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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. Officer
Hernandez appealed his termination to the City of South Gate Civil Service
Commission, where he was represented by LDF Panel attorney Saku E. Ethir
of Lackie & Dammeier LLP.
The aforementioned allegations stemmed from an incident that
occurred on May 30, 2003. Officer 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. Hernandez was forced to drive slowly and attempted to manuever
his police vehicle between two vehicles. Hernandez testified that he was
aware it was a tight squeeze, but believed he had successfully cleared
both vehicles. Hernandez further 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.
Ethir 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 cause by the contact between the
vehicles.
The Department’s counsel, Ed Zappia, and the Department, 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. Ethir 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. Ethir 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 Chief 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 eleven 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 in an attempt to save face and in a
blatant refusal to accept the Commission’s unanimous decision, elected to
utilize an option afforded to him under the City Rules and Regulations.
Chief Todd appealed the Commission decision to the City Council,
requesting that they review the Commission’s 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, Ethir and Zappia 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 Chief 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 time and process.
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