Five before Midnight

This site is dedicated to the continuous oversight of the Riverside(CA)Police Department, which was formerly overseen by the state attorney general. This blog will hopefully play that role being free of City Hall's micromanagement.
"The horror of that moment," the King went on, "I shall never, never forget." "You will though," the Queen said, "if you don't make a memorandum of it." --Lewis Carroll


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Location: RiverCity, Inland Empire

Thursday, March 19, 2009

Were these former RPD officers "real" police officers?

I had an interesting discussion today about Councilman Frank Schiavone's lawsuit challenging statements made by political rival, Paul Davis that he was a former Riverside County Sheriff's Department deputy and a former Riverside Police Department officer. In his writ, Schiavone argued that Davis was not a law enforcement officer with either agency because he didn't complete and pass the probationary period at either job.

The main thrust of Schiavone's argument is that P.C. 830.1 borrowed from the state's government code doesn't specifically include the terms, "trainee" or "probationary officer" in its language so therefore, they're not really officers. He uses one former lawsuit decided in 1992 which involved this same issue as proof of his argument. However, the language as stated appears to include both classes of officers as those appointed by a police chief or sheriff and carrying out the duties and responsibilities that a law enforcement officer would be expected to carry out. While it's true the law doesn't specifically state that "probationary officers" and "trainees" are officers. It also doesn't state that it has to do so or that they aren't included in the definition.

But the lawsuit raises some interesting issues including here in Riverside.

So let's take Schiavone's argument that officers who fail to pass probation can't identify themselves as former police officers one step further by offering up a few other noteworthy examples of apparently non-officers employed by the City of Riverside during the past 10 years or so who also fit in this non-officer category as defined by Schiavone's interpretation of state law.

Here are three of them.

Paul Bugar: Employed for about 8 1/2 months

Daniel Hotard: Employed for 11 months

Jose Nazario: Employed for 12 months

Did any of these officers pass probation? No.

Did they resign for any reason including under threat of termination? No.

Did they receive a medical or stress retirement: No

Were they fired "at will" for failing to meet the standards of probation? Yes.

Let's examine the two points of criteria under PC 830.1 which define who's a law enforcement officer and apply it to the three "non-officers" listed above. All three of them were appointed or hired by the police chief. It might have not been the same police chief given that Bugar and Hotard were appointed and hired by former Chief Jerry Carroll and Nazario was appointed and hired by Chief Russ Leach. The point is, they all satisfy the condition of having been appointed by a police chief or sheriff.

Next step, requires that the three "non-officers" listed above had to carry out the duties of law enforcement officers. Meaning they had to be employed and working as law enforcement officers. At the time of the Tyisha Miller shooting in 1998 Bugar and Hotard were working each working solo (meaning driving one-man patrol cars) as is and was the case of the majority of police officers with their comparative work experience as field officers during that time period. They like many relatively inexperienced patrol officers were relegated to the graveyard shifts because there was a bidding process in place which favored senior officers. But it's likely that they were doing comparable work to those done by officers who had passed the probationary period including Officer Michael Alagna and Wayne Stewart.

Nazario also was working as a patrol officer and performing the duties and responsibilities of a patrol officer up to the time he was arrested at the Orange Street Station by NCIS agents.

None of these officers at the time of their terminations had a lot of experience as police officers. All of them had job tenures which were shorter than that enjoyed by Davis while he was employed by the Riverside County Sheriff's Department. And unlike Davis, none of them have ever publicly had their status of identification as police officers ever challenged or questioned by anyone whether they be elected officials or city employees.

In this article published in PORAC magazine, its author doesn't differentiate between how he defines the probationary employees, Bugar and Hotard in comparison to how he identifies Wayne Stewart and Michael Alagna who were not probational employees.


On July 12, 1999, he fired all four officers. Unfortunately, officers Bugar and Hotard were left without any administrative appeal rights as probationary employees.

The PORAC article in this statement shows that the main difference in status between the two classes of officers was their rights to appeal their terminations by the police chief. Meaning that while Stewart and Alagna were able to appeal their firings in arbitration (as is described in the article), Bugar and Hotard as probational officers could not. They in fact could be and were fired "at will". So even though both classes of officers were appointed by police officers and assigned the role and responsibilities of performing peace officer duties, their definitions and directions diverged when it came to their rights to appeal termination and essentially the process used to fire them.

This is why arbitrarily excluding "probational officers" from PC 830.1 like Schiavone and his lawyer are attempting to do is so problematic. Because when it comes down to it, probational officers and nonprobational officers differ in one fundamental aspect, whether or not they can be fired "at will" or not. And there's no language pertaining to termination process and rights to appeal termination included in that provision of the governmental code which defines police officers. So essentially those claiming that probational officers can't and aren't "real" police officers are forcing the use of language as criteria to make that determination under the law which isn't actually included within that law.

So let's assume that Bugar, Hotard and Nazario are not "real" police officers because according to the argument applied to Davis by Schiavone's lawsuit, they can't be, then if that's the case why were actions taken involving the terminations in all three cases which seem to state the opposite.

In 1998, when Hotard and Bugar were placed on administrative leave (as officers may be placed when being investigated for serious incidents) and including when they were fired, there was never any challenge of their status as police officers or any debate whether or not they were "real" police officers or not. That is one issue that everyone who was an eye witness to that turbulent time period should be able to agree, is that they may have been probationary employees of the Riverside Police Department but they were also police officers. Over 200 members of the Riverside Police Officers' Association marched to City Hall to attend a city council meeting in June 1999 to protest the firings of four officers, not two "real" officers and two non-officers. PC 830.1 and its application was never even mentioned at all during this time period.

When the RPOA engaged in the door hanger campaign and took out advertisements in the Press Enterprise presenting its case to the readers in the spring and summer of 1999, they referred to the four officers involved in the Miller shooting as police officers, not as involving two "real" officers and two non-officers. Were they wrong to do so? Was their decision to include Bugar and Hotard under the category of police officers, incorrect or in contradiction of state law?

The case of Nazario is different but shared the history of never having anyone challenge his status as a "real" police officer under PC 830.1 despite the fact that he was on probation at the time of his termination. In fact, then RPOA president Ken Tutwiler asked for Nazario's reinstatement.

(excerpt, North County Times)

Riverside police Detective Ken Tutwiler, president of the police officers association, said he believes that the 27-year-old married father of one should have been placed on administrative leave until the government's case against him is resolved.

In a written statement, Tutwiler said Nazario was eight weeks shy of completing his probationary period.

"We live in a country where a person is considered innocent until proven guilty. Like all Riverside police officer candidates, he underwent rigorous psychological and polygraph tests and passed with flying colors," Tutwiler wrote.

One of Nazario's lawyers, Emery Ledger, has released the results of that polygraph, which shows his client answered truthfully when asked if he was aware of or had ever committed a major crime.

Ledger said Nazario is grateful for the association's support.

The RPOA's position appears to be that Nazario should be afforded the status that nonprobationary officers receive because he underwent the same process including at hiring that they did. In all the coverage of the Nazario case, there were never any challenges made or questions asked about his status as a "real" police officer. Yet, currently Schiavone, his attorney and some of his supporters are arguing that Davis is not a "real" law enforcement officer even though he worked more months at the Riverside County Sheriff's Department than any one of these three police officers did.

At any rate, the hearing's been postponed on the Schiavone lawsuit for a week, so all parties go back to court on March 26, at 8:30 a.m. to argue and then hear what the judge has to say about it.

And if anyone wants to appeal the judge's ruling, the appellate court's not a long walk away.

People aren't that surprised at the personal attacks being made in the Ward Four city council race. Some blame it on the decision made by Schiavone to hire the public relations firm of Floyd & Lucsko, a firm criticized by some for its mudslinging tactics. Last year, Schiavone issued a $2,000 payment to this firm, according to his campaign disclosure statements. But whether this political consulting firm will live up to its alleged reputation during this campaign of course remains to be seen as the days and weeks elapse for Election 2009.

Speaking of Tutwiler, he and a group of other Riverside Police Department officers, Brian Dodson, Randy Ryder, Skip Showalter and Leon Phillips are involved in the organization, Cops Out Preaching Salvation which involved preaching the Gospel to prison inmates around the country. They returned from a trip down South not long ago where they had engaged in ministry and have had a lot of requests for visits.

Craigslist has proven to be quite a place for anonymous individuals going off the deep end over allegations against Davis altering his evaluation from the Sheriff's Department and crass comments and probably untrue comments about Schiavone's sexual orientation. Really, this behavior is so ridiculous and very mean-spirited but these people figure that they're anonymous so they can be vicious and no one will know it's them. But every once in a while, one or more of them slips up and gives themselves away.

And being anonymous allows people to not tread too far out from beneath their rocks to attack other people. Comments accusing Davis of altering documents presented as factual yet asking him to *prove* these allegations is cowardly, tacky behavior. Making insinuations about a councilman's sexual orientation is also cowardly, tacky behavior.

Believe it or not, most of the voters in the fourth ward care more about the issues involving the largest and most populated ward in the city which includes different neighborhoods from Mission Grove to Casa Blanca, from Hawardan Hills to Orangecrest and a lot in between. Some of these neighborhoods have been hit hard by the housing market crisis and through foreclosures.

Some of the comments on Craigslist are just down right bizarre. Like the same person who claims three different identities. Meet "Val", who in one comment claims to be a female employee at City Hall here who is familiar with Schiavone's congenial attitude towards women and goes to bat for him.


I am a Woman that works at 3900 Main st Riverside.Myself and any female at Riverside City Hall would tell you that Mr. Schiavone is one of the most respectful gentleman I have ever had contact with and Quick to defend any Woman from a sometimes rude public.Like him or not he is most respectful.

And here.

(excerpt, Craigslist)

I didnt post my comments to debate but I will be happy to call the individual whom challenges my gender for commenting that Mr Schiavone is very respectful to Women.Please post your contact information and I will call you after work.

No thanks.

And here, is "Val" who incidentally is actually a guy.

I had the same concern so I called Frank Schiavone and to my surprise got a return call from him personally very quickly.Im very satisfied with his explanation and clearly see someone started an unfounded rumor.Suggest you call also instead of spreading rumors here.
Val R

But if you look at all three of these postings, the writing styles particularly sentence structure are all identical. But as far as sequential postings by one commenter, these were the most outstanding series of the day.

But for the overall grand prize, here's the keeper of the day. This comment of the day at Craigslist was written by an unidentified individual who's ranted in the past claiming that I'm a radical feminist (as if that were a bad thing) and then preceded to write a bunch of sexual postings some graphic in nature dabbling on everything from masturbating on his keyboard to a guy being paddled while wearing women's underwear. At least, his behavior so far on this site has been PG rated.

And guess what, he ranted that I was a radical feminist again yesterday.

He misspelled "harassment" back then. He still does so now. And some of the words he misspelled in the porn posts, he's misspelling here three years later as well. If I seem a bit familiar with his writing style, I had received over 50 of disgusting postings by him from 2006.

FBM Mary,
First of all, I do not know what you are rambling about as I have never met nor communicated with you before.
The information I know about you has been posted on your blog and various other websites.
Based on that, the opinions that you present on your blog sound disturbing. A continuous theme on your blog is that you constantly claim to be a victim of harrassment. I then must contend that you do not know what harrassment is. Stop being a victim of your own self-righteousness. Most disturbing is when you accuse councilman Frank Schiavone as being " sexist " for a comment that may be construed as disrespectful at worst, but not sexist.
Sounds as if paranoia has caught up with you.
May I suggest that you get a life, as you seem to have way too much time on your hands belittling public officials.

" anonymous "

As for harassers who blame those they harass for objecting to it, that's pretty classic. But if you want to read his prior posts, feel free to read the archive postings during 2006 that are still on this site and his writing style's not that difficult to pick out. Not nearly as difficult as he appears to believe that it is.

What's good about the discussions on Craigslist? Some of the postings on transit issues including the blog, Riding in Riverside have been very interesting to read. Check out Riding in Riverside as it's an excellent blog.

Also the announcements of events especially the forums and meetings that will be attended by those running for city council during the current election cycle. It will be interesting to see who shows up at these debates and what's actually debated. Hopefully, it will be the issues that are resting in the minds of the voters in the city's even numbered wards. Some upcoming forums are at the bottom of this posting. If you have the opportunity and time, at least check out one of them involving your ward if you live in one that's up for grabs this time around.

Covering election cycles in this city and county is very exciting because so much happens before the votes are cast be it by mail-in ballot and/or polling sites and the votes are counted. After all, Election 2007 was very, very exciting and a nail biter in many ways for months. It was the first election under the current procedure which was approved by voters several years ago and definitely the longest election cycle in recent record beginning in March and ending its first round in June. Taking a bit of a breather while everyone recovered or began raising more money to fill their expense accounts before starting the run for the final round which ended the first Tuesday in November.

Or so everyone thought but it took days and ultimately several weeks (and additional ballot counts) to decide the outcomes in two of the four wards.

But the excitement is tempered with the realization of the nastiness that has arisen during the city elections in 2007 and the Riverside County supervisor election last year. Nasty comments towards competitors that are personal in nature and nasty comments towards those who write about them. I've experienced a lot of that in the last two election cycles and judging what I've seen aimed at candidates and myself so far, this one's unfortunately if it continues the way it's going is going to probably be the nastiest one yet.

The difference this time, is that at least with the nasty comments aimed my way I have a better sense who the responsible parties are and why they're acting the way that they are acting. But it's going to be a long season.

The Riverside County District Attorney's office was to turn over communications between that office and a defendant standing trial on embezzlement and grand theft charges.

(excerpt, Press Enterprise)

Superior Court Judge Paul Zellerbach also ruled the district attorney's office must produce copies of any internal memos, e-mails or other documents that discuss Pacheco's previous relationship with Gunnette, and how it might impact the office's prosecution of Gunnette on embezzlement charges.

Supervising Deputy District Attorney Michael B. Silverman said after the hearing that he will appeal Zellerbach's ruling with the Fourth District Court of Appeals.
Story continues below

"This is a unique situation," Silverman said. "The question is: Does the defense have the right to get personal information from the DA's office? It's kind of a new legal issue that has a lot of ramifications."

But District Attorney Rod Pacheco has other problems including not submitting his department's budget on time. Initially when asked to cut his budget by 10% which was applied to other county departments as well, his response was to increase his budget.

(excerpt, Press Enterprise)

Assistant District Attorney Kelly Keenan told supervisors at their public meeting Tuesday that Pacheco will submit his budget in "a week or so" but he did not indicate whether he would comply with Stone's request to have it next Friday.

"We're looking at everything," Keenan said. "We're being thoughtful, thorough, looking through every avenue, making every cut we can, so when we present a budget it's what we need to continue to maintain public safety."

Stone called Keenan out of the audience and up to the podium after Luna said the executive office faces two choices. Luna said his office can take the district attorney's current budget and just apply the 10-percent cut to it or Luna and his staff can wait for Pacheco to comply and submit a budget.

An aide to one of San Bernardino County's supervisors was arrested on charges of perjury and forgery. He used to be the assistant assessor under Bill Postmus who resigned as assessor after being arrested on drug charges.

Is Euguene's form of civilian oversight going to close its doors to the public?

(excerpt, Eugene Registrar-Guard)

On Monday, the board contemplated convening an executive, or nonpublic, session to discuss a complaint that a Eugene police officer violated a man’s constitutional rights during an encounter last summer.

After debating the closed-door idea, board members followed the advice of interim Deputy Police Auditor Elizabeth Southworth and delayed making a decision.

State open meetings law and a city ordinance outlining the board’s duties might be interpreted as allowing the board to meet privately.

However, the city ordinance also states that the oversight body’s review of completed internal investigations by the police department into police misconduct typically should be done in public. The ordinance says the police auditor should help the board keep the doors open to the public.

“To facilitate the transparency of the civilian review board’s activities, the police auditor will develop and present case summaries and status reports in a manner that allows review and discussion in open session, to the maximum extent practicable,” the ordinance states.

Facing criticism, San Jose is bringing about independent review of its police department.

(excerpt, San Jose Mercury)

Top city officials announced at a Wednesday news conference a newly formed group, the Consortium for Police Leadership in Equity, will study the department and make recommendations for ways to change policies, procedures, and training.

And a consortium official said that San Jose Police Chief Rob Davis has been so amenable to their goals that they may make the department a "flagship— of important national police research.

The request comes as a task force appointed by City Manager Debra Figone is in the midst of studying why San Jose police have arrested more people for public drunkenness in recent years than any other department in the state -- including a disproportionate number of Latinos, a pattern not found in other large cities or in statewide totals.

Officials including Mayor Chuck Reed, Police Chief Rob Davis and Figone lauded the consortium, which already has been called in to study other departments including Denver, as a progessive way to improve city policing.

Though specifics of the consortium review have not been worked out, Figone said the social scientists could provide "more in-depth understanding" of the significance of the disparities in public drunkenness arrests, reported in a series of Mercury News reports since last October.

A video taken of a police officer in Connecticut assaulting a man has been released in the aftermath of the officer being convicted of assault.

Some candidate forums coming up for Riverside City Council elections. All courtesy of Craigslist.

Monday, March 30, Candidates Public Forum, La Sierra Public Library, 7pm NOTE: I assume this is just for Ward 6 Candidates which would include Nancy Hart, Ann Alfaro and Bill Sherer.

Tuesday, April 1, Riverside Chamber of Commerce Candidates Forum, Riverside Marriot, 11:30am NOTE: I could not find this meeting listed on the Chamber's website Perhaps this is a Candidate Forum for members of the Greater Riverside Chamber of Commerce only? Appears this will be a Riverside City Council Candidate forum for Ward 2, Ward 4 and Ward 6. Those are the only Riverside City Council Wards for which Elections are being held June 2. (or by mail in only ballots that citizen will be receiving prior to June 2, and for which the ballots must be received by June 2)

Friday, April 4, The Group Forum, Candidates Forum, 2008 Martin Luther King Blvd, 11am POSTER NOTE: I believe this forum as well will have Candidates from Ward 2, Ward 4, and Ward 6.

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