Reinstatement of Fired Seattle Officer Blocked
March 5, 2010
On January 26, 2010 we published Client Alert Memo, Vol. 25, No. 2 about a dishonest Seattle officer being reinstated by a Civil Service Commission, despite their finding that he had lied. At least for now, a Superior Court has blocked his reinstatement pending the City’s appeal of that order. Following is the article from the Seattle Times:
BY STEVE MILETICH
Seattle Times
A King County Superior Court judge on Tuesday temporarily blocked the reinstatement of a Seattle police officer who won his job back after being fired for dishonesty. Officer Eric Werner, who was fired for failing to disclose that he had punched a suspect, won’t be allowed to return to work while city attorneys appeal his reinstatement in January by the Public Safety Civil ServiceCommission. “We have a public safety agency and a sustained finding of dishonesty,” said Judge Paris Kallas in rejecting a request from Werner’s attorney to allow him to return to duty while the appeal is pending. In granting the city’s request to block the reinstatement, Kallas found the city had raised sufficient issues to allow the appeal of the commission’s ruling.
Werner’s case has emerged as a key test of the Police Department’s honesty policy, which presumes officers will be fired for dishonesty in their official duties and was a cornerstone of new rules adopted in 2008 to address community concerns about police accountability.
The three-member commission unanimously found that Werner had acted dishonestly, but in a 2-1 vote ruled that termination was too harsh and reduced the penalty to a 30-day suspension to be deducted from back pay. Commission members Joel Nark and Herb Johnson found the Police Department doesn’t apply its dishonesty rule in an evenhanded way, noting that in past cases where honesty was an issue, officers either received no suspension of duties or only temporary suspension of duties. They also found that no other employee has been terminated based on dishonesty.
The third member, Terry Carroll, wrote in his partial dissent that the previous disciplinary actions cited by the majority did not involve findings of actual dishonesty. Carroll also wrote that the commission had usurped the authority of Interim Police Chief John Diaz to fire Werner. “The integrity of the discipline system demands that result in my view,” Carroll added.
City attorneys, in seeking judicial review, argued in court papers that the commission’s reinstatement of Werner was based on arbitrary, capricious and erroneous findings, including legal conclusions not supported by the evidence. “The commission erroneously considered arbitrary evidence of non-comparable cases in finding that the Department was not even-handedly applying its rules,” the attorneys wrote in a brief. In a declaration, Assistant City Attorney Amy Lowen said the commission “incorrectly substituted their judgment” for that of the Police Department, contrary to the Seattle Municipal Code and state law.
Werner, 32, who joined the department in 2000, was fired for failing to tell internal investigators in 2007 that he had punched an agitated man who complained he was Tased. Werner maintained he had forgotten about the punch until he applied for a job with the Snohomish County Sheriff’s Office in May 2008, and then disclosed it as part of a hiring process that included polygraph examinations. The Sheriff’s Office didn’t hire Werner and notified Seattle police of his disclosure. After an internal investigation, he was fired last May for being untruthful. Werner appealed his firing to the commission, which heard testimony in October from Werner and other witnesses regarding the dishonesty finding.
Despite Werner’s reinstatement, King County prosecutors had already added his name to a list of potential witnesses whose honesty has been questioned (“Brady” officers). Most of the 52 names on the list are law-enforcement officers. Prosecutors would be required to notify defense attorneys whenever Werner is called to testify. Werner has not been re-employed by the Police Department since the commission’s ruling, pending the city’s appeal of his reinstatement, said Sgt. Sean Whitcomb, spokesman for the department.