Many police departments throughout the state use outside investigators to conduct certain internal investigations. From time to time, the department retains outside personnel to handle sensitive issues, investigations involving high-ranking personnel, or on some occasions, the chief's "pet projects." Whatever the reason, the use of an outside investigator allows the employer to claim that the investigation was independent, neutral and without bias. Although the claim has surface appeal and often relieves public scrutiny, those involved in the process often know differently. The most compelling example involved Lieutenant Ken Harper of the Arcadia Police Department.

Lieutenant Harper had served the City of Arcadia faithfully for several years, rising up through the ranks. In 2005, Harper was on the verge of being promoted to lieutenant, when Chief of Police Bob Sanderson had some last minute concerns. At the time, Harper had been separated from his ex-wife who worked at the department as a records technician. Sanderson approached Harper and told him that he thought Harper deserved the promotion, but that he had heard some rumors about Harper having a dating relationship with another officer at the department. Although the department had no policies on such relationships, Sanderson thought it would be important to know. Harper indicated that the rumor was untrue, and he was then promoted.

In 2008, Harper became embroiled in a fierce custody battle with his ex-wife. In July, Harper was accosted by his ex-wife at work who was upset over the three-year old rumors that he had been involved in a dating relationship with someone else after their separation. Harper documented the incident and advised his captain of what had transpired. Harper informed his captain that his ex-wife's comments were inappropriate in the workplace and asked that she be counseled.

Although the incident was relatively insignificant, Sanderson set out on a mission to determine if Harper did in fact have a dating relationship with another officer. Apparently, Sanderson was concerned that Harper may have lied to him years earlier, and gave no consideration to the fact that he had no legitimate right to ask the question in the first place. The department had no policy on nepotism and there were no allegations of misconduct or that the rumors of Harper's dating relationship had any nexus to his employment in any way. Nonetheless, Sanderson commenced an investigation into Harper's private life.

Sanderson hired as his so-called independent investigator a well-known attorney, notorious for representing police chiefs in all sorts of matters. At Sanderson's direction, the attorney conducted a lengthy investigation aimed at finding out all about Harper's legal, off-duty relationships. Despite vehemently objecting and preserving his privacy rights, Harper was forced to answer questions under threat of insubordination. Harper revealed that he did not have a dating relationship with any officer, but that he did have one sexual encounter, again after his separation with his ex-wife. The encounter was off-duty and unrelated to his employment. At the conclusion of his investigation, the investigator recommended that Harper be terminated for lying to Sanderson years earlier when he said he hadn't been involved in a dating relationship with another officer. Sanderson agreed and imposed a termination.

Through PORAC's legal defense fund, Harper was provided representation in the administrative proceedings through the law offices of Lackie, Dammeier & McGill. In addition to appealing his termination, Lackie, Dammeier & McGill also filed a federal civil rights lawsuit challenging the department's invasion of his privacy by asking about his private relationships. Next, Harper filed a petition for writ of mandate alleging a violation of the 1-year statute of limitations contained in the Public Safety Officer's Procedural Bill of Rights Act. The argument there was that Sanderson had knowledge back in 2005 of any perceived misconduct and an attempt to discipline him years later would be time-barred.

Remarkably, the City defended the actions of Sanderson and the investigator. The City filed numerous motions and aggressively attempted to have the cases dismissed. Every attempt failed. However, nothing would be as shocking as what was discovered when it came time to depose the investigator. During the deposition it was revealed that the investigator had engaged in an intimate relationship with Harper's ex-wife-the key witness in the investigation and the complaining party against Harper. Thus, the investigator who concluded that Harper had lied and recommended he be terminated was dating Harper's ex-wife! As a result, Sanderson's so-called independent investigation went down the drain.

At that point, the City came to its senses and decided to make things right. Harper, who by that time had found a better job, did not desire to return to Arcadia. The City agreed to pay Harper a substantial sum of money to walk away from his employment, but only after agreeing to seal and later destroy any references to his illegal termination. Arcadia agreed to convert his termination into a retirement, and provide him with all the benefits of any other retiree including a CCW endorsement and lifetime medical. In all, the settlement will provide Harper with over two million dollars in compensation. Lieutenant Harper is happy that this ordeal has come to an end and is thankful to PORAC's LDF and Lackie, Dammeier & McGill for its support and aggressive representation.

ABOUT THE AUTHOR: Michael A. McGill is a partner with the law firm of Lackie, Dammeier & McGill and specializes in representing police officers and their associations in all labor and employment related litigation.