A police officer’s misconduct during his separation and divorce harmed the public service and justified his termination, arbitrator Ernest Gould found. The turmoil of his personal life did not mitigate against his discharge.

In 2009, the officer’s wife asked him to move out. They split custody of their two children. The officer asserted they were attempting reconciliation over the summer of 2010, but the wife insisted she just wanted to remain friends for the sake of the children.

In September 2010, while on patrol, the officer accessed the California Law Enforcement Telecommunications System (CLETS) to obtain information about a man that his estranged wife had dated but no longer was seeing. It is against police department policy and state law to access CLETS for personal reasons. Officers are warned that they can be terminated for CLETS misuse. The officer claimed he improperly accessed the system because he was fearful that his wife had become involved with someone who might have a criminal record. There was no evidence, however, that the man was involved with the family at the time.

In October, the officer again accessed CLETS to look up information on his wife’s new boyfriend, although he knew that using CLETS for personal purposes was illegal and against department policy. Again, his excuse was that he feared for his family’s personal safety. During the period leading up to his divorce, he sent his wife angry text messages containing profanity. In one text, which stated, “You deserve a shorty life,” he claimed he had misspelled a swear word.

At some point, his wife learned of the CLETS misuse and filed a complaint with the police department. The department verified the improper access. When a police department knows of CLETS misuse, it must report the misconduct to the state Department of Justice. An individual’s access can be restricted for CLETS violations. In extreme cases, an entire department’s access can be blocked. Since the system is used to research criminal histories and missing persons, look for restraining orders, and obtain information from the Department of Motor Vehicles, lack of access cripples an officer’s ability to do his job.

Criminal charges were filed against the officer for both the CLETS violations and the telephone harassment of his wife. He pleaded no contest to the harassment charges, and the CLETS charges were dropped. However, the police department had to notify the district attorney of the conviction. The officer’s name was placed on the department’s Brady list, which alerts criminal lawyers to his conviction and limits his usefulness as a witness in court. The department terminated his employment.

The officer was well liked and had no disciplinary record. Although it was known throughout the office — and even in the neighboring law enforcement community — that he had misused CLETS, many coworkers signed a petition for his reinstatement. This did not persuade either the department or arbitrator Gould to reverse the termination.

The officer did not dispute either the CLETS misconduct or the harassing texts to his wife. Therefore, the only issue before the arbitrator was whether there was just cause for the penalty.

The officer argued that his violations were not serious, but arbitrator Gould did not agree. The police chief had testified that the CLETS violations could have had serious ramifications for the department and that those charges by themselves warranted discharge. The arbitrator did not accept the officer’s assertions that he had accessed the information in the heat of the moment out of concern for his family’s safety. The first violation occurred when the subject of the search was no longer involved with his wife, and a second one happened weeks later. The officer could have checked public records under Megan’s Law or filed a complaint with a protective agency if he truly had concerns, the arbitrator noted.

Nor were the harassing texts minor misconduct. Although the police chief acknowledged that he might not have terminated the officer for the texts alone, the arbitrator pointed out they were so numerous and abusive that the officer was charged criminally. He also agreed with the chief that they raised questions about the officer’s ability to act ethically under pressure.

The arbitrator rejected the contention that his misconduct did not harm the public service. The officer’s conviction was a matter of public record. Neighboring law enforcement agencies knew of the CLETS violations. In addition, his placement on the Brady list limited his usefulness as an officer, since the district attorney might decline to file charges in some cases.

There was no guarantee that he would not misuse CLETS again, and it is not possible for the police department to monitor an officer’s use. Progressive discipline short of termination was not required in this case, said the arbitrator.  The officer intentionally used CLETS for personal reasons twice, knowing that he could be terminated. As the chief testified, his inclusion on the Brady list makes it difficult for the police department to function at full capacity. The arbitrator denied the disciplinary appeal. (City of X and X Police Officers Assn., 4-12-12. Representatives: Ronald Scholar [Kronick, Moskovitz, Tiedemann & Girard] for the city; Steven W. Welty [Mastagni, Holstedt, Amick, Miller & Johnsen] for the appellant. Arbitrator: Ernest S. Gould [CSMCS # ARB-10-0463].)


Posted in Arbitration, Issue 209