Client Outcomes

Details Make the Difference in Defense of Peace Officer

Paying attention to detail can make all the difference in the successful appeal of discipline issued against a peace officer. Just ask Officer Pyong (Junior) Lee, an Officer with the Oroville Police Department who was recently terminated. Through representation by Goyette & Associates, Inc., Officer Lee appealed his termination and successfully had the discipline reversed following arbitration, gaining reinstatement as an Officer with the department. The reversal of the termination all depended on the details.

The City's primary allegations concerned insufficient investigation or reporting on the part of Officer Lee. Standing alone, such allegations usually could not justify termination, even if proven by the City. However, with various items on his record of prior discipline, Officer Lee faced the prospect of the arbitrator upholding the termination when viewing Officer Lee's entire work history. It was during the City's attempt to introduce exhibits and testimony relating to Officer Lee's work record when attention to detail became critical.

First, the City attempted to introduce a series of annual performance evaluations for Officer Lee which showed various negative determinations of his work. The Intended Notice of Termination clearly referred to such performance evaluations. The Final Notice of Termination, however, failed to do so. Unlike many disciplinary actions against peace officers in which the final notice of discipline is merely a copy of the intended notice with the operative date changed and perhaps additional text added, in Officer Lee's case the Final Notice of Termination was markedly different from the Intended Notice of Termination. Reference to the annual performance evaluations which the City attempted to introduce as exhibits were nowhere to be found in the Final Notice of Termination. Upon motion by Gary Goyette, representing Officer Lee, to exclude the City's exhibits relating to these performance evaluations, the Arbitrator, Melvyn Silver, granted such motion. Mr. Silver denied introduction of the performance evaluations by the City based on the well accepted premise that the Final Notice of Discipline is the controlling document, and that issues decided on appeal must appear within the four corners of this controlling document. Since the Final Notice of Termination, as the controlling document, contained no reference to the annual performance evaluations as issue, the City was not allowed to introduce these evaluations as exhibits.

Second, during the testimony of the Chief of Police as the City's key witness, the Chief began to testify at length about various alleged misconduct on the part of Officer Lee in connection with a prior disciplinary action. In conjunction with the Chief's testimony, the City attempted to introduce as an exhibit a Settlement Agreement that ultimately resolved in demotion, along with the Notice of Discipline and supporting documents which led to this settlement. Upon a motion by Gary Goyette, the Arbitrator ruled that the exhibit was limited to the Settlement Agreement alone and that the Chief's testimony could not address the prior alleged misconduct contained in the Notice of Discipline. The Arbitrator based this ruling on the fact that the previous demotion as prior discipline was based on only one allegation of misconduct, as clearly stated in the Settlement Agreement. Since this disciplinary action had been resolved via settlement, only the single allegation of misconduct was relevant to the instant matter and any other allegations of prior misconduct contained in the Notice of Discipline but ultimately dismissed via settlement, were irrelevant to Officer Lee's prior discipline and the City's application of progressive discipline.

The importance of paying attention to details which properly limit the evidence received at hearing for an administrative appeal is clear from this case. Officer Lee's termination was reversed and he was reinstated to his former position in large part because the City was not allowed to introduce exhibits which were not referred to in the controlling document and because the City was not allowed to re-litigate prior allegations of misconduct already resolved through settlement.