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HomeMy WebLinkAbout1983-06-13 CSB MINUTESl { D BOARD OF CAREER SERVICE COMMISSIONERS SPECIAL MEETING JUNE 13, 1983 IN THE MATTER OF THE CITY OF ENGLEWOOD AND DONALD BAKER ON AN APPEAL FROM THE DECISION OF THE CITY MANAGER OF THE CITY OF ENGLEWOOD TERMINATING ENGLEWOOD POLICE OFFICER DONALD BAKER THE BOARD OF CAREER SERVICE COMMISSIONERS RENDER THE FOLLOWING DETERMINATION: ON ALL OF THE EVIDENCE, THE BOARD FINDS AND CONCLUDES THAT OFFICER BAKER DID NOT WILLFULLY VIOLATE POLICE DEPARTMENT RULES AND REGULATIONS, AND THAT THE THREATS ALLEGEDLY MADE TO NICK SAULTERS WERE NOT SUFFICIENTLY PROVEN. ACCORDINGLY, THE BOARD CONCLUDES THAT INSUFFICIENT CAUSE EXISTS TO DISCHARGE OFFICER BAKER. THE BOARD DOES FIND THAT CAUSE EXISTS FOR DISCIPLINE SHORT OF DISCHARGE, INCLUDING LOSS OF PAY. ACCORDINGLY, IT IS THE ORDER OF THE BOARD THAT THE APPROPRIATE RELIEF IN THIS CASE BE REINSTATEMENT WITHOUT BACK PAY EFFECTIVE UPON PRESENTATION TO THE CITY OF A WRITTEN STATEMENT BY A PSYCHIATRIST CERTIFIED BY THE AMERICAN COLLEGE OF PSYCHIATRY CERTIFYING THAT OFFICER BAKER IS MENTALLY ABLE TO FULLY PERFORM THE DUTIES OF A POLICE OFFICER AND THAT HE IS FOLLOWING PRESCRIBED THERAPY. IT IS THE FURTHER ORDER OF THE BOARD THAT AT THE OPTION OF THE CITY, OFFICER BAKER WILL FURNISH SIMILAR CERTIFICATION EVERY THREE MONTHS FOR THE FIRST YEAR OF REINSTATEMENT AND EVERY SIX MONTHS FOR TWO YEARS THEREAFTER. FAILURE TO PROVIDE SUCH CERTIFICA- TION SHALL BE GROUNDS FOR SUSPENSION OR TERMINATION. ANY COSTS IN ADDITION TO AVAILABLE HEALTH INSURANCE SHALL BE AT OFFICER BAKER'S EXPENSE. (Findings & Conclusions attached) Commissioner Turner moved, seconded by Commissioner Pokraka to accept the Findings and Decision as stated above. AYES: Turner, Pokraka, Weber NAYS: Kerzic, Keena Officer Donald Baker thanked the Board for their time and consider- ation in this matter. ~~~/ P/-wJ--Don~ber, Chairman Valerie Christy, Secretary BEFORE THE CAREER SERVICE BOARD OF THE CITY OF ENGLEWOOD, COLORADO IN THE MATTER OF THE CITY OF ENGLEWOOD and DONALD BAKER ) ) ) ) FINDINGS and DECISION "This matter was heard by the Career Service Board on appeal from the decision of the City Manager of the City of Englewood terminating Englewood Police Officer Donald Baker. Hearings were held commencing on April 14, 1983, and concluding on May 25, 1983. The City appeared by City Attorney Rick DeWitt, Assistant City Attorney Thomas Holland and special counsel David J. Menzies. Officer Baker appeared in person and by his attorney John A. Criswell. The appeal was from the decision of the City Manager who, acting on recommendation of the Chief of Police, terminated Officer Baker's employment with the City on March 11, 1983, on the basis of his entire record of employment with the City as well as two recent incidents which were not further described in the City Manager's letter of termination. On stipulation of the parties, the Board ordered the City to provide Officer Baker and his counsel a more definite statement which was made in a letter to Officer Baker dated March 22, 1983. The charges thus framed alleged that one of the recent incidents referred to in the City Manager's letter of termination was a threat of violence to one Nick Saulters which violated Englewood Police Department Rules on use of excessive force and threats of violence. Two previous incidents were specified. One involved Officer Baker throw- ing a flashlight at an automobile on October 21, 1980 and a second involved physical abuse of a juvenile on March 20, 1981. The specific policy manual sections alleged to have been violated are sections 215, 225, 205, 205.10 and 210. The second recent incident specified in the more definite statement dated March 22, 1983, involved Officer Baker's outside employment with a local bank. The statement alleged that Officer Baker systematically altered his time cards over a six month period to represent at the bank earlier than he actually did. alleged to have been violated are sections 205.10 and 210 and procedures section 104. that he arrived Policy sections 230, 215, 205, The City, having the burden of proof, presented extensive evidence in support of these charges and the officer presented evidence in extenuation and mitigation. No rebuttal was presented by the City. The Board is required by ordinance to include in its decision a statement of its findings and conclusions and the appropriate rule, sanction, relief or denial thereof. Section 5-25-12(8) E.M.C. '·Lhe question for the Board to determine here is whether Officer Baker's discharge was for cause which re- lates to the performance of duties, personal conduct, or any other factor detrimental to the City, or other just and reasonable cause. Home Rule Charter, City of Englewood 138:4(h). Section 5-23-6 E.M.C. defines dismissal: "Dismissals are discharges or terminations for just cause, which shall include, but not be limited to, misconduct, refusal or inability to meet prescribed standards, insubordination, or willful violation of departmental, City or Career Service System rules and regulations." Thus, in order to sustain a dismissal the City must show a willful violation of the departmental rules and regulations it alleges Officer Baker violated. The evidence is not in substantial conflict. It shows that Officer Baker was involved in two previous inci- dents which have been offered to show Officer Baker's lack of judgment or exercise of poor judgment. Both incidents occurred while Officer Baker was employed in an off duty capacity for a local Burger King restaurant. One incident occurred late at night on October 21, 1980, when the restaurant was closing for the evening. Officer Baker was on duty in the parking area when he became aware that a pickup truck from inside the parking area was moving toward an exit at a relatively high rate of speed and in the direction of patrons leaving the restaurant and walking toward their vehicles . Officer Baker himself was in the path of the vehicle. He quickly stepped out of the way and as the vehicle passed him, he threw his flashlight at -2- the vehicle to deter its progress. He testified that it was more of a reflex action. The flashlight struck the wind- shield of the vehicle and the driver did slow and did not harm the others in the parking lot. Officer Baker was reprimanded for this action. The second incident, the so-called choking inci- dent, also occurred at Burger King on March 20, 1981. That evening a young man very excitedly summoned Officer Baker from inside the restaurant to the parking area. The young man was so excited that he seemed to be out of control. Officer Baker felt it necessary to restrain him until he had regained self control and in the course of such re- straint held the young man firmly against a parked car for a short P.eriod of time. During the course of this restraint, Officer Baker testified that he held the young man's neck or throat for as long as two or three seconds. The young man complained to Officer Baker's superiors and Officer Baker was suspended for two days. The more recent incident charged was the alleged threatening of one Nick Saulters. The incident occurred late on the night of November 13, 1982. Officer Baker was separated from his second wife at that time. He had talked to her the previous day and had hope of reconciling. He tried to reach her by phone on the thirteenth but was ad- vised that she was out looking for an apartment. Officer Baker then drove to his wife's residence and noticed her car parked in front. He assumed that she was out with Nick Saulters and parked about one-half block away to wait her return. One of the occupants of the house saw the car and called the Denver Police. A Denver Police Sergeant arrived and Officer Baker surrendered his service pistol and another pistol to the Denver Policeman. At Officer Baker's request, the Denver Officer called Officer Wing, an Englewood Police Officer who arrived at the scene shortly thereafter and the Denver Police Officer left. Both Officer Wing and Officer Baker went into the house. Officer Baker talked to his wife on the telephone and she and Nick Saulters agreed to meet Officers Wing and Baker at an Azar's restaurant and try to settle their dif- ferences. The threat was alleged to have been made at this meeting which occurred late the same evening. After a preliminary meeting, Officer Baker talked with Nick Saulters out of the hearing of the others. Nick Saulters did not appear at the hearing in this matter, but his written state- ment was admitted in evidence and is not in substantial con- flict with Officer Baker's testimony. Officer Baker's version of what happened is that he asked Nick Saulters to stop seeing his wife so that he could attempt to salvage his -3- marriage, and that among other things, he told Saulters that when he, Baker, was undergoing similar stress during the breakup of his first marriage, he considered homicide and suicide and that he did not want to be in that situation again. Officer Baker testified that he did not threaten to shoot Saulters. Nothing further happened that evening. Officer Baker reported the incident to the Englewood Police Department and the matter was the subject of an internal investigation. Chief Holmes testified that when he was informed of the incident, he became concerned about Baker's emotional state and referred him to a Dr. Wargo a clinical psycholo- gist who screens officers for the Police Department. Dr. Wargo saw Baker on the 17th or 18th of November and made an oral rep6~t to then Division Chief Mull. Chief Holmes then telephoned Dr. Wargo who stated that Baker was suffering from depression and was suicidal and homicidal. The Chief became concerned and asked for a second opinion from psychi- atrist Dr. Levy who agreed that Baker was depressed but did not think him suicidal or homicidal. The Chief then assigned Officer Baker to duty. Thereafter, and as a result of a statement made by Officer Baker to Englewood Police Sergeant Silby on February 1, 1983, that he had again thought of homicide and suicide, Baker was again sent to Dr. Wargo who made a written evalua- tion dated February 18, 1983, which stated that he believed that there is some risk of suicide or homicide or other forms of violence, but he was not certain of the degree of risk. He recollllllended continu~d counselling or psychotherapy. Shortly thereafter, the decision was made to terminate Officer Baker. The second recent incident cited by the City to justify its discharge of Officer Baker is the alleged system- atic alteration of time cards at his off-duty employment with the Centennial State Bank over a six-month period. Officer Baker was employed by the bank in his off- duty capacity to serve as a security guard for the bank. He worked on Mondays. The bank had a time clock and required employees, including off-duty police officers, to register their arrival and departure on time cards which were used for payroll purposes. Officer Baker was paid by the hour . Officer Kasson , the Englewood police officer who coordinated off-duty police officers for the bank testified that the time clock was installed in September, 1982, but did not work for about a month. Diane Davidson , the bank's assist- ant cashier testified that the bank obtained the time clock some time in April or May, 1982. -4- ..... Prior to late September, 1982, a Mr. Larry Suderman acted as security officer for the bank. Police officers did not possess keys and were let into the bank by a bank officer. Police officers were to report for duty at 6:45 A.M. and check the area around the bank before entering. Mr. Suderman authorized police officers to change their time cards to reflect their actual arrival on the bank premises in the morning. After Mr. Suderman left the bank, the procedures changed and police officers were issued keys. They were to report at 6:00 A.M. and admit employees who were working on the bank's new computer. Two young women who operated the computer testi- fied that on Mondays between November, 1982, and February, 1983, Officer Baker was not there when they arrived and that he arrived between 6:10 and 6:30 A.M. They complained to the bank and the bank reported the matter to Officer Kasson who came to the bank on Monday, January 31, 1983, prior to 6:00 A.M. and waited until Officer Baker arrived at 6:20 A.M. Officer Baker's tardiness was reported to the bank and the Englewood Police Department and, while it is unclear whether the bank or the Englewood Police Department termin- ated him, it is clear that he was terminated from that off- duty employment on February 1, 1983. Time cards admitted in evidence show pen and ink alterations to the clock stamped times. The Board finds that time card alterations prior to the end of November were authorized by Mr. Suderman. Of- ficer Baker admitted that he made the alterations in December and January. On the Monday after the Christmas blizzard, he was the first to arrive at the bank and was unsure whether the bank would open at all so did not enter immediately. He admitted that he was late on other occasions due to car trouble and that he altered the cards because he did not want to lose his job because of his tardiness and not be- cause he wanted the money. On all of the evidence, the Board finds and con- cludes that Officer Baker did not willfully violate Police Department Rules and Regulations, and that the threats allegedly made to Nick Saulters were not sufficiently proven. Accordingly, the Board concludes that insufficient cause exists to discharge Officer Baker. The Board does find that cause exists for disci- pline short of discharge, including loss of pay. Accord- ingly, it is the order of the Board that the appropriate relief in this case be reinstatement without back pay effec- tive upon presentation to the City of a written statement by a psychiatrist certified by the American College of Psychiatry certifying that Officer Baker is mentally able to fully -5- perform the duties of a police officer and that he is fol-~\.__~ ~ lowing prescribed therapy. It is the further order of the ~ I Board that at the option of the City, Officer Baker will {'--/ furnish similar certification every three months for the ~.>-<)~-y:> first year of reinstatement and every six months Ehereafter.~_.-....L. Failure to provide such certification shall be grounds for ~~~· suspension or termination. Any costs in addition to avail- able health insurance shall be at Officer Baker's expense. By the Board I dissent from the findings of the Board and believe cause does exist for discharge of this officer. -6-