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HomeMy WebLinkAbout16-008419 Reports_Redacted' ~TINGTON BEACH POLICE DEPARTME1'''=-' ALLEG'AflON OF EMPLOYEE MISC01./DUCT Initiating Supervisor: Employees: 1. Jake Fitzgerald 3. SUPERVISOR Sgt. K. Johnson PIN 2171 PIN --- 2. 4. Admin. Number PSU2017-0035 DR/CN: 2016-008419 ----------~ ----------~ PIN PIN Date/Time of Incident: 9/2611 7 I 0900; Location: Westminster Superior Court COMPLAINT SYNOPSIS: (DES CRIBE SPE C IFI C ACTS AND STAT EMENTS) On 9/26117, CSO F it zgerald testifi ed in court at a jury trial. During his t estimony, he admitted to putting untruthful statements in his police report. Further investiga tion revealed the re may be other police rep011s that contain false information . Sign and Dale ) 1. r6: cc /~1 n I I 4 .~11\n ~ ' . ROUTING STEPS AND PROCEDURES CHECKLIST COMPLAINT INITIATOR Complete Allegation of Employee Misconduct Forward Complaint Package to Chiefs Executive Officer CHIEF'S EXEC . OFFICER Brief employee's Divi sion Commander; Obtain Name of Investigation S upervisor $lP\. ~"' so;j PROF. STANDARDS UNIT Logged , Assig ned #, Enter in Database/Copy \o A ccused Employee/Supervisor/Audit File to PSU 5 . \~\, .. t\q ~ INVESTIGATING S UPERVISOR Completed Investigation Sent to Employee 's Division Commander EMPLOYEE'S DIV. COMMANDER Employee's Division Commander Recommends Disposition and Forwards To Chiefs Executi ve Office r 7 . tz, htt l \ '1 ~IEF'S EXECUTIVE OFFICER Ii Obtain Chiefs Approval 9 . ____ _ PROF. STANDARDS UNIT Skelly or Disposition to Office r Disci pline Report to Officer via Chain 10. Citizen Letter Sent 11 . t \1A..h¥' I~ Log Out and Input Disposition . 'fN TINGTON BEACH POLICE DEPARTMF . ALLE&d TION OF EMPLOYEE MISC~14 DUCT SUPERVISOR In it ia ting Sup erv isor: Ad min. Nu mber DR/CN : Employees: PIN 1. 3. -------------PIN -~- 2. 4. Date/Time of Incident: __ I __ ; Location : COMPLAINT SYNOPSIS : (DESCRIBE SPECIF IC Acrs AND STATEMEN / P IN PIN AND PROCEDURES CHECKLIST Sign and Date 1. _____ _ 2. _____ _ 3. _____ _ DISPOSITION: COMPLAINT I ITIATOR Complete A l ~gation of Employee isconduct CH IEF'S EXEC. OFF ICER B ri ef employ ee's Division Comm ande r; O bta in Name of Investi ga tio n Supe rv isor PROF. STANDARDS UN IT Logg ed , Assig ned #, Enter in Dat abase/Copy to Accused Em ployee/Supervisor/Audit File to PS U 5. ____ _ 6. ____ _ 7. ____ _ 8. ____ _ 9. ____ _ 10. ____ _ 11. ____ _ INVESTI GATIN G SUPERVISOR Completed Investigatio n Sent to Employee's Division Commander EMPLOYEE'S DIV. COMMANDER Employee's Division Commander Recommends Disposi ti on and Foiwards To Ch iefs Executive Officer CHIEF'S EXECUTIVE OFFICER Obtain Chiefs Approva l PROF . STANDARDS UNIT Skelly or Disposition to Officer Discipline Report to Officer via Chain Citi zen Letter Sent Log Out and Input Di sposition D Unfoun ded DExo nerate d D Not Susta in ed o s ustain ed D Miscon du ct Not Base d on Com pl aint Chief of Police: ---------------------Date: ------- ~ ~ HUNTINGTON BEACH TO: FROM: CITY OF HUNTINGTON BEACH INTER-DEPARTMENT COMMUNICATION Jake Fitzgerald, CSO Support Sel'Vices Kevin Johnson, Sergeant J(O Professional Standards Unit SUBJECT: Internal Investigation, PSU2017-00035 DATE: September 27, 2017 The attached Allegation of Employee Misconduct report names you as a subject. In accordance with department Manual Section I 020.6, I am forwarding a copy of the supervisory/citizen face sheet to you for your information. An investigation into this complaint has been initiated by the department. I am the assigned investigator and will coordinate with you so an interview can be scheduled. You will be notified of the disposition at the conclusion of the investigation. If you have any questions, you can contact me at #55693. ) CITY OF HUNTINGTON BEACH INTER-DEPARTMENT COMMUNICATION HUNTINGTON BEACH TO: Jake Fitzgerald, Community Service Officer FROM: R. Handy, Chief of Police SUBJECT: ADMINISTRATIVE LEA VE DATE: September 27, 2017 Effective immediately, you are being placed on Administrative Leave, with pay. While on Administrative Leave you are admonished of the following rules: 1. You are to report directly to Support Services Manager, Kristin Miller or me (Kevin Johnson, SERGEANT). 2. Effective September 28, 2017, your duty schedule will be Monday through Thursday, 0700 to 1700. During your duty schedule, you are to be able to respond to the Police Department within a period of one hour after notice, unless other arrangements are made with Suppo1i Services Division Manager, Kristin Miller. During your duty schedule, you are to telephone and speak with Support Services Division Manager, Kristin Miller twice daily, once between the hours of 1000 and 1100, and again between 1400 and 1500 hours, unless other arrangements have been made. 3. Your powers as a Community Service Officer are suspended, and you are to tum in your badge, identification card, depaiiment issued keys, and building access fob. You are not to exercise concealed weapon carrying privileges, and you are not to engage in Community Service Officer, law enforcement activities. 4 . You will continue to receive your regular pay and benefits. 5. Immediately upon entering the interior of the police facility, you are to rep01i directly to Supp01i Services Division Manager Kristin Miller or Watch Commander, via the front desk telephone. Access and duration in the building will be at their discretion. Your presence will be an "esc01i required" condition, requiring an esco1i by Support Services Division Manager, Kristin Miller or the Watch Commander, or their designee. !Your signature indicates you have read and understand these instructions. iitf -'!li!£d 'l'-J?-ryfm mPJOyee Date/Time Ht... .. dngton Beach Police Departrr. ,11t Policy Manual Standards of Conduct (h) Criminal , dishonest, or disgraceful conduct, whether on-or off-duty, that adversely affects the member's rel ationsh ip with this department. (i) Unauthorized possession of, loss of, or damage to department property or the property of others, or endangering it through carelessness or maliciousness. U) Attempted or actual theft of department property; misappropriation or misuse of public funds, property, personnel or the services or property of others; unauthori zed re moval or possession of department property or the property of another person. (k) Activity that is incompatible with a member's conditions of employment or appointment as established by law or that violates a provision of any memorandum of understanding or contract to include fraud in securing the appointment or hire. (I) Init iating any civil action for recovery of any damages or injuries incurred in the course and scope of employment or appointment w ithout first notifying the Chief of Police of such action. (m) Any other on-or off-duty conduct whi c h any member knows or reasonably should know is unbecoming a member of this department, is contrary to good order, efficiency or morale, or tend s to reflect unfavorably upon this department or its members. 340 .5 .10 SAFETY (a) Failure to observe or violating department safety standards or safe working practices . (b) Failure to maintain current licenses or certifications required for the assignment or position (e.g ., driver license, first aid). (c) Failure to maintain good physical condition sufficient to adequately and safely perform law enforcement duties . (d) Uns afe firearm or other dangerous weapon handling to include load ing or unload ing firearms in an unsafe manner, either on-or off-duty. (e) Carrying, while on the premises of the work place , any firearm or other lethal weapon that is not authorized by the member's appointing authority. (f) Unsafe or improper driving habits or actions in the course of employment or appointment. (g) Any personal action contributing to a preventable traffic collision. (h) Concealing or knowingly failing to report any on-the-job or work-related accident or injury as soon as practicable but within 24 hours . 340 .5.11 INTOXICANTS (a) Reporting for work or being at work while intoxicated or when the member's ability to perform assigned duties is impaired due to the use of alcohol, medication or drugs, whether legal , prescribed or illegal. (b) Possession or use of alcohol at any work si te or while on-duty, except as authorized in the performance of an official assignment. A member who is authorized to consume alcohol is not permitted to do so to such a degree that it may impair on-duty performance . (c) Unauthorized possession, use of, or attempting to bring a controlled substance, illegal drug or non -prescribed medication to any work site. Adoption Date: 2016/03/22 © 1995-20 16 Lexipol, LLC Standards of Conduct -181 Hu •. ~ ngton Beach Police Departm\.J t Policy Manual Standards of Conduct (c) Fa ilure to participate in , or giving fa lse or misle ading statements , or mi sreprese nting or omitting mate ri al inform ation to a supervisor or other person in a pos ition of au th o rity, in connection with any investigation or in the reporting of any department-related business. {d) Being untruthful or knowingly making false, misleading or malicious statements that are reasonably calculated to harm the reputation, authority or official standing of this department or its members . (e) Disparaging remarks or conduct concerning duly constituted authority to the extent that such conduct disrupts the efficiency of this department or subverts the good order, efficiency and discipline of this department or that wou ld tend to discredit any of its members . (f) Unlawful gambling or unlawful betting at any time or any place . Legal gambling or betting under any of th e following conditions: 1. While on department premises. 2. At any work site, while on-duty or while in uniform, or while using any department equipment or system. 3. Gambling activity undertaken as part of an officer official duties and with the express knowledge and permission of a direct supervisor is exempt from this prohibition. (g) Improper political activity including : 1. Unauthorized attendance while on-duty at official legislative or political sessions . 2 . Solicitations, speeches or distribution of campaign literature for or against any political candidate or position while on-duty or, on department property except as expressly authorized by City policy, the memorandum of understand ing, or the Chief of Police. (h) Engaging in political activities during assigned working hours except as expressly authorized by City policy, the memorandum of understanding, or the Chief of Police . (i) Any act on-or off-duty that brings discredit to this department. 340.5 .9 CONDUCT (a) Failure of any member to promptly and fully report activities on his/her part or the part of any other member where such activities resulted in contact with any other law enforcement agency or that may result in criminal prosecution or discipline under this policy. (b) Unreasonable and unwarranted force to a person encountered or a person under arrest. (c) Ex ceeding lawful peace officer powers by unreasonable, unlawful or excessive conduct. (d) Unauthorized or unlawful fighting , threatening or attempting to inflict unlawful bodily harm on another. (e) Engaging in horseplay that reasonably could result in injury or property damage . (f) Discourteous, disrespectful or discriminatory treatment of any member of the public or any member of this department or the City. (g) Use of obscene, indecent, profane or derogatory language while on-duty or in uniform. Adopti on Date : 2016/03/22 © 1995-2016 Lexip ol, LLC Standards of Conduct -180 Hur •• ..11gton Beach Police Departmc . .l Policy Manual Standards of Conduct 340.5.5 ATTENDANCE (a) Leaving the job to which the member is assigned during duty hours without reasonab le excuse and proper permission and approval. (b) Unexcused or unauthorized absence or tardiness. (c) Excessive absente eism or abuse of leave privileges . (d) Failure to report to work or to place of assignment at time specified and fully prepared to perform duties without reasonable excuse. 340.5.6 UNAUTHORIZED ACCESS, DISCLOSURE OR USE (a) Unauthorized and inappropriate intentional release of confidential or protected information, materials , data, forms or reports obtained as a result of the member's position with this department. (b) Disclosing to any unauthorized person any active investigation information . (c) The use of any information, photograph, video or other recording obtained or accessed as a result of employment or appointment to this department for personal or financial gain or w ithout the express authorization of the Chief of Police or the authorized designee . (d) Loaning , selling, allowing unauthorized use , giving away or appropriating any Huntington Beach Police Department badge, uniform, identification card or department property for personal use , personal gain or any other improper or unauthorized use or purpose. (e) Using department resources in association with any portion of an independent civil action . These resources include, but are not limited to, personnel, vehicles, equipment and non- subpoenaed records. 340.5.7 EFFICIENCY (a) Neglect of duty. (b) Unsatisfactory work performance including, but not limited to, failure , incompetence, inefficiency or delay in performing and/or carrying out proper orders , work assignments or the instructions of supervisors without a reasonable and bona fide excuse . (c) Concealing, attempting to conceal, removing or destroying defective or incompetent work. (d) Unauthorized sleeping during on-duty time or assignments. (e) Failure to notify the Department within 24 hours of any change in residence address, contact telephone numbers or marital status. 340 .5.8 PERFORMANCE (a) Failure to disclose or misrepresenting material facts , or making any false or misleading statement on any application , examination form , or other official document, report or form, or during the course of any work-related investigation. (b) The falsification of any work-related records, making misleading entries or statements with the intent to deceive or the willful and unauthorized removal, alteration, destruction and/or mutilation of any department record, public record, book, paper or document. Adoption Date: 2016/03/22 © 1995-2016 Lexipol, LLC Standards of Conduct -179 .. M t j, CITY OF HUNTINGTON BEACH ~ '"le t ~ . INTER-DEPARTMENT COMMUNICATION HU~TJNGT()~ ~E:'\C~ TO: Robert Handy, Chief of Police FROM: Kelly Rodriguez, Uniform Division Commander DATE: December 19, 2017 SUBJECT: Allegation of Misconduct PSU #2017-0035 I reviewed the allegation of employee misconduct investigation by Sergeant K. Johnson involving CSO Fitzgerald. Fitzgerald has been a City employee for several years in the capacity of Cadet, Parking Control Officer, Police Recruit, and Community Service Officer (CSO). Fitzgerald was released from police recruit probation in July, 2016, but he was offered a position as CSO. As a CSO he is responsible for working the front desk which includes writing crime reports including witness, victim, and suspect statements. On June 20, 2016, Fitzgerald was in the capacity of police officer in training with Field Training Officer (FTO) Topartzer. They responded to the Barnes and Nobles book store located at 7881 Edinger reference a male subject exposing himself to young girls (Rep01t number 2016-008419). Multiple officers responded to the scene. Fitzgerald and Topartzer handled the call and Fitzgerald authored the report. The suspect was arrested for 314(1) Indecent Exposure and 647 (a) Lewd conduct in a public place. The investigator assigned the case was Detective Quidort. On September 26, 2017, the case went to trial. Deputy District Attorney (ODA) was the prosecutor and was the public defender. After Fitzgerald testified, told Quidort, who was at court but not inside the court room, that she was concerned with Fitzgerald's testimony and believed he possibly lied on the stand. Due to the issues, the defendant was given a plea bargain with a reduced sentence. Quidort reported his concerns and Sergeant Johnson was assigned to investigate the complaint. Due to the plea bargain he was not required to register as a sexual offender under 290 PC. Johnson interviewed DDA who stated Fitzgerald wrote in his police rep01t that he looked for additional witnesses at the scene of the crime. When asked this on the stand, he said that he did not look for witnesses. She was surprised by this but decided not to question it fmther. said there was an additional problem with his testimony reference the video surveillance. She explained that the manager of Barnes and Noble and Fitzgerald had two different versions on the issues with watching/obtaining video as well. stated Fitzgerald admitted to lying in his police report. 2 During cross examination, asked Fitzgerald ifhe looked for witnesses as stated in his report and again he said he did not. asked him why he would write that he looked for witnesses when in fact he didn't. Fitzgerald responded, "It is a common way to end all of our police reports." then asked him ifhe would have included those words even ifhe didn't look and Fitzgerald responded, "Yes." Field Training Officer Topartzer was interviewed reference this incident. He explained that he trained Fitzgerald to reflect the incident, establish a crime and to be accurate in his report writing. Topartzer was not in direct contact with Fitzgerald during the entire time of this investigation. Topartzer was not with Fitzgerald when he viewed the video with the manager. Fitzgerald was interviewed and stated he graduated the police academy in October 2015. He was trained at length about being truthful and accurate in police reports. He also stated he was taught to be truthful in his repmts by his field training officers. Fitzgerald denied intentionally lying on the stand. He claimed that he reviewed his police report prior to testifying and he did not recall looking for witnesses. In listening to court transcripts, Fitzgerald admitted he stated that "It is a common way to end all of our police reports." (Referring to looking for witnesses) Fitzgerald answered on the stand when asked if he would have included that line in the report even if he didn't actually do it, "yes." Fitzgerald admitted to Sergeant Johnson that he was "flustered" when questioned about his report. In 1963 the U.S. Supreme Court in Brady v. Maryland placed upon prosecutors an affrrrnative obligation to disclose to the defense all exculpatory information, otherwise it amounts to a due process violation. An officer who has been proved to have lied will be placed on a Brady list which will be detrimental to future court cases and the prosecution of criminals. In a more recent case, Kolender v. San Diego County Civil Service Commission (2005) 132 XL. Pp. 4th 716: "A Deputy Sheriffs job is a position of public trust and the public has the right to the highest standard of behavior from those they invest with the power and authority of a law enforcement officer. Honesty, credibility, and temperament are crucial to the performance of an officer's duties. Dishonesty is incompatible with the public trust." The issue of integrity goes against the Law Enforcement Code of Ethics and the ability of an officer to perform his primary duties. Fitzgerald admitted in court that his report did not accurately reflect what investigation he performed. I believe his testimony in court reference his police report will prohibit him from being able to perform the duties of a law enforcement officer in any capacity involving police report writing, testimony and overall work performance. Due to him becoming flustered, he has admittedly provided false information to the court, therefore potentially becoming what is commonly known as a "Brady" officer and being placed on the Brady Index. While Fitzgerald was in the field training officer program in a police officer capacity, he was asked a direct question by his PTO reference the documentation of reports in his PTO book. Each trainee is required to write down the report numbers in their book. PTO Melschau specifically asked Fitzgerald ifhe had been in fact writing the report numbers dovm and he replied yes. When asked to produce the book, he then told PTO Melschau that he had not been writing them down. His explanation at the time was that he "panicked." I ) ) 3 A second issue of integrity arose during his time in the field training officer program with FTO Topa11zer. Topartzer info1med Fitzgerald that ifhe had his audio recorder on that he should advise him. Fitzgerald stated that he did in fact make the advisement. They reviewed the recording and a no time did Fitzgerald tell Topartzer that he was recording. I believe he demonstrated unsatisfactory work perfo1mance by incompetence and made false statements in a police report. This conduct is dishonest in nature and adversely affects Fitzgerald's relationship with this depaiiment and the comis. Fitzgerald violated the following policies: 340.5.7 EFFICIENCY (b) Unsatisfactory work performance including, but not limited to, failure, incompetence, inefficiency or delay in perfo1ming and/or carrying out proper orders, work assignments or the instructions of supervisors without a reasonable bona fide excuse. 340.5.8 PERFORMANCE (a) Failure to disclose or misrepresenting material facts, or making any false or misleading statement on any application, examination form or other official document, report or form, or during the course of any work-related investigation. 340.5.9 CONDUCT (h) Dishonest, or disgraceful conduct, whether on or off duty, that adversely affects the member's relationship with this depaiiment. Based on the fact Fitzgerald admitted to lying on a police report in court during a trial, coupled with the integrity issues exposed in the field tr·aining officer program, I recommend Fitzgerald be TERMINATED. ,1 ·?-'1-l1 J e?'? t-e-<-._. 1'i"l-'\ ~ F 1 iv JI -i--e~ M J tc.-ll "\"i'"r-..l'..., ..... n'-' . t7Jd~ ' ) CITY OF HUNTINGTON BEACH INTER-DEPARTMENT COMMUNICATION TO: Jake Fitzgerald , Community Services Officer FROM: Kelly Rodriguez , Captain DATE: January 29 , 2018 SUBJECT: Notice of Proposed Adverse Action -Termination PSU 2017-0035 This letter is to advise you of the Huntington Beach Police Department's proposal that you be terminated from your position as a Community Services Officer. You are entitled to a pre- disciplinary (Skelly) conference prior to the imposition of the intended termination . The conference has been scheduled for Thursday, February 15, 2018, at 1:00 p.m. in the office of the Police Chief. Chief Handy will seNe as the Skelly Officer in th is matte r. You are ent it led to bring a representative of your choosing to the pre-disciplinary confe rence . Personnel Rule 7-1 Discipline reads : "The tenure of every city employee shall be based on reasonable standards of job performance and personal and professional conduct. Failure or refusal to meet these standards shall constitute just cause for disciplinary actio n. All employees shall be subject to disciplin ary action up to and including dismiss al for any one or m ore of the causes or grounds for discipline s et forth in the se rules." I. Basis for Recommended Discipline On September 26, 2017, you were a witness in a trial regarding an indecent e xposu re arrest you made as a police officer on June 20 , 2016 . While under oath, you admitted that your report did not accurately reflect the investigation you performed. Because of the issues with your testimony , the suspect received a favorable plea deal. The court records reflect testimony under oath that you included in a p oli ce report (HBPD 16- 08419) a material account of an event that was false . All written reports/documents completed by City staff are required to accurately reflect the facts related to the matter. Based upon your testimony under oath , you have demonstrated a fa ilure to perform the job requirement of all City of Huntington Beach personnel to provide accurate and factual information in any official document/report of the Huntington Beach Police Department. Whi le you are no longer a sworn police officer, as a Community Services Officer you may be required to prepare reports, complaints , decl a rat ions and ot her necessary documents related to investigations and to testify in court if requ ired . Honesty , acc u racy and factual oral and written accounts of events are required of all staff, at all times. Your conduct is deemed dishonest in nature and adversely affects your relationship with the department, the courts , and the City of Huntington Beach. We value and expect truth , honesty, and ethical behavior from the members of our organization. We are committed to upho lding ou r position of public trust by maintaining the highest ethical standards and the utmost respect for the ordinances and laws of our city , state, and nation. Furthermore, beca use you knowingly and admittedly lied in your police report, you can be placed on the Brady Index list which is a centralized repository for potentially discoverable information about law enforcement witnesses which can be detrimental to future court cases and the prosecution of criminals. II. Rules and Regulations Violated This proposal is based on findings that your actions violated the following City rules, regulations and procedures and established professional standards. 1. City of Huntington Beach Personnel Rule 7-2 (4) Incompetency. 2. City of Huntington Beach Personnel Rule 7-2 (5) Inefficiency. 3. City of Huntington Beach Personnel Rule 7-2 (8) Dishonesty with or lying to ... others. 4. City of Huntington Beach Personnel Rule 7-2 (26) Violation of departmental rules and regulation duly promulgated in accordance with these rules. Specifically Police Department Manual sections: HBPD Policy 340.5.7 (b) "Unsatisfactory work performance including, but not limited to, failure, incompetence, inefficiency or delay in performing and/or carrying out proper orders, work assignments or the instructions of supervisors without a reasonable bona fide excuse." HBPD Policy 340.5.8 (a) "Failure to disclose or misrepresenting material facts, or making false or misleading statement on application, examination form or other official document, report or form, or during the course of any work related investigation. HBPD Policy 340.5.9 (h) "Dishonest, or disgraceful conduct, whether on or off duty, that adversely affects the member's relationship with this department." 5. City of Huntington Beach Personnel Rule 7-2 (29) Any conduct, act or omission either during or outside of duty hours which is of such nature that ... has a disruptive effect on the efficiency or integrity of the public service. 6. City of Huntington Beach Personnel Rule 7-2 (30) Any dishonest or wrongful conduct or cheating, whether by act or omission, during or outside duty hours, which is incompatible with or reflects unfavorably upon the employee's employment with the city. Ill. Right to Respond You have the right to provide an answer to all charges and to provide any additional information regarding this matter prior to the imposition of the intended discipline. The purpose of the pre- disciplinary (Skelly) meeting is for you to review and discuss the nature of the charges, to provide clarifying information and to offer any mitigating factors which may have an impact on the final decision. You may be represented by your association representative or any other individual of your choice. This is not an evidentiary hearing; therefore you have no right to call or to cross-examine witnesses. 2 You may elect to waive your right to appear at the pre-disciplinary (Skelly) conference and instead respond in writing. Any such written response must be submitted within the time in which the pre-disciplinary conference would be held. You have ten business days upon receipt of this notice to return the attached Mandatory Response Form to acknowledge or waive your right to participate in the pre-disciplinary (Skelly) conference. (Attachment A) Please contact JoAnn Diaz, Principal HR Analyst, at (714) 374- 5359 to confirm your choice to participate in the pre-disciplinary conference. Failure to return the Mandatory Response Form within ten calendar days will result in voluntary waiver of the right to participate. Should you fail to timely respond and/or fail to participate in the scheduled pre-disciplinary conference, the decision to sustain, modify or reject this recommendation to terminate your employment with the City of Huntington Beach will be based upon a review of this notice and attachments Please be advised that it is illegal and inappropriate to retaliate against any person who may have participated in complaining or providing any information regarding the aforementioned allegations. You may not contact nor in any other manner retaliate against any individual who has provided information to the Police Department regarding this matter. I do hereby confirm I have received and read this memorandum. Employee's signature:--------------Date:-------- Notification by:----------------Date:-------- Attachment A: Pre-Disciplinary (Skelly) Conference Mandatory Response Form Cc: Rob Handy, Chief of Police Michele Warren, Director of Human Resources Judy Graham, MEA President Gregorio Daniel, Teamsters Business Representative 3 ) CITY OF HUNTINGTON BEACH Pre-Disciplinary (Skelly) Conference Mandatory Response Form I hereby acknowledge my right to participate in a pre-disciplinary (Skelly) conference regarding an intended disciplinary action by the City of Huntington Beach . (Please check the box acknowledging your choice to participate.) D I agree to participate in the pre-disciplinary conference AND D I will have a representative present. OR o I will not have a representative present. OR o I decline to participate in the pre-disciplinary conference and will respond to the charges in writing OR o I decline to participate in the pre-disciplinary conference and waive my right to respond to the charges. Jake Fitzgerald Return the completed form to: Date JoAnn Diaz, Principal Human Resources Analyst City of Huntington Beach 2000 Main Street P.O. Box 190 Huntington Beach, CA 92648 714-374-5370 (fax) joann.diaz@surfcity-hb.org (e-mail) I ·I January 29, 2018 Chief Handy Huntington Beach Police 2000 Main Street Huntington Beach, CA 92648 Dear Chief Handy, I hereby resign from my position of Community Services Officer with the Huntington Beach Police Department effective immediately. Sincerely, Jake R. Fitzgerald CITY OF HUNTINGTON BEACH INTER-DEPARTMENT COMMUNICATION HUNTINGTON BEACH TO: Kelly Rodriguez, Captain Uniform Division FROM: Kevin Johnson, Sergeant Professional Standards Unit SUBJECT: ALLEGATION OF EMPLOYEE MISCONDUCT# PSU2017-0035 DATE: December 141\ 2017 COMPLAINANT: Sgt. K. Johnson #1232 COMPLAINT SYNOPSIS: During comiroom testimony in front of a jmy, CSO Fitzgerald admitted to writing statements in his police report that were false. DATE AND TIME OF INCIDENT: 9126117 at 1330 Hours LOCATION: West Justice Center, 8141 Westminster Blvd., Westminster, CA 92683 EMPLOYEES: CSO Jake Fitzgerald #2171 OFFICER WITNESSES: Officer John Topartzer #1247 Sergeant Jason Melschau #1238 Detective Dan Quidort #2097 PSU Investigation #PSU2017-0035 I of21 ADDITIONAL WITNESSES: Deputy District Attorney West Justice Center 8141 13 111 Street Westminster, CA 92683 714-896-7261 Public Defender Notth Justice Center 1440 Harbor Blvd. Fulletton, CA 92835 714-626-3700 INVESTIGATION: On 9/27 /17, I was notified by Captain Rodriguez of a possible integrity issue regarding CSO Fitzgerald's testimony while he was at the West Justice Center on 9/26/17. Captain Rodriguez said DDA had contacted the police depmtment because CSO Fitzgerald had admitted during his testimony of writing a false statement in his police repott (HBPD 16-008419). I reviewed the call log and saw CSO Fitzgerald was a police officer assigned to Officer Topartzer in the field training program. On 6/20/16, they responded to a call at the Barnes and Noble Bookstore located at 7881 Edinger in Huntington Beach because a male had allegedly exposed himself to other customers. They arrived at the location at 2126 hours and ultimately transported a male to the police jail at 2230 hours. The male was arrested for 314 .1 PC. There was nothing in CSO Fitzgerald's report indicating he took custody or booked video surveillance related to this incident. I obtained a copy ofCSO Fitzgerald's daily evaluation repott regarding the date of the incident (6/20/16) documented under DR 16-008419. Officer Topartzer did not note anything deficient in how he handled this call for service. On 9/27117, Sgt. Reilly and I drove to 8141 Westminster Blvd. in the City of Westminster and met with DDA in her office for the purpose of interviewing her regarding CSO Fitzgerald's testimony. DDA is the handling DDA for the indecent exposure jury trial against defendant In summmy, DDA believed CSO Fitzgerald admitted to writing false statements in his police repott. DDA PSU Investigation #PSU 2017-0035 2 of2I requested a copy from the court of all of Fitzgerald's testimony. Please see DDA complete interview for additional details. I reviewed all of the documents pertaining to CSO Fitzgerald's time as police officer. CSO Fitzgerald was assigned as a sworn police officer from 4/5/16 to 7 /16/16. He is currently a Community Service Officer assigned to the police front desk where he answers questions from the public and authors police reports. He was in the Field Training Program as a sworn police officer and his field training officers were required to write daily evaluations regarding CSO Fitzgerald's training and activities. After reviewing all of his training documentation, the following incidents stood out to me: a memorandum written by Sgt. Reilly dated July 4th, 2016, a negative comment log written by Sgt. Reilly dated 5/2/16, and a Daily F.T.O. evaluation written by Officer Topartzer dated 6/7/16. I obtained a copy ofa memorandum authored by Sgt. Reilly dated July, 4th, 2016. This memorandum was addressed to Capt. Bunetta and recommended CSO Fitzgerald be separated from the Field Training Program. In the body of the memorandum, I saw Sgt. Reilly noted CSO Fitzgerald had received a negative comment log entry on 5/2/16 detailing the fact CSO Fitzgerald had given false and or misleading statements to his assigned Field Training Officer (Sergeant Melschau). The same memorandum noted Officer Topmizer had documented on CSO Fitzgerald's daily evaluation report dated 6/7 /16 an incident that was described as being "Ethical" and of a similar type as the incident with Sergeant Melschau. I obtained a copy ofCSO Fitzgerald's Negative Comment Log dated 5/2/16. In the comment log, an incident involving honesty was noted. The body of the comment log stated Sergeant Melschau had asked CSO Fitzgerald if he was logging eve1y police report he had written in his Field Training Manual. CSO Fitzgerald responded he had been in fact writing every report down in his manual so Sergeant Melschau asked to see the manual. CSO Fitzgerald then admitted to Sergeant Melschau he had not documented any of the police reports he had authored. This same incident was originally documented in Sergeant Melschau's Daily Evaluation dated 4/25/16. I obtained a copy of Officer Topartzer's daily observation repo1t dated 6/7/16. During the shift, Officer Topmizer and CSO Fitzgerald m1'ested a female suspect. During the transportation of the female to the HBPD jail, Officer Topartzer noticed CSO Fitzgerald had turned on his audio recorder. Officer Topartzer asked CSO Fitzgerald if he was using his audio recorder. CSO Fitzgerald admitted he was audio recording because they had a female arrestee in the rear of their police car. Officer Topmizer told CSO Fitzgerald that he needed to notify him that a recorder was in use. At this point, CSO Fitzgerald told Officer Topmizer he had indeed notified him of the recording. Officer Topartzer said no PSU Investigation #PSU 2017-0035 3 of21 notification had been given and they listened to the audio recording to confirm. There was no notification given on the audio recording. I reviewed all ofCSO Fitzgerald's police reports while he was assigned as a police officer in the Field Training Program. He wrote 88 police reports during this time period. He wrote a line similar to "I was unable to locate any witnesses" 3 times. I looked for this line because this was the line in his report that CSO Fitzgerald testified to not actually doing. Under DR 16-006233 while with Officer Deliema, CSO Fitzgerald wrote "I was unable to locate any witnesses or evidence in the area." Under DR 16-008419 while with Officer Topartzer, CSO Fitzgerald wrote, "I looked for additional witnesses and victims in the area, but I was unable to locate any." Under DR 16-8828 while with Officer Topartzer, CSO Fitzgerald wrote, "I was unable to locate any witnesses or physical evidence." On I 0113117, I drove to the West Justice Center and was provided a copy of the audio recordings of CSO Fitzgerald's testimony in front of the jury on 9/26/17. I listened to the audio recording and CSO Fitzgerald takes the witness stand at 3 :44: I 0 of the recording as provided by the court. He is sworn in as a witness and DDA begins to question him. At the 3:48:50 mark of the audio recording, DDA begins to ask CSO Fitzgerald about viewing the Barnes and Noble store surveillance video. CSO Fitzgerald testified he watched the video and saw the defendant in the Barnes and Noble store. At the 3:58:15 mark of the recording, CSO Fitzgerald testified the defendant remained in the same location within the store for about 30 minutes. He then testified the defendant stood up and walked to another location in the store where he remained until other police officers eventually contacted the defendant. At the 4:00:41 mark of the recording, CSO Fitzgerald testified he asked the store manager for the video but was told the police department would have to make a request on department letterhead. He also testified that Detective Quidort would have been the person making the request for a copy of the video. The following exchanged between DDA and CSO Fitzgerald occmTed at the 4:01 :09 mark of the recoding: DDA CSO Fitzgerald: "After this encounter, did you look around Barnes and Nobles for any other potential witnesses in this case?" "I did not." Defense Attorney, began his cross examination at the 4:14:07 mark of the recording. CSO Fitzgerald testified he was trained on how to write a police repmi and that he was trained to be true, complete, and accurate when writing a police report. He also testified that the report he wrote regarding the incident at the Barnes and Noble was true, complete, and accurate. PSU Investigation #PSU 2017-0035 4 of21 At the 4:24:30 mark of the recording, asked CSO Fitzgerald about the video surveillance. CSO Fitzgerald was asked if the total recorded video time was about fifty- four (54) minutes. CSO Fitzgerald answered, "Correct." It should be noted that the total time CSO Fitzgerald showed at the Barnes and Noble per the call log is one hour and four minutes. He arrived at the location at 2126 hours and left to transport the suspect to the HBPD jail at 2230 hours. At the 4:35:44 the following exchange occurred between and CSO Fitzgerald: CSO Fitzgerald: CSO Fitzgerald: CS! Fitzgerald: CSO Fitzgerald: "After that you looked for additional witnesses correct?" "I did not." "You did not look for additional witnesses?" "I did not." "In your repmi ... you have a copy of your repmi with you?" "I do." "Have you had an oppmiunity to look through your repmi prior to testifying today?" "I have." then asks if CSO Fitzgerald would like to refresh his memmy using his repmi and DDA objects to the question because CSO Fitzgerald did not state his memory needed to be refreshed. then shows CSO Fitzgerald his report, which CSO Fitzgerald confinns he wrote, and they have the following exchange: CSO Fitzgerald: CSO Fitzgerald: "Um I'm going to direct your attention to the, ah, from the bottom, the third up sentence, stand alone. If you could read that to yourself. Ok. So, is it true that you did in fact look for additional witnesses?" "That is what is written in my repmi." "Ok so, you wouldn't have included that in your report if you didn't look for witnesses correct?" "It is a common way to end all of our police reports. Yes." PSU Investigation #PSU 2017-0035 5 of21 CSO Fitzgerald: CSO Fitzgerald: CSO Fitzgerald: "So you're saying you would have included this even if you didn't actually do it?" "Yes." "So ok. So although you put it in your report, you didn't actually do it?" "Correct." "You didn't look for additional witnesses?' "I personally did not." ultimately ends his cross examination after asking about the procedure of how the police depatiment could obtain a copy of the video surveillance. DDA then again questions CSO Fitzgerald and at the 4:45:32 mark of the recording, they have the following exchange: DDA CSO Fitzgerald: DDA CSO Fitzgerald: DDA CSO Fitzgerald: DDA CSO Fitzgerald: "Now you mention at the end of your repo1i it says that, you know, you looked for additional witnesses and didn't find any. Do you remember that?" "I do." "Ok. And then you, do you remember testifying that, that is a common way to end rep01is, um, in your experience?" "It is." "Now but that, that didn't actually occur in this case c01Tect? "Not personally by me." "Ok. Um, are there any other areas in your rep01i where it's a common practice to include some s01i ofte1m or sentence but, um, you may not have done that in this case? "Not that I can think of at this moment." DDA finished asking CSO Fitzgerald questions and the judge allowed to ask CSO Fitzgerald several more questions. asked the following question of PSU Investigation #PSU 2017-0035 6 of21 CSO Fitzgerald at the 4:53:28 mark of the recording: CSO Fitzgerald: CSO Fitzgerald: "And with respect to the, a, the statement that you included in your report that you looked for additional witnesses although you didn't, that's also common practice to include that in the report correct?" "Correct." "It's not anywhere in the policy? "Correct.,, CSO Fitzgerald finished answering questions and was excused from the witness stand. On 10/19/17, I interviewed Officer Topartzer about his time with CSO Fitzgerald. In Summmy, Officer Topmizer said he trains his trainees to be truthful and accurate in their repmis and that he did not recall CSO Fitzgerald looking for additional witnesses at the end of the call at the Barnes and Noble. He also said he does not train his trainees to add a line in their repmis about looking for additional witnesses if they did not actually do it. He also recalled an incident where CSO Fitzgerald audio recorded their time together in the front of the police car while they were transporting a female to jail. When asked why he did not warn Officer Topartzer about turning on his audio recorder, CSO Fitzgerald lied and said he did in fact warn Officer Topmizer. This warning was not on the audio recording. Please see Officer Topartzer's complete statement for additional details. On 10/20117, I interviewed Sergeant Melschau about his time as CSO Fitzgerald's field training officer. In summmy, he taught CSO Fitzgerald to be honest and truthful in his reports. He did not teach him to end his repo1is with a line similar to "I looked for any other victims or witnesses but was unable to find any." Sergeant Melschau also recalled in incident where CSO Fitzgerald apparently lied when asked if he was documenting his reports on a log in his field training book. CSO Fitzgerald said he had been writing the report numbers on the log when he had in fact not been. Please see Sergeant Melschau's complete statement for additional details. On 11/1/17, I interviewed CSO Fitzgerald with his representative. In summary, CSO Fitzgerald stated even though his repo1i and his testimony were different, he was being truthful in both instances. He said he could not independently recall looking for additional witness or victims but at the same time he had no reason to doubt his police repmi. He also said honesty and accuracy were common themes during his time in the police academy and field training program. Please see his complete statement for further details. PSU Investigation #PSU 2017-0035 7 of21 Detective Quidort was the handling detective for the case involving CSO Fitzgerald's testimony and police repmt. I interviewed Detective Quidmt in my office regarding his involvement. Detective Quidort said DDA alerted him to issues with CSO Fitzgerald's court room testimony because she believed he was less than truthful. Because of issues with CSO Fitzgerald's testimony and other issues involving the video surveillance at the store, the suspect received a "good plea deal." Please see his complete statement for further details. On 11/16/17, I spoke to defense attorney, about CSO Fitzgerald's court room testimony over the telephone. confirmed he was the defense attorney and recalled CSO Fitzgerald testifying he wrote something in his repmt that he did not do. He was surprised by this admission because he normally does not hear this type of statement from a law enforcement officer. Please see his complete statement for fu1ther details. PSU Investigation #PSU 2017-0035 8 of21 INTERVIEWS INTERVIEW WITH DDA On 9127117 at 1235 hours, Sgt. Reilly and I interviewed DDA regarding CSO Fitzgerald's testimony during the afternoon on 9/26/17. We sat in DOA office at the West Justice Center and she agreed to speak to us about the jury trial that included CSO Fitzgerald's testimony. I audio recorded the interview. DDA said she called CSO Fitzgerald as a witness during the trial. DDA asked CSO Fitzgerald if he had performed any further investigation to which CSO Fitzgerald said he had not. She then asked him if he had looked for any additional witnesses and he said he had not. She asked this because one of the last lines in his police repott indicated that he had looked for additional witnesses. I showed her a copy of HBPD 2016-008419 and she confirmed it was the con-ect repott. She also confirmed the line in the police report that says, "I looked for additional witnesses and victims in the area, but was unable to locate any." DOA then asked CSO Fitzgerald ifhe had completed this and he responded that he had not. Even though she felt it was odd for him to say he had not looked for additional witnesses or victims, she did not ask him any further questions during her direct examination. defense attorney then cross examined CSO Fitzgerald. Towards the end of his cross examination, he also asked CSO Fitzgerald ifhe looked for additional witnesses and CSO Fitzgerald responded that he had not. The defense attorney seemed confused so he asked if CSO Fitzgerald needed to refresh his recollection with his police repott. CSO Fitzgerald was ultimately shown a copy of his report and asked ifhe recalled writing the line about looking for additional witness. CSO Fitzgerald responded that he recalled writing the line in his repott but had not looked for additional people. The defense attorney then asked why he would write that in his police repott ifhe did not in fact look for additional witness and CSO Fitzgerald responded that it was common practice to end all police repotis with that line. I asked ifthere were any other issues with his testimony. DDA said the manager of the Barnes and Noble testified that she had watched the video surveillance with CSO Fitzgerald and that he had asked her to only save a still image of the defendant entering and exiting the building. CSO Fitzgerald testified to watching the video but his version of what he saw differed from the version the manager saw. DOA explained the manger testified to zooming in on the defendant causing the video to be bluny. She also testified that the cameras were the Pan Tilt Zoom type that were activated by motion. Because of the motion feature, there was only about 5 actual minutes of footage that showed the suspect. She testified to seeing skin but could not say for sure from which part the body. CSO Fitzgerald said that he watched an hour of video with the manager and that the cameras did not zoom or become bluny. He testified to watching the defendant sitting in an area for 30 minutes and then moving to another area PSU Investigation #PSU 2017-0035 9 of21 for about 20 minutes. DDA further explained that ifthe manager's assertion that the cameras were motion sensitive, it would not be possible to watch the defendant for that amount of time because the cameras would tum off. He also testified that at no time did he see the defendant expose himself or even attempt to expose himself. I asked if it was DDA opinion that CSO Fitzgerald lied during his testimony. She clarified her statement by saying she believed he told the truth during his testimony but had admitted to lying in his police report. PSU Investigation #PSU 2017-0035 10of21 INTERVIEW WITH OFFICER TOP ARTZER: On 10/19/17 at 0604 hours, I interviewed Officer Topmtzer in my office at the police station. I read Officer Topartzer the witness admonishment which he understood. Officer Topmtzcr said he was CSO Fitzgerald's training officer for approximately during phase 2 of his training to be a police officer. Officer Topartzer said trains his trainees that their reports should reflect the incident, establish a crime, and be accurate. Once a trainee completes a report, he would review the report. Officer Topmtzer recalled responding with CSO Fitzgerald to the Barnes and Noble Bookstore because a described male had exposed himself inside the store. The suspect was detained by other officers prior to their an-ival. Officer Topartzer wanted CSO Fitzgerald to handle the call as the primary officer because he had been struggling to handle calls during their time together. We looked at CSO Fitzgerald's repo1t and I asked if Officer Topmtzer normally stays with the trainee during calls. Officer Topartzer explained he was asked by an officer (he was unsure which officer asked him) to stand by with the suspect because there were so many people involved in this call. He was not with CSO Fitzgerald during the entirety of the call. They were directed to the location where the suspect was detained and CSO Fitzgerald spoke to an employee of the store about the video. Officer Topartzer said he did not watch the video of the incident. He believed CSO Fitzgerald was watching the video for between 10 and 15 minutes. Officer Topartzer recalled talking to CSO Fitzgerald about the video and said he allowed CSO Fitzgerald to watch the video by himself while he was with the suspect. He recalled wanting CSO Fitzgerald to give him an update on what was on the video but could not recall what he said. He did say, however, he recalled there being enough evidence on the video that he knew they would need to obtain it. He recalled not being able to obtain the video during the incident because the store required some s01t ofrequest from the police department. He is positive they left store without video but knows it was documented in CSO Fitzgerald's report that there was video available. Officer Topartzer believes CSO Fitzgerald had to have spoken to people other than the store employee during their time at the store. He recalled CSO Fitzgerald saying there were other people that were already being interviewed by other officers. I then read to Officer Topartzer the line in CSO Fitzgerald's report stating he looked for additional witnesses in the area but was unable to find any. I also explained to him that CSO Fitzgerald testified in comt that he did not actually do that and that he simply ends his rep01ts with that line. Officer Topmtzer said he absolutely did not train CSO Fitzgerald to write that line in his reports. He also said he absolutely trains officers to be truthful and accurate in their reports. He would never have told CSO Fitzgerald to add that line to a police rep01t. PSU Investigation #PSU 2017-0035 11 of 21 Officer Topmizer said he did not see CSO Fitzgerald walk through the store looking for additional witnesses at the end of the incident. I asked ifthere were any other incidents where he recalled CSO Fitzgerald being dishonest during their time together. Officer Topartzer said there was an incident where the pair arrested a female at the Old World complex. The female was placed in the rear of the police car with CSO Fitzgerald driving and Officer Topmizer sitting in the front passenger seat. As they were driving, Officer Topartzer noticed a red light emitting from CSO Fitzgerald's pocket so he asked CSO Fitzgerald ifhe was recording but CSO Fitzgerald initially did not respond. He asked again and CSO Fitzgerald responded that he was in fact recording so Officer Topartzer told him he should have notified him that he was recording. CSO Fitzgerald responded that he had in fact warned Officer Topmizer that he was going to audio record. Officer Topmizer told CSO Fitzgerald to give him the recorder so they could listen to the audio recording. Officer Topartzer said he did not hear CSO Fitzgerald tell him he turned on his digital recorder on the audio recording. CSO Fitzgerald tried to explain he was trained to always record when he was transporting a female in the police car. Officer Topartzer tried to explain to CSO Fitzgerald that since he closed the divider between the front and rear seat, the only people CSO Fitzgerald was recording was himself and Officer Topartzer. Officer Topartzer again confirmed he did not hear CSO Fitzgerald warn him about turning on the audio recorder. Officer Topmizer documented the incident in his daily training evaluation. The following day, CSO Fitzgerald told Officer Topartzer he had reviewed the audio recording again and claimed to have told Officer Topmizer about the recording. Officer Topartzer again reviewed the recording and did not hear the warning. Officer Topartzer believes CSO Fitzgerald was not being truthful. It was also a consistent theme during their time together that CSO Fitzgerald would do whatever it took to get out of trouble. I showed Officer Topartzer his daily training evaluation and he confirmed he had written it and that he documented the above described incident. This log was dated 617117. Officer Topmizer said he always reviews his trainee's reports to ensure they are accurate. He did say it was unfortunate he was not standing next to CSO Fitzgerald during the entire time they were at the Barnes and Noble. At 0625 hours, I turned the audio recording off. I then ordered Officer Topatizer to not speak with anyone about the investigation. He initialed the witness admonishment form. PSU Investigation #PSU 2017-0035 12 of21 INTERVIEW WITH SERGEANT MELSCHAU: On 10/20/ 17 at 13 34 hours, I interviewed Sergeant Melschau in my office regarding his time as CSO Fitzgerald's training officer. I read to Sergeant Melschau the witness admonishment and he understood. He signed the form and I began the interview. Sergeant Melschau said he was promoted on 8/6/16 and prior to his promotion, he was a field training officer in the patrol sector. He said he was the training officer for CSO Fitzgerald during phase 1 of his training. Generally during phase 1, Sergeant Melschau focuses on officer safety tactics and report writing. During his time with CSO Fitzgerald, Sergeant Melschau discussed report writing in great detail. He expected CSO Fitzgerald to write clear and concise repo1is so others could understand the details of an event. He specifically taught CSO Fitzgerald that his repmis needed to be "absolutely factual" and that the repmis needed to cover as much of the details regarding the crime or incident as possible. Sergeant Melschau said they discussed report writing issues, wrote reports, or c01Tected repmis for about 50 percent of their work week. I showed Sergeant Melschau a daily training evaluation dated 4/25/16 and he confirmed writing it. I asked if there was a specific event he recalled from that day and he began to discuss what he described as an "integrity issue." He recalled asking CSO Fitzgerald if he was writing down the reports he was completing on the log in the back of the field training book. CSO Fitzgerald responded that he had indeed been writing down the reports numbers on the log. Sergeant Melschau asked to see the log and CSO Fitzgerald seemed "apprehensive" so Sergeant Melschau instructed him to show him the log book. CSO Fitzgerald then admitted he had not logged any of his reports in his field training book. Sergeant Melschau then inspected the field training book and discovered not a single entiy had been made. He then asked CSO Fitzgerald ifhe had been trained on how to complete the log on a daily basis and CSO Fitzgerald admitted he had been trained. Sergeant Melschau did not recall any compelling reason as to why the log was not complete. I showed Sergeant Melschau CSO Fitzgerald's log and he confirmed it was the same log that was originally empty. He explained that he initialed the completed log on 4/27/17 after he had the above conversation with CSO Fitzgerald. I asked if Sergeant Melschau took any other action with respect to CSO Fitzgerald's apparent dishonesty. He said he spoke to Sergeant Reilly about the "integrity violation" and as far as he knew, the issue was documented during a conversation between Sergeant Reilly, Lieutenant Weizoerick, and CSO Fitzgerald. Sergeant Melschau was not present during this conversation. PSU Investigation llPSU 2017-0035 13 of21 Sergeant Melschau said this incident was a clear case of CSO Fitzgerald lying and it was clear CSO Fitzgerald understood the question and he lied in his response. I asked Sergeant Melschau ifhe ever taught CSO Fitzgerald to write in his police report things that he did not do during an incident. He responded, "no that would be dishonest." I then asked if he ever taught CSO Fitzgerald to write at the end of every report a line similar to "I looked for any other victims or witnesses but was unable to find any." Sergeant Melschau said the only time that would be in a report is if he actually "canvassed" the area looking for witnesses of evidence. I ended the interview and ordered Sergeant Melschau not to discuss the investigation. He understood the admonishment and initialed the witness form. PSU Investigation #PSU 2017-0035 14 of21 INTERVIEW WITH COMMUNITY SERVICE OFFICER FITZGERALD: On 11/1/17 at about 1003 hours, Sergeant Reilly and I interviewed CSO Fitzgerald in my office. CSO Fitzgerald was present with his representative . I read CSO Fitzgerald his Miranda Rights and he stated he understood them. I asked ifhe wanted to make a statement and he responded, "No." I then read him the Lybarger Warning and he said he understood. CSO Fitzgerald signed the subject interview form. CSO Fitzgerald said he has been employed with the City of Huntington Beach for 4 years and 8 months. He has served in several assignments including being a parking control officer and a community service officer. He received training for these assignments. CSO Fitzgerald said he entered the police academy in October of2015. He said the academy lasted 6 months and during his time there he was trained on how to prepare police reports. His training on police reports included conducting mock police investigations and preparing a report that reflected the investigation. He believes he perfo1med this exercise 8-10 times. His reports were graded by the academy staff for spelling, grammar, and accuracy. He said he did not have any major issues with his police repmis. CSO Fitzgerald said the academy staff made it a point to talk to the recruits about being accurate. He also said the academy staff spoke at length about being truthful in a police rep011. CSO Fitzgerald said when he left the police academy, he knew he needed to be accurate and truthful in his police reports and his police reports were a summary of the incident to be used to refresh his memo1y when he was called upon to testify. He also knew his report was to be reviewed by the district attorney to help him or her decide if criminal charges would be filed against a suspect. CSO Fitzgerald agreed with me when I asked if our police reports should only be truthful and accurate. When he left the academy, he was assigned to Sergeant Melschau (Sergeant Melschau was a field training officer at this time). CSO Fitzgerald believed he wrote more than 30 police reports during his time with Officer Melschau. He said Sergeant Melschau discussed his expectations for a police report with him and these expectations included the repmt containing all the pertinent information regarding the crime, all the elements of the crime, be an accurate reflection of the investigation, and that they should be completely honest. CSO Fitzgerald said there was no doubt in his mind that his police repmis should be true, accurate, and complete. I asked ifthere was a time where Sergeant Melschau questioned his integrity. CSO Fitzgerald responded that there was an incident when Sergeant Melschau asked if CSO Fitzgerald was writing down his report numbers in his field training book and he told him he was in fact writing them down. When he showed the book, the repmt numbers were not written down. He said he was not intending to be untruthful because he was keeping track of the report numbers in his personal notebook. He explained he was going to PSU Investigation #PSU 2017-0035 15of21 update his field training book over the weekend because the nights were long and he wanted to go home instead of staying longer. He claimed he wanted to update his book at a later time. Sergeant Melschau rep01ied the incident to Sergeant Reilly and CSO Fitzgerald received a memorandum explaining to him that he was "on notice" and if a similar event occurred he could be terminated from his employment. CSO Fitzgerald said during his time with Sergeant Melschau, honesty and integrity was a common topic. He said there were no doubts in his mind that he needed to be an honest and truthful person. After his time with Sergeant Melschau, CSO Fitzgerald was assigned to Officer Topartzer. Officer Topartzer also trained CSO Fitzgerald that his police reports should be complete, accurate, and truthful. I asked ifthere were any incidents during his time with Officer Topartzer where his integrity was questioned and I reminded him of an incident where he was accused of audio recording Officer Topartzer without warning. CSO Fitzgerald explained they had anested a female suspect and he had previously been trained to record female suspects. He said he told Officer Topartzer he was recording but didn't believe he heard him. Officer Topartzer saw the red light of his recorder and confronted him saying CSO Fitzgerald never warned him of the audio recording. He said he turned on his recorder and then warned Officer Topartzer about the recording. CSO Fitzgerald said the warning should have been captured on his recorder but when Officer Topartzer reviewed the audio, he could not hear the warning. CSO Fitzgerald said he later reviewed the recording and at the beginning he heard "something" but could not make out what was being said. Officer Topartzer was not happy with CSO Fitzgerald and told him he thought CSO Fitzgerald was lying. This incident was documented in his daily evaluation. I asked if at any time during his time at the department if he was ever instructed to write false statements in a police report and he responded, "no." I them asked if he was instructed to end his police reports with "I was unable to locate any witnesses or evidence in the area" and he responded, "no." We began to talk about his testimony during a recentjmy trial. He said prior to testifying, he reviewed his repmt and when he showed up at court, he was placed under oath. CSO Fitzgerald understood this to mean he had to answer all the questions honestly under penalty of perjury. We started to listen to the audio recording of his testimony. We listened to the question from DDA about looking for additional witnesses and CSO Fitzgerald's response that he did not. I asked why he responded in that manner and he said at the time he did not recall doing that. PSU Investigation #PSU 2017-0035 16 of 21 We then listened to the defense attorney asking CSO Fitzgerald several questions. The defense attorney asked CSO Fitzgerald about looking for additional witnesses and CSO Fitzgerald said he did not look for any. We began to talk about his answers and how they conflicted with his police report. I asked CSO Fitzgerald if he lied on the witness stand or ifhe lied in his police rep011. CSO Fitzgerald said he did not lie in either instance. He explained at the time during his testimony, he did not recall looking for witnesses. He said he had no reason to doubt his police report but did not recall looking for any witnesses. He admitted to saying it was a common way to end all of his police rep011s. CSO Fitzgerald claimed he was being accurate in his police report and on the stand because he did not recall looking for witnesses. He also said his police report is used to refresh his recollection but he still did not remember looking for witnesses. He said in his mind, he did not intentionally lie in either his police rep011 or on the witness stand. I asked if he unintentionally lied on a regular basis and he said he does not. I reminded him of the two previous incidents where he was accused of being dishonest and asked why this type of thing kept happening and he responded, "I get flustered." I asked ifhe understood this to be a problem for the police depm1ment. CSO Fitzgerald said this causes a perception that he is being untruthful in a profession that is held to higher standards. I asked if he considered himself a truthful person and he said, "I do." When I asked why these accusations keep happening to him, he said he did not have an answer. We again spoke about the incident at the Barnes and Noble and him watching the video surveillance. I asked how long he watched the video and if it was for longer and 10 minutes and he said, "probably." I info1med him that in com1 the numbers the attorneys came up with for the video was about 54 minutes. I asked if this seemed accurate and CSO Fitzgerald said he was in the store for a while. He believed the cameras to be fish eye lense but could not recall much more about the cameras. CSO Fitzgerald watched the video with a store manager and that the cameras were motion activated and that there was only about 5 minutes of actual video. CSO Fitzgerald said this did not seem accurate. He also said he wrote in his police report that the police department would need to send a notarized letter to request the video. Sergeant Reilly asked if CSO Fitzgerald had any independent recollection of looking for additional witnesses at the Barnes and Noble and CSO Fitzgerald said he did recall doing that. We began to talk about the allegations of PSU2017-0038. Please see the narrative of PSU 2017-0038 for complete details. PSU Investigation #PSU 2017-0035 17 of21 I told CSO Fitzgerald that I was curious as to why these accusations of lying continue to occur with him and he said he did not have an answer. We ended the interview by reading the final admonishment. CSO Fitzgerald understood and initialed the document. PSU Investigation #PSU 2017-0035 18 of21 INTERVIEW WITH DETECTIVE QUIDORT: On 11/9117 at about 0847 hours, Sergeant Reilly and I interviewed Detective Quidort in my office. I read to him the witness admonishment and he understood. He signed the form and we spoke about the incident. Detective Quidort was the handling detective for the case at the Barnes and Noble. He was aware of the jmy trial about the case and recalled talking to DDA about the trial. He was not sitting in the trial but was at the court house during the trial. DDA told Detective Quidort she had some issues with CSO Fitzgerald's testimony. She said CSO Fitzgerald had possibly lied while on the stand or in his police report. We spoke about the video surveillance from the Barnes and Noble. Detective Quidort said the police report indicated there was video of the incident and the store needed a request on letterhead. He filled out the required paperwork and sent it to the Barnes and Noble. He retrieved the disc with the video and upon review of the disc, Detective Quidort discovered there was only one still shot photograph of the incident. This was surprising to him and he said at no time did he tell Barnes and Noble employees he only needed on photograph. Detective Quido1t contacted Barnes and Noble to inquire about the video. He did not recall who he spoke to but the employee said the person how made the video must have made a mistake. They also said they could not recover any other portion of the video. Detective Quidmt ultimately gave the photograph to the district attorney's office as part of discovery. I asked about the outcome of the jury trial and Detective Quidort said the district attorney's office gave a "good plea deal" because there were issues with the video and the issues with CSO Fitzgerald's testimony. At this point we spoke about the allegations from PSU 2017-0038. Please see this repmt for fmther details. I ordered Detective Quidort to not talk about the investigation and he understood. PSU Investigation #PSU 2017-0035 19 of21 INTERVIEW WITH On 11/16/17, I called and spoke to him over the telephone about CSO Fitzgerald's testimony. He recalled the testimony of CSO Fitzgerald and that there was something in the report that he did not actually do. He said the line of questioning about reports being true and accurate is a standard line of questioning he asks of all officers. He also recalled CSO Fitzgerald stating he wrote something in his report that he did not actually do. He said he normally does not hear that type of statement from an officer. I asked if the public defender's office takes any action after this type of statement and he said he did not take any additional action. He again confirmed he was the attorney in the trial and that he was the person who questioned CSO Fitzgerald. PSU Investigation #PSU 2017-0035 20 of21 SYNOPSIS AND CONCLUSIONS: The district attorney's office contacted the police department because there was an issue with CSO Fitzgerald's comtroom testimony during a jmy trial. A complaint was initiated and several people were interviewed. The handling district attorney, DDA said CSO Fitzgerald admitted to writing false statements in his police rep01t while he was testifying during the jury trial of a male accused of exposing himself at the Barnes and Noble store. Because of this issue, a plea bargain was agreed upon between the defendant and the district attorney's office. I interviewed both of CSO Fitzgerald's field training officers. Both Sergeant Melschau and Officer Topartzer confirmed they taught CSO Fitzgerald to only be truthful, accurate, and complete in his police reports. In a memorandum dated 7/4/16, Sergeant Reilly notified CSO Fitzgerald he was being released from the field training program due to his performance as a police officer. During my interview with CSO Fitzgerald, he admitted to being taught all of his police repo1ts should be true, accurate, and complete. He also said he was trained in the police academy, and by his training offices that he had to always be honest. He believed himself to be an honest person and that he was being honest during his testimony because he truly did not remember looking for additional witnesses. PSU Investigation #PSU 2017-0035 21 of 21 ·- ' -. ) ) INVEST/GA TION #: PS(;\ lot] -0"C~ s EMPLOYEE: Dlrr. Ot>....J C:9 lA' ~() tt '1 HUNTINGTON BEACH POLICE DEPARTMENT Administrative Advisement WITNESS "The date of this interview is _...:...1 -'-'d~ct~/'-l_l______ "The time is ___ O=-::lf:...__4 _7.:___ _____ _ "The location is _P_s_~ __ ()f_('.:_t_c._f __ (_{_~_""""'.3i_c_\-\_rJ_So_N_1.l_c_f_F_t <-_l~J..__ ________ _ "This investigation is under the direction and command of <JAf'! J<~uy flooa 1U.V1if.? "Present in this room is/are (name/rank/command) D fu &\A,OtltL"r SV-'l' :J ot\N.SC>r-l SG.sr · ~w:, ... ~ You are about to be questioned as part of an official Huntington Beach Police Department administrative investigation. You are hereby advised that, because you are a witness, provisions of the Government Code, generally referred to as the Public Safety Officers Procedural Bill of Rights, do not apply in this instance. You are rem inded manual section 1020 requires that you make tru.thful and complete statements. Any refusal to do so may result in discharge or other punitive action. A representative is not allowed in this interview. You are being interviewed as a witness. You are not under investigation and you have not been charged with any violations. If during the interview it becomes apparent you may be subject to discipline, the interview will stop. You will be told that your status has changed to that of a subject and at that time, you will be ent.itled to a representative of your choice. · In the event you deciine to answer questions, you shall be-advised of your administrative rights as though you are a subject. · The above admonition has been explained to me and I understand its contents. EMPLOYEE: . h-.-=-. WITNESS: 4 --- NOW BEGIN YOUR INTERVIEW At the CONCLUSION of the interview, give this admonishment: · "(Employee/Officer), I am ordering you to not discuss this interview or investig~ with anyone other than me. Do you understand?" @ o Employee lnitial.---1,,;~~---- (}) S~ ) ) 1NvEsTJGA r10N #: Ps ~ 2011 -oo 3 s EMPLOYEE: ..JA~ L J= \ 'T'Z (,.ftZA~O HUNTINGTON BEACH POLICE DEPARTMENT Administrative Advisement This ouUlno oonfOfTllS lo lhe standards set forth by AB 301 (3300 Government Code); SUBJECT 'The date of this Interview Is Nov I , io t 1 "The time Is ___ l_o_o_3"'------- "The location is P~u ofC:11.( oi-SC.'f (f°o~1"Jo,J "This investigation is-under the direction and command of CAPT K €.u.. y. flooa. tU.~£ "Z "Present in this room is/are (name/rank/command) > ~ :Jo~tJtoiV 1 > ~f" ~£\'-~'I "This investigation concerns (explain allegations/general nature): /tfitV 'I a lA,. ~ f'~ L Pov I (,t' « (i ~'P ." I.. y1µ6 Tb A ff tl.Jo ,.i ft.:'l 'Tri-£ O~.c~ INVESTIGATOR READ: ... A . "You have the right to have one representative of your choice present during this interview." (if the representative is present, state, "AND YOU HAVE CHOSEN G1t<..vO~\O 0AtJ\f..L . 11 then proceed down to "B 11 and continue). 1. An attorney; 2. An association member; or 3. Anyone else also not connected with this investigation. B. "You have the right to make your own tape recording of this interview." (over) ._ ; -. ) ) INVESTIGATION#: ?Su zon -oo.>5" HUNTINGTON BEACH POLICE DEPARTMENT Administrative Advisement WITNESS "The date of this interview is __ t_o~/_'2()~}_1 ~1 ____ _ "The time is __ __._/-=3 _;:;s_<-,_/ ____ _ "Thelocationis PSu. o~f1c.C (S-'-~ ~ot\~Y.>N) "This investigation is under the direction and command of _C_A_PJ_. _k'_~_u.._y<..._. __ 'Ro_o=--a.._,_G._IA_(_;:z_=------- " Present in this room is/are (name!ranklcommand)_S--=~'-1"'----'---,t.t._€=--l_,S'-c.;:;..~'-'--'~---'---1-/--· )_t._'f __ 5--"'o-'r\_r0_Jb--.:.r0--'-- You are about to be questioned as part of an official Huntington Beach Police Department administrative investigation. You are hereby advised that, because you are a witness, provisions of the Government Code, generally referred to as the Public Safety Officers Procedural Bill of Rights, do not apply in this instance. You are reminded manual section 1020 requires that you make tru.thful and complete statements. Any refusal to do so may result in discharge or other punitive action. A representative is not allowed in this interview. You are being interviewed as a witness . You are · not under investigation and you have not been charged with any violations. If during the interview it becomes apparent you may be subject to discipline, the interview will stop. You will be told that your status has changed to that of a subject and at that time, you will be ent.itled to a representative of your choice. · In the event you deciine to answer questions, you shall be-advised of your administrative rights as though you are a subject. NOW BEGIN YOUR INTERVIEW At the CONCLUSION of the interview, give this admonishment: "(Employee!Officef), I am ordering you to not discuss this interview or -investi with anyone other than me. Do you understand?" @£N o Employee lnif (~l.{~ ) INVESTIGATION#: ~()('1-00 3 f EMPLOYEE: ofc. :ro~..., JO?AltTZ (ll HUNTINGTON BEACH POLICE DEPARTMENT Administrative Advisement WITNESS "The date of this interview is __ l--=_o'--'~-''l_./,_1_"7 _____ _ "The time is <!XDO c.,J ---~-~------ "The location is Sb-'\ '3"o ~"-' S~N of'ft c..£. "This investigation is under the direction and command of (J,/i.l'f"~t)'I /(€.c.t...t 'RC;)D~t()."f.Z. "Present in this room is/are (namelranklcommand)_=<:J-~_L_'1i_o_~_~_l'2:_1"_2_€_~ ___ S<;._~ __ C-_v_~_,..,_S_c_rJ __ _ You are about to be questioned as part of an official Huntington Beach Police Department administrative investigation. You are hereby advised that, because you are a witness, provisions of the Government Code, generally re ferred to as the Public Safety Officers Procedural Bill of Rights, do not apply in this instance. You are reminded manual section 1020 requires that you make tru.thful and complete statements. Any refusal to do so may result in discharge or other punitive action. A representative is not allowed in this interview. You are being interviewed as a witness. You a re not under investigation and you have not been charged with any violations. If during the interview it becomes apparent you may be subject to discipline, the interview will stop. You will be told that your status has changed to that of a subject and at t~at time, you will be ent_itled to a representative of your choice. · In the event you deciine to answer questions, you shall be-advised of your administrative rights as though you are a subject. The above admonition has been explained to me and I understand its contents. EMPLOYEE: ___ a"""~....__ _____ _ I WITNESS:_'J==.____.r.+----------- NOW BEGIN YOUR INTERVIEW At the CONCLUSION of the interview, give this admonishment: "(Employee/Officer), I am ordering you to not dis~ this interview or investig with anyone other than me. Do you understand?" ~!NO Employee lnitial----1H:-~r--- ()<oi£" .. '··--·~--\~_ '·::;-::-'; ALISON BERRY WILKINSON Principal Attorney Berry Wilkinson Law Group We all know the old adage "Honesty is the best policy~' Now more than ever, police officers must make that their 1nantra, as it has become increasingly apparent that there is no quicker road to termination than telling a lie. The management principle "You lie, you die" is a harsh reality that is routinely invoked, and upheld, in law enforcement dishonesty cases, regardless ofho'v small or trivial the transgression. In this day and age, no matter how good your lawyer is or how minor the lie, there is just no real way to avoid a termination sanction once a police officer heads down the untruthfulness path. Soi please, just don't go there. Why Dishonesty Routinely Results in Termination Very few acts of misconduct are as damaging to a law enforcement officer's career as lying. Courts have noted time and again that integrity is a fundamental job requirement. For example, the court stated in Kolender v. San Diego County Civil Service Commission (2005) 132 Cal. App. 4th 716: "A deputy sheriff's job is a position of trust and the public has the right to the high"jt standard of behavior from those they invest with the power and authority of a law enforcement officer. Honesty, credibility, and temperament are crucial to the perfor1nance of an officer's duties. Dishonesty is incompatible with the public trust." . Common sense tells you that to effectively prosecute crimes) officer credibility is critical. Often, the officer's '\vord is taken over that of a civilian, with both judges and juries frequently a\'tarding a "tie" in a "he 28 PORAC LAW ENFORCEMENT NEWS LEGAL DEFENSE FUND Truth or Consequences: Choose the Road That Avoids Career Disaster sai~ she said" or "swearing contest" to the officer based on the honesty and integrity that are required to hold the job. Thus, v;rhen an officer's integrity is compromised, management understandably concludes that the lav; enforcement mission n1ay be harmed by the officer1s continued service. Truthfulness is not only an issue of police v;itness i;:redibility in a court of lav·.r; it strikes to the core of the ability to perform essential functions effectively. Police officers complete factual reports based upon their investigations and observations. These reports are relied upon by others to further investigations and are often used as critical evidence in a variety of proceedings. Officers take enforcement action; secure evidenc;.e; maintain confidential informationi have access to privileged information; handle drugs, money and guns; process crime scenes; maintain reports of crimes and accidentsi and, importantly, are authorized by law to dispossess others of their constitutional rights and use deadly force when appropriate. Simply put, a law enforcement official's word, and the £?mplet,, l'efacity of that word, is fundallientally necessary to doing the job. As a result, police departments across the state all have some form of a rule requiring that pfficers be truthful in their reports to supervisors and during official proceedings. Indeed, Lexipol Policy 340 places a heavy emphasis on truthfulness in its section on "conduct v1hich may result in discipline" by restating the obligation in multiple separate subsections that outline dishonesty-related offenses: "Knowingly making false, misleading or malicious statements that are reasonably calculated to harm or destroy the reputation, authority or official standing of the Department or members thereof" "The falsification of any work-related records, the making of misleading entries or statements 'Yith the intent to deceive" "Dishonest" or "disgraceful" conduct "Failure to disclose or misrepresenting material facts, or the making of any false or misleading statement on any application, examination form, or other official documen~port or form or dur.ing the coll:fSe of any work-related investigation" Integrity is so important to the law _enforcement profession that a single lie can cost an officer his or her career. As noted in Kolender, supra at 722: "While at common la'i-v, every dog was entitled to one bit~ \\Te know of no rule oflaw holding every deputy sheriff is entitled to [tell one lie] before he or she can be discharged." Judicial pronouncements unequivocally provide that peace officers are held to the highest standards ofbehavior, with honesty and credibility being crucial to proper performance of their duties. In Ackerman v. State Personnel Board (1983) 145 Cal. App. 3d 395, the court found that conduct that might not warrant termination for a general civil service employee could still support termination for a peace officer, because "a police officer must be held to a higher standard than other employees. A police officer is expected to tell the truth.u The court stated: 1iThe position of a CHP officer by its nature is such that very little direct supervision over the performance can be maintained. The CHP necessarily must totally rely on the accuracy and honesty of the oral and \\rritten reports of its officers as to their use of state time and equipment 'Any breach of trust must therefore be looked upon v.1ith deep concern. Dishonesty in such matters of public trust is intolerable»> (Italics added; Wilson v. State Personnel Bd. [1976) 58 Cal.App.3d 865, 882 [130 Cal.Rptr. 292]; dismissal offish and game warden upheld. for making false reports). 11lis standard of conduct is based on the following fundamental principle enunciated in Christal i•. Police Commission of the City and County of San Francisco (1939) 33 Cal.App.2d 564, 567: "[Peace] officers are the guardians of the peace and security of the community, and the efficiency of our whole system, designed for the purpose of maintaining law and order, depends upon the extent to which such officers perform their duties and are faithful to the trust reposed in them:' With respect to peace officers, cases upholding termination for dishonest conduct are legion: Vi.'ilson v. State Personnel Board (1976) 58 Cal.App.3d 865 (fish and game \Varden properly dismissed for dishonesty in falsely reporting overtime) Warren v. State Personnel Board (1979) 94 Cal.App.3d 95 (off-duty highway patrol officer disnlissed for attending transvestite party mvolving prostitution and untruthfully denying full knowledge and participation to police officers and his superiors) Ackerman v. State Personnel Board, supra, 145 Cal.App.3d 395, 400 ( CHP officer dismissed for misappropriation of state-owned motorcycle parts for personal use and subsequently lying to law enforcement officers about it) Flowers v. State Personnel Board (1985) 174 Cal.App.3d 753 (dismissal of state correctional officer for dishonesty and misuse of state property when he attempted to remove a state-owned arnplifrer, claiming it belonged to him) Paulino v. Civil Service Commission of San Diego County, supra, 175 Cal. App.3d 962, 972 (deputy sheriff disnlissed for making false statements, misrepresentations and omissions on official reports regarding health and sick leave usage) Talmo v. Civil Service Commission of Los Angeles County (1991) 231 Cal. App.3d 210 (discharge of deputy sheriff for battery on a prisoner and lying about it to superiors) Cummings v. Los Angeles County Civil Service Commission (1995) 40 Cal.App.4th 1643 (deputy probation officer disnlissed for lying to state department of corrections and local la\v enforcement officials and to his own superiors) Haney v. City of Los Angeles (2003) 109 Cal.App.4th I (police officer discharged for absenting himself from his duty post to attend abarbecue and submitting daily field activities report that contained false information) The Brady Problem Under Bradyv. Mmyland (1963) 373 U.S. 83, to ensure a fair criminal triaL prosecutors are obligated to notify criminal defendants about exculpatory evidence, which includes evidence that could be used to challenge the credibility of a material prosecution witness. Such disclosures must be made related to any exculpatory information in the possession of the entire "prosecution team:1 which includes investigating officers and lavv enforcement agencies. Thus, ,.,hen the employing law enforcement agency sustains an administrative allegation of dishonesty against a peace officer, from the prosecutor's perspective it becomes a Brady issue since that information could be used to challenge the officer's credibility in any case where he or she is a material ''-titness. This is especially significant to the ability to effectively prosecute cases, because an officer is often the only witness to the charged criminal act or the incriminating statements or conduct, and criminal defendants often dispute the officers' ~ccount of evidence. Thus, dishonesty poses a dilemma for the employing law enforcement agency. If the district attorney's office takes the position that it will not prosecute cases where the only witness is a Brady officer, then the officer cannot perform one of his or her fundamental job duties. In addition, this can impact other officers as well -as one chief of police put it in a Skelly hearing, what happens if an officer proven to be dishonest in one instance is the only witness as to the actions of another officer in the field in1 for example, an officer-involved shooting? The harm would not fall on the Brady officer, but on his or her colleague, because the only available corroborating LEGAL DEFENSE FUND witness is someone whose credibility has been severely undermined and damaged. The Definition of Dishonesty "Dishonesty" has been defined as conduct that "connotes a disposition to deceive" and ''an absence of integrity; a disposition to cheat, deceive, or defraud" (Gee v. State Personnel Board [1970] 5 Cal. App: 3d 113, 718-719). Dishonesty "is not an isolated act; it is more a continuing trait of character" (Gee, supra; Paulino v. Civil Service Commission of San Diego [1985] 175 Cal. App. 3d 962). Conclusion Honesty is the best policy. As a law enforcement administrative defense lawyer, I consider untruthfulness to be an avoidable offense. Tell the truth even when it makes you look bad. There may be a momentary discomfort caused by admitting your mistake. But once you lie, as shown above, your fate is generally sealed. The momentary discomfort of telling th~-tmth is, v.i.thout a doubt, much more tolerable than the long-term pain and devastation caused by termination. So dmrt go there. About the Author The Berry Wilkinson Law Group is dedicated to providing effective, quality representation to public safety employees in civil, criminal disciplinary and collective bargaining matters. Fonnerly a partner at Rains, Lucia & Vi'ilkinson, Alison contlnues to actively and aggressively advocate on behalf of peace officers statewide. 0 NOVEMBE~ 2017 29 j ( ( ) l.J ~ CITY OF HUNTINGTON BEACH . .. -· ·-· ~·--····-··· -·····------·-·-· ···-· ... ···-··· ---·· .... ···--------·-····-·-:-··-······-··· ------····-···· ·······-· ---···-· ······-··-···· --···· HU~GTONDfACH INTER-DEPARTMENT COMMUNICATION TO: FROM: DATE: Captain Dave Bunetta, Uniform Division Commander (Via Chain of Command) Sergeant Ryan Reilly July 4, 2016 SUBJECT: Officer Fitzgerald's separation from the Field Tmining Program On 7p4-16, Sgt. T. Weizo erick and I met with Officer J. Fitzgerald regarding poor perfonmmce issues 9uring the second phase of his training with Officer J. Topartzer. We izoerick and I have had previous such meetings with Fitzgerald on 5-1-16 and 5-29-16 regarding performance iss ues dming th e first phase of his training with Officer J. Melschau . Weizoerick and I addressed Fitzgerald's consistent below standard marks in the areas of Stress Control, Officer Safety, and Decision Making. Fitzgerald was made aware his performance in these anchors was expected to improve in the second phase of his training. As of 7p1-16, Fitzgerald has shown l_ittle to no improvement in the above ment ioned performance anchors. Fitzgerald has routinely demonstrated his inability to recognize and/or diagnose threats and react to stimuli in dynamic situations when enforcement action is needed. After ten weeks ·of thorough training and evaluation, Fitzgerald has not demon strated the ability to safely handle situations and circumstances inherent to police work and ha s failed to respond to training in these critical safety f\l'eas. Fitzgerald's level of perfonnance is far behind that of hi s three academy classmates who are all in the same phase of training at the lfontington Beach Police Department. Based on documented performance and evaluation, Melschau and Topartzer beli eve Fitzgerald does not possess the neces sar y inherent interpersonal skills and sit uational awareness needed to operate in a safe manne1· as a police officer. On 5-2p 16, I au th ore d a nega tive com ment log entry fo r Fit zgera ld deta iling an inci den t in whi ch he prov id ed Me lsc hau wl th fa lse and/or mi slea din g sta te ment s in res pon se to a direct ques ti on . Although Fitzgerald's ethics were brought into question, I attribute the occmrence .of this incident a direct result of Fitzgerald's inability to process stress. To par tzer docum ented a n ad dit io na l incide nt dea ling wi th si milar type "Et hi ca l" circu msta nces on a Da il y Obse rva ti on Repo rt da ted 6-7 -1 6. It is my belief this incident also occurred as result of Fitzgerald's inability to process· stress. ( ···· FitzgeralU's poor perfol'lnalfce iTnlwai'emnifStress·C<:mtrol; Offrcer Safety, mrd Decision -· ···· ·········· ····· ··· · ··-· · Making has been documented throughout the first ten weeks of his training. However, on 7-1-16 Fitzgerald's poor performance in these anchors reached a pinnacle. Filzgerald failed to engage a combative intoxicated suspect during a domestic violence investigation. Topartzer engaged in a physical use of force for an extended period of time with the male suspect and Fitzgerald did not come to Topartzer's aid or assist in taking the suspect into custody. It is Topartzer's opinion Fitzgerald did not perceive the suspect's initial actions as a threat and failed to act and/or engage when circumstances clearly demanded police intervention. Fitzgerald's actions or lack thereof, caused Topartzer to have immediate safety concerns. Weizoerick and I have repeatedly met with Melschau and Topattzer individually during their respective training phases with Fitzgerald to solicit their opinions as to different and creative training and teaching methods which they felt could enhance his performance and promote his success. We asked Melschau and Topartzer to implement those methods and document them in theit' Daily Observation Reports. Weizoerick and I have formed the opinion Fitzgerald has not responded to training and does not possess the ability to overcome his shortcomings. I have authored a negative comment Jog and two poor performance memos for Fitzgerald as of7-4-16, which detail specific incidents. Based on Fitzgerald's performance and the totality of the circumstances surrounding his inability to h11prove in the anchors of Stress Control, Officer Safety, and Decision Making, it is the opinion of the Field Training Program he does not possess the necessary and required skills to operate as a police officer in a safe and effective manner. Melschau, Topartzer, Weizoerick and I share the opinion Fitzgerald does not possess the ability, situational awareness or inherent skills to recognize danger signs, process and react to stimuli, and appropriately engage when circumstances dictate swift and decisive police action. The Field Training Program is gt·eatly concemed for Fitzgerald's safety, the safety of other HBPD officers, and the safety of citizens he will be required to protect. Weizoerick and I recommend Fitzgerald be separated from the Huntington Beach Police Depmtment Field Training Program. ~ ~ HUNTINGTON BEACH TO: FROM: DATE: CITY OF HUNTINGTON BEACH INTER-DEPARTMENT COMMUNICATION Captain Dave Bunetta, Uniform Division Commander (Via Chain of Command) Sergeant Ryan Reilly May2,2016 SUBJECT: Negative Comment Log for Officer Jake Fitzgerald (2171) Officer Jason Melschau is cmTently assigned as Officer Jake Fitzgerald's first phase Field Training Officer. On 4-25-16, Melschau asked Fitzgerald ifhe had been logging the police repmts he has authored in his first three days of training in his field training manual, as he had been instrncted. Fitzgerald told Melschau he had. Melschau directed Fitzgerald to bring him his field training manual. Fitzgerald explained to Melschau he had not documented any reports in his manual. Melschau asked Fitzgerald why he did not say that when originally asked. He provided no answer or explanation for his improper response. Fitzgerald confirmed he had been instructed to log all of his police repo1is in his training manual during his post academy orientation at the Huntington Beach Police Depmiment. Melschau immediately informed me of the circumstances and documented the incident in Fitzgerald's daily observation repo1i dated 4-25-16. Fitzgerald reviewed the evaluation and signed it in Melschau's presence. On 5-1-16, Sergeant T. Weizoerick and I met with Fitzgerald reference this incident. Weizoerick explained to Fitzgerald it was brought to om attention he misrepresented facts given to Melschau when asked a direct question in regards to logging his repmts in his field training manual. Weizoerick asked Fitzgerald to explain his version of the incident. Fitzgerald said Melschau asked him ifhe had been logging his repo1ts in his field training manual. Fitzgerald said he told Melschau he had, even though he had not. Fitzgerald explained he was experiencing stress from training and "panicked." Fitzgerald said he answered yes to Melschau' s question before thinking through his answer. Fitzgerald recently graduated from a POST certified police academy, where the importance and significance of integrity and honesty is engrained into the daily cun'iculum. Fitzgerald was required to commit the Law Enforcement Code of Ethics to memory. Thus being said, Fitzgerald's performance regarding this incident is of great concern for the Huntington Beach Police Department. Fitzgerald was advised thb dehavior is unacceptable and was remirn_.vj of the following Huntington Beach Police Depat1ment policy sections: 340.5.8 PERFORMANCE: (c) Failure to participate in, or giviug false or misleadiug statements, or 111isreprese11ti11g or omittiug materirl i11formatio11 to a supervisor or otlzer person iu a position of authority, in connection witlz auy investigation or iu the reporting of any department-related business. 340.5.2 ETHICS (g) Auy other failure to abide by the standard of ethical co11d11ct. #~ 1111 -'6mcer J. Fitzgerald #2171 Officer Comments: tltON't. ( ( HUNTINGTON BEACH POLICE DEPARTMENT FIELD TRAINING PROGRAM DAILY EVALUATION Page 1of4 TRAINEE: JAKE FlTZGERALO PIN: 1lZ! FT01 ~TO=P~A=R=T~Z=E=R ____ PIN: 1.liZ DATE: 06/07 /2016 RATING INSTRUCTIONS: Rate observed performance of trainee In the followlng categories: NI = NEEDS IMPROVEMENT C = COMPETENT NO = NOT OBSERVED Ai'PERfQRMANC~.i~tY/iJ.\%'Ni!l·i&~W~)'\0J)irFiffi\j\';i)}/i!Wi~i!i~Yiti)'.\ici:C/!)if,;#,{:\)j;Afi~;c;1;.;;f,'~icMirn!'.1\\J;;t:~1;;;~i¥s \';'Nii~ 'N\C:~it'. iifi\l.Q£j 1. Report Writing / Dictation 181 0 D 2. Driving Skill: Routine D l8l D 3. Driving Skill: Code 3 D 0 181 4. Self-Initiated. Activity 181 0 D 5. Knowledge of Location 0 (8] O 6. Stress Control: Verbal / Behavior · 0 (8] O . 1------------------------------t 1-7_._o_ff_lc~er_s_a_re_ty~:_s_el_f_/_Co_v_e_rln~g'--------------------'---t O 181 O 8. Prisoner Control 9. Radl~: Transmissions I Receptions/ KDT 10. Decision Making / Problem Solving 11. Coordination of Resources 2. Acceptance of Criticism 3. Behavior Toward Citizens/ Police Personnel 4. Self Image I Confidence 1. Department Policies I Procedures 2. Enforcement Codes / Court Decisions I S & S 3. Resources 4. Enforcement Procedures/ Techniques 1. General Appearance 2. Forms/ Equipment 3, Informed on Crime/ Traffic I Community Relations D l8l D D 181 D 181 0 D D 181 D D D l'XI g;y bNIMiJNlt'1m;)JneNfED.1i ,ROSi.:EM.i~Rli;JNTEDROli!QlNG'; .. ;:;\\\\!il\!i'.{f'f•iY8'%)iWi'"'.%'1W4@ t(Nfritt it::tci'lk' tlNO}i; / 1. Identification of Problems In Assigned Beat , .• 181 O O ~ 2. Use of Creative Solutions ~ { ·:z. .. ,. ~· ...-Trainee Si nature/PIN# field Training Program Dally Eva! Template, Rev. 9/16/2015 ( NARRATIVE: HUNTINGTON BEACH POLICE DEPARTMENT FIELD TRAINING PROGRAM DAILY EVALUATION Page 2 of 4 This evening was my second night with Trainee Fitzgerald. Fitzgerald started out driving our patrol car In hopes that his proactive activity would Increase as opposed to the night prior. We Initially handled several calls for service including a traffic accident that Fitzgerald had heard come out on the radio. Our night continued with Fitzgerald listening well to the radio and responding to the type of calls that I had asked him to respond to. He was told to respond to all hot calls and report calls in the north end of town. I had told Fitzgerald that I had wanted to observe him make more consensual contacts. He did just that, and contacted a man in a vehicle in front of the Stater Brothers on Warner Avenue. , I suspected with my experience that this man was possibly homeless as his vehicle was stacked with items that are commonly kept In a home. As Fitzgerald was speaking with the man it was apparent that the man was possibly at the end of his patience with life In general or possibly dealing with a mental illness. The Interaction escalated almost immediately and the man started yelling at Fitzgerald. The man asked Fitzgerald If he was being detained and asked him what violation of law he was breaking. The man had not broken any laws and Fitzgerald continued with questions about drug use and if he had been arrested. The man got even madder and nothing at all was being accompllshed except an escalation of the man's temper in a very busy parking lot. . Ultimately Fitzgerald walked away looking to me to be unsure of what to do. We later discussed that a better approach would have been to watch the man from afar, cutting the contact short, If he actually believed there was some criminal activity afoot. I am becoming very concerned about trainee Fitzgerald's ability to speak with people on a personal level and Identify possible problems-that Individuals may have while interacting with ( 9m. it has become very clear to me that trainee Fitzgerald has very llttls llfe experience as It pertains to this · 1ob. We left the location and handled other calls for service and backed up officers. I was pleased with his radio traffic and his ability to hear other units In the area and to respond to them accordingly. An example of this was a car stop that was made nearby in which Fitzgerald realized the proximity and went to assist. As the night progressed It was again apparent that trainee Fitzgerald would not be making many contacts. I again had to point out contacts for him to make. · Ultimately a second contact was made at my request In a closed business parking lot that we had just passed. A vehicle had driven into the Jot with no one around and the vehicle was In disrepair. As we approached this vehicle I realized that It was a person I had contacted weeks prior. My contact with him went fine then and I had warned him about his expired registration on that occasion. I remembered the man was a military veteran suffering from P.T.S.D. who is now homeless with his wife, I ascertained this from a five minute conversation I had with the man after I immediately realized something was not quite right with him • On this occasion the man exited his vehicle and went to a trashcan. From our distance II could.not be possible to see if the man was either throwing away something or pulling something out. Nonetheless Fitzgerald believed the man was possibly digging through the trash. Fitzgerald pulled up safely, exited our vehicle, and contacted the man. Fitzgerald asked a question and notified the man that he belleved he was digging In the trash. The man started arguing with Fitzgerald telling him that he was simply pulting something inside the trash and Fitzgerald elevated the contact by ordering the man to sit down, cross his legs, and put his hands on his knees. I had no problem with this however there are many other elements to this contact that needed to be addressed. Fitzgerald's approach was robotic and did not have an personal element to it. Fitzgerald made no attempt to ( act~~'.ly as~: the m~~ ~~at he was doing and his bar · g orders. rlgh;om the J mad .the'SI ua~ion ;rse. · ' Tmlnee SI nature/PIN fl Field Training Program Dally Eva! Template, Rev. 9/16/2015 ( HUNTINGTON BEACH POLICE DEPARTMENT FIELD TRAINING PROGRAM DAILY EVALUATION Page 3 of 4 Ultimately the man calmed down only after I started to speak to him and explaining why we had come over to talk to him. A warning of a violation that we were unsure even happened was given. We drove away and I spoke at length lo Fitzgerald about Interacting with people and allowing those people to feel comfortable In his presence. I decided to show him what I meant and I made a consensual contact with a man near a bus bench. Initially he appeared reluctant to speak and I simply spoke about the evening and what he had planned. Ultimately the man spoke freely, told me he was religious which opened up a new avenue of conversation and then we branched off from there. At the end of the conversation we knew his name, where he grew up and all his identifying information along with a short life story. Fitzgerald again said he understood what I meant by talking to people and seemed surprised at just how much conversation could be had between police and the general public. Fitzgerald continued to patrol but we made only one additional contact. I decided to drive again to show Fitzgerald what I thought was suspicious activity and how I would approach It. We ultimately came across a vehicle at a hotel in which two people were passed out Inside. I explained to Fitzgerald why I believed this was suspicious and why we were contacting them. Fitzgerald seemed overwhelmed and although I made the Initial contact he was all to comfortable sitting back. I prompted him to ask questions and ultimately start drug Influence evaluations on the two. Fitzgerald had the proper forms tonight and did well in evaluating the two considering his time Jn patrol. He missed a few symptoms and I was not sure he picked up on them being under the influence of an opiate Initially, but he said he noticed some of the symptoms. I had to prompt him to start looking at who these two were, considering they had no Identifications and he seemed to stumble through ( ' process. We again spoke about first looking their pictures up either by mug shot or DL photo given the , ,ames they claimed. After confirming the two were not who they said they were by picture, Fitzgerald offered no solutions, although I had told him how to use local records the night before. I had him search the vehicle for mail which ultimately identified the female, and the male had a piece of jewelry on him identifying him. The two were both wanted for felony crimes including burglary and Fitzgerald did fine keeping the scene safe, ultimately arresting the two and then transporting. Fitzgerald struggled through the report which took to long to produce. I have noticed that calls for service where a report is generated such as a 459 garage report are not a problem for Fitzgerald. He has problems organizing his thoughts however when it comes to observation arrests. In time and through more arrests he needs to show progress in this area. · During this incident, specifically during the first portion of transporting these two, I noticed a light emitting from ·· Fitzgerald's breast pocket. It looked to be a recorder light and I asked him If he was recording. Fitzgerald looked at me, paused and said he was. I told him he needed to notify me if he was recording and was going to leave JI at that until Fitzgerald said he did. I told him that he didn't. I told him to give me his recorder and rewound the audio which confirmed he made no notification to me. Initially I had no Intention of making this an issue but a training point. He explained to me that he records as he was trained to record while transporting females. I told him I had no Issue with that good practice but he did not tell me he was recording, and shutting off the divider between the arrestee area and us would only record us. Fitzgerald did not acknowledge that he had failed to inform me so after we were done booking I had him listen to the recording and he acknowledged after listening that he had not notified me. On this occasion Fitzgerald either was covering himself by saying he told me he was recording to avoid some perceive consequence, or he really thought he did, which sheds ( light on his ability to recall events which is a corner e of basic police w~ 0. ' I • . ~ _,/ f_v( __ Qcl Trainee Si nntm·e/PIN # ··Su c1·vlso1· SI nature b Field Training Program Dally Eval Template, Rev. 9/16/2015 ( ( ( HUNTINGTON BEACH POLICE DEPARTMENT FIELD TRAINING PROGRAM DAILY EVALUATION Page 4of 4 I went over his shortcomings this evening as they occurred and gave him ways to resolve these Issues. It is early days In our time together so I will be looking for vast improvement from Fitzgerald regarding his shortcomings. " .-'. Trnlnce SI nature/PIN# Field Training Program Dally Eval Template, Rev. 9/16/2015 ( tdm ~ llU,\'l!NGTON 9!'.A(tl .HUNTINGTON BEACH POLICE DEPARTMENT FIELD TRAINING PROGRAM DAILY EVALUATION Page 1 of 2 TRAINEE: JAKE FITZGERALD PIN: 2171 FTO: _,_TO"""PAo.Ru.T.uZ..,E,_,R,______ PIN: !Z!iZ DATE: 0 6 / 20/2016 RATING INSTRUCTIONS: Rate observed performance of trainee In the following categories: NI= NEEDS IMPROVEMENT C = COMPETENT NO = NOT OBSERVED ·-:o·;;-·a "t A'" '.i·.:~-· -:·-_ ;}:)._'\'Y;·;-(?ii:i}'?:~\;'':.'_':,;),,?} .,.,. ,· •.. :·r.··· ..... · .. · .... .,., .. , .. ,.,,.,,{!·/ /.' .. NIY ,, .. ,.. ... , ''iNO! •A'r " .•/·<<•·> (': ... 1, Report Writing I Dictation 0 0 D 2, Driving Skill: Routine 0 D D 3. Driving Skill: Code 3 0 D 0 4. Self-Initiated Activity . 0 D D 5. Knowledge of Location 0 0 D 6. Stress Control: Verbal I Behavior 0 0 D 7. Officer Safety: Self I Covering 0 D D 8. Prisoner Control D D 0 9, Radio: Transmissions I Receptions I KDT 0 D D 10. Decision Making/ Problem Solving 0 0 D 11. Coordination of Resources 0 D D ( 1. !N'.teRf>i;RSONAt..i81{1Lt:s ······.· < ''' ·-,-; D 0 0 0 D D D D ( 1. Communication Skills 2. Acceptance of Criticism 3. Behavior Toward Citizens I Police Personnel 4. Self Image I Confidence 1. Department Policies / Procedures 2. Enforcement Codes/ Court Decisions I S & S 3. Resources 4. Enforcement Procedures I Techniques 1. General Appearance 2. Forms I Equipment D D 0 D 0 D D 0 3. Informed on Crime/ Traffic/ Community Relations JNOY 0 D 0 D D D 1. Identification of Problems In Assigned Beat 2. Use of Creative Solutions Trainee Sl~nature/PIN II '! I I 9/17 0 D D 0 D D Sunervisor Si~natul'C Field Training Program Dally Eval Template, Rev, 9/16/2015 ( ~ ~ HU.>.:ll.'i'GlO.'.: BEAC!l NARRATIVE: HUNTINGTON BEACH POLICE DEPARTMENT FIELD TRAINING PROGRAM DAILY EVALUATION Page 2 of 2 This evening was the start of trainee Fitzgerald's third week with me. Tonight he did very well getting to calls in a timely fashion and actually finding the right location. Fitzgerald has had a real problem with this, and my hope is that this week he will be consistent in gelling to calls in a timely fashion. He completed two reports tonight in which both were well written and contained all of the pertinent information. Fitzgerald still is not competent in self initiated activity as he does not do well with observing things on the street that need a second look or a further investigation. He nightly drives by alleys, side streets, businesses and thoroughfares in which there are people who could and should be contacted. Fitzgerald knew his location tonight every time I asked him and did well to put out thE) proper location on vehicle stops. A common theme with Fitzgerald has been him im.proving in an area then the next night going back to square one. Tonight this occurred in the form of a family disturbance. He got to the location just fine but failed to read the notes of the call which pointed out the right apartment. A fellow officer helped him and told him the right apartment. He contacted the resident at the home in question, never asked to come in, never identified any of the people inside, never physically looked at the male and female sitting in the backdrop of the home and ultimately left having confirmed nothing. All the while dispatch was calling his call sign over and over in which he did not respond. I asked him if he got anyone's name in the home or if he could confirm if the people inside were in a physical fight which initially he could not. I explained to him that he is in the second phase of training and I should not have to tell him to.get peoples identifying information along with asking and Identifying if a crime has occurred in the proper investigatory ( shion. · ( Strangely, just prior to this call Fitzgerald completed a more complex lewd act investigation with video, @ evidence, witnesses and an in custody suspect in which he did just fine. This is an example of how just in fi consistent Fitzgerald is. At the end of our shift I was made aware that Fitzgerald had failed to book two key pieces of evidence in a prowler call we handled last week that ended up being a residential burglary. Fitzgerald had two key pieces of evidence that he made evidence tags for including a beanie worn by the suspect and left behind after an altercation with the homeowner. As of today those items are outstanding and Fitzgerald does not know their whereabouts. I will follow up on tomorrow's evaluation if they are located or a disposition. As of now he will be marked down on policies and procedures because of this oversight on this prior evening (DR 16-8142). ~ } ·' •,. Trninec Si nature/PIN# Su lcrvisor Si nature Field Training Program Dally Eval Template, Rev. 9/16/2015