HomeMy WebLinkAbout2017-04-25; City Council; ; Police Officer Termination CaseCA
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cI3 °Staff Report
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Meeting Date:April 25, 2017
To:Mayor and City Council
From:Kevin Crawford, City Manager
Staff Contact:Julie Clark, Human Resources Director
julie.clark@carlsbadca.gov or 760-602-2440
Subject:Police Officer Termination Case
Recommended Action
Review the full administrative record concerning the termination of Police Officer Steven
Seapker; allow reasonable oral argument by both parties; take whatever action the City Council
deems appropriate regarding final disciplinary action; give direction to City Attorney to prepare
final form of resolution containing finding supporting City Council's decision based on
substantial evidence from the entire record.
Executive Summary
The purpose of this Special Meeting is to decide the appeal of Carlsbad Police Officer Steven
Seapker who was terminated from city service effective January 31, 2014.The Memorandum
of Understanding (MOU) between the city and the Carlsbad Police Officers' Association (CPOA)
allows for a terminated employee to appeal his or her termination to a hearing officer selected
by the parties.A hearing is conducted and, thereafter, the hearing officer provides his/her
findings and recommendations in a written report to the City Council, with copies to the
appellant and the department.If either party disagrees with the hearing officer's
recommendation, that party may present their case to the City Council before the City Council
makes a final determination on the matter.
Officer Seapker appealed his termination and at the conclusion of the hearing the appointed
hearing officer recommended a two-week suspension from duty followed by Officer Seapker's
reinstatement with back pay, plus 10 percent interest per annum,less the two week
suspension.The Police Chief and the City Manager disagree with the hearing officer's
recommendation and believe that the termination of Officer Seapker should be upheld.The
MOU calls for the City Council to review the full administrative record concerning this
employee's imposed discipline (i.e. termination), allow reasonable oral argument by both
parties, and may then affirm, revoke or modify the imposed disciplinary action taken as,on its
judgment, seems warranted, and the action taken shall be final.In the case of discharge, the
appointing power shall reinstate an employee to the employee's former status if the City
Council determines that the action was for discriminatory reasons.
Discussion
On January 21, 2014, Police Chief Gary Morrison issued a Notice of Termination to Police Officer
Steven Seapker (Appellant), effective January 31, 2014.Officer Seapker timely appealed his
Item #1 April 25, 2017 Page 1 of 16
termination and the hearing officer conducted an administrative hearing on his appeal over
sixteen days of hearing, culminating in a recommendation that the termination be reduced to a
two-week suspension and that Seapker be reinstated with back pay with interest.The hearing
officer found that Seapker's discipline constituted disparate treatment and that the city, acting
through its Police Department, did not have just cause to terminate Officer Seapker. The
hearing officer compared Officer's Seapker's sustained allegation resulting in termination to
another officer, who had a similar sustained allegation, and found that the other officer was not
terminated, but given a lesser imposed punishment.
The recommendation of the Police Chief and the City Manager is to reject the recommendation
of the hearing officer, find that the Appellant committed all charges set forth in the original
Notice of Termination and that there was not any disparate treatment between Appellant and
the other officer due to the lack of similar circumstances, reject the two-week suspension and
reinstatement as recommended by the hearing officer, and instead affirm the original
termination of Officer Seapker finding that he was not terminated for discriminatory reasons.
Process for City Council Consideration
We have implemented the following process for the City Council to make its final determination
on this personnel matter:
1.On April 14, 2017, members of the City Council were given access to Exhibits 3 to 7
(confidential) listed below.
2.There will be a Special Meeting on Tuesday, April 25, 2017 for your public receipt of oral
argument by the Police Department and Appellant, closed session deliberation and
public determination on the matter.
3.It is suggested that you begin your review with the briefs from counsel,as they should
focus upon the areas in dispute and for which findings may be necessary.
Options
The City Council's options are:
1.Approve the recommendation of the hearing officer.If the City Council chooses this
option, Government Code Section 54957.1 requires that the City Council return to public
session from this closed session and report out its action with regard to the personnel
matter and the vote of each member thereon.
2.Modify the action of the hearing officer up to and including upholding the Notice of
Termination. The City Council would have to make findings of fact established by a
preponderance of the evidence based on substantial evidence in the administrative
record of the proceedings before the hearing officer and in the administrative record
presented to the City Council.The entire transcript of the proceedings,as well as all
documents offered, whether or not received into evidence by the hearing officer, and
Item #1 April 25, 2017 Page 2 of 16
briefs of counsel would have to be reviewed and considered by the City Council in order
to make such findings.
Depending on what the City Council concludes after consideration of these matters,a
resolution memorializing its findings will be prepared by the City Attorney at Council's direction.
The members of the City Council should not discuss the facts of the case with anyone except
during open or closed session, on the record in the course of the proceedings of the Special
Meeting.
Fiscal Analysis
If the City Council approves the recommendation of the hearing officer and reinstates Officer
Seapker with a two-week suspension,he would be reimbursed approximately $450,000,less
monies that he earned during the period of separation from the department.If the City Council
upholds the termination of Officer Seapker, there will be no back pay and benefits but potential
litigation defense costs, back pay and attorney's fees exposure if Officer Seapker were ultimately
reinstated by the court.
Environmental Evaluation ICEQA1
Pursuant to Public Resources Code section 21065, this action does not constitute a "project"
within the meaning of CEQA in that it has no potential to cause either a direct physical change
in the environment, or a reasonable foreseeable indirect physical change in the environment;
and therefore, does not require environmental review.
Exhibits
1.Article 22. Discipline of an Employee -Memorandum of Understanding between the City of
Carlsbad and the Carlsbad Police Officers' Association (CPOA)
2.Administrative Order No. 70— Procedures for Personnel Hearings
3.Administrative Record of the Hearing (2 volumes; 2551 pages —Original and one copy on file
in the City Attorney's Office —Confidential Personnel Record)
4.Brief from counsel for the Police Department dated April 11, 2017, including Proposed
Findings and Decision for the City Council to potentially adopt (Confidential Personnel
Record)
5.Brief from counsel for the appellant dated March 24, 2017, without a Proposed Finding and
Decision for the City Council to potentially adopt (Confidential Personnel Record)
6.Closing brief from counsel for the Police Department presented to the hearing officer (An
Exhibit from Administrative Record —Confidential Personnel Record)
7.Closing brief from counsel for Mr. Seapker presented to the hearing officer (An Exhibit from
Administrative Record —Confidential Personnel Record)
8.April 4, 2017 Letter from Gilleon Law Firm
Item #1 April 25, 2017 Page 3 of 16
EXHIBIT I
ARTICLE 22.DISCIPLINE OF AN EMPLOYEE
22.1 The city may only discipline regular employees for just cause.In the case of disciplinary
action involving suspension, demotion or discharge, the employee shall be given notice
of the action to be taken, the evidence or materials upon which the action is based, and an
•opportunity to respond to the Police Chief either orally or in writing, provided the
employee requests the opportunity within seven (7) calendar days of the notice of the
action.The above process will occur prior to the imposition ofthe discipline.
22.2 Except as provided in Section 22.4, all employees have the right to appeal their discipline
according to the appeal procedure as set out below.Written notice of discipline shall
inform and remind the disciplined employee of this right.
Hearing Officer.The employee or employee organization and the city will attempt to
develop a permanent list of five (5) mutually acceptable hearing officers.If a mutually
acceptable list cannot be developed, the parties agree that the advisory hearing will be
conducted before a hearing officer selected by the parties from a list provided by the
California State Mediation and Conciliation Service.If the parties cannot mutually agree
on the hearing officer they will use a strikeout procedure using a list of seven names
provided by the California State Mediation and Conciliation Service.The appellant will
have the prerogative of striking the first name.
The city will bear all administrative costs associated with an appeal of discipline and the
subsequent hearing including the hearing officer, court reporter and transcription costs,if
any.
The employee or employee organization will be responsible for the cost of his or her own
representation or attorney fees and preparation of documents.
22.3 Once discipline has been imposed, the Police Chief or an authorized designee shall
specify the period of time, from one to four years, that the discipline will remain in the
affected employee's personnel records, unless a longer period is required by law.At the
end ofthe designated period of time, the disciplinary action shall be removed from the
employee's personnel file.It is the responsibility of the employee to initiate a request for
removal of disciplinary action from the employee's personnel file.The only permitted
use ofthe removed disciplinary action shall be in a later disciplinary proceeding where
there is an allegation of similar or cumulative activity or misconduct.
22.4 Nothing in this Memorandum shall be construed to require "cause" or "just cause" for the
rejection of a probationary employee prior to the expiration ofthe probationary period.A
probationary employee rejected during the probationary period shall not be entitled to
appeal such rejection to the Hearing Officer, but shall be entitled to an opportunity to
discuss the rejection with the Police Chief
22.5 Right of Appeal.Any regular employee shall, within seven (7) calendar days, have the
right to appeal to the Hearing Officer any disciplinary action, interpretation or alleged
Item #1 April 25, 2017 Page 4 of 16
EXHIBIT 1
violation ofthe Personnel Ordinance or Personnel Rules, except in instances where the
right of appeal is specifically prohibited by the Personnel Ordinance or Personnel Rules,
or this Article.
22.6 Method of Appeal.Appeals shall be in writing, subscribed by the appellant, and filed
with the Human Resources Director, who shall, within ten (10) calendar days after receipt
of the appeal, inform the Hearing Officer of the action desired by the appellant and the
reasons why.The formality of a legal pleading is not required.
22.7 Notice.Upon the filing of an appeal, the Human Resources Director shall set a date for
the hearing on the appeal not less than ten (10) calendar days nor more than thirty (30)
calendar days from the date of filing,unless the parties mutually agree to a later hearing
date.The Human Resources Director shall notify all interested parties of the date, time,
and place of the hearing.
22.8 Hearings.Unless physically unable to do so, the appellant shall appear personally before
the Hearing Officer at the time and place of the hearing.The appellant may be
represented at the hearing by any person or attorney the appellant selects and may
produce any relevant oral or documentary evidence.The city shall bear the burden of
proof; therefore, the city shall state its case first and, at the conclusion, the appellant may
then present evidence.Rebuttal matter not repetitive may be allowed in the discretion of
the Hearing Officer.Cross-examination of witnesses shall be permitted.The conduct
and decorum of the hearing shall be under the control of the Hearing Officer, with due
regard to the rights and privileges ofthe parties appearing before it.Hearings need not be
conducted according to technical rules relating to evidence and witnesses.Hearings will
be closed unless at least four (4) business days prior to the hearing the appellant, in
writing,requests an open hearing.At the conclusion of the hearing, the hearing officer
will make a recommendation.If either party disagrees with the Hearing Officer's
recommendation, that party may request, within ten (10) calendar days, to present their
case to the City Council before the City Council renders a final decision.
22.9 Findings and Recommendations.The Hearing Officer shall,as soon as possible after the
conclusion of the hearing, certify his/her findings and decisions in writing to the City
Council and to the appellant.The City Council shall review the findings and
recommendations of the Hearing Officer and may then affirm, revoke or modify the
action taken as,on its judgment, seems warranted, and the action taken shall be final.
The Hearing Officer may submit a minority or supplemental finding and
recommendation.In the case of suspension, discharge or demotion, the appointing power
shall reinstate an employee to the employee's former status if the City Council
determines that the action was for discriminatory reasons.
22.10 Disiplinary appeal hearing.During any disciplinary appeal hearing, either party may file
a written motion with the City Clerk for the City of Carlsbad seeking authorization from
the City Council to pursue an interlocutory writ in court to challenge a ruling or action by
a hearing officer.The motion for authorization shall be heard in closed session, unless
waived by the appellant.Either party's representative may make a statement to the City
Item #1 April 25, 2017 Page 5 of 16
EXHIBIT 1
Council on the issue ofwhether authorization to seek a writ is justified.During this
hearing on the motion for authorization to pursue a writ, neither party may discuss the
merits or the factual basis of the underlying administrative hearing with the City Council.
The parties should limit their discussion as to the ruling or action of the hearing officer
and why the matter warrants the pursuit of an interlocutory writ before the conclusion of
the disciplinary appeal hearing.The party appealing the discipline shall not be required
to seek authorization from the City Council in order to pursue an interlocutory writ in
court as to those issues in which the court has initial jurisdiction, including but not
limited to, claims of a violation ofthe Public Safety Officers Procedural Bill of Rights
Act .
Item #1 April 25, 2017 Page 6 of 16
CITYCITY OF CARLSBAD
1200 Carlsbad Village Drive
Carlsbad, CA 92008
ADMINISTRATIVE ORDER NO. 70
TO:ALL DEPARTMENTS
FROM:City Manager
SUBJECT:PROCEDURES FOR PERSONNEL HEARINGS
BACKGROUND AND PURPOSE
Representatives of the City met and conferred with representatives from the Carlsbad
City Employees' Association, the Carlsbad Police Officers' Association, and the
Carlsbad Firefighters' Association, Inc. and agreed that the Personnel Board would be
replaced by a hearing officer.This Administrative Order replaces Personnel Board
Resolution No. 19 and outlines the procedural rules of conduct of personnel hearings.
Additional information, including the process to select the hearing officer,is detailed in
each represented group's Memorandum of Understanding.
POLICY
SECTION 1:The following are procedural rules for the conduct of personnel hearings.
Sections:
1.Hearings.
2.Subpoenas.
3.Exchange of Information and Written Summaries.
4.Continuances.
5.Evidence in General.
6.Oral Evidence/Oath.
7.Evidentiary Rulings.
8.Rights of the Parties.
9.Conduct of Hearing.
10.Questioning by the Hearing Officer.
11.Exclusions of Witnesses.
12.Media.
13.Preponderance of Evidence.
14.Deliberation.
15.Findings.
1
Item #1 ApriC 25, 2017 Page 7 of 16
1.Hearings.Hearings of appeals by employees are closed to the public
unless the employee requests an open hearing in writing or on the record
of the proceeding.The Hearing Officer may, at his/her discretion, exclude
the public from any portion of the hearings.
2.Subpoenas.The hearing officer may issue subpoenas under the authority
of the City Council.Subpoenas pertaining to a hearing shall be issued at
the request of either party prior to the commencement of the hearing if the
procedures in section 3 have been followed.After the commencement of
such hearing, subpoenas shall be issued only at the discretion of the
hearing officer.The hearing officer may subpoena witnesses at no loss of
compensation, and/or require the production of records or other material
evidence as authorized by law.
3.Exchange of Information and Written Summaries.Both parties shall
submit the following to the Human Resources Director at least 15 calendar
days prior to the date of the hearing:
a)A written summary of their legal and factual allegations and
defenses;
b)A list of all witnesses the party intends to call and a specific
explanation of the relevance of each witness' testimony to the
allegations and defenses in the written summary;
c)Four copies of each document the party intends to offer into
evidence at the hearing;
2
April' 25:2017 -Page 8 of 16
Each party shall serve the other party with a copy of the items listed
in subsections (a), (b) and (c), no later than 15 calendar days prior to the
hearing.If the service is by mail, service must be made no later than 20
calendar days prior to the hearing.
No later than seven calendar days prior to the hearing, each party
may submit a supplement to their summary,a list of additional witnesses
and four copies of additional documents the party intends to offer into
evidence at the hearing.These items shall be submitted to the Human
Resources Director and copies served upon the other party no later than
seven calendar days prior to the hearing.If the service is by mail, service
must be made no later than 12 calendar days prior to the hearing.
Testimony of other witnesses or admission of additional
documentary evidence will not be allowed in the moving party's initial
presentation of its case unless 1) a strong showing of good cause is
made, including the reason the party was unable to produce the name of
the witness or the document in the manner required by this section; and 2)
the other party is not unduly prejudiced by the delay in disclosure of the
evidence.
Testimony of other witnesses or admission of additional
documentary evidence will not be allowed in rebuttal by either party unless
a party shows 1)unfair surprise which would unjustly prejudice the party if
the party were not allowed to rebut the evidence with additional witnesses
or documents and 2) the relevance of the surprise evidence to the case
3
Itern111 Apii1-25, 2017 Page 9 of 16
before the hearing officer and the relevance of the rebuttal evidence.If
the hearing officer finds there is no unfair surprise, but the additional
evidence may be relevant, the additional evidence may be admitted at the
discretion of the hearing officer.If the hearing officer finds that the
surprise evidence is not relevant to the case and will not be considered by
the hearing officer, rebuttal evidence shall not be allowed to be presented.
All documents submitted pursuant to subsection (c), shall be
marked as exhibits in the following manner:The city's exhibits shall be
marked "City's Exhibit No.."The blank shall be filled in with
numbers, beginning with the number "1" and proceeding consecutively.
The employee's exhibits shall be marked "Employee's Exhibit No.
The blank shall be filled in with letters of the alphabet, beginning with the
letter "A" and proceeding consecutively.If there are more than 26
employee exhibits, they shall be marked in the following manner: "AA",
"AB", "AC", etc.
Documents submitted pursuant to subsection (c) will be admitted
on the hearing officer's own motion,in his/her discretion, at the beginning
of the hearing unless there is an objection to the admission of a particular
document or a request for withdrawal of the document by the party who
submitted it.The objections will be heard at the time the party makes a
motion to admit the document.
4.Continuances.Continuances may be granted by the hearing officer upon
agreement of all the parties or upon timely motion by one party for good
4
Item 44
-1-April 25, 2017 Page 10 of 16
cause.The hearing officer may continue the hearing on his/her own
motion for good cause.
5.Evidence in General.The hearing need not be conducted in accordance
with the technical rules relating to evidence and witnesses, but the hearing
shall be conducted in a manner most conducive to determination of the
truth.The rules of evidence may be used as a guide for this purpose.
Any relevant evidence shall be admitted if it is the sort of evidence on
which responsible persons are accustomed to rely in the conduct of
serious affairs, regardless of the existence of any common law or statutory
rules which might make improper the admission of such evidence over
objection in civil actions. Irrelevant and unduly repetitious evidence shall
be excluded.
Hearsay evidence may be used for the purpose of supplementing
or explaining any direct evidence but shall not be sufficient in itself to
support a finding unless it would be admissible over objection in civil
actions.
The rules of privilege shall be effective to the same extent that they
are now or hereafter may be recognized in civil actions.
Decisions made by the hearing officer shall not be invalidated by
any informality in the proceedings, and the hearing officer shall not be
bound by technical rules of evidence.
6.Oral Evidence/Oath.Oral evidence shall be taken only under oath or
affirmation of the witness.
5
Item #1 April 25, 2017 Page 11 of 16
7.Evidentiary Rulings.The hearing officer shall rule on the admission or
exclusion of evidence with or without the assistance of the legal advisor to
the hearing officer.
8.Rights of the Parties.Each party shall have these rights:To be
represented by legal counsel or other person of their choice; to call and
examine witnesses under the procedures described above; cross-examine
opposing witnesses on any matter relevant to the issues even though that
matter was not covered in the direct examination; to impeach any witness
regardless of which party first called the witness to testify; and to rebut
opposing evidence as provided in this Administrative Order.If the
employee does not testify in his/her own behalf, he/she may be called and
examined as if under cross-examination.
9.Conduct of Hearing. The hearing shall proceed in the following order,
unless the hearing officer otherwise directs:
(1)The party bearing the burden of proof shall be permitted to
make an opening statement.
(2)The responding party shall be permitted to make an opening
•statement.
(3)The written summaries shall be considered part of the
opening statements of the parties.
(4)The party bearing the burden of proof shall produce relevant .
evidence.
(5)The responding party may then present a relevant defense.
6
Aprit 25, 2017---...-....Page of16
(6)The parties may then,in order, respectively, offer rebutting
evidence only.The hearing officer, for good reason,
may permit a party to offer evidence upon their original case.
(7)Closing arguments may be made by each party.Written
closing arguments may be permitted at the discretion of the
hearing officer.Argument is not evidence.
10.Questioning by the Hearing Officer.During the presentation of evidence,
the hearing officer may question any witness.Questioning by the hearing
officer is generally done when both parties are through questioning.The
hearing officer should refrain from making statements of opinion during
this questioning and should not argue with the witness or party during the
hearing.
11.Exclusion of Witnesses.During the examination of a witness, all other
witnesses, except the parties, shall be excluded from the hearing, unless
the hearing officer,in his/her discretion, for good cause, otherwise directs.
12.Media.No still photographs, moving pictures or television pictures or
sound, recordings shall be taken in the hearing chamber during the hearing
unless the parties agree to it for purposes of establishing a record.
13.Preponderance of Evidence.The hearing officer shall determine
relevancy, weight, and credibility of testimony and evidence.He/she shall
base his/her findings on the preponderance of evidence.
14.Deliberation.After presentation of all evidence and argument the hearing
officer shall close the testimony and shall deliberate.If necessary, the
7
Item #1 April 25, 2017 Page 13 of 16
hearing officer may reopen testimony to take further evidence, provided
that both parties or their representatives are notified of the reopening.
15.Findings.The hearing officer's findings and/or recommendations will be
processed in accordance with the specifications contained in the
applicable Memorandum of Understanding.
SECTION 2:The Human Resources Director shall assist in any manner the hearing
officer deems appropriate, but shall not take part in any deliberations or decisions of the
hearing officer.The Human Resources Director will be a neutral and independent party
and will not be an advocate on behalf of either party.The Human Resources Director
will make a copy of these rules available to all employees upon request and provide a
copy to any recognized employees' association.
•ACTION
This Administrative Order is effective immediately.
Dated:5(3o/0 g
L SA HILDABRAND
City Manager
•
8
._
April 25, 2017 Page 14 of 16
I .
5 1320 Columbia Street, Ste. 200
c45.\San Diego, CA 92101
•nt 619.702.8623
cti 619.250.0209
Li 619.374.7040
GILLEON LAW FIRM www.gilleonlawfirm.com
April 4, 2017
Paul G. Edmonson
Senior Assistant City Attorney
Office of the City Attorney
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Re:Seapker v.City of Carlsbad, CSMCS
SDSC Case No. ARB-13-0476
Our File No. SEA002
Dear Mr. Edmonson:
I represent Steven Seapker in a civil action against the City that was recently served.I am requesting
permission to speak at the City's appeal of the February 13, 2017 Report And Recommendation by
the arbitrator in the above-referenced matter at the April 25 hearing before the City Council.In
addition, I am requesting that this letter be lodged with the City Council before the hearing.
The goal of the City of Carlsbad and the Carlsbad Police Department is to protect and serve the
citizens of this city with high-quality police officers.Officer Seapker has demonstrated that he
served the City and its citizens honorably,as a dedicated, high-performing police officer from 2002
with no problems until late 2012.There should have been no gap, from January 2014, until now,
in that service.Lie should have been on the streets doing what he did so well for over ten years,
protecting the public, something that would have advanced the goals of the department and the City.
What the arbitrator determined after an exhaustive 16-da hearin
e ityCouncilcan now correct this mista ce.
1 believe that adopting the reasoned decision ofthe arbitrator will advance the goal of the City and
its citizens— getting an excellent police officer back to protect and serve the public.Rejecting it
Item #1 April 25, 2017 Page 15 of 16
Paul G. Edmonson
April 4, 2017
Page 2
will deprive the citizens of what they deserve and, no doubt need on a daily basis,a dedicated, high-
performing and veteran police officer who was and should continue to be an asset to the City.The
City Council should follow the logic of an old proverb —"no matter how far you have gone down the
wrong road, turn back."The arbitrator's decision should be adopted.Get Steven Seapker back
where he belongs, serving and protecting the citizens of Carlsbad.
Sincerely,
The °Wean Law Firm
Jam s C.Mitchell
LLCM/yen
cc:via email: Michael Williamson
Item #1 April 25, 2017 Page 16 of 16
{City of
Carlsbad
Ca l i f or n ia
Seapker Termination Appeal
City Council Hearing
April 25, 2017
Seapker's Employment and Termination
from the City
• Seapker's Employment
• 11 years
• Good cop
• Worked in nearly every specialty assignment ...
... with same result, kicked off or resigned
• PATIERN OF CONDUCT, 2008-2013
• Seapker's Termination
• The City had no option but to terminate Seapker's employment
• Notice of Intent, December 17, 2013 (Ex. 4)
• Pre-disciplinary response, January 11, 2014 (Ex. 5)
• Notice of Termination, January 21, 2014 (Ex. 6)
• Appeal, January 24, 2014 (Ex. 7)
Procedural History
• 2014
• Scheduled for hearing, December 8, 2014
• Pitchess Motion filed December 5, 2014 (Ex. 34)
• 2015
• Hearing on Pitchess Motion, February 6, 2015 (Ex. 26)
• Hearing moves forward, May 6, 2015-July22, 2015 (Exs. 27-33)
• Administrative hearing stayed pending Writ, August 2015 (Ex. 54)
• Writ Proceedings, September 2015-March 2016 (Exs. 55-70)
• 2016
• Appeal filed, April2016 (Ex. 71)
• Court of Appeal decision, July 2016 (Ex. 82)
• Hearing resumes, August-October 2016 (Exs. 42-48)
• Closing Briefs, November and December 2016 (Exs. 49, SO)
• 2017
• Hearing Officer Recommended Decision, February 2017 (Ex. 51)
4/24/2017
1
The City's Case and Seapker's Defense
• The Oty's Case
• After an extensive Pattern of Conduct, and efforts to
address Seapker's lack of maturity, lack of judgment and
inability to subordinate himself to his superiors,
the City put Seapker on a Performance Improvement Plan
• Seapker did not improve his performance
• And engaged in the same conduct resulting in two Internal
Affairs Investigations
• The City gave Seapker every opportunity to succeed
• Seapker's Defense
• The penalty is too harsh
• Disparate Treatment/Retaliation
Questions Presented
1. Did the City have just cause to terminate
Seapker's employment?
2. If not, what is the appropriate remedy?
Additional Questions for City Council:
1. Did the Hearing Officer's findings and
recommendations ignore the substantial evidence
presented at the hearing?
2. Did the Hearing Officer make legal errors during the
hearing?
3. Did the Hearing Officer demonstrate bias towards the
City and the City's case?
The Standard of Review
• Preponderance of the Evidence
• The preponderance of the evidence standard is the
easiest standard to meet; a preponderance of the
evidence means evidence that has more convincing
force than that opposed to it.
• MOU, Article 22.9
• The City Council shall review the findings and
recommendations of the Hearing Officer and may then
affirm, revoke or modify the action taken as, on its
judgment, seems warranted, and the action taken shall
be final.
4/24/2017
2
The Hearing Officer
Overlooked and Disrega rded
Key Facts and Evidence
liD ~_,..,., c~-""" w .. , ...... ,
The Hearing Officer Overlooked and
Disregarded Key Facts and Evidence
• Several of the Hearing Officer's findings contradicted
witness testimony, including Seapker's own
testimony and admissions.
• The Hearing Officer did not explain how he weighed
much of the evidence (and in particular the City's
evidence) in making his factual determinations.
• The City's Brief to City Council provides 15 examples
of the Hearing Officer's findings that directly
overlook or disregard the evidence and testimony
presented at the hearing.
Substantial Evidence of Pattern of Conduct
• December 2008 -2nd Quarter Corporal Probationary Evaluation
(Ex. 4-A)
• Overall rating of "Improvement Needed"
• "Improvement Needed" ratings in Problem Solving and Decision Making.
Team Work and Interpersonal Relations, Maturity, and Leadership Skills
• Resignation from SWAT assignment
• Counseled regarding evidence processing and following orders
• June 2009 ·4th Quarter Probationary Corporal Evaluation lEx. 4-Bl
Overall rating of "Improvement Needed"
"Improvement Needed" ratings in Problem Solving and Decision Making,
Legal Knowledge, Maturity, Communication Skills, Safety Skills, and
Vehicle Operations
Not recommended for permanent appointment and resigned from
Corporal
Off-duty traffic collision in Department vehicle with unauthorized
passenger
4/24/2017
3
Substantial Evidence of Pattern of Conduct
• February 2012 Written Reprimand (Ex. 4-C)
• Insubordination for refusing to make a lawful arrest during
burglary investigation at Vans
• Spoke to supervisor in disrespectful manner during debriefing
• August 2011-June 2012 Performance Evaluation (Ex. 4-Dl
• "Improvement Needed" ratings in Team Work and Interpersonal
Relations, and Maturity
• Removed from defensive tactics teaching staff for inappropriately
striking a student
• Posted derogatory social media comment about Department
• November 2012 Written Reprimand (Struck from Record!
• Failure to follow direct order to remain in assigned patrol area
Substantial Evidence of Pattern of Conduct
• June 2013 Oral Reprimand !Ex. 4-l, p.373l
• Continued vehicle stop after realizing vehicle did not have expired
registration
• July 2013 Written Reprimand (Ex. 4-Fl
• Failure to bring information forward about inappropriate conduct
of another Department employee
• June 2012-March 2013 Performance Evaluation !Ex. 4-Gl
• Overall rating of "Improvement Needed"
• "Improvement Needed" ratings in Investigative Skills and
Maturity
• Failure to keep supervisors informed of work performed outside
of normal work hours
• Improperly processed evidence
Substantial Evidence of Pattern of Conduct
• June 2013 Performance Improvement Plan (PIP) (Ex. 4-Hl
• To redirect behavior and improve performance
• Responses to PIP assignments were blatantly disrespectful
• Committed two more acts of insubordination, sustained in lA 13-
22 and lA 13-24
• July 2013 -lA 13-22 (Ex. 4-ll
• Seapker admits to saying in front of other Department members
that he did not trust his supervisors
• August 2013 -lA 13-24 !Ex. 4-Jl
• Seapker admits to calling his supervisors "downs" during a formal
PIP meeting
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4
Substantial Evidence of Pattern of Conduct
lA Case 13-22
• Violation of Polley 340.3.5(g)-Performance
Disparaging remarks or conduct concerning duly constituted authority
to the extent that such conduct disrupts the efficiency of the
Department or subverts the good order, efficiency and discipline of the
Department or which would tend to discredit any member thereof.
• lA Case 13-24
• Violation of Policy 340.3.5(e)-Performance
Disobedience or insubordination to constituted authorities, including
refusal or deliberate failure to carry out or follow lawful directives and
orders from any supervisor or person in a position of authority.
• Violation of Policy 340.3.S(g)-Performance
See above.
The Hearing Officer's
Legal Errors
liD luuor t,,.,.,,.. \Vrur-••r
Legal Error #1: The Hearing Officer Failed
to Comply with the Pitchess Procedure
• A Pitchess motion is the exclusive means for obtaining
information contained in a peace officer's personnel file.
• The City's Admin. Order No. 70 upholds the rules of privilege.
• Seapker's attorney asked Sgt. Lowe a question seeking
information from Officer K's personnel file.
• Seapker did not submit a Pitchess motion.
• The City, in good faith, could not allow Sgt. Lowe to disclose
the information in violation of Pitchess.
• However, the Hearing Officer issued a final order overruling
the City's objection and instructing Sgt. Lowe to answer the
question.
4/24/2017
5
legal Error #2: Improper Order to Strike the
November 2012 Written Reprimand and Related
Testimony
• Sgt. Lowe declined to answer the question.
• Seapker made a motion to strike all of Sgt. lowe's testimony.
• The parties briefed the motion to strike.
• The Hearing Officer issued an order to:
• 1) Strike Sgt. lowe's testimony about the written reprimand
• 2) Strike the written reprimand from evidence
• 3) Strike all previous evidence and testimony about the written
reprimand
• 4) Prohibit future evidence and testimony about the written
reprimand
• The Hearing Officer had no authority to bypass the Pitchess
process and therefore, had no legal basis for his decision to
strike evidence and testimony.
legal Error #3: Allowed in Evidence Beyond the
Scope of the Pitchess Order Regarding Officer
H's Personnel Information
• December 2014-Seapker filed a Pitchess Motion seeking
personnel records of Sergeant Wand Officer H
• The Hearing Officer followed the Pitchess procedure (in this
instance).
• The !Z!!lY. document the Hearing Officer ordered disclosed was
3 pages from a final determination of an investigation report.
• But then, during Officer H's cross examination, the Hearing
Officer allowed Seapker's attorney to obtain information from
Officer H's personnel file beyond the scope of the Hearing
Officer's own Pitchess order.
Legal Error #4: Excluded Relevant Evidence
from the Hearing
Administrative Order No. 70 sets a broad standard of evidence
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4/24/2017
6
Legal Error #4: Excluded Relevant Evidence
from the Hearing
• The Hearing Officer did not evenly and consistently apply
Admin. Order No. 70's broad standard of evidence.
• The Hearing Officer sustained many objections to relevant
evidence against the City.
• In contrast, the Hearing Officer used a lenient relevance
standard to allow Seapker to present evidence on a variety of
topics.
The Hearing Officer's Bias
IJII!J tu••••(.,...,,...w,,,_,.,
Hearing Officer Changed His Position on a
Previous Ruling to Seapker's Benefit
MS. KALTY: And based on
9 your order. you said only those three pages can come in
10 this hearing.
11 HEARING OFFICER SCHOLTZ: In response to the Order
12 to Show Couse. But what I'm saying is, my
13 understanding-and may~ I'm wrong on this-is that
14 at the hearing Itself, if a document is offend that's
15 nlevant~ I'm not bound by that previous Order to Show
16Cause.
17 MS. KALTY: And that is where I think--not I
18 think. I disagree /egoffy, because if the evidence is o
19 private peace officer personnel record, there's only one
20 way it can come in. And Mr. Williamson doesn't disagree
21 with that. There is only one way··
Vollll 14T821
05062015
4/24/2017
7
Hearing Officer Granted Motion to Strike
Before Listening to the City's Objection
10 MR. WILLIAMSON: So I know you said the last
11 portion was objectionable. Was the last portion
12 speculation, the ''for personal reasons," motion to
13 strike granted?
14 HEARING OFFICER SCHOLTZ: Yes.
15 MS. KALTY: I need to be heard stiff, sir.
16 HEARING OFFICER SCHOLTZ: Go ahead.
17 MS. KAL1Y: I would like to note that I
18 requested to be heard before you made your decision.
Vol IV 419 10 HI
0~ 0/ 701(>
Hearing Officer Granted Seapker's Objections to
Relevant Testimony and Prevented the City From
Presenting Its Case
19 MS. KALTY: Objection. Incomplete hypothetical,
20 irrelevant.
21 HEARING OFFICER SCHOLTZ: What is it that's not
22 complete? It's o hypothetical. He's getting certain
23/octs.
24 MS. KAl.1Y: I just don't-I wosn'tollowedtoask
25 about this witness's opinions regarding his observation
1 of Off~eer Seapker's performance during PIP meetings, but
2 we're going to get into a detailed hypothetical on a
3 robbery coli?
4 HEARING OFFICER SCHOLTZ: No. He was allowed to
5 testify to that when you asked the right questions. So
6 that's-it's different. So the objection Is overruled.
Hearing Officer Granted Seapker's Objections to
Relevant Testimony and Prevented the City From
Presenting Its Case
23 MR. WILLIAMSON: Objection. Vague, ambiguous.
24 HEARING OFFICER SCHOLTZ: Well, again, the question
25 is how does what was written respond to the prompt
1 MS. KALTY: That's not my question, sir.
2 HEARING OFFIUR SCHOLTZ: I know, but you're asking
3 the wrong question.
4 MS. KALTY: Well, I'm glad we hove that on the
5 record.
6 Sir, are you going to rule on Mr. Williamson's
7 objection?
8 HEARING OFFICER SCHOLTZ: Sustained.
4/24/2017
8
The Hearing Officer's Unprofessional
Language and Directives
25 MS. KALTY: Asked and answered.
THE WITNESS: And then I would write the arrest
2report.
3 UlARING OFFICER SCHOLTZ: I'm sorry. What
4 you'~ doing Is totally-Ws rraJ/y annoying. You
5 kerp Interrupting boskolly.
Vol X 1469 7~ 14/0 ~
081!>7016
The Hearing Officer's Unprofessional
Language and Directives
13 MS. KALTY: I'm trying to jump in before the
14 sergeant answers, and 1··1 appreciate that it's hard
15 to get the timing just right. But I'm not doing this to
16 be annoying, sir. I'm doing my job. And it's
17 unfortunate that you see my objections as annoying, but
18 Mr. Williamson's objections, which are of the same
19 frequency --
20 HEARING OFFICER SCHOLTZ: Look. let's not cry
21 about that now. Let'.s just conduct ourselves as
22 professionals.
Inappropriate Discussions Outside of
Hearing Chambers
19 MS. KALTY: And I also just--you know. we're on day one
20 of what is going to be probably at least a six-day
21 hearing, and I do hav~ sotM conc~rns just glv~n th~ fact
22 thot th~ case was being discussed ktwun th~ hNrlng
23 ofllc~r and Mr. Williamson off th~ ncord outsid~ on a
24 bnak, and 1 just would-
25 HEARING OFFICER SCHOLTZ: Not this case.
4/24/2017
9
Inappropriate Discussion Outside of
Hearing Chambers
MS. KALTY: Well, when I walked up there was --you
2 know, it appeared to be a resolution related to the
3 third-party Subpoenas, so that was --
4 HEARING OFFICER SCHOLTZ: Well, that was just an
5 administrative matter. That's why I called you over; to
6 ask you how we could cforify this.
7 MS. KALT"r.' Okay. And I apologize If It's my
8 misperceptlon, but It appeared to me that you and
9 M;. Williamson had already been discussing It, and you
10 did call me over to say Is this your understanding of
11 whatthe process Is.
12 And i guess be-cause I'm not a smoker, I would
13 like the assurance that you and Mr. Wllliomson are not
14 discussing the case when you're-
15 HEARING OFFICER SCHOLTZ: Of course not. This is
16 just an administrative detail that I wanted to clear up
17 so that we don't eventually end up with o postponement
18 because it hasn't been dealt with.
Inappropriate Conversations Between Hearing Officer and
Attorney Williamson Outside of Chambers
August 15, 2016 at 10'.23 a.m. photo
Inappropriate Conversations Between Hearing Officer Scholtz and
Attorney Williamson Outside of Chambers
August 15, 2016 at 10:23 a.m. photo
-----
4/24/2017
10
Inappropriate CorM!rsations Between Hearing Officer and
Attorney Williamson Outside of Chambers
~ 15, 2016 at 11:19 a.m. photo
Inappropriate CorM!rsations Between Hearing Officer and
Attorney Williamson Outside of Chambers
August 15, 2016 at 11:29 a.m. photo
Inappropriate CorM!rsations Between Hearing Officer and
Attorney Williamson Outside of Chambers
4/24/2017
11
Inappropriate Conwrsations Between Hearing Officer and
Attorney Williamson Outside of Chambers
August 15, 2016 at 1:38 p.m. photo
Inappropriate Conversations Between Hearing Officer
and Attx>mey Williamson Outside of Olambers
Inappropriate
Conversations Between
Hearing Officer and
Attorney Williamson
Outside of Olambers
August 15, 2016
at 3:01p.m. video
4/24/2017
12
Inappropriate
Conversations Between
Hearing Officer and
Attorney Williamson
Outside of Olambers
September 1, 2016
at 10:34 a.m. video
Inappropriate
Conversations Between
Hearing Officer and
Attorney Williamson
Outside of Olambers
September 1, 2016
at 10:34 a.m. photograph
Inappropriate
Conversations Between
Hearing Officer and
Attorney Williamson
Outside of Olambers
September 1, 2016
at 10:34 a.m. photograph
4/24/2017
13
City Council Has the Ultimate Authority
• Article 22.9 of the MOU (Ex. 2):
• The City Council shall review the findings and
recommendations of the Hearing Officer and may then
affirm, revoke, or modify the action taken as, on its
judgment, seems warranted, and the action taken shall
be final.
• The Oty had just cause to terminate Seapker's
employment.
• The City proved the facts of the case by substantial
evidence.
• The Hearing Officer committed prejudicial legal error and
displayed clear bias.
• The City Council should revoke the Hearing Officer's
recommendation and uphold the City's decision to
terminate Seapker's employment.
{City of
Carlsbad
Californ i a
Thank You
4/24/2017
14