We’re Still Being Stonewalled on Police Misconduct

If you recall, I’m suing Fullerton because they suck at following the law when it comes to turning over records – especially related to police or employee misconduct.

By way of example as it is also a part of my case, let us focus on the case that brought me to this blog – FPD giving then City Manager Joe Felz a ride home after he drunkenly hit a tree on election night in 2016.

At that time the City wasn’t legally required to tell us anything because the public had no right to know when the people we pay break the law and the cops cover it up. This blog doggedly pursued the story and forced the city to do an investigation. That’s right, we forced their hands.

That investigation led to the termination of one Sergeant Rodger Corbett for falsifying a police report. Instead of Corbett doing his job, Joe Felz was given a ride home because despite FPD celebrating and getting awards for all of the drunks they pull over in Fullerton, hypocrisy and special favors was the order of the day when the law pertained for Fitzgerald friend Felz.

Skip ahead and in 2019 the law changed when SB1421 went into effect. That law change required police to turn over files on various issues including “sustained findings” of dishonesty which includes falsifying reports. As such I requested the pertinent files in the Felz caper on 01 January 2019 and here we are two weeks away from the 2 year anniversary of that request with no records to show for it.

I sued the city in Oct 2019. It’s now mid-December 2020. So much for transparency.

Allow me to walk you through the current legal argument of Jones & Mayer flak Kim Barlow on why the City refuses to turn over police misconduct files regarding the Joe Felz drunk driving case.

It’s convoluted so bear with me. SB1421 requires disclosure of:

(C)  Any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency of dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation, or prosecution of a crime, or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including, but not limited to, any sustained finding of perjury, false statements, filing false reports, destruction, falsifying, or concealing of evidence.

The law further defines it down:

(b) “Sustained” means a final determination by an investigating agency, commission, board, hearing officer, or arbitrator, as applicable, following an investigation and opportunity for an administrative appeal pursuant to Sections 3304 and 3304.5 of the Government Code, that the actions of the peace officer or custodial officer were found to violate law or department policy.

We’ve established on this blog that Sgt. Corbett was charged with falsifying a report and [HERE] is the City’s own press release on the topic from 2018:

“On September 4, 2018, the Orange County District Attorney’s Office announced the filing of felony charges against Jeff Corbett, a former sergeant with the Fullerton Police Department. The felony charge is for filing a false police report regarding an incident on November 9, 2016, in which former City Manager, Joe Felz, was involved in a non-injury, single vehicle traffic collision.”

So what’s the city’s argument?

They’re claiming that Sgt. Corbett hasn’t gotten his “opportunity for an administrative appeal” and they’re relying on the current criminal charges against Corbett for this determination.

The question is simple; did Corbett have an “opportunity for an administrative appeal” or not? The answer is yes but it takes a second to get there.

First we need to define an Administrative Appeal and for that we’ll turn to CA Gov code 3304.5:

3304.5  An administrative appeal instituted by a public safety officer under this chapter shall be conducted in conformance with rules and procedures adopted by the local public agency.

That gets us nowhere as it just points to the local agency which leads us to the Fullerton Police Department Policy Manual:

1009.13 POST-DISCIPLINE APPEAL RIGHTS

Non-probationary employees have the right to appeal a suspension without pay, punitive transfer, demotion, reduction in pay or step, or termination from employment. The employee has the right to appeal using the procedures established by any collective bargaining agreement, Memorandum of Understanding and/or personnel rules.

 

In the event of punitive action against an employee covered by the POBR, the appeal process shall be in compliance with Government Code § 3304 and Government Code § 3304.5.

The second paragraph is circular because 3304.5 brings us back here. However, 3304 states:

(2) (A) If the act, omission, or other allegation of misconduct is also the subject of a criminal investigation or criminal prosecution, the time during which the criminal investigation or criminal prosecution is pending shall toll the one-year time period.

That is the essence of Barlow’s argument. The problem here is the phrase “toll the one-year time period”. To toll a time period is to set it aside. In this case, 3304(2)(A) is referring to the one year time period required in which to impose discipline.

If a cop screws up the department has a statute of limitations of one year to discipline said officer unless it is also a criminal complaint and then that one year timeline is “tolled”.

That doesn’t apply to Corbett because that press release I mentioned above shows that discipline was administered in March of 2018 and the prosecution started in September of 2018. They didn’t toll the timeline because they administered the discipline and charged him later. 3304’s provision on tolling then doesn’t apply.

Which takes us back to the FPD Policy Manual and the line:

“The employee has the right to appeal using the procedures established by any collective bargaining agreement, Memorandum of Understanding and/or personnel rules.”

This is where it got truly annoying because contracts are messy. In 2020 the City Council signed a “side letter of agreement” with the Fullerton PD Safety Unit which is basically an extension to their “Memorandum of Understanding” from a previous year which itself is a side letter to a previous year and so on and forth going back to 2011’s Resolution #2011-54.

That resolution outlines the Discipline process for the Safety Unit on page #45:

(F)(1) When an employee seeks to appeal disciplinary action, ( following the provision of all procedural safeguards required to be provided prior to the imposition of discipline), he /she shall initiate the formal Grievance Procedure by filing a written grievance at the level of the authority which has effectively imposed the discipline. This appeal must be received by said authority within 14 calendar days after the employee’s receipt of the document which imposes such discipline.

When it comes to terminating an officer, the “authority which has effectively imposed the discipline” is the Chief of Police.

So if the Chief of Police (Hendricks at the time) fired Corbett then Corbett had 14 days to file his administrative appeal with the person who rendered the decision. If you go back and follow the grievance procedure it requires:

(D)(3) Department review: Upon receipt of the appeal, the Department Head should discuss the grievance with the employee, his /her representative, if any, the supervisor and the Director of Human Resources. The Department Head shall render his /her decision and comments in writing and return them to the employee within seven calendar days after receiving or if the employee does not agree with the decision rendered, or if no answer has been received within eight calendar days, he /she may present the appeal in writing to the City Manager. Failure of the employee to take further action within seven calendar days after receipt of the decision, or within a total of ten calendar days if no decision is rendered, will bar further consideration of the appeal.

There is no lower level review as this would only be appealable to the Chief of Police. After that Corbett could have appealed directly to the City Manager. After the City Manager is the option to appeal to an arbitrator.

This means that Corbett has had two shots at “Administrative Appeals” as defined by the law.  Whether he availed himself of those appeals or not is irrelevant as he had been given an opportunity for appeal.

SB1421 doesn’t define “sustained” to mean the exhausting of ALL administrative and legal appeals. Jones & Mayer / City Manager Domer / Staff are torturing the law to hide their misconduct in the Joe Felz case and it’s time that it stopped.

If City Hall is fighting this hard to protect one of their own in a case we already know about, how much else are they hiding from you the public?