Ryan searched the sergeant's briefcase without his permission.
Eventually Ryan was interviewed by internal affairs concerning the November 1996 arrest, the memo to and conversation with his immediate supervisor, his confrontation with the investigating sergeant and the alleged search of that sergeant's briefcase. In August 1997, Ryan was charged with failing to report the November 1996 misconduct of another officer. That allegation alone would have made sense because Ryan probably should have at least mentioned the incident to his supervisor. However, the Garden Grove Police Department, under then-Chief Stan Knee, charged Ryan with a multitude of transgressions relating to Ryan's interaction with the investigating sergeant (the sergeant who hates him). Ryan was accused of insubordination for disobeying that sergeant's order not to discuss the case with anyone because Ryan informed his immediate supervisor of the investigation and wrote a memo concerning the November 1996 arrest. He was also charged with rude and discourteous treatment of a superior officer on the basis that it was Ryan's fault that the sergeant engaged Ryan in a heated discussion and interrogation. Ryan was also charged with violating the Constitution because he conducted an "illegal search and seizure" of the investigating sergeant's briefcase. The Department concluded this was an invasion of that sergeant's privacy because Ryan did not have permission to be in the briefcase. Lastly, the Department charged Ryan with dishonesty because the investigating sergeant and internal affairs chose not to agree with Ryan's version of the foregoing events. Ryan's discipline was termination.
In Garden Grove, disciplinary appeal hearings are heard by a professional arbitrator whose decision is final except as to procedural errors which are reviewed and decided by the City Council and the City Manager. A hearing before long-time arbitrator Leo Weiss began on February 25, 1998 and concluded on the fourth day of hearing on September 11, 1998. Although continuances were granted because of witness unavailability, illness of participants, and an attempt at mediation, the primary reason for taking so long was the illness of Mr. Weiss. That illness prevented him from preparing his decision, which was due December 1998. Mr. Weiss passed away before he could write his decision.
Although Mr. Weiss' passing was sad and unfortunate, it left Officer Ryan in the position of choosing between submitting the transcripts from the hearing to a new arbitrator for review and decision, or starting a new hearing from the beginning with a new hearing officer. The City's attorneys, naturally, wanted to submit the case to a new hearing officer who would make his decision based on the transcripts without further testimony and evidence. However, those transcripts revealed that Mr. Weiss was in ill health and having a difficult time in conducting the proceedings. In addition, many significant events had occurred which could change the course of the hearing. Chief Knee retired and Ryan's nemesis, the investigating sergeant, also retired.
Under the circumstances, Officer Ryan chose to begin another hearing. An experienced Arbitrator was selected by the parties and the hearing went forward in September 1999, lasting three days. Understandably, Chief Knee and the retired sergeant did not want to attend the hearing - and they did not show up. The City attempted to introduce the transcripts of the sergeant's prior testimony. We persuasively argued against the use of any transcripts from the prior hearing unless the City could prove its missing witnesses were truly unavailable. Not being able to prove that mere retirement makes one unavailable, the transcripts were not admitted.
During the hearing the City argued that Ryan had a mandatory obligation to report any and all misconduct of other officers, especially the misconduct he witnessed in November 1996 which, in fact, resulted in that other officer's departure from law enforcement. However, the City went beyond the norm and argued that Officer Ryan should not be a peace officer anymore anywhere merely because he waited four months to make his report.
The City tried to convince the hearing officer that Ryan should not have discussed the incident with his immediate supervisor and should not have written a memo detailing what he observed during the arrest in November 1996, even though his supervisor had a right to know and such information was going to be elicited from Ryan during the later internal affairs investigation. Oddly, the department was effectively claiming that Ryan told someone what happened too soon. Of course, a lot of management's problem was that they did not like Ryan's version of the November 1996 arrest and were annoyed that he told someone outside of internal affairs the truth of what happened before the department could assemble a case establishing its contrary version of the events. The department also considered Ryan's actions in speaking with his supervisor and writing the memo a form of insubordination because the investigating sergeant allegedly told him not to speak to anyone about the investigation. The department was unable to establish that such an order was given nor could they convince the hearing officer that Ryan's actions in this regard were inappropriate.
The department then moved to attack Ryan over his encounters with the investigating sergeant. The department claimed that Ryan was rude and insubordinate to that sergeant for refusing to answer questions until he was advised of his POBR rights. Even though the investigating sergeant started the argument and was yelling at Officer Ryan, the department believed Officer Ryan's duty was to sit still and take it, and answer questions even though his rights were being violated. Ryan was never informed that he was being interrogated and the sergeant refused to acknowledge that AB301 applied.
We argued on behalf of Officer Ryan that the incident was caused by a supervisor with a well-known dislike and disregard of Officer Ryan; he was someone who should never have been assigned to interview Officer Ryan under any circumstances. Moreover, the sergeant chose to violate Officer Ryan's POBR rights, doing so in a loud and arrogant tone of voice and while angrily pointing his finger in Ryan's face. Any rudeness on Ryan's part had to be excused and the entire issue dismissed because of the rights violations.
The hearing officer agreed. He called the City's evidence concerning the order not to speak to others purely speculative. The hearing officer concluded that the testimony of Ryan and the City's witnesses were consistent with Ryan's description of the sergeant's conduct during the meeting. Given the sergeant's aggressive and provocative conduct towards Ryan, his response was neither disrespectful nor discourteous. The hearing officer wrote "indeed, it was arguably restrained in view of the circumstances." The hearing officer concluded that "peace officers have a statutory right to be advised if they are being investigated." The hearing officer dismissed the allegations of insubordination and rudeness.
The Department then attempted to prove that Ryan unlawfully entered the sergeant's briefcase to search it for evidence against the investigating sergeant. The Department put on a number of witnesses claiming to have heard Ryan say that he searched the sergeant's briefcase. The Department alleged numerous constitutional and statutory violations in this regard.
Officer Ryan countered that he opened the unidentified briefcase laying in the middle of the sergeant's office to determine its owner. Finding his own confidential internal affairs memo in that sergeant's briefcase would cause anyone to pause for a moment. Ryan immediately reported to neutral witnesses what he had observed and tried to bring the issue to the forefront. Instead, the department turned the tables and accused him of an illegal search and seizure rather than admitting that the sergeant had no business possessing a copy of Ryan's memo. The hearing officer found no evidence of wrongful motive by Ryan opening an unidentified briefcase and finding this memo. His prompt reporting of this breach of internal affairs rules was justified. This allegation was dismissed.
The department charged Ryan with dishonesty because he allegedly lied to internal affairs investigators when questioned about all of the events which subsequently lead to his termination. Essentially, the department simply did not like Ryan's story and, because it did not line up with its version of the events, he had to be dishonest.
Again, the hearing officer found no credible evidence in the record that Ryan was intentionally dishonest in any of the circumstances cited by the City. Instead, the hearing officer concluded that Ryan "truthfully and accurately explained the situation as he understood it" to his immediate supervisor as well as the internal affairs investigators.
The hearing officer ultimately concluded that the City was unable to prove its case except as to Ryan's failure to promptly report the serious misconduct of another officer. Under the totality of the circumstances, the hearing officer concluded that a 30-day suspension was warranted. The hearing officer's decision and award, which included reinstatement as a Master Officer and payment of all back wages and benefits less the 30-day suspension, was made December 31, 1999. Officer Ryan had a wonderful New Years present.
Normally stories such as these would end here with the usual celebration. However, the City of Garden Grove wasn't through. Although Ryan was reinstated as a Master Officer (a promoted position) and reassigned to patrol on January 29, 2000, the City chose not to pay Officer Ryan nearly 24 months of back wages and benefits. Instead, the City wanted to blame Ryan and his attorneys for the two and half year "delay" in bringing his case to a decision. Essentially the City wanted to make Ryan pay for the first hearing officer's illness and death, Ryan's own brief illness which caused the continuance of one day of hearing, his refusal to submit the uncompleted first hearing to another arbitrator for decision, and for generally taking too long to get things going. Of course, the City had no law to back its play and, instead, argued that it was "unfair" to charge the City with payment of back wages when the termination could have been resolved years ago.
Finally, the City believed that Mr. Ryan had an affirmative duty to find work flipping hamburgers or as a private investigator to earn wages so that the City could take credit for that income against the back wage order.
A hearing was set before the hearing officer to resolve the back pay issues raised by the City. We argued that Mr. Ryan was trained and skilled in being a peace officer, and nothing else. The reason he could not find alternative employment was because the City had terminated him. Since he had no reportable income and could find no employment as a peace officer, the City could not reduce the back wage award on the "mitigation of damages" theory.
We also argued that Mr. Weiss' illness and the other reasons for the continuances during the first hearing were not Mr. Ryan's fault. The delay was of no harm to the City since the hearing officer concluded the City had no right to terminate Ryan in the first place.
Moreover, the City cannot hold Mr. Ryan hostage because he and his attorneys decided that they wanted a new hearing. The death of Mr. Weiss, as unfortunate as it was, made all dates of hearing to that point meaningless. Mr. Ryan had a right to have a decision by a hearing officer who observed and listened to the witnesses, and would make credibility determinations. As it turned out, Mr. Ryan made the correct decision in going to another hearing officer since that hearing officer's decision was based in large part on the credibility of Mr. Ryan and his witnesses. In any event, there is no legal precedent suggesting that the length of time between the first and second hearings has to be shared as a reduction in back wages by the officer and department.
The hearing officer agreed. After several hours of discussion, an agreement was reached between the City and Ryan providing for immediate payment of back wages and benefits.
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