City Must Reconsider Firing of Officer Who Misused Computers

Friday, September 14, 2007

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City Must Reconsider Firing of Officer Who Misused Computers—C.A.

Use of LAPD’s Equipment to Access Confidential Data Is Not a Crime, Justices Say

By STEVEN M. ELLIS, Staff Writer

The Los Angeles Police Department must reconsider its punishment of a former officer whom it fired for misusing department computers to look up personal details about celebrities, an ex-girlfriend and others without a legitimate work reason, the Court of Appeal for this district said yesterday.

In an opinion by Justice Laurence D. Rubin of Div. Eight, the court held that while Kelly Chrisman’s misuse of police equipment was proven, that constituted only an administrative violation, not a crime, and was therefore subject to a two-year statute of limitations under the city charter, not a three-year statute as Los Angeles Superior Court Judge David Yaffe had ruled.

Chrisman’s attorney, Gary S. Casselman, said that his client was pleased with the reversal, but was disappointed that the court did not order outright reinstatement as he had sought. Noting that four years have elapsed since Chrisman’s termination, Casselman said that his client would now await the department’s decision.

Deputy City Attorney Kim Rodgers Westhoff said that although the city had not yet decided on a response to the decision, the district attorney would likely seek partial depublication insofar as the opinion interpreted Penal Code Sec. 502 as inapplicable to Chrisman’s actions.

Domestic Violence Complaint

Chrisman is the ex-boyfriend of Cynthia Truhan-Garvey, the ex-wife of former Dodgers star Steve Garvey, and former co-host of morning television shows in Los Angeles and New York with Regis Philbin.

After Chrisman ended the relationship, according to testimony in the disciplinary proceedings, Truhan-Garvey told the department that he had beaten her. The department arrested Chrisman the next morning at 3 a.m. and held him for eight hours before releasing him.

While the Los Angeles County Sheriff’s Department conducted a criminal investigation of the assault accusations, the police department began its own internal administrative review. During the course of the LAPD investigation, Truhan-Garvey additionally accused Chrisman of selling confidential information about celebrities that he had retrieved from law enforcement computer systems.

The sheriff’s investigators concluded Truhan-Garvey’s injuries were self-inflicted, and the district attorney’s office declined to prosecute Chrisman because it found her not credible, noting that her injuries contradicted her description of the supposed attack, and that she had been convicted in another case of making false accusations of domestic violence.

Claims Against City

Chrisman filed an administrative claim against the City of Los Angeles, alleging false arrest and violation of his civil rights, which the city rejected.

In February 2001, prosecutors told the LAPD that the purported computer misuse was not a felony unless Chrisman sold the information he had acquired. The department then served a 52- count administrative complaint on Chrisman on March 28.

Thirty-three of the counts involved Truhan-Garvey’s allegations of domestic violence and related misconduct, such as Chrisman’s entry into her apartment to take her dog without consent. The next day, Chrisman filed a civil rights lawsuit for false arrest in federal district court against the city and police department personnel who had investigated the administrative charges.

The department convened a board of rights in November. of 2001 to hear its administrative charges against appellant. The board was suspended, however, pending resolution of Chrisman’s lawsuit against the department.

The city later settled, paying Chrisman almost $250,000.

Chrisman was found factually innocent of the domestic violence accusations by a Superior Court judge in May of 2003, and Chrisman sent the court’s findings to the department. The department withdrew all 33 of the administrative charges of domestic violence in August of that year, but added three counts for misuse of department computers while on duty for non-duty-related activities in violation of Sec. 502.

Improper but Not Criminal

The new counts alleged that Chrisman improperly accessed the department computer system from Dec. 6, 1994 to Sept. 30, 1998, and misused his mobile digital terminal computer from May 31, 1993 to April 21, 1999, and from April 28, 1999 to March 20, 2000, to search for data about people including celebrities, Truhan-Garvey and her acquaintances, and himself when he had no legitimate work reason.

Chrisman objected that the length of time covered by the new charges made them vague, so the department amended the starting dates of the first two charges to March 29, 1998, exactly three years, minus a day, before the department filed its administrative complaint.

The board conducted a hearing where it found Chrisman guilty of the three charges, and recommended his termination. The department accepted the recommendation and fired Chrisman in October 2003.

In January 2004, Chrisman filed a petition for writ of administrative mandate. He claimed the department had violated a number of his rights in firing him, and that he had properly used the computers in the course of his duties.

He also argued that the three computer counts were unfairly imprecise about the dates of his supposed misuse and alleged conduct outside the statute of limitations, and he asserted that the board of rights was prejudiced against him because of conflicts of interest. Yaffe disagreed and denied his petition.

But Rubin, writing for the Court of Appeal, said that there was no violation of Sec. 502 because the statute prohibits “access” of a computer system without permission, but not mere use.

“Section 502 defines ‘access’ in terms redolent of ‘hacking’ or breaking into a computer,” he wrote, finding that such conduct is “different from the ordinary, everyday use of a computer to which people are accustomed when they speak of ‘using’ a computer.”

He continued:

“Appellant’s computer queries seeking information that the department’s computer system was designed to provide to officers was misconduct if he had no legitimate purpose for that information, but it was not hacking the computer’s ‘logical, arithmetical, or memory function resources,’ as appellant was entitled to access those resources.”

Concluding that evidence of misconduct occurring outside the limitations period could be admitted at a disciplinary hearing for a legitimate purpose such as to show a plan or an absence of mistake but could not be a basis for discipline, Rubin further held that Chrisman was entitled to a new hearing because the board had relied on misconduct outside the limitations period as a basis for its decision, and had made no determination whether the misconduct within the period was so egregious as to make termination appropriate.

Rubin rejected Chrisman’s other arguments, noting that Chrisman had failed to demonstrate any prejudice by the department’s lack of notice as to specific dates within the time periods upon which the department planned to focus at the hearing, and that he had waived both his bias claim and the statute of limitation set forth in Government Code Sec. 3304 – which provides that a police department must tell an officer of the actual discipline it may eventually impose within one year of learning about the officer’s misconduct – by failing to raise the issues at the hearing.

Casselman said that, despite his client’s termination, use of department computers to access personal data unrelated to official duties remained widespread amongst other officers in the department.

He said that it was unfortunate that the matter became wrapped up with Truhan-Garvey and celebrities, alleging that the city acted out of fear of lawsuits by individuals other than Truhan-Garvey which never materialized.

Rubin was joined in his opinion by Presiding Justice Candace Cooper and Justice Madeleine Flier.

The case is Chrisman v. City of Los Angeles, 07 SOS 5724.