Jones&Mayer - Case Updates

Paul Winter was sworn in a LA police officer December 26, 1995. Under the Los Angeles City charter then in effect, his term of probation was 18 months, expiring on June 25, 1997, if no absences occurred to extend the probationary period.

In March 1996, while off duty, Winter and a female neighbor went to a bar in Long Beach where she became intoxicated, and they returned to Winter's apartment. The neighbor later reported to the Long Beach Police that Winter had raped her.

A personnel complaint was initiated against Winger. Winter's commanding officer found the complaint "Not Resolved," and sent it up the chain of command for review. The chief of police found the complaint sustained, and directed that the charge be presented to Officer Winter with an opportunity to respond. On May 15, 1997, Winter was served with a "Notice of Proposed Disciplinary Action," reflecting an intent to terminate him, and Captain Roupoli assigned Winter to his home, directing him not to act as a police officer. Winter was also instructed to be at home between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday. Winter was not relieved of his gun, badge, or police identification.

Winter responded to the proposed disciplinary action, which resulted in a supplemental investigation. Upon review of the new investigation, Captain Roupoli again concluded there was insufficient evidence to sustain the charge and the matter was sent up the chain of command for review.

On June 24, 1997, one day before Winter's 18-month probationary period ordinarily would have concluded, Winter was served with a "Notice of Termination." That notice, signed by the chief of police, reflected an amended charge, that "on or about March 29, 1996 while off-duty you conducted yourself in a manner which discredited and compromised the integrity of yourself and the Department." On June 26, 1997, Winter turned in his City issued equipment and filed an administrative appeal.

A "liberty interest" hearing convened on December 29, 1997, and Winter claimed he was entitled to a Board of Rights hearing because the Department had not filed his termination notice with the Board of Civil Service Commissioners until November 25, 1997, after his 18-month probationary period had ended. The hearing was continued to obtain an opinion on this issue.

The hearing reconvened in March 1999, and again in July 1999, where the hearing officer found that any untimeliness in the filing of the notice did not affect Winter's opportunity to refute the charges and hence was not relevant. The hearing officer recommended that the charge be sustained and that the decision, terminating Winter's employment retroactive to June 24, 1997, the day prior to Winter's probationary period coming to an end.

Winter sought judicial relief, which the trial court denied agreeing with the City's position that the probationary period had been extended pursuant to Civil Service rule 5.26, which excludes from the computation of the probationary period the entire period of absences in excess of seven calendar days. The City's position was that Winter became "absent" within the meaning of the rule when he was assigned home on May 15, 1997 and never returned to duty.

The California Court of Appeal, Second Appellate District, reversed, concluding that the probationary period for a Los Angeles police officer was not extended by the period of time he was assigned home while a complaint against him was investigated. The Court noted that "assigned home" was not a category in the Los Angeles Police Department Manual, nor was it included in the list of formal abbreviations in the official divisional time book abbreviations of the Manual. The time sheets for the period in which Winter was assigned home showed him as "SD," which according to the City stood for "special detail." The parties agreed that Winter's assignment home actually constituted placement on inactive duty.

The Court pointed out that once disciplinary action was contemplated against Winter he was ordered by his commanding officer not to act as a police officer and was instructed to be at home, however, he was not relieved of his gun, badge, or police identification. The Court also pointed out that the manual did not specify whether the time on inactive duty constituted an absence within the meaning of rule 5.26, but did make it clear that an officer on inactive duty was not free of job duties. He or she is prohibited from acting in an official capacity, yet is required to remain on-call at designated place of inactive duty, or to report at a given time and place. Since his presence at this designated place each day constituted performance of his assignment, it was reasonable to conclude that the time on this assignment was not an "absence" within the meaning of rule 5.26. The Court also noted that a December 6, 1993 personnel memorandum from the City's Human Resources Bureau determined that inactive duty status did not qualify as an "absence" and prohibited the Department from extending the probationary period under these circumstances.

The Court concluded that it was in the City's control to timely notify the Board of Civil Service Commissioners of its decision to terminated Winter, prior to the expiration of his probationary period, and it did not do so.

How this affects your department: This case once again points out that when action is contemplated against a probationary employee timeliness is paramount if the department wishes to avail itself of the right to summarily dismiss the employee. There are a few lessons to be learned: (1) when an officer is placed on inactive status pending an investigation the order not to act in the capacity of a peace officer is insufficient and the officer should be relieved of his peace officer powers, official identification card, and the right to carry a firearm; (2) if an officer is placed on inactive duty, do not assign officers to their place of residence, or any other place, but have them check in with a specific person, i.e., watch commander, chief's office, etc., at specific times between 8:00 a.m. and 5:00pm, for subpoenas or other necessary instructions regarding their status; (3) make sure that the employer personnel regulations, and/or department manual, clearly defines the official status of an employee during times he/she is not officially on-duty and (4) set up a process where the department manual is updated periodically.

John Fairley was taken into custody for allegedly violating a temporary restraining order after a confrontation with his next door neighbor and claimed the officers used excessive force. A warrant check was run and two 1995 infraction warrants were found for Joe B. Fairley, John's identical twin brother. The physical descriptions of the two were similar in certain respects, however, their weights differed by approximately 66 pounds and the driver's license number on one of the warrants was similar, but not identical to the number on John's license. Officers knew John had a twin.

The officers told the booking sergeant that John Fairley had a twin brother, as did John himself, insisting the warrants were for his twin. Nonetheless Sgt. Ford approved John's booking on the warrants based on the similarity in the physical descriptions alone. Neither a fingerprint comparison, nor DMV, check was completed during John's twelve-day detention. Either would have immediately alerted the City it had the wrong man.

John continuously protested the mistaken identity which resulted in reduction of his jail privileges. Although the charge against John was dropped three days after arrest, the police continued to hold him on Joe's infraction warrants and later transferred him to the Los Angeles County jail. John was released only after filing a citizen's complaint from jail. The ensuing internal affairs investigation found the City's policies and procedures had been fully complied with in the handling of John's case.

John filed a lawsuit against the arresting officers, Sgt. Ford, and the City for constitutional violations. A jury exonerated the individual officers of using excessive force in arresting John without probable cause, but found the City liable for violating John's civil rights "by reason of a policy, custom or practice of the Long Beach Police Department."

The district court denied the City's motion for judgment as a matter of law or, in the alternative, for a new trial. The United States Court of Appeals, Ninth Circuit, affirmed the district court, rejecting the City's argument that it was entitled to judgment as a matter of law because the jury determined that the individual officers had inflicted no constitutional injury.

The Court pointed out that exoneration of the arresting officers on the excessive force claim had no bearing on John's Fourth and Fourteenth Amendment claims against the City for arrest without probable cause and deprivation of liberty without due process. The Court stated that these alleged constitutional deprivations were not suffered as a result of actions of the individual officers, but as a result of the collective inaction of the Long Beach Police Department.

The Court noted that in City of Canton v. Harris, 489 U.S. 378 (1989), the Supreme Court recognized that a city could be held independently liable under § 1983, for failure to train its police officers even though no individual defendant was sued. The Ninth Circuit reached the same conclusion in Oviatt v. Pearce, 954 F.2d 1470 (9^th Cir. 1992), holding § 1983 liability could attach to a city because it failed to implement internal procedures for tracking inmate arraignments. In Hopkins v. Andaya, 958 F.2d 881 (9^th Cir. 1992), the Ninth Circuit held that a city could be liable under § 1983 for improper training or improper procedures, even if the individual officer charged with violating the plaintiff's constitutional rights was exonerated.

The Court pointed out that even detention pursuant to a valid warrant, but in the face of repeated protests of innocence may, deprive the accused of a constitutional "liberty." Here John had a liberty interest in being free from a twelve-day incarceration which was without any procedural safeguard in place to verify the warrant, and in the face of his repeated protests of innocence. The procedures afforded by the City failed to provide John due process under the Fourteenth Amendment.

The Court concluded by pointing to Chief Luman's testimony that he was "the chief policymaker for law enforcement matters for the City of Long Beach." His decision not to instigate any procedures to alleviate the problem of detaining individuals on the wrong warrant could constitute a policy in light of his testimony that he knew it was "not uncommon" that individuals were arrested on the wrong warrant, and that the problem was particularly acute where twins were involved. The policy here was one of inaction, a wait and see if someone complains.

TBG INSURANCE SVC'S CORP. v. SUP'R CT OF LOS ANGELES COUNTY (Zieminski). 117 Cal. Rptr. 2d 155 (2002)

Robert Zieminski worked as a senior executive for TBG for approximately 12 years. During the course of employment, Zieminski used two computers owned by TBG, one at the office, the other at his residence. Zieminski signed TBG's "electronic and telephone equipment policy statement" in which he agreed, among other things, that he would use the computers "for business purposes only and not for personal benefit or non-Company purposes, unless such use [was] expressly approved. Under no circumstances [could the] equipment or systems be used for improper, derogatory, defamatory, obscene or other inappropriate purposes." Zieminski consented to have his computer "use monitored by authorized company personnel" on an "'as needed'" basis, and agreed that communications transmitted by computer were not private. He acknowledged his understanding that improper use of the computers could result in disciplinary action, including termination.

Zieminski's employment was terminated when TBG discovered that he "had violated TBG's electronic policies by repeatedly accessing pornographic sites on the Internet while he was at work." According to Zieminski, the pornographic Web sites were not accessed intentionally but simply "popped up" on his computer. TBG asked Zieminski to return the home computer and cautioned Zieminski not to delete any information stored on the computer's hard drive. In response, Zieminski told TBG he would either return or purchase the computer, but said it would be necessary "to delete, alter, and flush or destroy some of the information on the computer's hard drive, since it contains personal information which is subject to a right of privacy." TBG refused to sell the computer to Zieminski, demanded its return without any deletions or alterations, and served on Zieminski a demand for production of the computer. Zieminski objected, claiming an invasion of his constitutional right to privacy.

Zieminski sued TBG, alleging that his employment had been wrongfully terminated "as a pretext to prevent his substantial stock holdings in TBG from fully vesting."

The trial court denied TBG's motion to compel production of the computer, finding the information on the computer was "merely corroborative of facts already in TBG's possession ... any additional evidence that the [home computer] may disclose does not outweigh the fact that the computer contains personal information."

The California Court of Appeal, Second Appellate District, agreed with TBG's contention that it was entitled to inspect Zieminski's home computer. The Court noted that Zieminski based his privacy claim on Article I, section 1, of the California Constitution, and therefore had to establish "(1) a legally protected privacy interest; (2) a reasonable expectation of privacy under the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy." Here, the Court assumed the existence of an abstract privacy interest in financial and other personal information but concluded that the evidence was insufficient to support the trial court's implied finding that Zieminski had a reasonable expectation of privacy in the circumstances, and that the trial court could make such orders as were necessary to minimize TBG's intrusion.

The Court found that TBG's advance notice to Zieminski, it's policy statement, gave Zieminski the opportunity to consent to or reject the very thing that he now complains about. Nnotice, combined with his written consent to the policy, defeats his claim that he had a reasonable expectation of privacy.

How this affects your department: This case is significant in that the Court sets out what should be contained in an electronic communications policy in order to diminish an employee's expectation of privacy. Simply stated the policy should clearly state that electronic communications are to be used solely for department business, and that the department reserves the right to monitor or access all employee Internet or e-mail usage. The policy should emphasize that the department will keep copies of Internet or e-mail passwords, and that the existence of such passwords is not an assurance of the confidentiality of the communications. The policy should include a statement prohibiting the transmission of any discriminatory, offensive or unprofessional messages. Employees should also be informed that access to any Internet sites that are discriminatory or offensive is not allowed, and no employee is permitted to post personal opinions on the Internet using the department's access, particularly if the opinion is of a political or discriminatory nature.

Telephone Conversation May Not BeRecorded Where An Objectively Reasonable Expectation Exists that Conversation Is Not Being Overheard Or Recorded

This case involved the recording of telephone conversations between family members and estranged family members, including the installation of a voice-activated tape recorder on a telephone.

At issue is the California Invasion of Privacy Act (Penal Code §§ 630 et seq.), enacted in 1967, replacing prior laws that permitted the recording of telephone conversations with the consent of one party to the conversation. The purpose of the Act is to protect the right of privacy by, among other things, requiring that all parties consent to a recording of their conversations. This case specifically involved subdivisions (a) and (c).

Subdivision (a) provides: "Every person who, intentionally and without the consent of all parties to a confidential communication ... eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of telegraph, telephone, or other device, except a radio, shall be punished ..." (Italics added)

Subdivision (c) states: "The term 'confidential communication' includes any communication carried on in circumstances as may reasonable indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonable expect that the communication may be overheard or recorded." (Italics added)

The California Supreme Court unanimously endorsed the standard established in Frio v. Superior Court (1988) 203 Cal.App.3d 1480, and Coulter v. Bank of America (1994) 28 Cal.App.4th 923.

In Frio, the Court of Appeal viewed the test of confidentiality as "an objective one defined in terms of reasonableness." It established what has become known as the "Frio test": "under section 632 'confidentiality' appears to require nothing more than the existence of a reasonable expectation by one of the parties that no one is 'listening in' or overhearing the conversation."

In Coulter v. Bank of America (supra) the Court of Appeal followed the Frio standard and stated, in response to the argument that parties knew the substance of the discussion would be passed on to others, that whether "the subject matter might be later discussed has no bearing on whether section 632 is violated."

The California Supreme Court, in adopting Frio and Coulter, pointed out that when the Legislature amended the Privacy Act to take into account privacy issues raised by the increased use of cellular and cordless telephones, the Legislature found that "the advent of widespread use of cellular radio telephone technology means that persons will be conversing over a network which cannot guarantee privacy in the same way that it is guaranteed over land-line systems." The Legislature therefore prohibited the malicious interception of calls from or to cellular or cordless phones and the intentional interception or recording of a communication involving a cellular phone or a cordless phone.

When the Legislature determined that there was no practical means of protecting cordless and cellular phone conversations from accidental eavesdropping, it chose to protect all such conversations from malicious or intentional eavesdropping or recording, rather than protecting only conversations where a party wanted to keep the content secret. The scope of this prohibition indicated that the Legislature's ongoing concern is with eavesdropping or recording of conversations, not later dissemination.

How this affects your department: This case standardizes the definition of a "confidential" communication for purposes of violating the provisions of Penal Code §§ 630, et seq. It also reaffirms the Fourth District Court of Appeal holding in Coulter that all conversations with a superior are, per se, "confidential." This decision, however, does not effect the holding in Rattray v. National City 36 F.3d 1480 (9^th Cir.1994) which interpreted Penal Code § 633 as protecting only electronic recording and eavesdropping in the course of criminal investigations, and not police recordings of their own employees as a matter of internal discipline.

Officers of the Placerville Police Department went to the residence of John Kelsey, who was on probation and who had, as a condition of probation, consented to the search of his person and residence. When the officers arrived there were six people inside, including Pamela Smith who indicated that she shared the rear bedroom of the residence with Kelsey. Officers Santos and Barbot searched the bedroom and found various items containing marijuana and methamphetamine. The officers also discovered three narcotic smoking pipes in a cloth box on a shelf.

Smith advised the officers there was a gun in the safe located in the bedroom closet and Officer Santos asked Smith about the key to the safe. Smith said the key was inside her purse, which was hanging on the closet door in the bedroom. Smith gave officer Santos permission to go inside the purse to locate the key. After retrieving the key from the purse, Officer Santos placed the purse on the bed.

The officers called Officer Tawney to the scene, who brought along a narcotics police dog for the purpose of conducting a more thorough search. Following a perimeter search of the bedroom, the dog jumped onto the bed and "gave an indication" on the purse lying on the bed. Officers opened the purse and inspected its contents, which included a clear plastic bag containing a substance believed to be methamphetamine.

In moving to suppress the narcotics found in the purse, Smith argued that the purse, being a distinctly female item, was not part of the search conditions to which Kelsey had submitted and, accordingly, the officers were required to obtain a warrant before entering the purse to search for drugs. The trial court concluded otherwise. The California Court of Appeal, Third Appellate District affirmed, holding that "those associating with a probationer assume the ongoing risk that their property and effects in common or shared areas of a residence may be subject to search,"

The Court pointed out that given the significance of both drugs and weapons located in the same area, two conclusions immediately came to mind. First, Smith and Kelsey were sharing in a criminal enterprise; if so, it would not be surprising for the key to the safe to be in Smith's purse. Or, second, Kelsey alone was involved with the illicit narcotics, but he was using the purse, with Smith's knowledge, as a repository. Unfortunately for Smith, neither conclusion bodes well for her claim that the purse should have been off-limits to the searching officers. In either instance the clear inference was that the purse was an item over which Kelsey had access, if not control.

[The Law Offices of Jones & Mayer located in Fullerton, California focus its practice on representing the interests of public entities as its City Attorney, in labor negotiations, in defending tort litigation and civil rights litigation. Martin Mayer focuses his practice in the area of representing cities, counties and the State on matters arising out of their respective law enforcement agencies.]

As always, before taking any legal actions be certain to seek appropriate legal advice, whether it is from a city attorney, county counsel, or your police legal advisor. If you have any questions or wish to discuss these cases in more detail, please do not hesitate to call us at (714) 446-1400.

Caseupdt.000.Vol7#1