in the matter of the disciplinary hearing between police officer ...

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in the matter of the disciplinary hearing between police officer ...

I. BACKGROUNDPolice Officer Leonardo Quintana (hereinafter, "Appellant" or “Grievant”) wasindefinitely suspended by the City of Austin Police Department (or, "APD") on October27, 2010 for alleged violations of APD’s General Orders, Policies and Proceduresrelating to the Code of Conduct in regard to compliance with laws, ordinances, statutes,regulations, written directives and insubordination. The Appellant subsequently filed atimely appeal on October 28, 2010 with the City of Austin’s Fire Fighters’ and PoliceOfficers’ Civil Service Commission requesting a hearing before an Independent ThirdParty Hearing Examiner.A hearing was held in a conference room at the City of Austin’s Learning &Research Center located at 2800 Spirit of Texas Drive, Austin, Texas 78719. Thehearing lasted three (3) days from February 22 to February 24, 2011. The parties wererepresented by counsel noted on the cover sheet. They made argument, examined andcross-examined witnesses, introduced documentary evidence, filed post-hearing briefsand otherwise presented their cases in full. A certified court reporter made a transcript ofthe proceedings. Finally, the Appellant either attended and/or observed the entireproceeding.II. ISSUESDid the City of Austin prove by a preponderance of the credible evidence that oneor more of the charges in the Memorandum of Indefinite Suspension (Joint Exhibit # 10)are "true"?If so, with respect to the criminal acts, did the Austin Police Department complywith Texas Local Government Code Section 143.052 (h) and impose disciplinary actionwithin 180 days of the Department’s discovery of those criminal acts?If the hearing examiner sustains either one or more of the charges, was theindefinite suspension of Police Officer Leonardo Quintana appropriate in light of theTexas Supreme Court’s decision in the City of Waco v. Kelley?2


.02 Arrests without a warrantIncidents of family violence create a special standard of arrest requirements.* * * * *B. Officers will arrest for “Assault by Threat” or “Assault by Contact” ifcircumstances reasonably show further violence may occur.* * * * *.08 Intervention in Employee Domestic ViolenceThe Department’s position is one of zero tolerance toward domestic violence. It isthe policy of the Department to use early prevention strategies in order to avoid orminimize the occurrence in the effects of domestic violence. This policy addressesthe dynamics of domestic violence and how it impacts the employees Department.The purpose of this policy is to heighten awareness of domestic violence andprovide guidance for employees, supervisors, and management.B. Procedures* * * * ** * * * *Prevention in Intervention:a. In order to provide non-punitive avenues of assistance to employees,their partners and other family members before an act of domesticviolence occurs, the Department will provide confidential referrals toreputable internal or external counseling services.b. Non-supervisory personnel with knowledge of suspected abuse orviolence involving employees of this Department must report to theirimmediate supervisor.Excerpts from the Texas Local Government Code Section 143.051, et. Seq. (Exhibit #1)TEX. LOC. GOV’T CODE §143.051, et. seq.(Vernon 2009), Subchapter D, Disciplinary Actions§ 143.051 Cause for Removal or SuspensionA commission rule prescribing cause for removal or suspension of a fire fighter orpolice officer is not valid unless it involves one or more of the following grounds:(1) conviction of a felony or other crime involving moral turpitude;(2) violations of a municipal charter provision;(3) acts of incompetency;(4) neglect of duty;5


(5) discourtesy to the public or to a fellow employee while the fire fighter orpolice officer is in the line of duty;(6) acts showing lack of good moral character;(7) drinking intoxicants while on duty or intoxication while off duty;(8) conduct prejudicial to good order;(9) refusal to pay just debts;(10) absence without leave;(11) shirking duty or cowardice at fires, if applicable; or(12) violation of an applicable fire or police department rule or special order.§ 143.052. Disciplinary Suspensions* * * * *(b) The head of the fire or police department may suspend a fire fighter or police officerunder the department head’s supervision or jurisdiction for the violation of a civil servicerule. The suspension may be for a reasonable period not to exceed 15 calendar days orfor an indefinite period. An indefinite suspension is equivalent to dismissal from thedepartment.* * * * *(h) In the original written statement and charges and in any hearing conducted under thischapter, the department head may not complain of an act that occurred earlier than the180 th day preceding the date the department heads suspends the fire fighter or policeofficer. If the act is allegedly related criminal activity including the violation of a federal,state, or local law for which the fire fighter or police officer is subject to a criminalpenalty, the department head may not complain of an act that is discovered earlier thanthe 180 th day preceding the date that the department head suspends the fire fighter orpolice officer. The department head must allege that the act complained of is related tocriminal activity.§ 143.053. Appeal of Disciplinary Suspension* * * * *6


(e) In its decision, the commission shall state whether the suspended fire fighter orpolice officer is:(1) permanently dismissed from the fire or police department;(2) temporarily suspended from the department; or(3) restored to the person's former position or status in the department’s classifiedservice.(f) If the commission finds that the period of disciplinary suspension should be reduced,the commission may order a reduction in the period of the suspension. . . .(g) The commission may suspend or dismiss a fire fighter or police officer only for theviolation of civil service rules and only after a finding by the commission of the truth ofspecific charges against the fire fighter or police officer.* * * * *§ 143.057. Hearing Examiners* * * * *(c) The hearing examiner's decision is final and binding on all parties. If the fire fighteror police officer decides to appeal to an independent third-party hearing examiner, theperson automatically waives all rights to appeal to the District Court except as providedby Subsection (j).* * * * *(f) In each hearing conducted under this section, the hearing examiner has the sameduties and powers as the commission, including the right to issue subpoenas.Excerpts from the Texas Penal Code (Exhibit #4)PENAL CODETITLE 5. OFFENSES AGAINST THE PERSONCHAPTER 22, ASSAULTIVE OFFENSESSec. 22.01. ASSAULT. (a) A person commits an offense if the person:(1) intentionally, knowingly, or recklessly causes bodily injury to another,including the person’s spouse;* * * * *7


(3) intentionally or knowingly causes physical contact with another whenthe person knows or should reasonably believe that the other will regard the contact asoffensive or provocative.(b) an offense under this Subsection (a) (1) is a Class A misdemeanor, . . .* * * * *(c) An offenses under Subsection (a) (2) or (3) is a Class C misdemeanor, . . .* * * * *PENAL CODETITLE 7. OFFENSES AGAINST PROPERTYCHAPTER 30. BURGLARY AND CRIMINAL TRESPASS* * * * *Sec. 30.05 CRIMINAL TRESPASS. (a) A person commits an offenseif the person enters or remains on or in property of another, including residential land,agricultural land, a recreational vehicle park, a building, or an aircraft or other vehicle,without effective consent and the person:(1) had notice that the entry was forbidden:* * * * *(d) An offense under this section is:(1) a Class B misdemeanor, . . . .Judicial Notice of Penal Code, Title 2, Chapter 9, Section 9.41PENAL CODETITLE 2. GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITYCHAPTER 9. JUSTIFICATION EXCLUDING CRIMINAL RESPONSIBILITY* * * * *SUBCHAPTER D. PROTECTION OF PROPERTY* * * * *Sec. 9.41 PROTECTION OF ONE’S OWN PROPERTY.* * * * *(b) A person unlawfully dispossessed of land or tangible, movable property byanother is justified in using force against the other when and to the degree the actor8


easonably believes the force is immediately necessary to reenter the land or recover theproperty if the actor uses force immediately or in fresh pursuit after dispossession and:(1) the actor reasonably believes the other had no claim of right when hedispossessed the actor; or(2) the other accomplished the dispossession by using force, threat, orfraud against the actorExcerpt from the Notice of Allegation/Garrity Warning dated June 1, 2010 (Exhibit #8)You are directed NOT to discuss this complaint or internal investigation with anyoneother that the Internal Affairs Division, or your attorney, until you have been advised bythe Chief of Police or the Commander of Internal Affairs that the investigation iscompleted.You are specifically directed NOT to discuss this complaint or investigation with anywitness, potential witness, r any other officers, employees or volunteers of theDepartment.* * * * *You may discuss this case with your chain of command as long as they are not witnessesor directly involved in the incident.IV. POSITIONS OF THE PARTIESA. APPELLANT1. Grievant was indefinitely suspended on October 27, 2010; the Memorandum ofIndefinite Suspension alleges that the Grievant committed the act of assault and criminaltrespass on October 10, 2009, and an assault in November 2008; however, both of theseincidents were more than 180 days proceeding the date of suspension.2. The City contends that the indefinite suspension was timely because the acts alleged tohave occurred on October 10, 2009 and in November 2008 were “related to criminalactivity” and were not “discovered” until May 5, 2010.3. Pursuant to Section 143.052, the 180-day statute of limitations for alleged criminalactivity begins when the act is “discovered”; and, Chapter 143 does not expressly statewho (supervisory or non-supervisory personnel) must discover the alleged act to triggerthe 180-day limitations period.9


4. In the past the City has argued that the 180-day limitation period does not begin untildiscovered by a “department head” but that argument is not supported by the plainmeaning of the statute; moreover, while Section 143.052 contains certain references toactions to be taken by a department head, it does state that it is the “department head”who must discover the alleged criminal act; finally, even where Section 143.052prescribes that it is the department head that must be involved in the required action,courts have found those provisions have been satisfied when the prescribed conduct isperformed by someone acting on behalf of the department head.5. The City’s argument is also contrary to other arbitration opinions.6. Therefore, to answer the question of who must discover the act to set the 180-dayperiod in motion, it is necessary to consider the intent of this provision; clearly that intentis satisfied when the alleged act is discovered by someone with the duty to report thealleged misconduct to the appropriate investigating authority - once a person charged bythe department to report alleged misconduct discovers the alleged act, the department isin a position to initiate its investigation and take the appropriate disciplinary action.7. Within the APD, all officers are required to report information they discover regardingcriminal activity and policy violations by other officers.8. The record in this case establishes that the APD officers knew of the allegations ofdomestic violence either on the date of occurrence or within a few days thereafter; oneofficer testified that on the date in question (in November 2008) he went to the home ofOfficer Lori Noriega because of a disturbance between Noriega and the Grievant; that heobserved broken items in the house; and that Officer Noriega told him that the Grievant“choked me” or “he was gonna choke me.”9. Regarding October 2009 incident, another officer testified that Officer Noriega told herof the incident and described hitting her head on the wall as a result of the struggle withthe grievant; and, another officer testified that three days after the incident OfficerNoriega told him of the alleged assault and he later observed the hole in the sheet rockallegedly caused by Officer Noriega being pushed into the wall.10. While the City may argue that Officer Noriega did not report the alleged assaults tothese officers in an official capacity, but rather as friends, that fact is irrelevant to thisdiscussion because these officers had a duty to act upon the “discovered” information;10


and the City conceded as much when it reprimanded each of these officers for failing toreport the alleged abuse as required by APD policy.11. The City may also argue because these officers failed to report the allegations ofmisconduct, the department could not investigate the allegation within the 180 days;however, whether or not the person who discovers the misconduct takes the requiredaction should not determine when the 180-day limitation period begins because thisviolates policy and rewards the department for having officers who, for whatever reason,disregard their duty.12. The City may further argue that the alleged misconduct must be discovered by asupervisor to trigger the 180-day limitation period; however, the Legislature did notinclude such a restriction within the act; the APD requires all officers, including “nonsupervisorypersonnel,” to act upon discovered misconduct; and, the City is well aware ofthe fact that there is no guarantee that even a supervisor will always comply with the dutyto report suspected misconduct.13. Texas law has long recognized that knowledge held by an individual with a duty toreport such information will be imputed to an organization as a whole.14. This doctrine has been used to establish actual notice by a governmental entity of aclaim for injury when a police officer with a duty to report dangerous roadway conditionsknew of an obstruction that caused a traffic accident; additionally, the knowledge ofindividual police officers as also been imputed to prosecutors.15. In conclusion, as to this issue, the City, through its police officers, discovered thealleged acts of criminal misconduct at or near the dates of the alleged acts and thediscovery of these alleged acts was more than 180 days preceding the date of theGrievant’s indefinite suspension; accordingly, the City is barred from suspending theGrievant for such alleged acts.16. In the event the Hearing Examiner finds that the charges are not barred by theapplication of the 180-day rule, the Grievant would further show he did not commit thealleged act of criminal trespass as a matter of law.17. During the evening of October 9 and the early-morning hours of October 10, 2009 theGrievant reasonably believed that his keys were inside Officer Noriega's residence andthat she was preventing him from recovering his personal property; pursuant to Section11


9.41 of the Penal Code, the Grievant had a lawful right to enter the residence for thepurpose of recovering his keys.18. In the event that the Hearing Examiner finds the charges are not barred by theapplication of the 180-day rule, the Grievant would further show that the City has failedto establish the allegations of assault to be “true” by a preponderance of the credibleevidence.19. The October 10, 2009 incident is a classic case of “she said, he said” in that OfficerNoriega alleges that the Grievant pushed her with enough force that her head brokethrough the sheet rock of a wall in her residence, and that as a result she sustained aconcussion; however, the Grievant denies his allegation.20. Internal affairs concluded that Officer. Noriega was truthful because of the physicalevidence, however there were only two pieces of physical evidence in this case - themedical records from the emergency visit on October 13, 2009 and the photographs ofthe broken sheet rock - neither of which substantiates Officer Noriega's allegation.21. The medical records establish that Officer Noriega had no reason, laceration, or anyother visible injury as a result of smashing her head into the wall with enough force tobreak the sheet rock and the medical diagnosis was entirely based on Officer Noriega'sstatements to the medical staff.22. With regard to the photographs, they only prove that there was a hole in the wall anddo not prove when or how the hole was made.23. The following facts are significant: shortly after the accident, it was the Grievant whopersuaded Officer Noriega to come to her door and speak with the investigating Leanderpolice officers - this is not consistent with the allegation that the Grievant threw OfficerNoriega into the wall, creating a hole that would be seen by the police as they entered theresidence; Officer Noriega told the Leander police officers who responded to her 911 callthat the disturbance was only verbal; Officer Noriega gave different accounts as to howshe either stumbled backwards, was thrown across the floor, slid across the floor, orlanded on her buttocks and then hit her head on the wall; Officer Noriega testified thatafter the October 2009 incident she was so afraid of the Grievant that she slept in adifferent bedroom in case the Grievant tried to shoot her through her wall, however,Officer Noriega waited 13 months before seeking an order for protection which required12


the Grievant to surrender his guns, and furthermore admitted on cross examination thatshe applied for the protective order because she knew it would help with the criminalprosecution of the Grievant; Officer Noriega's testimony regarding her fear of theGrievant is inconsistent with personal interactions between Officer Noriega and theGrievant as observed by witnesses who testified at the hearing; Officer Noriega testifiedthat from October 10, 2009 to December 9, 2009 (the date that the Grievant was orderedby his chain-of-command to have no further contact with Officer Noriega), that theGrievant called her several times, however, it appears from the evidence that he madeonly one phone call to her after October 10, 2009; and finally, Officer Noriega admittedthat when she was under investigation for her respite in 2006, she lied to internal affairsand asked the Grievant to lie for her as well.24. All of these factors bring into question Officer Noriega's credibility and the Grievantwould respectfully suggest that Officer Noriega's credibility is such that her testimonyalone is insufficient to find the allegation of assault to be true.25. When considered in its entirety, the record does not support the conclusion that theCity proved by a preponderance of the credible evidence that the allegation of assaults onOctober 10, 2009 is “true.”26. As for the incident in November of 2008, it is evident from the Memorandum ofIndefinite Suspension that the City does not believe that this allegation is justification forthis indefinite suspension, as the allegation appears almost to be an afterthought in thesixth page Memorandum.27. With regard to this allegation, the Grievant disputes the characterization of what actshe admitted taking on that date and further he never admitted, nor is there any evidencethat his actions caused “bodily injury” to Officer Noriega.28. Immediately following this incident, Officer Noriega told a detective that theGrievant “choked me” or “he was gonna choke me” but did not tell the detective aboutbeing pinned against a door while the Grievant tried to forcibly remove her ring;moreover, this detective's wife spoke with Officer Noriega later that day and OfficerNoriega never told her that she was assaulted by the Grievant.13


29. Moreover, Officer Noriega confided to a close friend who is also an APD officer thatshe and the Grievant “had argued - maybe that he blocked her way out of a room orsomething like that,” but did not describe anything physical that occurred.30. The Memorandum of Indefinite Suspension alleges that the Grievant wasinsubordinate when he violated the directive not to discuss “the pending investigationwith anyone other than Internal Affairs, his attorney, and his chain of command” or tospeak “with any witness, potential witness, or with any other officers, employees arevolunteers of the Department” when he spoke with Officer Sanchez regarding theinvestigation.31. In fact, the Grievant only told Officer Sanchez that he received a 48-hour notice fromInternal Affairs; that it was concerning an “assault case involving Lori [Noriega],” andthat Officer Noriega either went to or check herself into the hospital.32. It is incredulous to assert that the scant information had any effect on the InternalAffairs investigation and Officer Sanchez was, at most, only tangentially involved as awitness since he was not a witness to and had no information concerning the October9/10, 2009 incident and was not a witness to the November 2008 incident - his onlyknowledge of the latter event was after the fact when he saw the Grievant intoxicated atanother officer’s residence.33. At best, the facts establish that the Grievant’s brief conversation with Officer Sanchezwas a technical violation of the Do Not Discuss Order; however, the Memorandum ofIndefinite Suspension charges the Grievant with “insubordination,” not a violation of thespecial order of the department.34. In this case, it is not sufficient to find that the Grievant violated the Do Not DiscussOrder, rather, to find this allegation “true” it is necessary to find that the Grievant was“insubordinate” in violating the Order, that is, a willful disobedience of, or deliberaterefusal to obey the lawful order of the supervisor and the limited discussion between theGrievant and Officer Sanchez does not rise to that level of insubordination.35. When considered in its entirety, the record does not support the conclusion that theCity proved by a preponderance of the credible evidence that the allegation ofinsubordination is “true”; however, if the Hearing Examiner finds that the Grievant wasinsubordinate, the Grievant would respectfully suggest that the minor nature of his14


violation of the Do Not Discuss Order does not justify an indefinite suspension but rather,a temporary suspension of 4 to 15 days as specified in the APD's Discipline Matrix.36. The Grievant respectfully suggests that there is not just cause for him to beindefinitely suspended from the Austin Police Department for the following reasons: thealleged acts of assault and criminal trespass are barred by the 180-day rule as prescribedby Texas Local Government Code Section 143.052 (h), and therefore cannot serve asgrounds for the discipline in this case; assuming arguendo that the allegation of criminaltrespass is not barred by the 180-day rule, the Grievant did not commit the alleged act ofcriminal trespass as a matter of law; assuming arguendo that the two allegations ofassault are not barred by the 180-day rule, the City did not prove the alleged acts bypreponderance of the credible evidence; the City did not prove the alleged act ofinsubordination by a preponderance of the credible evidence; and assuming arguendo, ifthe Hearing Examiner finds the allegation of insubordination to be “true,” the alleged actdoes not provide just cause for an indefinite suspension and instead, the appropriatesuspension would be a temporary suspension of 4 to 15 days.37. WHEREFORE, PREMISES CONSIDERED Grievant requests that this appeal begranted and that an Order be issued: finding that there is no just cause to indefinitelysuspend Police Officer Leonardo Quintana; finding that the grounds for dismissal asalleged in the Memorandum of Indefinite Suspension are barred by the Texas LocalGovernment Code Section 143.052 (h), and/or that the City of Austin has failed toestablish the alleged acts to be “true” in the alternative: finding as “true” only theallegation of insubordination; finding that the alleged act does not provide just cause foran indefinite suspension; and finding the disciplinary suspension should be reduced to atemporary suspension of 15 days or less; restoring Officer Quintana to his formerposition or status as a police officer in the Austin Police Department’s classified service;and awarding Officer Quintana full back pay and benefits, or in the alternative awardingOfficer Quintana back pay and benefits for the period after any suspension.B. City of Austin1. For the purposes of resolving the 180-day rule, the only relevant facts are that duringthe Grievant’s disciplinary hearing on May 3, 2010 for a DWI, the Police Chief asked theGrievant questions about the lawful order the Grievant received on December 9, 200915


egarding Officer Noriega; the Chief was unfamiliar with the order and the reason(s) itwas issued; concerned with the Grievant’s answers and demeanor, he asked InternalAffairs to contact Officer Noriega to determine the circumstances surrounding theissuance of the order and whether or not the Grievant had violated the order; and, it wasnot until May 5, 2010 that the department learned for the first time that the Grievant hadassaulted Officer Noriega in the past, the most serious and most recent being on or aboutNovember 24, 2008 and October 10, 2009.2. Officer Noriega’s conversations with her fellow officer/friends about these incidentswith the Grievant were not for the purpose of reporting a crime or for having them actupon her statements and in fact she did not want APD to find out what happened.3. Texas Local Government Section 143.052 (h) states that “the department head maynot complain of an act that occurred earlier than the 180 th day preceding the date thedepartment heads suspends the firefighter or police officer;” moreover, “ if the act isallegedly related to criminal activity including a violation of federal, state, or local lawfor which the firefighter or police officer is subject to a criminal penalty, the departmenthead may not complain of an act that is discovered earlier than 180 day the date thedepartment head suspends the firefighter or police officer. The department head mustallege the act complained of related to criminal activity.”3. Chapter 12.02 of the Texas Code of Criminal Procedure states that the statute oflimitations for Class A and B misdemeanors (Assault is a Class A, Criminal Trespass is aClass B) is two years from the date of the commission of the offense; the Grievant wasindefinitely suspended on October 27, 2010 for the incidents that occurred on or aboutNovember 24, 2008 and October 10, 2009, within the two-year statute of limitations;since the Grievant was still subject to prosecution, the question to be answered is whomust discover the criminal activity for the 180-day clock to begin running.4. As a threshold issue, in order for the 180-day period to begin on the date of discovery,the conduct must be allegedly related to criminal activity; not only did Internal Affairsand the Grievant’s entire chain of command agree that crimes had occurred on November24, 2008, the Grievant himself admitted pinning Officer Noriega against the wall in hergarage, preventing Officer Noriega from opening the door into the house to get away16


from him and forcibly trying to remove a ring from her finger – acts he admitted to theChief could constitute assault and possibly theft or robbery.5. With respect to the October 10, 2009 incident, the Grievant made admissions toInternal Affairs, to the Chief, to the Leander Police Department, and/or testified to actsthat taken alone would constitute criminal trespass.6. Furthermore, the fact that the Grievant was arrested for four misdemeanors arising outof these two incidents is further support that the Chief of Police had a reasonable beliefthat the conduct discovered on May 5, 2010, and for which the Grievant was indefinitelysuspended was allegedly related to criminal activity and was not simply a charade for theChief to get around the 180-day rule.7. The Grievant contends that once fellow officers became aware of the potential criminalconduct by the Grievant, the APD “discovered” the alleged criminal activity and the 180days began to run based upon, in part, a Police Department General Order that requiresemployees to report suspected criminal misconduct or serious breaches of the Departmentdirectives by another employee, but this reliance on the General Order is misplaced.8. The policy requires that notification of a suspected criminal or policy violation bereported to Internal Affairs, or any supervisor in the employee's chain of command;this policy is a clear understanding that APD considers notification to Internal Affairs orsupervisor as putting the Department on notice so the person with authority to act cantake appropriate corrective action and/or the investigative unit charged with investigatingthe officer misconduct can conduct an investigation; absent that notification, theDepartment has not been put on notice under Department policy or the statute.9. The Grievant also contends that Section 143.052(h) does not specifically state thediscovery must be made by a supervisor, Internal Affairs, or the Department Head;nevertheless, the Department Head is referenced by title no less than 13 times in Section143.052, five times in section 143.025(h) and twice in the discovery sentence alone; thussince the Department Head is the only one who is authorized to suspend an officer for aviolation of the civil service rules, whether the act is criminal or not, and since theDepartment Head is referenced twice in the discovery sentence, it is logical to concludethat the Department Head is the one who must discover the alleged criminal behavior forthe 180-day rule to begin; furthermore, it is nonsensical for the statute to vest the Chief17


with the sole authority to discipline, but hold him hostage to the failure of others to makehim aware of that misconduct.10. Had the Legislature intended for the discovery to be made by anyone other than theDepartment Head it could have said “discovered by a firefighter or police officer.”11. The City does not believe that the statute is ambiguous, but if the Hearing Examinerdoes, the Legislative history is relevant; the prior statute allowed police officers whocommitted serious acts of misconduct to escape punishment simply because the Chief ofPolice did not know about it earlier; the change of adding a “discovery” provision was toclose a loophole and provide a Chief with the ability to discipline an officer within the sixmonths of the Department becoming aware of the misconduct; moreover, the City iswilling to concede that an investigative unit acting on behalf of the Chief of Police, suchas Internal Affairs or the Special Investigations Unit, that becomes aware of potentialcriminal activity, would constitute discovery of a criminal act by the Department for thepurposes of Section 143.052(h).12. Similarly, since no supervisor was aware of the Grievant’s criminal activity prior toMay 5, 2010 there is no knowledge to impute to the Chief of Police.13. The Meet and Confer Agreement between the City and the Austin Police Associationdid not change the discovery provision of Section 143.052(h).14. Arbitral precedent between the City and the Austin Police Department indicates thatHearing Examiners have found that discovery by the Department may be attributed to theday Internal Affairs or the Integrity Crimes Unit (now Special Investigation Unit) orOffice of the Police Monitor become aware of criminal allegations; in the instant caseInternal Affairs did not become aware of criminal allegations until May 5, 2010 andOfficer Noriega never told the Special Investigation Unit or the Office of Police Monitorof these criminal allegations whatsoever.15. The Department could not exercise reasonable diligence to investigate and disciplinethe Grievant for criminal conduct it was unaware of until May 5, 2010; once theDepartment became aware of the criminal conduct it promptly initiated an InternalAffairs investigation and imposed disciplinary action within 180 days of theDepartment’s discovery of the criminal conduct.18


16. The clear and compelling evidence indicates that the Grievant spoke to OfficerSanchez about Officer Noriega’s assault allegation, her alleged injury and her visit to thehospital after he received his Notice of Allegations because he told Officer Sanchez thathe received the Notice; furthermore, he knew that Officer Sanchez was a potentialwitness to the November 23, 2008 incident (Sanchez saw the Grievant later that eveningand recalled him being drunk and angry) and to the October 10, 2009 (for what theGrievant had told Sanchez about what had occurred); the standard is not whether or nothis discussion changed or could have changed what Sanchez told Internal Affairs, it israther a clear prohibition against talking to anyone but his own attorney, his chain ofcommand or Internal Affairs and Officer Sanchez was none of these; and mostimportantly it prohibits him from talking to any witness or potential witness and Sanchezwas such a witness.17. The Hearing Examiner is limited to three options: upholding the indefinitesuspension (in effect dismissing the Grievant from the department); imposing atemporary suspension for a “reasonable” period not to exceed fifteen (15) calendar days;or restore the Grievant to his former position with wages and benefits losses as a result ofthe suspension (in effect, no discipline at all).18. The City contends that the last option is not viable given that the evidence supportsthe finding that the Grievant violated the cited penal code provisions and committedinsubordination; therefore, the Hearing Examiner is charged with deciding whether themisconduct warrants an indefinite suspension, or rather, only a 15 day suspension or less;for the reasons stated below, the City contends the appropriate discipline is indefinitesuspension.19. The evidence, including the Grievant’s admission, supports the finding that theGrievant committed a Class A Assault against Officer Noriega in November 2008 whenhe caused bodily injury (a complaint of pain) by forcibly trying to take the ring off herfinger.20. The evidence supports the finding that he committed criminal trespass and a Class AAssault (bodily injury - a concussion) in October 2009.19


21. With respect to the October 2009 incident, this is not purely a “he said, she said”incident; there is physical evidence of a crime (hole in the wall), and outcry to friends,and medical documentation of a concussion.22. The City's witnesses, including the Grievant himself, testified that the Grievant wasjealous of Officer Noriega and that he accused her of sleeping around on him.23. The City’s witnesses, including an expert witness Victims Services Counselor,testified that Officer Noriega is a credible victim of domestic abuse and that herstatements, actions, demeanor and testimony were consistent with a person in an abusiverelationship.24. The City’s witnesses agreed that the Grievant’s claim that this was a purely verbalargument is for you to buy his own admissions that she was pushing and pulling on him,ripped the stitching on his shirt, and caused bad scratches to his arms (which no one eversaw, which he never told anybody about, which he never took a picture of and which henever sought medical treatment for).25. The City's witnesses agreed that if Noriega was a liar, manipulative, always calledthe police on him when she would not get her way, and threatened to get him fired, theGrievant would not buy a house with her, get engaged, call her as his support officer afterhis shooting and killing of a suspect and/or get back with her on the night of October 10,2009.26. The City’s witness agreed that since Noriega and the Grievant both stated they hadno intention of ever bringing this to the Department's attention, and the Grievant toldInternal Affairs he does not get the police involved in his personal affairs, Noriega had nomotive to lie about this; all she had to do was tell Internal Affairs there was no violenceand the matter would have been closed; Noriega testified that she has moved on with herlife and the entire chain, and the Victims Services Counselor agreed, that bringing falseallegations against the Grievant is not consistent with someone who went to theirsupervisor to ensure the Grievant had no further contact with her.27. The City's witnesses testified that Noriega would not subject herself to the mediascrutiny and continued legal proceedings (a protective order hearing, this appeal and apending criminal trial) if these incidents would have never come up and if she had movedon with her life; in short, if Noriega was going to lie to Internal Affairs she would have20


denied the abusive relationship and the matter would have been closed and she wouldnever have to deal with the Grievant again.28. The City’s witnesses testified that Officer Noriega was a credible witness whereasthe Grievant was not; the 911 call was a genuine, frantic call from a victim of abuse, not acon job for the benefit of the 911 recording as the Grievant contends; not one Citywitness believed the Grievant when he claimed Officer Noriega scratched him andtherefore she made up the story to avoid going to jail for assaulting him; not one Citywitness believed his claim that she put the hole in the wall herself to avoid going to jailfor assaulting him; not only does the Leander Police Department Investigator’s swornaffidavit confirm that he took measurements inside the house and the damage wasconsistent with Noriega's version of the events, but there was testimony that Noriegacould have suffered a concussion without any visible physical injury.29. Not one City witness believed his claim that she made up the story because she is aliar, is manipulative, is crazy, and is out to get him fired; while Noriega told the LeanderPolice Department was only verbal, to avoid getting him in further trouble given theInternal Affairs investigation and the civil suit arising from his shooting incident, theGrievant had no such compassion of motive when he lied to the Leander PoliceDepartment when he stated the incident was only verbal when he knew it was an intensephysical struggle during which he allegedly was badly scratched.30. His claim that Officer Noriega is not credible because she has lied in the past is notcredible because she lied to protect him after his mother pleaded with her to change herstory when she was interviewed by the Special Investigative Unit in 2006.31. Finally, his claim that she is making all this up and her fears of him are puremanipulation because she has sent him text messages, cards, and they were seen beingtouchy-feely and kissing is easily explained by the testimony of the Victims ServicesCounselor that this is all part of the cycle of violence; for, even if Noriega did textmessage him, did send him cards, and did hug and kiss him at some time in the past, thatdoes not mean he did not assault her in November 2008 and October 2009 and she claimsand the evidence proves.32. The entire chain of command testified that they agreed with the decision to sustainall the charges and the entire chain testified they were unanimous that an indefinite21


suspension was appropriate given the sustained charges and the Grievant’s disciplinaryhistory.33. This was the Grievant’s fourth suspension since 2006 (although the 2006 suspensionwas reduced to a written reprimand as a result of a settlement agreement and was theGrievant’s third significant suspension within a 12 month period (15 days for a cameraviolation in November 2009, the indefinite suspension in May 2010 reduced to a 15 daysuspension for DWI, and now another indefinite suspension for criminal acts andinsubordination).34. Not one member of the chain of command could recall another officer beingsuspended three times in less than one year.35. Even if the Hearing Examiner finds that the criminal acts are barred by the 180-dayrule, the charge of insubordination by itself warrants termination given the Grievant’ssignificant and recent disciplinary history.36. What is the value of progressive discipline if an officer can admit to committing thecrimes of drunken driving, assault, criminal trespass, and criminal mischief, and yet keephis job?37. The chain of command testified that if the Grievant is reinstated, it is just a matter oftime before he is subject to disciplinary action again; the time has come for theDepartment and the community to receive closure and wish the Grievant well in hisfuture endeavors with another employer.38. In Texas, for the court to uphold a disparate discipline claim it requires that theemployees must be similarly situated, meaning their circumstances are comparable in allmaterial respects, including similar standards, supervisors, and conduct; and, that theconduct must be of comparable seriousness.39. In the instant case, the Chief has never suspended an officer three times in less than ayear, two of those being indefinite suspensions for criminal acts; furthermore the Chieftestified if an officer has a sustained Family Violence charge, he will be terminated.40. For the foregoing reasons, the City prays that the Hearing Examiner will sustain all ofthe charges, including the criminal charges.41. Even if the Hearing Examiner chooses to sustain only the insubordination charge dueto the 180-day issue, the City prays that the Hearing Examiner sustains the indefinite22


suspension - given the choices of no discipline, 15 days or less, or upholding theindefinite suspension – since the evidence clearly supports an indefinite suspension forthe insubordination charge alone.V. DISCUSSION AND DECISION(Some evidence and some argument will not be discussed where it is notnecessary to the disposition of this matter.)The first issue to be decided is whether or not the 180-day “rule” found in Section143.052(h) bars the imposition of disciplinary action by the Chief of the APD forallegedly related criminal activity. The positions of the parties have been notedhereinabove. Without delving too much into the legislative history, it appears that thecurrent language found in the statute arose to close a loophole in the prior statute thatprohibited a police chief or fire chief from imposing disciplinary action for an act thatwas allegedly related to criminal activity earlier than 180 days preceding the date of thesuspension by the department head. To close this loophole, language was incorporatedthat only bars action on complaints of criminal activity discovered earlier than the 180 thday preceding the date the department head suspends the fire fighter or police office.(Emphasis added).In the instant case, the Appellant argues vigorously that when Officer Noriegatold her fellow officers about the events of November 24, 2008 and October 9/10, 2009APD “discovered” alleged criminal activity. As a result, the Chief’s indefinite suspensionof the Appellant on October 27, 2010, in part for alleged assault(s) and criminal trespasscomes too late and thus, the disciplinary action ofindefinite suspension” for the allegedcriminal activity cannot stand as it defies the statute.I have read the statute and the arguments made by counsel in their briefs. I amnot persuaded that the statute supposes the communication of information regardingalleged criminal activity by a police officer to another police officer imputes “discovery”to the department and/or the department head, in this case the Chief of APD. Theargument propounded by the Appellant is really based upon the General Order thatrequires a police officer to report misconduct or criminal activity. When a police officerdoes not report such misconduct or criminal activity, that police officer may be subject todiscipline but it does not, in my opinion, make the communication a “discovery” under23


the statute. (And, in the instant case, those police officers who Officer Noriega spokewith or who otherwise knew of one or more of these events were issued writtenreprimands for not reporting alleged domestic abuse and/or an assault to an APDsupervisor.)Clearly, the intent of the statute was to close the loophole described hereinabove –the situation where there is alleged criminal activity and more than 180 days have passedsince it occurred and the department head is unable to impose disciplinary action merelybecause of the passage of time. I find that the language incorporated into the statutegives the department head 180 days to impose discipline after he/she “discovers” thealleged criminal activity. If the department head does not do anything within 180 days of”discovery”, he/she cannot impose a discipline such as an indefinite suspension. Thus, itis incumbent upon the department head to act within this time frame.The question then is “who” must discover the act to begin the 180-day clock. Ifind that one way “discovery” occurs is when Internal Affairs is apprised of allegedcriminal activity. This is the arm of the department that is charged with investigatingpolice officers and reporting their findings to the Chief of Police. When Internal Affairsis informed of alleged criminal activity by a police officer, it may be imputed that theChief of Police (the Department Head) has “discovered” alleged criminal activity. Thatis what happened in this case. On or about May 3, 2010 during an investigation/hearingregarding the Appellant’s DWI, the Chief of Police requested information regarding anorder given to the Appellant on December 9, 2009 not to have any contact with OfficerNoriega. Internal Affairs subsequently interviewed Officer Noriega and “discovered” thealleged assaults and possible trespass during this May 5, 2010 interview – and this iswhen the 180-day clock began to run.Certainly there are other means of “discovery.” The Chief may acquireknowledge of criminal activity first hand or he may be told of it by others who are not inInternal Affairs. Also, General Order A201a. 01. C.1. indicates that the reporting ofcriminal activity by employees of the department should be made, “in writing, to IAD orany supervisor in their chain of command.” (Emphasis added). This may acknowledgethat APD and possibly the Chief are imputed to have knowledge when the report of24


alleged criminal activity by a department employee is given to a supervisor in his/herchain-of-command.However, none of these things occurred in the instant case. Neither the Chief, norInternal Affairs, nor any supervisor was apprised of any alleged criminal activity by theAppellant until May 5 of 2010. Noriega’s communications with her fellow officers wasnot made to report criminal activity. None of these officers were part of the Chief’sOffice, Internal Affairs or supervisors. Even during her request for a “Do Not Contact”order, Noriega made no mention of alleged criminal activity like assault or trespass to hersupervisor or the Appellant’s supervisor. That being the case, I cannot say that thedepartment and/or the department head can be imputed to have “discovered” allegedcriminal activity by the Appellant at the time of any of these earlier communications.Therefore, in conclusion, I find that the department first had notice of the Appellant’salleged criminal activity on May 5, 2010. Thus, the Chief complied with Texas LocalGovernment Code Section 143.052 (h) and imposed disciplinary action within 180 daysof the Department’s discovery of those alleged criminal acts on October 27, 2010.The next issue is whether the City proved by a preponderance of the credibleevidence that one or more of the charges in the Memorandum of Indefinite Suspensionare “true”? One of the charges is insubordination. On June 1, 2010, the Appellant wasissued a Notice of Warning/Garrity Warning relating to investigation of his allegedcriminal activity vis-à-vis Officer Noriega in November 2008 and October 2009. In thatdocument (sometimes referred to as a “Do Not Discuss Order”), the Appellant wasprohibited from discussing the pending investigation with anyone other than InternalAffairs, his attorney, and his chain of command until notified by the Chief of Police orthe Commander of Internal Affairs that the investigation was complete. The Order alsoprohibited the Appellant from speaking to any witness, potential witness, or with anyother officers, employees or volunteers of APD.During an interview on June 14, 2010 conducted by Internal Affairs, Officer JesseSanchez indicated that the Appellant told him that he (Quintana) had received a Notice ofAllegations that he had assaulted Officer Noriega and that Noriega had either gone to thehospital or checked into the hospital.25


The evidence showed that on or about November 23, 2008, Officer Sanchez wascalled by Detective William Monte and asked to come over to his (Monte’s) housebecause the Appellant was intoxicated and angry and Monte knew he was a friend of theAppellant. Sanchez did so and observed and talked with the Appellant that evening. Inthis context, Officer Sanchez may be considered as a potential witness – not to the act (s)of alleged criminal activity, but as a witness as to the Appellant’s behavior and musingssoon after the alleged criminal activity.The Appellant testified that he spoke on more than one occasion with OfficerSanchez regarding Officer Noriega’s allegations but could not remember if it was after hereceived the Notice of Allegations (on or about June 1, 2010).Officer Sanchez was not part of Internal Affairs or part of the Appellant’s chain ofcommand; he was potentially an after-the fact witness to the November 23, 2008incident; and, the Appellant told him the nature of the Notice of Allegations (allegedassault of Officer Noriega on October 10, 2009) and that Noriega either sought medicaltreatment or had checked herself into the hospital as a result of the alleged assault.It is simply not relevant to the inquiry of deciding the truth of the charge whetheror not the Appellant’s discussion with Officer Sanchez had any effect on the IADinvestigation or that Officer Sanchez’s involvement as a witness might only beconsidered tangential to the investigation (if relevant at all, it might be for the issue ofappropriateness of the discipline imposed). It is logical to conclude that the Appellant isnot going to make a statement that he received the Notice of Allegation until he hasreceived it. And, part of it (the front page) is the order not to discuss the matter. OfficerSanchez’s recollection is quite clear about what the Appellant said concerning receivingthe Notice of Allegation - the alleged assault of Officer Noriega and her seeking medicaltreatment. The preponderance of the credible evidence leads me to find that theAppellant discussed the matters contained in the Notice of Allegation sometime after hereceived it with Officer Sanchez.Based upon the clear language of the order, the Appellant disobeyed the order.Insubordination is an employee’s “refusal or failure to obey a management directive”Roberts’ Dictionary of Industrial Relations, 4 th Edition @ p. 349. Therefore, the chargeof insubordination is found to be “true.”26


The next charge to be examined is that of alleged assault of Officer Noriega on orabout November 23, 2008. Officer Noriega testified that for a long time leading up tothis day, she had decided to end her relationship with the Appellant and call off herengagement to the Appellant. She testified that she had “gotten tired of every – of all the,you know, name calling and the abuse, and I finally just realized one day that I – youknow, I had really become somebody that I wasn’t, you know. I never was that personbefore.” However, she was afraid to tell him – “I was very afraid. I knew for months thatI wanted to get out of the relationship, but I kept putting it off because – because I wasafraid to tell him.”On the day in question, Officer Noriega testified that she finally told theAppellant that she did not want to be in the relationship anymore and that “we had kindof an argument.” The Appellant then went to the garage. She heard the radio andassumed that he was drinking and possibly smoking out there as he had done many timesin the past. Some time later, the Appellant came back into the house and said he wantedto talk with her in the garage.They went to the garage, but as she closed the door, he stood right in front of herso she could not move. He asked her for the engagement ring and then grabbed her handand started trying to pull the ring of her finger. She said she pulled her hand awaybecause he was hurting her (the ring fit snuggly). She told him to stop and he againasked her for the ring and she said “no.”Officer Noriega testified that he grabbed her by the neck shoved her against thedoor and told her “Bitch, I’ll knock the fuck out of you.” She managed to open the doorto the house and he chased her in there and around the kitchen area. Then somethingdistracted him and he walked away. She got her daughter and they both went to thedaughter’s room.She then heard loud crashing noises and when he asked her to come outside to seewhat was happening, she saw that he had torn up the entire front room where she kept hercomputer. She asked him “What are you doing?” He then came towards her and she sawthat he was angry. He pulled her hair in an antagonizing way and she just kept telling himto leave her alone. Then his son came out of his room and told the Appellant “Dad, just27


leave her alone.” She then went back into her daughter’s room and called DetectiveWilliam Monte to come pick up the Appellant – which he did.The Appellant said that Officer Noriega told him she wanted out of therelationship while he was in the shower getting ready to drive to Ft. Hood to see hiscousin before he shipped off to Afghanistan. When he got out of the shower, he told herthat he would leave but he was taking his son to visit his cousin. He then went to thegarage and started drinking some beer trying to sort out what he and his son were goingto do. He said he called Officer Noriega into the garage to talk and it was there that heasked for the engagement ring back. She told him “No. You’re not getting it. You’re notgetting it.” He then said he grabbed her left hand, but she yanked it away. When shetook two steps towards to get to the door, he “tried to pull the ring off her finger.”She was leaning against the door and when she got it open she went straight intothe house. He said he went straight to the computer room so he could transfer one-halfthe money in their joint account into his own account – but since they had just gotten anew modem, he could not log on with his computer. He then went to the other computer,but got the same error code. By this time, Officer Noriega had gone from the bedroom tothe living room and was watching TV. He asked her to log on for him and she refused.He went back to the computer, looked through some paper work and tried to find thecode. When he could not, he got frustrated and he got up and lifted the desk up andeverything fell off the desk. Officer Noriega then came by the room and startedscreaming at him. His son came out of the room and said to her “leave him alone.” Hetold his son to grab something because they were leaving. Officer Noriega then went tomake a phone call. He thought she was calling the police, but it turned out that she wascalling Detective William Monte another police officer and a friend of his and Montecame over to pick him up.The Appellant testified that he had no intent to assault or hurt Officer Noriega.He just wanted the ring, which he believed was his. He added, “If I really wanted to getthe ring off of her, I would have gotten it off. I mean, if there was an assault that Ibelieved I was going to commit on her, I would have taken it – forthwith.”At the Disciplinary Review Board (or “DRP”) the Appellant answered a questionabout “pinning” Officer Noriega against the door. At this hearing he explained that28


“pinning” does not serve justice in this case because he just grabbed her hand and shepulled away. It only lasted a second or two and when she leaned against the door and hitthe handle she went in. He also denied that there was any physical contact (like pullingher hair) when they went back into the house. He also denied grabbing her by the neck orchoking her in the garage. He also denied being heavily intoxicated at that time(although he may have had a lot to drink later in the evening).Title 5, Chapter 22, Section 22.01 of the Penal Code has been set forthhereinabove. Based upon the testimony of Officer Noriega and the admissions of theAppellant, the Appellant appears to have committed, at the very least, an assaultiveoffense in that he intentionally or knowingly caused physical contact with OfficerNoriega which he knew or should have reasonably believed she would regard asoffensive or provocative. He did so by grabbing her hand and trying to remove theengagement ring over her protest and without her cooperation. This is a Class Cmisdemeanor. General Order A201 requires APD employees to know and comply withthe laws, ordinances, statutes, regulations and written directives, which pertain to theirassigned duties. Civil Service Rule 10.03(L) states that cause for suspension from theclassified service of the City includes the [V]iolation of any of the rules and regulationsof the Fire or Police Department, or of special orders, as applicable. Where thepreponderance of credible evidence indicates that the allegation of assault is “true”, thenthe charge that the Appellant violated General Rule A201a.01 (A) (1) and in turn CivilService Rule 10.03(L) is also “true”, and I so find.The next issue is the charge that the Appellant assaulted Officer Noriega on orabout October 10, 2009 and also committed an act of criminal trespass on the sameevening. Officer Noriega testified that after attending a football game where her daughterperformed with the school’s dance team, the Appellant, who taped the performance forher, asked if she would like him to take the video camera to her home so she could hookit up and watch her daughter’s performance. She said “no, for two reasons - one, I don’tknow how to hook it up to the TV - and two . . . I don’t want to have to makearrangements with you later to get it back to you at another time.”However, Officer Noriega said the Appellant was very insistent. He told her hewould hook the video camera up for her and after they watched the performance he29


would leave. He told her “I won’t try anything. You know, you don’t have to worry aboutme. I won’t try anything.” Despite feeling uneasy and uncomfortable about this, she toldthe Appellant he could come over.They watched the video and afterwards they talked about his shooting incident.He asked if he could have a beer and they continued to talk and she began to drink, too.At one point he asked her “Can I ask you a question and you won’t get mad?” OfficerNoriega said she could feel that the conversation was about to go somewhere where shedid not want to go, but replied “What?” He said, “Is that a picture of you and your newboy friend?” She had no idea what he was talking about and responded “Where?” Hethen pointed to a picture on the wall where she was seated between two cousins, a femalecousin on the left and a male cousin on the right. She told him that the male was hercousin, who he had never met because he had been incarcerated during their relationship.Officer Noriega indicated that the Appellant appeared to be a little embarrassedthat he had asked that question and it turned out to be a relative. So he asked her if shewas dating anyone and started naming names because he said, “Like I’ve heard you’redating somebody.” She became angry because she felt it was none of his business. Shethen told him that she saw him text-messaging girls all night, even at the football game,but said nothing to him because “it’s not my business, and I don’t care.” She then askedhim to leave.According to Officer Noriega, he told her, “No. Don’t get mad. You know,we’re just here. We’re talking. Everything’s cool.” She kept on insisting that he leaveand he did not do so. Finally, she grabbed his jacket and video camera, walked out thefront door and dropped it outside in front of the garage. The Appellant went out to seewhat she had done and then followed her back into the foyer of her home. She kepttelling him to leave and he kept telling her he needed to get his keys. She told him thathis keys were in his jacket but he continues to think they are still in the house.Then, according to Officer Noriega, the Appellant took some steps to walk pasther and she put her hands on his chest and told him that he needed to leave. When shedid that, he grabbed her by both of her arms and either pushed or threw her backwards.She fell or stumbled backwards and hit her head on the sheet rock wall.30


When she fell back and hit her head, she blacked out. When she woke up, theAppellant was standing over her. She again told him to leave. She went to the bar,reached over the bar, got a phone and called 9-1-1. The Appellant walked into the livingroom and then around to the kitchen and then walked out of the house.Officer Noriega hung up on the 9-1-1 call while she was telling the Appellant toleave – apparently when the Appellant either found his keys and/or left. The LeanderPolice Department called her back, but she told them everything was okay, however, thedispatcher said “no.” Officer Noriega hung up again. The Leander Police called again,but she did not answer. Eventually, the Leander Police came to the house. She did notwant to open the door. However, the Appellant called her and told her that the LeanderPolice were going to kick in the door if she did not do so.She walked outside to speak with them because she did not want them to see thehole in the wall which was in the foyer and visible from just inside the door. She toldthem that this was just a verbal disturbance and not a physical one. Officer Noriegatestified that she did so because she did not want to get him in trouble more than he wasalready facing for the shooting in May 2009.The Appellant called her back after the police left and asked her if she was goingto tell his supervisor what happened and she told the Appellant she was not. He calledher again that afternoon and asked her if she was going to tell his supervisor. She againsaid no. She told him that she was not feeling well (from hitting her head) and that shefelt like she might have to go to the hospital. He replied that he was depressed and hewas going through a lot and that he had a lot on his mind. She told him that she did notwant him calling anymore or texting her and he became upset.According to Officer Noriega, the Appellant said what happened was both theirfaults because they both got angry. She demurred and told him she did not do anything tohim. She also told him again that she was not feeling well and that she had a hole in thewall where her head hit. He told her it was not his fault. She then said she was feeling sobad that she did not want to have this conversation.Officer Noriega told her partner Officer Steve Harris what happened with her andthe Appellant when she returned to work. It was Harris who suggested that she go to the31


hospital if she continued to feel bad (he suggested that she might have a concussion) andshe eventually did so. Harris also subsequently patched the hole in her wall.The Appellant testified that it was Officer Noriega who asked him to come andwatch her daughter perform at the football game. He said that he offered to let her havehis video camera so she could watch the recorded performance, but she said she did notknow how to hook it up and asked him to come over to do so.After they watched her daughter’s performance, they watched some DVRrecordings she had of some news stories involving his “officer involved shooting.” Theyalso watched a recording of the MTV Music Awards. He asked her if she had any beersand she told him she had the beers he left after he moved out. He had a couple of beersand then he opened a bottle of wine and they both drank some wine. He said that theyeventually began “making out.”At some point Officer Noriega went to one of the bathrooms. The Appellantbegan to look at pictures Noriega had hung on the wall after he had moved out. He sawone where she appeared to be hugging a man. When she came back from the bathroom,he asked her if he could ask her a question without her getting mad and then asked aboutthe man in the picture “Is this a boyfriend of yours?”The Appellant said it was like a light switch had gone off and Officer Noriegawent into a rage. She told him that it was her cousin. Then, she asked him about the textmessages he had received during the football game. Finally, she told him “It’s time foryou to go.” He said, “Okay” and decided at that point he was gone.The Appellant testified that Officer Noriega walked past him really fast into theliving room where his camcorder, keys and jacket were on the couch. He saw her grabhis camcorder and his jacket. She then walked quickly past him, flung open the door,took a couple steps outside and slammed his camcorder bag and jacket on the ground. Hefollowed her outside. He then grabbed his jacket and camcorder bag, followed her backinside the front door and told her that he needed his keys.At this point, according to the Appellant, Officer Noriega became physical. Shegrabbed him, starting yanking on him and scratched him. He continued to walk in to gethis keys and when they got to where the kitchen area is she reached over and grabbed aphone. He continued to tell her he needs his keys. Eventually, he discovered his keys in32


his jacket. As soon as he did so, he turned around and went straight to his car. She wasstill yelling at him. He yelled a few things back to her and then got in his vehicle anddrove off.The Appellant also offered testimony that Officer Noriega had been drinking a lotthat evening – as much as two bottles of wine. He also insisted that she never told himthat his keys were in the pocket of his jacket. He denied that he grabbed both of her armsor pushed her or threw her or caused her to fall and hit her head on the wall. He furtherdenied that she hit her head on the wall, passed out and that when she awoke that he wasstanding over her. In fact, he testified that there was no hole in the wall when he left thehouse.The Appellant testified that when he and Officer Noriega got into an argument,“my thing is I wanted to leave. And she’d get in front of me and grab me…” Heexplained his statement to Internal Affairs about walking “through her” as follows:“When I meant walk through her means if I’m going to just walk from here to there I’mgoing to walk. I’m not going to elbow or push or grab or do anything to hurt her orphysically assault her, but I’m not going to let you hold me right here in this spot like youwant to, is guess what I meant when I talked to Internal Affairs and said I walked throughher.”He also testified that he got a phone call from the Leander Police Department.The officer said he had been called out to his old residence for a disturbance. TheAppellant told the officer that he and Officer Noriega got into a “verbal argument”, afterwatching the half-time performance of her daughter on TV, concerning some textmessages he received; and, that she had thrown his stuff outside. The officer told himthat she would not open the door and they were going to kick it in if she did not open thedoor. So, the Appellant called Officer Noriega and told her this. He said he was notafraid of the door being opened because there was no hole in the wall when he left.The Appellant said that the next day when he woke up, he had a long textmessage from Officer Noriega apologizing that the police came out to the house. Theytalked that day and the next day. On that following day, Officer Noriega mentioned that,“she was wheezy and she wasn’t feeling good and she was throwing up.” He thought,“She was hung over because of all the wine she had drunk the night before.”33


Subsequently, in another conversation Officer Noriega told the Appellant she hadjust returned from the hospital. He remembered she might have said she had gotten aconcussion. The Appellant testified, “…when she told me she had just returned from thehospital, that blew me away because it was like ‘What did you go the hospital for?’ andshe says, ‘Oh, you don’t know.’ And as soon as she said that, I knew where she was – inmy mind figured out what she was trying to do. And that was the end of theconversation.”The Appellant stated that Officer Noriega never told him about any hole in herwall. When he suggested that they talk to their supervisors, he said Officer Noriega toldhim “no” and that “we don’t want a repeat of 2006 where we have everybody involved inour business.” He agreed.Among other evidence adduced at the hearing concerning this incident was arecording of the 9-1-1- call of October 10, 2009 by Officer Noriega; a picture of thedamaged wall at Officer Noriega’s home; Officer Noriega’s medical records from CedarPark Regional Medical Center, dated October 13, 2009; and, a video from the LeanderPolice Department. Additionally, there are transcripts of interviews with Senior PoliceOfficer Veneza Aguinaga and Officer Steven Harris wherein they describe conversationswith Officer Noriega soon after October 10 in which Officer Noriega told them she hither head on the wall in a struggle with the Appellant. These officers also testified at thehearing.As to these charges of assault and criminal trespass, the Appellant’s defense hasbeen outlined hereinabove. It comes down to a “he said, she said” defense. The physicalevidence is said not to substantiate Officer Noriega’s allegations. It is also argued thatthe re-entry of the Appellant into Officer Noriega’s house was permissible as anexception to the criminal trespass statute since the Appellant believed his keys (hispersonal property) were in the house and his sole purpose of re-entry was to retrieve themso he could leave. Finally, there is contradictory testimony as to what kind of physicalcontact was made, if any, and whether it could be considered an assaultive offense.Some triers of fact take a very formalistic or constructive approach to resolvingfact issues, checking off so called “relevant” or “controlling”’ acts and finding culpabilitywhen they are deemed found or exoneration where they are not found. However, this34


approach may not always lead to a “truth” that is more reliable. The totality of thecircumstances, the logic of the action or inaction, common sense, intent, the probabilityof events happening, emotion and conversely pragmatism all play into a properexamination and determination of facts. In other words, acts standing alone without anycontext are not necessarily dispositive of factual issues.The first charge to be examined is the criminal trespass charge. There is no doubtthat Officer Noriega asked the Appellant to leave. The Appellant admitted as much.However, the Appellant did not leave fast enough for Officer Noriega and she, in turn,gathered the Appellant’s belongings and threw them out of her house. He followed herout and then came back inside the house, indicating that he needed to get his keys.Officer Noriega confirms that he kept repeatedly kept asking for his keys. On the otherhand she testified that she kept telling him they were in the pocket of his jacket and thatshe wanted him to leave.I have read the criminal trespass statute, Title 7, Chapter 30, Section 30.05 of thePenal Code. There was a time that the Appellant clearly was no longer welcome atOfficer Noriega’s home. He admitted as much when he testified that she asked him toleave. This is when he knew he had to leave and according to his own testimony that iswhen he wanted to leave. However, Officer Noriega threw his jacket and camcorderoutside. He followed to retrieve them. Yet, he apparently did not know where his keyswere and the last time he saw them they were on the couch in the living room. He reenteredthe house knowing his presence in the house and/or entry was not allowed.Finally, the 9-1-1 call indicated that Officer Noriega was crying and was telling him toleave.From the evidence adduced, I find that the Appellant remained in the house andsubsequently re-entered the house after he had actual notice that his presence and entrywere forbidden by the owner – Officer Noriega. Moreover, any notion that he had a rightto stay in the house because he believed he might still have had an ownership interest isundermined by his signing of a general warranty deed conveying his interest in theproperty to Officer Noriega in March of 2009. The long and short of it was that OfficerNoriega owned the house, she asked him to leave numerous times and he did not; he re-35


entered the house without her permission and stayed awhile when she told him again toleave. This constitutes the criminal trespass under the statute noted hereinabove.The final charge is the assault. Here, once again the evidence is contradictory.However, the evidence that the assault did occur is greater than it did not. There was ahole in the wall where she said her head struck the sheet rock. She apparently kept theLeander Police Department out of the house to hide the damaged wall. Her medicalcondition is consistent with a concussion from striking her head. She told confidantsright after the incident what had occurred. Although she wanted to keep the matter asecret, she went to the hospital to seek assistance when her symptoms persisted.In order to find otherwise, it is necessary to discount her statements to confidentsright after the incident occurred as self-serving; it is necessary to believe that she put thehole in the wall herself soon after the incident to set up the Appellant; it is necessary tobelieve that she went to the hospital and described false symptoms On October 13 to dothe same to the Appellant; and, it is necessary to believe that she was just waiting andwaiting for the opportunity to accuse the Appellant rather than seeking some instantretribution with all this manufactured evidence. This is incredible and simply notplausible. Therefore, Officer Noriega’s account rings true.It appears to me that Officer Noriega probably would not have not disclosed toAPD what occurred on October 10, 2009 had it not been for the Chief’s inquiry into the“Do Not Contact Order” during the investigation of the Appellant’s DWI case. She didnot even speak of it when she sought the “Do Not Contact Order” some two months later.She only mentioned receiving several text messages from the Appellant during these nexttwo months after the incident and because of this, she wanted the “no contact’ order.Whether it was out of desire to protect the Appellant or out of residual love or care for theAppellant or just to keep the matter private, it does not matter. She did not report it untilcompelled to do so. Therefore, I do not believe that she made up the story. I find thepreponderance of the credible evidence is that the allegation that the Appellant committeda misdemeanor assault on Officer Noriega on October 10, 2009 is “true.”It is now appropriate to turn to Title 2, Chapter 9, Subsection D, Section 9.41.Based upon the hole in the wall and the extent of the injury to Officer Noriega, I find thatthe Appellant used more force than reasonably necessary to re-enter the house to retrieve36


his keys and, therefore, he does not have the justification exclusion to criminal trespass.Therefore, the criminal trespass charge may also stand along side the assault charge.Once again, General Order A201 requires APD employees to know and complywith the laws, ordinances, statutes, regulations and written directives, which pertain totheir assigned duties. Civil Service Rule 10.03(L) states that cause for suspension fromthe classified service of the City includes the “[V]iolation of any rules and regulations ofthe Fire Department or Police Department, or of special orders, as applicable.” Wherethe preponderance of credible evidence indicates that the allegations of “assault” and“criminal trespass” are “true” then the charge that the Appellant violated General RuleA201a.01 (A) (1) and, in turn Civil Service Rule 10.03 (L) is also “true”, and I so find.The final question is the appropriateness of the penalty imposed. Much ado wasmade of the last appeal of the Appellant for his indefinite suspension for DWI. ThatHearing Examiner reduced the Appellant’s indefinite suspension penalty to fifteen days.She based this upon the labor arbitral principle of “just cause” as it relates to the disparatetreatment of the Appellant vis-à-vis other similarly situated APD employees; and, theTexas Supreme Court’s decision in the City of Waco v. Kelley that mandates a reductionof an indefinite suspension to fifteen days or less where the hearing examiner finds theindefinite suspension is not warranted.The press and much of the public pilloried the notion of “just cause” andarbitrator/hearing examiner decision-making process. “Just cause” has its roots in privatesector contracts but has found its way into the pubic sector by statute and collectivebargaining. Generally, recognized components of “just cause” include progressivediscipline for less serious offenses (versus outright termination); some notice of what therequired performance is and/or what constitutes prohibited activity; certain “due process”considerations, including the opportunity to be apprised of the charges of rule violation(s)and respond to them; the quantum of proof indicating a violation has occurred; and soforth.One principle (out of many) of “just cause” namely, that all similarly situatedemployees should be treated the same was decried at best as academic rumination and atworst as subverting the goal of the APD being able to police their own. What was left37


out was that the matter is curable and it does now appear that steps have been takenlocally and on a state level to address the DWI issue vis-à-vis law enforcement personnel.Likewise, the arbitrator/hearing examiners’ discretion in their area of expertise -labor-management relations - has been diluted by the judiciary in a case like City of Wacov. Kelley. In order to render a binding decision in a case where discipline is fitting, thechoice is either to uphold the indefinite suspension or reduce it to fifteen days or less.Thus, where the arbitrator/hearing examiner finds some discipline proper, the remedialauthority of an arbitrator/hearing officer is restricted to either upholding a penalty that istoo severe or to reducing it to a level where it may be de minimus given the seriousness ofthe violation. However, the playing field is what it is.Turning now to the matter of the appropriateness of the penalty imposed, I findthe most useful definition of “just cause” attempted is that of Arbitrators Roger Abramsand Dennis Nolan who stated in pertinent part: “Just cause . . . embodies the idea that anemployee is entitled to continued employment, provided he attends work regularly, obeyswork rules, performs at some reasonable level of quality and quantity, and refrains frominterfering with his employer’s business by his activities on or off the job.” Toward aTheory of “Just Cause” in Employee Discipline Cases, 1985, Duke Law Journal 594 at601.This definition crystallizes what most employees have come to expect, althoughmay not actually have in employment-at-will situations. The definition encompasses theprinciple that an employer cannot arbitrarily or capriciously terminate any employee andthat some “due process” considerations may come into play. It also recognizes that anemployee is not absolutely “guaranteed” a job once the employee secures civil service,seniority or some other kind of “permanent” status, but rather that an employee may losehis or her job when the employee’s conduct becomes so faulty or indefensible that theemployer has no option left but to terminate the employee for such conduct.In the instant case, the Appellant is an APD police officer. It has been found by apreponderance of the credible evidence that the allegations he assaulted Officer Noriegaon two occasions and committed a criminal trespass are “true.” These are seriousmatters, particularly for a law enforcement employee. He has also been found to beinsubordinate. This is also a serious matter in the instant case because of the Appellant38


spoke about some of these allegations against him to someone he was not authorized tospeak to during an ongoing investigation of his actions. All these matters are violationsof APD General Orders noted herein and, in turn, these violations trigger Civil ServiceRules relating to disciplinary suspensions.His prior record shows two fifteen (15) day suspensions within since 2009 (one ofwhich was an indefinite suspension reduced to a fifteen (15) day suspension). His recordindicates that he does not always obey general orders (work rules) and there can be nodoubt that some of these actions have interfered with, and could continue to interferewith, his employer’s business – law enforcement.I recognize that in 2003 he was Officer of the Year and has receivedcommendations in the past, but his subsequent record undermines these mitigatingfactors. He may, in fact, have seen the errors of his way and is ready to go forward withhis career and his life in an honorable way. However, given the totality of his recentrecord, the commission of these alleged criminal acts and insubordination, it does nothave to be with the APD. Indefinite suspension is appropriate in this case, and I so find.VI. JUDGMENTUpon these facts and for these reasons, I find that the City of Austin proved by apreponderance of the evidence that the charges in the Memorandum of IndefiniteSuspension dated October 27, 2010 are “true”;That with respect to the criminal acts, the Austin Police Department compliedwith Texas Local Government Code Section 143.052 (h) and imposed disciplinary actionwithin 180 days of the Department’s discovery of those criminal acts: and,That the indefinite suspension of Police Officer Leonardo Quintana wasappropriate under all the circumstances and in light of the Supreme Court’s decision inCity of Waco v. Kelley.Therefore, the Charges are sustained and the indefinite suspension of theAppellant is affirmed.May 4, 2011 ss/ Thomas A. CipollaThomas A. Cipolla, IndependentThird-Party Hearing Examiner39

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