Friday, November 30, 2018
By a MetNews Staff Writer
The Court of Appeal for this district has upheld the 10-day suspension of a Los Angeles Police Department for making a racist remark, holding that the officer’s disciplinary proceedings comported with due process.
The unpublished opinion, filed Wednesday, was authored by Los Angeles Superior Court Judge Gary Micon, sitting on assignment in Div. Four. It affirms Los Angeles Superior Court Judge Amy D. Hogue’s denial of motorcycle Officer John Goines’ petitions for writ of mandate, one challenging the LAPD’s finding that he had committed misconduct and the other seeking a hearing in the department’s Board of Rights, which he had waived.
Goines was initially charged with making improper remarks, and the reviewing LAPD captain recommended a three-day suspension. Then-Chief Charlie Beck disagreed, changing the charge to making ethnic remarks and recommending the 10-day suspension, which was ultimately imposed.
On Oct. 11, 2012, Goines saw a stranded driver on the side of Sunset Boulevard, near Westwood. With the driver, who was African-American, was a white man, Christian Kemmerling.
Goines, an African American, stopped to investigate, and noticed a nearby tow truck which he knew to be owned by a bandit tow truck company.
(Bandit tow truckers patrol for stranded motorists and stop to offer their services in violation of state law; they are generally in league with a particular mechanic or body shop, to which they will tow the mark’s damaged vehicle.)
After sending the bandit tow trucker on his way, the officer turned to Kemmerling, whom he suspected of being the trucker’s capper, an agent who searches for potential marks.
Kemmerling denied the accusation, explaining to Goines that he had been driving and stopped to let the stranded driver use his phone to call his own insurance company. According to Kemmerling, the officer used profanity and asked:
“In what world do you believe I believe a White man would stop for a Black man to help him?”
Good Samaritan’s Complaint
After the incident, Kemmerling filed a complaint against Goines with the LAPD. Captain Rolando Solano determined that the remark, while improper and touching on race, did not amount to an ethnic remark, which carries a five to nine-day suspension unlike the lesser charge’s four-day suspension.
After Beck’s proposed revisions to the charges, Goines was once again given notice pursuant to Skelly v. State Personnel Board—the 1975 Supreme Court case governing disciplinary notice requirements for public employees—with the notice indicating Beck’s proposed discipline. When Solano discussed the new charges with the officer, however, he told him only of the increased suspension time, and did not mention the change of the improper-remarks charge to one for ethnic remarks.
The officer undertook an administrative appeal. Under that procedure, an accused officer admits his or her misconduct and challenges only the suspension imposed; an alternative appeals process before the department’s Board of Rights affords an officer the chance to challenge the misconduct itself.
The officer’s counsel told the administrative appeal hearing officer that, had they been told the charge had been changed, they would not have waived the Board of Rights appeal. The hearing officer described that argument as “extremely tenuous as a basis for seeking relief on appeal” and recommended Beck’s suggestions be imposed, a ruling the chief adopted.
“Goines cites no authority supporting his contention that the department had to verbally inform him of the change in wording when the revised complaint reflected that change. The department provided Goines notice of the proposed suspension, the reasons therefor, and a copy of the charges—exactly what Skelly requires….This procedure gave Goines notice of the charges sufficient to provide a reasonable opportunity to respond to the purported misconduct.
“That Goines did not notice the change to the complaint from ‘improper remark’ to ‘ethnic remark,’ and thus did not timely request a Board of Rights hearing, does not render the revised complaint invalid. The revised notice was based on the same alleged misconduct; thus, a second Skelly meeting was not required.”
The case is Goines v. City of Los Angeles, B282701.
Jacob A. Kalinski and Amanda J. Waters of the Santa Monica offices of Rains Lucia Stern St. Phalle & Silver argued for Goines. Deputy City Attorney Paul L. Winnemore represented the city.
In 2003, the city agreed to pay $400,000 to Goines in connection with his having been shunned after testifying in a deposition against the department. He maintained that a May 21, 1999 shooting of a homeless African American woman, Margaret Mitchell, should not have occurred.
The family of the woman brought an action in the U.S. District Court for the Central District of California.
Mitchell was shot after brandishing a screwdriving and threatening to kill two officers. The city settled the case for $975,000.
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