Court Of Appeal Reinstates Ontario Officer

            David Mullican, a twenty year veteran of the Ontario Police Department was terminated by the City for allegedly making false statements to a supervisor.  The Superior Court, and now the Court of Appeal sided with Mullican in finding that the evidence used against him in his termination proceedings was obtained unlawfully by the Department and therefore could not be used against him.  In reaching this conclusion, the Court of Appeal addressed two areas of the Public Safety Officers Procedural Bill of Rights Act, which had never before been clarified by a State Appelate Court.  As a result of the Court’s ruling, Mullican was ordered reinstated with full back pay.  Mullican was represented throughout his process by Michael Lackie, Tony Snodgrass, and Michael Morguess, all with Lackie & Dammeier. 

            In the summer of 2000, Detective Mullican’s supervisor, Sergeant Mendez, began making inquiry as to Mullican’s investigation of an embezzlement case he thought was assigned to Detective Mullican.  Sergeant Mendez conducted a written interrogation of Detective Mullican by giving him a memorandum with numerous questions about the investigation.  Mullican requested to be able to consult with a representative prior to responding to the questions, however, Sergeant Mendez did not allow such representation and ordered a response by 5:00 p.m. the next day.  Mullican wrote in his response that a review of his files had no indication that he worked on the arrest in the case.  While he wrote this from memory, in reality, Mullican did in fact work on the case along with the hundreds of other cases he handled in the Detective Bureau.  

            On August 23, 2000, an hour before Mullican was due to arrive at work, Sergeant Mendez searched through Mullican’s desk.  In one of the drawers he found a case logs prepared by Mullican for 1999 cases.  On one of the pages Sergeant Mendez found an entry indicating that Mullican had been assigned the embezzlement in September of 1999.  Sergeant Mendez photocopied this page and returned it to Mullican’s desk drawer without his knowledge.  Rather than pointing out to Mullican that he had found documentation to indicate that Mullican had been assigned the case and attempt to refresh Mullican’s memory, the sergeant designed a trap to lure Mullican into what the Department claimed was untruthfulness.  Sergeant Mendez, again in writing and again without allowing representation, asked Mullican about his 1999 case log, to which Mullican indicated he no longer had.  Mullican was thereafter placed on administrative leave pending an internal investigation alleging untruthfulness to a supervisor and ultimately terminated for this allegation.

Search of the Desk

            The Court of Appeal, for the first time, addressed whether the Public Safety Officers Procedural Bill of Rights Act, specifically Government Code §3309 applied to a desk.  While most officers understand that there are certain procedural safeguards in place when searching a “locker” § 3309 also includes “other space for storage” assigned to an officer.  Lackie & Dammeier argued, and the Court of Appeal agreed, that a desk assigned to a detective certainly falls within “other space for storage” assigned to an officer.  Accordingly, the Court held that Mullican’s desk could not have been searched validly without his consent, a valid search warrant or in his presence.  In reaching this conclusion, the Court was shown legislative history illustrating that lockers were not the only area sought protected by the provision. 

Written Interrogation

            Another issue addressed for the first time by a State Appellate Court was the applicability of interrogation rights to questions put in writing.  The Court first reviewed §3303, which provides that any “interrogation . . . that could lead to punitive action,” must comply with the procedural safeguards of the Act.  These procedural safeguards include being informed of the nature of the investigation prior to any interrogation and being allowed a representative of your choice to represent you during such interrogation.  The Court found that when Sergeant Mendez was asking Mullican about the case log, already knowing what it said, (since he had already taken it from his desk) Sergeant Mendez was obviously focusing on Sergeant Mendez for potential punitive action.  The Court went out of its way to explain that even though the interrogation was in writing, that in no way should an officer’s rights be diminished.  To do so, would allow a department to circumvent the procedural safeguards of the Act simply by conducting interrogations in writing.

            After concluding that the Department violated Mullican’s rights as described above, it next decided the appropriate remedy.  Given that all of the evidence against Mullican was obtained by Sergeant Mendez’ violations of the Act, the Court concluded that it could not be used against Mullican.  Accordingly, there would be no evidence to uphold Mullican’s termination.  As such the City was ordered to reinstate Mullican with full back pay.  Detective Mullican was very grateful to his attorneys at Lackie & Dammeier as well as PORAC’s Legal Defense Fund who supported Mullican throughout his ordeal.