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HomeMy WebLinkAboutMinutes - Minutes - Personnel Board - Meeting Date: 6/24/2015 CITY OF GLENDALE PERSONNEL BOARD HEARING DEREK FISHER June 24,2015 @ 6:00 pm OPEN SESSION MEMBERS PRESENT: Bud Zomok, Chairperson Linda Gomez, Board Member Becky Shady, Board Member Davita Solter, Board Member STAFF PRESENT: Jim Brown, HR&Risk Mgmt. Executive Director Naomi Jackson, Human Resources Administrator LeJeune Boone, Human Resources Generalist WITNESSES: Derek Fisher, Appellant Kathryn Baillie, Attorney for the Appellant Nancy Mangone, Assistant City Attorney Christopher Meyer, Phoenix Police Officer Robert MacDonald, Police Sergeant Richard St. John, Assistant Police Chief OTHERS PRESENT: Crystal Fisher, Appellant's Wife Debora Black, Police Chief Matt Lively, Assistant Police Chief Carrie Castrovinci, Police Lieutenant Stormi Robinson, Observer Gerald Jackson, Observer Donna Ford Terrell, RPR, RMR, RDR, CRR, Certified Court Reporter #50250, documented the record of the hearing. CALL TO ORDER AND ROLL CALL (Pages 4 - 6) Bud Zomok, Chairperson, called the Personnel Board Hearing to order at 6:00 p.m. on Wednesday, June 24, 2015. Roll call was taken. The Appellant was represented by Attorney Kathryn R. E. Baillie of Napier, Coury & Baillie, P.C. Nancy Mangone, Assistant City Attorney, represented the Respondent, City of Glendale. ORDER OF PROOF (Page 7) The reading of the Order of Proof was waived by the Attorneys representing the Appellant and the Respondent. Derek Fisher Personnel Board Hearing Minutes June 30,2015 Page 2 PURPOSE OF HEARING The purpose of the hearing was to take testimony in the matter of the disciplinary appeal requested by former City of Glendale Sworn Police Officer Derek Fisher regarding his termination of employment. On February 25, 2015, this employee was served with a Notice of Intent to Terminate Employment. On March 27, 2015, the employee was served a Notice of Termination of Employment. Mr. Fisher's termination from his position as a City of Glendale Police Officer was based on his violation of City of Glendale Human Resources Policies and Procedures and Glendale Police Department General Orders. Specifically, it was alleged he made false or misleading statements during a Maricopa County Sheriff's Office (MCSO) investigation. An Administrative Investigation, #2013-083, was conducted regarding this matter which substantiated the allegations made against him. His actions constituted major performance deficiencies in violation of City policy, including conduct unbecoming of a City employee and conduct involving dishonesty or untruthfulness. BACKGROUND On September 18, 2014, a citizen complaint was brought against Officer Derek Fisher. The complaint alleged in September 2013, Officer Fisher provided false statements on two separate occasions during a MCSO investigation. The complainant, R. Lee, stated that several months passed before he was able to get a copy of the MCSO report. He stated when he did obtain the report he was shocked when he saw the statements provided by Officer Fisher. According to Mr. Lee, the statements Officer Fisher provided to MCSO were false and contradicted other witnesses. On an unknown date, early in 2013, Mr. Lee assisted Officer Fisher in an off-duty firearms business that he owned in 2013. Mr. Lee became involved in a property dispute with another business associate, Mr. Atkins, over a rifle. Mr. Lee unintentionally left the rifle behind and agreed to allow Officer Fisher to pass the rifle to Mr. Atkins to return the rifle to Mr. Lee. On September 12, 2013 the parties met at Officer Fisher's residence to reconcile the problem. Due to the fact that Mr. Lee had not received his rifle nor money to purchase the rifle, he and Mr. Atkins discussed trading the rifle for reloading equipment owned by Mr. Atkins and stored at the Fisher residence. Mr. Atkins left the location before a formalized mutual resolution was determined, but one had been discussed. Mr. Lee took possession of Atkins' reloading equipment. Mr. Atkins later filed a police report with the Maricopa County Sheriff's Office (13-184736) with Mr. Lee listed as a felony theft suspect. Felony charges were later submitted to the Maricopa County Attorney's Office on Mr. Lee. Officer Fisher was identified as a witness in the MCSO report. On two separate occasions, September 26, 2013 and September 27, 2013, Officer Fisher reported to a MCSO Sheriff's Deputy that he had not assisted Mr. Lee with loading the ammunition and reloading equipment into Mr. Lee's truck. Officer Fisher reported that he went inside to process paperwork for another rifle sale and did not assist -2- Derek Fisher Personnel Board Hearing Minutes June 30,2015 Page 3 Mr. Lee with loading the equipment. According to Mr. Lee, Officer Fisher provided a false statement to Law Enforcement on these two occasions. Others present stated that he assisted with loading the equipment and he had been present the entire time. In addition, Officer Fisher discussed the circumstances with Mr. Lee and advised him that he did not believe that he would get his rifle back, nor would he get paid for it. As such, it would be fair for him to take the ammunition and reloading equipment in lieu of payment. The day after this Officer Fisher agreed that Mr. Lee was justified and he agreed with him 100 percent. On September 26, 2013, when Officer Fisher was interviewed by the MCSO Deputy he said that there was no agreement between Mr. Lee and Mr. Atkins. He told the deputy that what Mr. Lee had done was, by definition, a theft. He also stated that Mr. Lee, a Phoenix Police Officer, should have known that he was not allowed to take the property. As a result, Mr. Lee was listed as a suspect in a criminal report and felony charges were filed against him to the Maricopa County Attorney's Office. The MCAO did not move forward with the charges. During the Administrative Investigation#2013-083, Officer Fisher stated he was aware of the ongoing dispute between Mr. Lee and Mr. Atkins over a rifle. The three of them met at Officer Fisher's residence and attempted to resolve this matter. Mr. Lee and Mr. Atkins could not come to an agreement so Mr. Atkins left the Fisher residence. Mr. Lee, as well as Officer Fisher's neighbor and his wife, told the MCSO Deputy that he assisted in loading the ammunition and reloading equipment into Mr. Lee's truck. Officer Fisher told the MCSO deputy that he did not help at all. He stated that he was not going to get involved and only pointed out where the tools were for Mr. Lee to disassemble and load the equipment without his help. During his internal interview Officer Fisher remembered specifics about conversations and the actions of others; however, when asked if he assisted with loading the equipment he stated, "To the best of my knowledge of remembering, no." He attributed his inability to remember his action on the alcohol he consumed that evening. Officer Fisher also stated in his interview that he believed the entire time that this matter was civil. Officer Fisher did not remember telling the deputy that he agreed it was criminal but he also did not deny his statement in the criminal report. When asked if he provided wholly accurate statements to the Deputy Officer Fisher said he did. It was determined that Officer Fisher violated General Order 22.053 Orders and Directives and 22.040 Unbecoming Conduct. He failed to provide accurate information to a Maricopa County Sheriff's Deputy during a criminal investigation resulting in felony theft charges being submitted against a Phoenix Police Officer. His actions clearly impact the efficient operation of the Department. Officer Fisher's conduct in this incident demonstrates a serious lack of judgment and is unbecoming of a Glendale Police Officer. Officer Fisher clearly violated policy. He has displayed conduct that not only causes the -3 - Derek Fisher Personnel Board Hearing Minutes June 30,2015 Page 4 public to lose trust in the employees of the Glendale Police Department, but also affects the day-to-day operations of this organization, as well as the morale of its employees. Therefore,the allegations against him were sustained. PERFORMANCE AND PREVIOUS DISCIPLINARY HISTORY On December 29, 2012, Officer Fisher was investigated for taking vacation leave after being denied his request due to insufficient accruals in his leave bank. His actions were in violation of G.O.22.053.A - Orders and Directives, per Departmental Investigation #2012-090. As a result of this investigation Officer Fisher received a Written Reprimand. POLICY VIOLATIONS Officer Fisher's conduct demonstrated major performance deficiencies and is in violation of the following City of Glendale Human Resources Policies and Procedures and Glendale Police Department General Orders: No. 504—Employee Conduct Employees shall at all times conduct themselves in a way that reflects favorably on the public they serve. The City upholds, promotes, and demands the highest standards of ethics from all of its employees. Employees should maintain the utmost standards of personal integrity, truthfulness, honesty, and fairness in carrying out their public duties, avoid any improprieties in their roles as public employees, and never use their City position or power for improper personal gain. All employees are expected to respect and comply with all federal, state, and local laws, including all municipal policies, rules, regulations, directives, and procedures. No. 513—Disciplinary System, Section II.E.2 Major Deficiencies: These are acts that involve questions of trust or honesty, constitute a threat to the orderly City operations or pose a threat to the health, welfare or safety of employees or other individuals. • Conduct unbecoming of a City employee ➢ On or off duty conduct which may bring discredit to employees of the City • Conduct involving dishonesty or untruthfulness G.O. 22.053. I. Orders and Directives I. Employees will follow policies, orders, directives and regulations, either written or oral. G.O. 22.040 Unbecoming Conduct -4- Derek Fisher Personnel Board Hearing Minutes June 30,2015 Page 5 A. Unbecoming conduct is any conduct that adversely affects either the public confidence in the ability of the Department to provide necessary services to the community, or the morale and/or efficient operation of the Department. B. In the event an incident(s) of unbecoming conduct is not specifically addressed in this directive, the discipline an employee may receive will depend on the severity of the conduct, with aggravating and mitigating circumstances being considered. The discipline may range from counseling to termination. CITY'S OPENING STATEMENT (Pages 8 - 10) Nancy Mangone, Assistant City Attorney, representing the Respondent, gave the City's opening statement. APPELLANT'S OPENING STATEMENT (Pages 11 - 16) Kathryn Baillie, Attorney, gave the opening statement for the Appellant. CITY PRESENTATION(Pages 16 - 62, 128— 160, 163- 164 Nancy Mangone, Assistant City Attorney, representing the Respondent, presented the City's case. The following witnesses were called to testify for the City and sworn in: Robert MacDonald, Police Sergeant, Glendale Police Department(Pages 16—62) Richard St. John,Assistant Police Chief,Glendale Police Department(Pages 131 — 159) APPELLANT'S PRESENTATION (Pages 63 - 126, 160— 163, 165— 173) Kathryn Baillie,Attorney,presented the Appellant's case. The following witnesses were called to testify for the Appellant and sworn in: Chris Meyer,Police Officer, Phoenix Police Department(Pages 161 —164) Derek Fisher, Former Police Officer, Glendale Police Department(Pages 165 - 173) CITY CLOSING ARGUMENTS (Pages 179 - 184) APPELLANT CLOSING ARGUMENTS (Pages 184 -207) CITY FINAL ARGUMENTS (Pages 207 -208) EXHIBITS Attorney Kathryn Baillie, representing the Respondent, objected to the admission into evidence of the City's Exhibit 8. This exhibit was a letter notifying the Glendale Police Department that Officer Derek Fisher will be included in the Maricopa County Attorney's -5 - Derek Fisher Personnel Board Hearing Minutes June 30,2015 Page 6 Office Law Enforcement Rule 15 Disclosure Database, commonly referred to as the Brady List. The objection was overruled by Chairperson Zomok. PERSONNEL BOARD RECOMMENDATIONS The Personnel Board deliberated the testimony and voted in Open Session. Question No. 1 (Pages 208 -209) Bud Zomok, Chairperson, called to entertain discussion and called for a vote on item number one (1): Was the action of the Appointing Officer based on political, religious or racial prejudice? No discussion was held by the Board regarding this question. All members present voted no--The action of the Appointing Officer was not based on political, religious or racial prejudice. Question No.2 (Pages 209 -210) Bud Zomok, Chairperson, called to entertain discussion and called for a vote on item number two (2): Did the City follow its policies and procedures that provide employees with the right to appeal certain disciplinary actions? No discussion was held by the Board regarding this question. All members present voted yes--The City did follow its policies and procedures that provide employees with the right to appeal certain disciplinary actions. Question No. 3 (Page 210) Bud Zomok, Chairperson, called to entertain discussion and called for a vote on item number three (3): Did the Appointing Officer have just cause to take disciplinary action based on the stated violations of the Human Resources Policy? No discussion was held by the Board regarding this question. All members present voted yes--The Appointing Officer did have just cause to take disciplinary action based on the stated violations of the Human Resources Policy. Question No. 4 (Pages 210 -214) Bud Zomok, Chairperson, called to entertain discussion and called for a vote on item number four (4): Does the Board sustain or not sustain the action of the Appointing Officer, based on the facts and information presented to the Board? Chairperson Zomok stated he would like to make a very brief comment. He stated to make a decision to terminate or not terminate someone is a difficult decision. He addressed the Attorney's statement that the Officer was off duty. However, he stated within the City of Glendale's policy, the statement of conduct unbecoming of a City employee, not just an Officer, but a City employee, pertains to on- or off-duty conduct. -6- Derek Fisher Personnel Board Hearing Minutes June 30,2015 Page 7 Mr. Zomok also commented that although Officer Fisher states he was drunk and didn't recall certain things, he did have the wherewithal to realize he was drunk enough that he couldn't back his vehicle up and needed assistance. Mr. Zomok stated further that Officer Fisher stated he did not move stuff into the truck or he doesn't recall moving stuff into the truck, but he provided the tools or gave direction to where the tools were. He stated he was having difficulty with this: "Here are the tools to remove the stuff I didn't touch it. But here are the tools to remove the stuff." Mr. Zomok concluded by stating we hold our Police to a higher standard and those standards don't go away when they are off duty. He stated the minute he thinks a Police Officer can go home and do something illegal,just because he's off the clock is when he loses belief in the system. He stated he has to believe that Police Officers are held to a standard,just as all City and government officials are held to a standard. All members present voted to sustain the disciplinary action regarding the termination of employment of Mr. Fisher. CONCLUSION BY THE CHAIR(Page 214 Bud Zomok, Chairperson, concluded the Board found the specific evidence presented at this hearing did justify the discipline administered in this matter in regard to Mr. Fisher's termination and therefore voted to recommend the disciplinary action be sustained. The hearing adjourned at 11:05 p.m. Sub tted b : / y 1 f Jim Brown ,Human Resources & Risk Management Director -7 -