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

Tuesday, January 18, 2011

When the Clock Strikes Past Midnight

If you use Blackberry to get your emails, you're out of luck today. Massive Blackberry server outage all over United States...How long to fix it? Not known at this time.

[Employees of the Riverside Police Department and Fire Department receive accolades and induction into the Riverside Unified School District Honor Roll for saving the life of Arlington High School Head Football Coach Patrick McCarthy (l.)]

[Riverside Police Department Officer Richard Glover who also is an assistant football coach at Arlington High School receiving his award]

[Deputy Chief of Personnel Mike Blakely and Chief Sergio Diaz witness the award ceremony while the fate of Glover's career remains in their hands 14 months after the alleged incident took place]

California State Governmental Code 3304 (d)


d) (1) Except as provided in this subdivision and subdivision
(g), no punitive action, nor denial of promotion on grounds other
than merit, shall be undertaken for any act, omission, or other
allegation of misconduct if the investigation of the allegation is
not completed within one year of the public agency's discovery by a
person authorized to initiate an investigation of the allegation of
an act, omission, or other misconduct. This one-year limitation
period shall apply only if the act, omission, or other misconduct
occurred on or after January 1, 1998. In the event that the public
agency determines that discipline may be taken, it shall complete its
investigation and notify the public safety officer of its proposed
discipline by a Letter of Intent or Notice of Adverse Action
articulating the discipline that year, except as provided in
paragraph (2). The public agency shall not be required to impose the
discipline within that one-year period.
(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.
(B) If the public safety officer waives the one-year time period
in writing, the time period shall be tolled for the period of time
specified in the written waiver.
(C) If the investigation is a multijurisdictional investigation
that requires a reasonable extension for coordination of the involved
(D) If the investigation involves more than one employee and
requires a reasonable extension.
(E) If the investigation involves an employee who is incapacitated
or otherwise unavailable.
(F) If the investigation involves a matter in civil litigation
where the public safety officer is named as a party defendant, the
one-year time period shall be tolled while that civil action is
(G) If the investigation involves a matter in criminal litigation
where the complainant is a criminal defendant, the one-year time
period shall be tolled during the period of that defendant's criminal
investigation and prosecution.
(H) If the investigation involves an allegation of workers'
compensation fraud on the part of the public safety officer.
(e) Where a predisciplinary response or grievance procedure is
required or utilized, the time for this response or procedure shall
not be governed or limited by this chapter.
(f) If, after investigation and any predisciplinary response or
procedure, the public agency decides to impose discipline, the public
agency shall notify the public safety officer in writing of its
decision to impose discipline, including the date that the discipline
will be imposed, within 30 days of its decision, except if the
public safety officer is unavailable for discipline.
(g) Notwithstanding the one-year time period specified in
subdivision (d), an investigation may be reopened against a public
safety officer if both of the following circumstances exist:
(1) Significant new evidence has been discovered that is likely to
affect the outcome of the investigation.
(2) One of the following conditions exist:
(A) The evidence could not reasonably have been discovered in the
normal course of investigation without resorting to extraordinary
measures by the agency.
(B) The evidence resulted from the public safety officer's
predisciplinary response or procedure.
(h) For those members listed in subdivision (a) of Section 830.2
of the Penal Code, the 30-day time period provided for in subdivision
(f) shall not commence with the service of a preliminary notice of
adverse action, should the public agency elect to provide the public
safety officer with such a notice.

On Tuesday, Jan. 18 at around 6pm, a group of individuals including Riverside city employees appeared at a Board of Education meeting of the Riverside Unified School District to get awards and induction into the RSUD's Honor Roll for saving the life of Arlington High School Head Football Coach Patrick McCarthy after a severe infection caused him to go into cardiac arrest right in the football field during a practice. Assistant coaches Zaza Ralph and Richard Glover, a Riverside Police Department officer sprang into action taking emergency measures to resuscitate him until emergency personnel from the Riverside Fire Department arrived to apply further emergency measures before transporting McCarthy to a hospital where he struggled to survive for several days but a little more than two months later, he was standing at the podium at the Board of Education meeting which was filled with people witnessing the ceremony. Speakers including McCarthy cited the bravery of those who were involved including Glover and said if they hadn't acted that McCarthy wouldn't be alive today. Both Chief Sergio Diaz and Deputy Chief Mike Blakely attended and stood up proudly when introduced in front of the school board as they should after those awarded including Glover were given standing ovations. Both men play pivotal roles in a situation involving the young officer as it turned out in a situation that's started over a year ago.

But what might not have been known by most of the people attending the event was that Glover hadn't been able to wear his police uniform in months and that he had actually been placed on paid leave pending the outcome of an internal affairs investigation that has been in the works since about November 2009. They might not know that right now, there's allegedly a recommendation to terminate his employment and that of another patrol officer sitting on the desk of a high ranking management employee. And that the investigation against him and other officers has possibly exceeded its statutory limitations according to state law and the police officer bill of rights yet the management level of the department has either made or received recommendations to discipline them anyway for allegations it has apparently sustained.

It's an investigation and review process that's sparked many questions as it probably should. As it should have months ago so what happened? Because what's resulted is a quandary that taps into many issues involving the problems that have plagued the department's personnel and investigation process for the past few years. Problems that needed solutions before this investigation even got started and long before it got caught in a quagmire where it still remains.

The investigation allegedly originated from an arrest that had been made that had been the subject of a complaint and the investigation was conducted involving Glover, Officer Michael Bucy and later the supervising sergeant who were involved with its handling. An investigation where the direction that it has taken appears to be as prolonged as any investigation possibly could be, and one that has sparked some degree of controversy in whether or not the department has followed state law regarding instituting disciplinary actions of its officers. Not to mention that it seems to be an investigation that no one including in upper management appears to want to deal with as it meanders on past beginning its second year even as a recommendation for rather serious discipline of the two patrol officers has been presented. It appears to be the proverbial hot potato for quite a few people and that's exactly what it shouldn't be at all. Too many lives are involved in a situation that has become uncomfortable to being addressed, it's the first major disciplinary action by the new regime and so far it had seemed like there's been fumbling of the ball up to that point.

Not that by itself, investigations stretching out close to the one year mark aren't anomalies particularly in the area of citizen complaints, as statistics released have shown.

These statistics have shown that the department had already been struggling with the length of time it took to conduct its investigations particularly those involving complaints filed by the public for quite some time long before this particular investigation even began.

For the past five years or so, the average length of time it's taken to investigate both category I (more serious allegations) and 2 (those less serious) has ebbed and flowed but for the most part, has taken at least for citizen complaints often much longer than six months. Much longer than the recommended 60 or 30 days respectively (RPD Policy 4.12 D 5,6) to even reach the Community Police Review Commission if they're complaints under its jurisdiction. And for the most part, it's the category 2 complaints which have run up the highest number of day before completion according to those same statistics. That might be due to several reasons including prioritizing major investigations over minor ones and the fact that the vast majority of category 2 complaints are handled by field sergeants, a rank that's become pretty depleted in the past several years due to their positions being frozen when vacated.

Investigations involving personnel complaints filed against police officers have averaged up to 200-300 days at times to even reach the CPRC according to statistics released by that board on a monthly and annual basis. Yet the department assures both complainants and likely police officers not to mention members of the CPRC that there has never been an investigation that it's done which has extended past the expiration of the governmental code cited above, 3304(d) which states that an officer can't be disciplined more than 12 months after the initial suspicion of misconduct by that officer. The code cites a list of exemptions to that rule, which include the conduction of a criminal investigation/prosecution (which takes priority), investigations conducted by other law enforcement agencies (i.e. the FBI) or the incapacitation of officers involved in the investigation as subjects or witnesses.

Criminal charges were never filed in relation to this case and no civil litigation was initiated either yet the length of investigation and the holding pattern that emerged afterward for more months seemed endless. And in most cases involving the police department, officers are still disciplined (most often by termination) within 12 months of the suspicion of misconduct even in cases where they are being prosecuted on criminal charges. Former officers Robert Forman and Anthony Fletcher and Det. Scott Impola were all fired within six months of criminal charges being filed and well within the 12 months of when the clock was started under 3304(d). There's probably other similar examples where the clock didn't run out on investigations that became criminal cases. When the department strongly believes there's serious misconduct that has been sustained or will be, it acts decisively, it doesn't meander and malinger on an investigation past a year and then engage in a game of musical chairs handing it off to the one left standing to make the decision on what discipline to give out.

So then what happened here in this particular investigation which has presented a situation where officers might get disciplined possibly terminated after the 12 month mark? Even if the department can foster a reason, an exception to waive the requirements of the governmental code, will it past the muster if this disciplinary action is later appealed through arbitration?
Not very likely, given past decisions which heavily favor police officers who have faced serious discipline including termination and likely it would hinge on 3304(d) which means it mostly likely would be tossed out.

But this case hasn't even gotten that far.

So far it's been going on 15 months without any resolution to it and it has generated some degree of controversy as to why it took this long, putting the careers and lives of those involved on hold for over a year and the ultimate outcome for even longer than that. The concerns had included how the investigation into the complaint was handled in the first place including how it proceeded through the chain of command especially during the disciplinary process. It's a process that's not had any winners and has raised questions about how the investigation and disciplinary process is handled by the Riverside Police Department. An agency which already has some interesting history with how it disciplines in different ways for the same offenses. In the same department for example, one detective got a notice with an intent to terminate for alleging lying about making a racial comment several years before he had been investigated for making one last year. An investigation which was one that apparently took priority over this " very serious" one. Even though those involved in both cases sat in the same penalty box.

Another detective had made used a racial slur in roll call during training and had originally been facing a severe suspension. But he wound up with a written reprimand because the lieutenant of the Internal Affairs Division which had been investigating that detective for making the "wet back" comment had himself used that same slur in another training exercise involving the City Attorney's office in front of someone assigned to that office. The lieutenant hadn't really gotten any discipline against him for his slur so they had to go back and reduce the discipline recommended for the detective that his division had investigated for using the same slur, to a written reprimand. It's really hard to look at this ridiculous exercise in showing that accountability for misconduct is something that clearly doesn't trickle up the chain of command and take a law enforcement agency and how it handles that issue very seriously. One person loses their job, one gets a change of disciplinary action and the other gets to retire and then get rehired by the city to work where, but in the City Attorney's office. So at least in that case, the assignment of discipline to an officer seems somewhat capricious? No, the lesson that this situation sends to everyone is that the higher you are up in the chain of command, the less the discipline is that you receive. Because there's quite a large gap between a termination, a suspension, even a written reprimand and a retirement and another job with the city. If that's how discipline was carried out in practice or even as the rule, then it wouldn't seem to be a trustworthy process at all.

Then there was the officer who wasn't issued a notice of intent to discipline for sustained misconduct until 13 months after an incident and since they couldn't give him the disciplinary action that they had intended legally under 3304(d), they decided to "discipline" him through a "non-disciplinary" transfer out of a special assignment. What made that an eyeball rolling event was that the notice of the non-disciplinary transfer was actually written on a memo that had on the top of it, "notice of intent to discipline". What was humorously ironic in a Wonderland kind of way ultimately became very expensive when that episode played out in front of a civil jury about five years ago.

Another long-time detective had committed a serious act of misconduct within his assigned unit and the captain at the time in investigations had recommended that he receive a written reprimand violating departmental procedure that required one of the three following disciplinary actions: suspension, demotion or termination. The assistant chief in that situation then recommended a suspension while the police chief ultimately terminated the detective who then won his job back in arbitration, the city appealed it, lost and then ultimately paid him a medical retirement.

A patrol officer committed sexual misconduct on duty and wasn't terminated but then several years later was arrested and prosecuted for oral copulation under the color of authority and sexual battery and today, is a convicted felon and registered sex offender. Plus he was ultimately fired from the department.

But then the department took back the one police officer whose firing had been supported by arbitration and by Riverside County Superior Court for some inexplicable reason. The officer didn't stay in the department very long before regressing back to the behavior that got him terminated but this time the department didn't fire him, it paid him out, most likely on a "medical" retirement.

It's more than likely that most of the cases don't appear to be like these ones and that they have outcomes that make more sense including when it comes to issuing disciplinary action. At least one would hope so especially in the case of employee terminations. But it's problematic when the process goes astray even once because of the serious implications involved and how they impact people's lives.

Because it's one of the most serious actions that a police department can take and one that's required to adhere to state law including requirements involving statutory periods. An accountable and responsible law enforcement agency would see that it did just that as well as honoring the laws which require departments to have an accountable citizen complaint process, laws which were alleged to be violated by former State Attorney General Bill Lockyer in his lawsuits against Riverside in 2001, which of course was settled in the form of a five-year stipulated judgment. But was proper process followed here with this 15 month process of investigating misconduct allegations, sustaining them and then making recommendations and ultimate decisions involving any disciplinary action. And if the process wasn't followed correctly with Bucy and Glover's investigation, then why not?

There's been some talk about how major this case was in terms of what happened but if that's the case why did it sit for months essentially allowing the clock to run out? Shouldn't the most important investigations be the ones that get completed on time? Yes, investigations shouldn't be rushed to the finish line and risk being compromised in the process but there's plenty of room for taking great care in conducting them and in getting them completed before the 12 month mark. If this investigation really was so important, the situation so grave, it certainly wasn't treated that way. It was treated like it somehow became politicized along the way inside the insulated walls of the RPD. It also raises the issues of how investigations are prioritized within the department. Are the most serious ones treated as the highest priorities or those that become the most politicized? Past practice had often appeared to be that investigators would be placed on one case, work on that one and then be pulled off to deal with a newer one that was suddenly even a higher priority. Is that still the way business is being conducted, hopefully not because it's pretty easy to identify the inherent problems with that type of organizational system.

But this case itself is odd in more than one way including through the recommendations on disciplinary action which have been made so far. Because the discipline recommended in this investigation also diluted itself the higher up it went.

It's kind of difficult to look at this important and often very arduous process of deciding whether to assign discipline to an officer and if so what with an unjaded eye. If it seems that accountability for sustained misconduct goes down, the higher the rank then that hardly seems appropriate either and it sends a very disturbing message. Why should a detective get suspended or even written up for a racial slur whereas a lieutenant gets nothing, retires and earns another job with the city? Officers should get disciplined for that form of sustained misconduct but the severity shouldn't lessen the higher up in the chain of command that it goes. With increased privilege and power which is enjoyed at the higher levels such as supervision and management, comes responsibility and accountability as well.

What kind of message does that send to the department but also to the community, whether the community knows it or not? Because this type of behavior is often symptomatic of deeper problems that the community will become aware of perhaps in a big way down the road even if it's not aware initially. Riverside's definitely seen that scenario play out in technicolor several times.

Glover and Bucy were featured in earlier postings in the Mad, Mad World at Orange Street Station during the time period last spring when both of them and at least four sworn employees spent their days sitting in the Orange Street Station in a situation called the "penalty box" after being removed from their field operations or investigative assignments. That's the place where Lt. Leon Phillips was put as Former Acting Chief John DeLaRosa told officers at roll call to be trained for a "special assignment" rather than being disciplined. But a week later, he was given his notice of intent to terminate. Some special assignment. The "Penalty Box" as it's called might have some purpose but it's become more politicized than anything else, the fact that it has a name bears to that.

The only other thing that Bucy and Glover had in common was that both had testified in the late 2005 criminal trial of that former officer who was convicted of one count of oral copulation under the color of authority, Robert Forman. Bucy had testified as a former trainee of Forman but his testimony had actually hurt Forman because he had testified that his field training officer had been strict and meticulous about details whereas Forman's entire defense had been built on the premise that he had become a lazy, complacent officer.

Glover had testified that he had been at the scene when Forman and one of the alleged victims had been involved in a petty theft misdemeanor that Forman also had been convicted of at trial. But it seemed clear that the officers at the scene of that situation involving an angry prospective john who alleged he had his $100 stolen by Forman and the victim had no idea that anything illegal involving Forman had taken place.

But what happened last spring was that two officers were taken out of the patrol division and placed in the "penalty box" while the investigation of a complaint appeared to be in limbo months after much of it had allegedly been completed. If the investigation was so serious as had been claimed, why did it take so long, and why were the officers assigned to the Orange Street station for months before being placed on paid leave about two months ago? After all, an investigation involving a former detective who made a racial remark was apparently deemed more important and the highest priority by Orange Street Station about the same time that allegations raised by the detective involving an altercation with a management member hit the press. But yet, the situation was so serious the officers had to be removed from their field assignments and put on some form of desk duty yet for a long while it seemed as if the department's management (which itself was undergoing major changes) was content to run the clock out. Which makes no sense whatsoever.

The investigation finally made it to the desk of newly anointed field operations captain, John Wallace who was given the task, of making the recommendation for the disciplinary action imposed on the officers and sergeant nearly 12 months after it had first been noted. The newly appointed members of the management team apparently didn't want to get involved in making that recommendation themselves, leaving it up to Wallace who was left to come up with his own decision or to seek advice from other parties including his executive lieutenant, Gary Leach. A bit of a different protocol than in cases with former management personnel who had been more hands on with it than had the captains.

But for a while, it put Wallace in the hot seat.

[Field Operations Capt. John Wallace took two months of review to recommend termination for the two patrol officers and a suspension for their supervising sergeant]

Wallace who spends much of his time in his office at Lincoln Field Operations Station remained in there even when Deputy Chief Jeffrey Greer recently attended several roll call sessions without him. He rose up quickly through the ranks mostly through interior assignments becoming a captain before the age of 40 and had a flair and talent for writing which led him towards drafting quite a bit of the original Strategic Plan. He had also applied for the chief's position vacated by Russ Leach and had made the list of final candidates for interview. Apparently he had asked the police unions for their support of his candidacy but they demurred, perhaps because several of their members had their eye on another candidate in the finals.

But this captain who had tried out for the chief's spot ironically was left with a very important decision to make which was to issue a recommendation for the officers involved in the case. Not an enviable task to put it lightly given that it had taken so long for the process to even get that far. That put him from the start in a position that wasn't very fair to be placed in.

It allegedly took him about two months to decide on what disciplinary action if any to recommend against the involved department employees and it was apparently a difficult process because upper management left it up to him to decide on what to recommend. And at the end of that period of contemplation, Wallace finally did.

For Glover and Bucy, he allegedly recommended that their employment be terminated. He went a little easier on the supervising sergeant who received a recommendation of a suspension which was between 1-2 work weeks. If that's the case in terms of what was recommended as discipline for the involved parties, it raises an immediate question as to why the supervising sergeant would be receiving lessor discipline than the officers under his watch. Isn't it to be the other way around, because the department has preached that accountability increases with movement up the chain of command. But then you have to look at the Leach incident for guidance where the lieutenant wound up being the only party involved who at one time faced a loss of income being factored into his eventual pension, with the demotion that never came to be. After all, if that's how the management at City Hall issues out discipline, the department after all, is underneath that same management.

Still, it appears a bit odd, the fact that the involved officers faced a loss of employment while their supervisor (who's still on duty) received a recommendation of lessor disciplinary action. The recommendations allegedly made appear to go against the mission statement of the police department in that accountability for actions and misconduct increase the higher up the structural hierarchy that you go. If a supervisor supervises officers who commit behavior that is deemed by a captain to deserve termination and then gets a recommendation for lighter discipline, what does that mean exactly?

But anyway, at about the 14th month, the investigative packet wound up on the desk of Asst. Chief Chris Vicino for its next stage of handling.

[On Asst. Chief Chris Vicino's desk sits the package involving the involved officers and supervisor]

Vicino has to review an investigation that took 14 months to reach his desk, two months outside of the statutory limitation for disciplining officers which recommended termination for two patrol officers and there had been an inverse correlation between the severity of recommended disciplinary action and the ascension in rank of those involved. It puts Vicino in a difficult position of whether or not to accept or reject the recommendations for disciplinary action, one of the first critical and very involved decisions he has made since his arrival involving an investigation that had put the department in the position of potentially violating the state's peace officer bill of rights and 3304(d) unless the department can come up with an exemption. But Vicino has experience as an interim chief in Pasadena Police Department and has been a force out on the trail of the solicitation of input from different corners for the department's upcoming strategic plan so the task that has been assigned to him is certainly within his scope. Diaz himself comes from a police department where the chief had different and somewhat more limited powers of disciplinary action than is the case in Riverside's department. Does he view the issue similar to what happened back at his haunt or as it is in Riverside? Diaz has had his missteps since becoming chief but he's had his visionary moments too. But what defines a chief ultimately are the bigger tests that he or she faces and this is one of them.

What decision Vicino and possibly Diaz make remains to be seen on the investigation process that dragged on past its year. It's not likely that the officers will be fired, especially given that Diaz attended an award ceremony for one of them but will they be given lesser disciplinary action in hopes they won't contest it in arbitration? If the officers were terminated, they have nothing to lose and perhaps everything to gain by taking their case to arbitration where likely it would get tossed given the high rate of discipline overturned during this civilian process. But in the meantime, they face economic hardships that come along with the waiting game for a case to reach, to be presented and decided upon by an outside arbitrator.

Still it raises questions and revisits concerns that have been raised about the investigation and review process of complaints by the police department which has been a dilemma in the past five years. The situation has been raised as a "what if", in what would the department or city do if the ultimate discipline was recommended after the statuory of limitations had passed? Well, in this case it might have happened and is no longer a hypothetical.

Running the clock and playing fumble the ball with such an important process violates so many individuals rights. The complainant doesn't benefit if an allegation is sustained against an officer who then can't be legally disciplined. The officers don't really benefit either from having cases drag out so long either. Their lives are put in hold without any resolution in sight. But is the police department able to resolve its ongoing issues with complaints that average 200 days or more to reach the CPRC? The attempts made so far including having two lieutenants in the division at one time haven't produced long-term results and it's ironic that once again the complaint system has been compromised in its effectiveness not too long after then State Attorney General Bill Lockyer alleged that it was in violation of the state's penal code, necessitating rewriting and reform.

It remains a challenge for Diaz and Vicino, for newly anointed CPRC manager, Frank Hauptmann, for the commission itself, for complainants, for officers like Bucy and Glover and those who represent them. For those who investigate and review complaints including City Hall. But what will be shown here by the ultimate outcome is what kind of decision making has been brought into the police department, and the difference between what's management and what's leadership. Something that's been lacking in this investigation for too long. If people's careers and lives are at stake including officers, they and their process deserve much better than this as do the individuals who file complaints.

What's really needed at this point is serious dialogue among the different players including those in management, supervision, the police bargaining units and the CPRC about what this process is going to be. Because even if this investigation were the only one to experience serious problems, that won't be for long. The intelligence and commitment to improving the police department in the wake of the problems which gripped it are certainly there inside the department, but what is most important is the will to address this situation which has placed doubt in the complaint investigation and review process which needs to be removed. Everyone involved in this tangled mess of a process deserves at least that especially when the decisions made have a profound impact on people's lives and livelihoods.

It's awesome when leaders of departments appear when their employees are being recognized for heroic deeds but it's more important to make sure that the processes that these employees are involved in are what they need to be, to be fair and just for all parties. A process that doesn't realize that isn't ultimately worth very much in the end and inevitably serves as the definer of the leadership and the department itself.

And it seems that there needs to be much more work done on that process. The minds are there to do it, but will they be up to it, is the question.

The Press Enterprise Editorial Board weighs in on the proposed banning of most mobile food trucks. Too bad, it would bring a lot of people to the nearly dead downtown.

Public Meetings

Tuesday, Jan. 25 at 3 and 6:30 p.m., The Riverside City Council will be meeting to discuss this agenda including its plans to do some resolution over Governor Jerry Brown's proposed shutdown of redevelopment agencies.

Also in closed session, the federal lawsuit filed by former Riverside Police Department Officer Jose Nazario comes up for an update.

Wednesday, Jan. 26 at 5:30 p.m. The Community Police Review Commission meets in the city council chambers to discuss this agenda. It will be the first meeting where newly hired manager, Frank Hauptmann will appear.

Public Reception

Tuesday, Feb. 1 at 5:30 p.m. City Hall will finally be holding a welcoming reception for newly hired CPRC manager, Frank Hauptmann in the Mayoral Ceremonial Room about a month after he actually started his employment.

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