Tuesday, March 12, 2002
Home-Assigned LAPD Officer Wrongly Fired After Probationary Period—C.A.
By a MetNews Writer
A probationary Los Angeles police officer, assigned home during an investigation of sexual misconduct charges, was improperly terminated after his probationary period expired, the Court of Appeal for this district has ruled.
Div. Four ruled Thursday that Officer Paul Winter cannot be fired without a Board of Rights hearing because his discharge notice was not filed with the Board of Civil Service Commissioners until 23 months after he was sworn in.
Winter’s purported termination was the result of a March 1996 incident in which the officer—a member of the department for three months at the time—allegedly raped an intoxicated female neighbor after the two had gone drinking at a Long Beach bar. Winter was not on duty at the time.
Winter’s captain did not sustain the woman’s complaint, but after review by higher-ups, Winter was notified in May 1997 that the department had completed its investigation of the incident and was relieving him of his duties. He was directed to stay home from 8 a.m. to 5 p.m., Monday through Friday, pending possible termination, although he was allowed to keep his badge, gun, and identification.
Winter filed a response to the proposed termination. Despite his captain’s conclusion that there was still insufficient evidence to sustain the charge, he was notified in June 1997, one day before his probationary period was to expire, that he was being fired for having conducted himself “in a manner which discredited and compromised the integrity…of the Department.”
Winter promptly filed an administrative appeal. Because the department was treating the matter as a discharge of a probationary officer, he was not given a Board of Rights hearing, but was granted a “liberty interests” hearing before a hearing officer.
The liberty interests hearing, which is required by court rulings interpreting the Fourteenth Amendment, has less stringent proof requirements than those applicable to the Board of Rights. Also, the chief of police may overrule findings in favor of the officer, which cannot be done in the case of a tenured officer tried before the Board of Rights.
Winter’s counsel argued at the hearing that he was a tenured officer because his formal termination notice was not filed until five months after the probationary period had expired. The hearing was then continued several times while the department sought legal advice on the contention, and was not completed until nearly 18 months later, in July 1999.
The hearing officer ultimately concluded that any untimeliness in the filing of the notice didn’t affect Winter’s rights. The allegations were sustained and Winter was fired.
Los Angeles Superior Court Judge Dzintra Janavs, hearing Winter’s petition challenging the termination, ruled that under civil service rules, he was “absent” while assigned home on probation. Since absences in excess of seven days do not count against the probationary period, she ruled, Winters was still on probation in November 1997 when the termination notice was filed.
But Justice Norman Epstein, writing for the Court of Appeal, said that Winter was not absent, but rather was on “inactive duty” while assigned home.
The justice noted that Winter still had job duties while on home assignment, since he was under orders not to leave, and retained his badge and gun.
”Since his presence at this designated place each day constituted performance of his assignment, it is reasonable to conclude that the time on this assignment was not an ‘absence’ within the meaning of [Civil Service] rule 5.26,” the justice wrote.
The case is Winter v. City of Los Angeles, 02 S.O.S. 1316.
Copyright 2002, Metropolitan News Company