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HomeMy WebLinkAboutCIV 1981-11-17 Minutes CIVIL SERVICE COMMISSION CITY OF NORTH RICHLAND HILLS APPEAL HEARING FOR GARY A. FISCHER CASE N0. CS-81-2 NOVEMBER 17, 1981 CALL TO ORDER The Chairman called the appeal hearing for CS-81-2 to order at 7:35 P.M. in thE City Council Chambers. ROLL CALL Members Present: Ed Szol Chairman Bob Skelton Vice Chairman Bob Roark David Phelps Others Present: Rex McEntire City Attorney Susan Clare Attorney for Appellant Gary Fischer Appellant M.D. Chenault Captain, Police Department Ron McKinney Civil Service Secretary BUSINESS The appellant, Sergeant Gary Fischer was represented by Susan Clare, Staff Attorney for CLEAT, and Rex McEntire, Attorney, represented the City. Vice Chairman Skelton read the statement of grounds for adverse action by Captain M.D. Chenault dated October 8, 1981, Ref: PDM/165-81, and the written reply to Captain Chenault from Sgt. Fischer dated October 6, 1981 regarding damage to Unit 2250. The Chairman asked Ms. Clare if they had been furnished with a copy of the department head's statement. Ms. Clare said they had. The Chairman explained the procedure for appeal hearings as provided in the North Richland Hills Rules and Re~ulations. Ms. Clare stated that she would call as witnesses Sgt. Fischer, Officer Irving, Officer Curtis, Capt. Chenault, and Capt. Lynn. She stated she was invoking the rule. Mr. McEntire stated the City would not call any additional witnesses other than the appellant's in rebuttal. Mr. McEntire stated that he would ask that Capt. Chenault stay in the room as a representative of the City. ~ CSC Hearing , ' Case No. CS-81-82 November 17, 1981 Page 2 ~ Chairman Szol swore rhe witnesses in and then asked them to leave the room until called. Ms. Clare called Sgt. Gary Fischer to the stand. Ms. Clare questioned Sgt. Fischer about his duties and service with the City. Sgt. Fischer testified that at the time of his suspension he was a Police Sergeant with the City of North Richland Hills. He stated he has worked for the North Richland Hills Police Department for approximately 7~ years. He said he was a Patrol Officer for three years, a Detective for three and one-half years, and this June was promoted to a Patrol Sergeant. He stated that during his length of service he has received a verbal and written reprimand only--no days of suspension. He stated he received a life-saving award in 1975 and was recommended for a certificate of merit in 1976. Ms. Clare questioned him about October 4, 1981. Sgt. Fischer testified that he was the on-duty supervisor for the evenin~ shift on October 4, 1981. He stated he had been asked by Capt. Chenault to check for possible tratfic problems at Green Valley Race Track. He said when he arrived at Green Valley he found hardly any traffic at all and the races were about to come to a conclusion. He stated that he had also been on overtime assignment on the perimeter of Green Valley Race Track on Friday, October 2, and Saturday, October 3, for the purpose of traffic control. Sgt. Fischer testified that when he arrived on October 4 there were several officers at the main gate. He said he conversed with them for a few minutes at which time one or two of the officers made mention that several of the spectators and racers had made a request that the police run their cars to see what they would do. He said he thought about it for a few minutes and felt that in the interest of public relations it was a good idea. Ms. Clare asked Sgt. Fischer if he had ever received a written memo or an official policy in regards to Green Valley Race Track. Sgt. Fischer stated to his knowledge he had not. Ms. Clare asked how the drivers of the race were chosen and if they were in their assigned district. ~ Sgt. Fischer explained that Officer Curtis had previously told him that he was an experienced quarter mile racer , . ' CSC Hearing • Case No. CS-81-2 November 17, 1981 Page 3 ~ and he felt that he would be a safe choice. He said he also chose Officer Irving because he felt he was an extreme competent driver during high speed. Sgt. Fischer stated that Officer Curtis was on overtime duty and Officer Irving was on duty in his assigned district. Ms. Clare questioned Sgt. Fischer about the crowd's response. Sgt. Fischer stated that the crowed appeared pleasantly surprised and pro-police. Sgt. Fischer testified that previously the relationship between police officers and the people at Green Valley Raceway had been rather poor. He explained that the standard feeling had been that the police were out to get them because of the strict enforcement of the laws. Sgt. Fischer stated that the police were at Green Valley for public relations purposes for the citizens who lived in the area. Ms. Clare questioned Sgt. Fischer about the race. Sgt. Fischer explained that the police units did not actually engage in the race. He stated the u-joint snapped loosening the drive shaft at the starting line. He explained that the broken unit was pushed to the main gate entrance and the city wrecker was called to take it to the city barn. He stated that the spectators offered to tow the unit on to the public streets so it could be claimed that it occurred during a pursuit. Sgt. Fischer said he told them that he would not do it that way and thanked them for the offer. Sgt. Fischer said when he came on duty the next day he checked with the mechanic at the city garage and learned that a u-~oint and drive shaft had been removed from a junk unit to repair the vehicle. He said the only cost to the city was the labor which he estimated to be around $25. Ms. Clare asked if he received any feedback from his superior officers regarding the incident. Sgt. Fischer testified that he arrived at the Police Department the next day an hour before he went on duty to find Captain Chenault and advise him what had occurred. He said when he learned that he was out on personal business,_he then attempted to talk to the next person in charge, Charles W. Williams, City Manager, and was informed he was in court. He said not knowing who to contact he talked with Captain Lynn. He said Captain Lynn asked a few questions and appeared slightly upset about the incident. Ms. Clare asked if Captain Lynn made any statements or accusations regarding what type of punishment he thought he might receive. ' . ~ CSC Hearing Case No. CS-81-2 November 17, 1981 Page 4 ~ Mr. McEntire objected on the grounds that the question was immaterial since Captain Lynn was not his supervisor. Chairman Szol agreed with Mr. McEntire. Ms. Clare asked if Captain Lynn made any statement that he had knowledge that such instances occurred before. Sgt. Fischer said Captain Lynn ma.de the st~tement at the end of their conversation that it was not like it had not happened before. Ms. Clare asked Sgt. Fischer if he had any knowTedge of policemen racing at Green Valley before. Sgt. Fischer said he had heard of such things. Ms. Clare asked if he contacted Mr. Williams or Captain Chenault. Sgt. Fischer said Captain Lynn told him that he would contact Mr. Williams for him. Sgt. Fischer testified that Captain Lynn advised him later that Mr. Williams' reaction was that he was basically too mad to talk about it at that time. He said Captain Lynn told him that Mr. Williams would discuss the matter with him the next morning during a me~ting that had been scheduled earlier. Sgt. Fischer said when he talked to Mr. Williams his reaction was he could understand the reasoning but it was ~ust bad timing and we all make mistakes. He said Mr. Williams advised him that the mat~er would be handled by Captain Chenault. Sgt. Fischer testified he then talked with Captain Chenault whose response was one of shock. Ms. Clare asked if Gaptain Chenault gave an explanation as to how the Cermination was arrived at. Sgt. Fischer testified that after talking with Captain Chenault, he was told that a decision had been made but that he would get back ~ith him after putting it in writing. Sgt. Fischer said he asked Captain Chenault to go ahead and tell him. Sgt. Fischer stated that Captain Chenault advised that his decision was to take three days off without pay and pay for the damag~ to the unit or receive five days off without pay and the city would take care of the car. Sgt. Fischer testified that he was never advised that a possible termination was in the offering. He stated he was told approximately two hours later that there were some new facts and there would be an internal investigation. CSC Hearing ~ ' Case No. CS-81-2 ~ November 17, 1981 Page 5 He said when he asked Captain Chenault what changed his mind, he was told that he had not necessarily changed his mind. Sgt. Fischer said when he asked what the most punishment would be, Captain Ch~nault advised him that they weren't looking for his 3ob so don't worry. He said Capt. Chenault told him that the maximum would probably be some time off and a demotion to corporal. Ms. Clare asked if any of the other officers received any disciplinary action. Sgt. Fischer said Officer Irving received a verbal reprimand and Officer Curtis was given ten days suspension to be served by a day of suspension each Thursday for ten weeks. Mr. McEntire questioned Sgt. Fischer. He asked if one of the police officers on duty was on the streets and if so, what was his duty. Sgt. Fischer said Officer Irving was on the street patrolling bistrict 3. Mr. McEntire stated that a policeman called to a drag strip can't patrol a district. He asked if the police patrolled up and down the drag strip and if he knew that Officer Irving was not functioning as a police officer at the time he was put on the drag strip. Sgt. Fischer said that the drag strip is in District 3 and that Officer Irving was available by radio. Mr. McEntire asked if Officer Irving asked if the race had been cleared. Sgt. Fischer said he asked him if he wished to participate and left it up to him. Mr. McEntire asked him if he was aware that a special council meeting was called because of the enormous crowd at Green Valley and that an ordinance was passed in an attempt to control the crowds. He asked if he knew that Green Valley had filed a law suit against the city. Sgt. Fischer said he was not aware that Green Valley had filed a law suit, but was aware of some litigation about the ordinance and that the ordinance had been suspended. Mr. McEntire asked if he was aware that police officers were in people's bedrooms in the area with recorders recording the decibal level of the noise at Green Valley. . . CSC Hearing ' Case No. CS-81-2 November 17, 1981 Page 6 Sgt. Fischer stated he was aware. Mr. McEntire asked if he understands that people can claim the noise they are hearing on the recordings are the police cars racing. Sgt. Fischer stated that both units were equipped with standard mufflers and they were not making exceptional noise. Mr. McEntire asked if he still thought he employed sensible judgment and did he still stand by his actions. Sgt. Fischer said yes. Ms. Clare ob~ected on the grounds that it was irrevelant. There was a discussion on the revelance of Mr. McEntire's questioning. Mr. McEntire stated he would let it go and change his questions. Mr. McEntire asked if Officer Irving advised him that he was writing a report when he was called on the radio. Sgt. Fischer said he didn't recall. Mr. McEntire asked if he took into consideration that he was being taken away from his assigned duties to race. Sgt. Fischer replied that the racetrack was in his district and he did not leave his district. Ms. Clare re-examined the witness. She asked if Captain Chenault advised him why the punishment had been upped when he rece~ved the termination letter. Sgt. Fischer said the only thing he could recall was that the incident itself had more ramifications than he knew about and under the circumstances this was the only choice. The Commission questioned Sgt. Fischer. Chairman Szol asked why if he thought this was his duty in creating a good public relations atmosphere, why did he leave it up to the officer to race. He asked if another situation arose where he wanted something done, wouldn't the officer be told what to do. Sgt. Fischer said wanted done was not the proper phrase. He 'said he felt the situation was not an ordering situation. Chairman Szol asked if the race was for public relations purposes, why was it conducted after everyone left. CSC Hearing ~ C~se No. CS-81-2 November 17, 1981 Page 7 Sgt. Fischer 5aid there were approximately 200 people left. The Chairman asked why someone would offer to tow the vehicle to a public street so it could be claimed that damage occurred on the public streets. Sgt. Fischer said he did not ask the reason, but they possible felt that there might be trouble. Com~issioner Skelton asked if he did not consider that there is an element of crime in the streets of the city and that there is a reason to patrol the streets. He asked if he did in fact call an officer from the streets of North Richland Hills. Sgt. Fischer answered yes to both questions. Commissioner Skelton asked if he considered what he was about to engage in at the racetrack more important than the welfare of the citizens of North Richland Hills. He asked if there was that great of a crisis out there. Sgt. Fischer stated there was no crisis. Co~issioner Skelton asked if what Officer Irving was doing at Green Valley was more important than patrolling the streets. Sgt. Fischer said it was not more important but just as important. Sgt. Fischer was excused. Ms. Clare called Officer Larry.Irving to the stand. She asked him what his duties were on October 4 and questioned him about the race. Officer Irving stated he was to patrol District 3. He testified he was in the process of writing a report when he received the call from Sgt. Fischer and that he did complete the report first. He said he asked Sgt. Fischer if it was ok to race and was told yes. He testified that he was in the car that made it down the track. He said after he completed the run he observed something was wrong and returned to the other unit. He stated he did not hear if anyone suggested that the car be towed to the street. He said he left the area and a wrecker picked up the damaged unit. Ms. Clare asked why he felt Sgt. Fischer was a good officer and his impression of Fischer's attitude toward the Rules and Regulations. CSC Hearing - Case No. CS-81-2 November 17, 1981 Page 8 Officer Irving said Sgt. Fischer is a stickler on paper work. He said he felt like Sgt. Fischer is on top of every- thing in regards to the Rules and Regulations, and if a mistake is made he approaches the officer about it. Ms. Clare questioned him about the litigation. Officer Irving testified he was aware of it. He said he saw the Captain with a tape recorder recording the noise level. He stated he found out about it by chance. Mr. McEntire questioned the witness. He asked if he had told Sgt. Fischer he was writing a report and if he asked if the race was authorized. Officer Irving answered yes to both questions. Ms. Clare re-examined the witness. She asked it he received any calls while at Green Valley and if every call was answered that he received. Officer Irving testified he only had one call and he answered it. Mr. McEntire re-cross examined the witness. He asked where he was when he received the call from Sgt. Fischer. Officer Irving stated he was at the high school. The Commission questioned the witness. Chairman Szol asked how many people were at the track. Officer Irving said there was a small crowd--less than one hundred people. Commissioner Skelton asked what his personal opinion was at the time he was requested to participate in the race. Officer Irving said at that time he felt it was the right thing to do. Chairman Szol asked why did he ask if it was ok if he felt it was the right thing. Officer Irving said to make sure it was ok. The witness was excused. RECESS The Chairman called a fifteen minute recess at 8:45 p.m. BACK TO ORDER The Chairman called the hearing back to order at 9:05 p.m. with the same members present. ; ~ CSC Hearing Case No. CS-81-2 ' Nbvember 17, 1981 Page 9 Ms. Clare called Officer Bob Curtis as her next witness. Ms. Clare asked him what his duties were on October 4. Officer Curtis said he was on special assignment at Green Valley Raceway. Ms. Clare questioned him about his feelings towards the race and how he became involved. Officer Curtis said he was around the situation. He said the idea at the time seemed unusual, but it also seemed to be a good idea due to the unusualness of the situation. Officer Curtis testified he pulled up to the starting line with his car in drive. He said when the signal to start was given the car started and then went into a stage of neutral. He said he shut the car off at that point. He said it was basically the same take off if you were taking off quickly to chase a speeder. He testified he was not handling the ear any different than usual and the car did not take any more abuse than usual. He stated he had not driven the car before and had no knowledge of the mechanical condition of the car. He said the car had recently been serviced at the city garage for a knocking noise. Officer Curtis testified the crowd remarked that the car be moved to the street to make it look like it happened in the course of pursuit. He said Sgt. Fischer told the crowd that it was a city problem and the city would handle it. Mr. McEntire cross-examined the witness. Officer Curtis testified he had been on duty 8 to 9 hours that day and the incident took place at approximately 8:20/ 8:25 p.m. He said to the best of his knowledge Officer Irving was on duty someplace else in the city. He testified that he estimated there to be approximately 3,000 spectators and racers combined at Green Valley that day. Mr. McEntire asked if it was his idea that the race was a good public relations scheme. Officer Curtis said it was not. He testified that the racers had a~aimosity towards the police officers being out there and felt that the poli.ce were going to prevent them from racing. He said the suggestion to race came from the racers themselves. He stated that through the course of the conversation he heard the term good public relations used by Sgt. Fischer. He testified that at the time the idea came up the last race had already been run and there were maybe 20 people left. Mr. McEntire asked if he still felt like the race was a good idea. CSC Hearing . ~ase No. CS-81-2 November 17, 1981 Page 10 Officer Curtis said no. He said he could see now ehere a mistake was made but at the time the idea did not seem as severe as it is being presented now. Mr. McEntire questioned him about his knowledge of the city being involved in litigation. Officer Curtis testified that he observed different officers at Green Valley Race Track with tape recorders, but he had not been informed or briefed that the city was involved in litigation with Green Valley. Ms. Clare re-examined the witness, She asked if he felt that he was in any abnormal amount of danger when he raced. Officer Curtis said he felt less danger on the racetrack than on the street. The Commission questioned the witness. Commissioner Skelton questioned him about the animosity the racers had towards the pni~ce. Officer Curtis said it stemmed back to a couple of weeks ago when the police shut the races down and the racers became upset. Commissioner Skelton asked if he would ascertain that the police would have more friends by racing with the race drivers than possibly by not being a part of it under the conditions that there were a lot of people in the community already upset with the situation. Officer Curtis said they were trying to get the racers to cooperate with the police by working with them rather than against them. Chairman Szol asked if in the normal course of driving a police veh~ele except in a high speed pursuit, would he drive the car the same way he did on the racetrack. Officer Curtis said the vehicle did not obtain any more abuse than if starting from a dead stop to chase a speeding car. The witness was excused. Ms. Clare called Captain John Lynn as the next witness. Ms. Clare questioned him about the remark, it's not like it hasn't been done before, that Sgt. Fischer said he made during their conversation. Captian Lynn said he did not make the remark. He testified ~ CSC Hearing ' Case No. CS-81-2 November 17, 1981 Page 11 that Sgt. Fischer came into his office and explained what had happened at Green Valley. Capt. Lynn said he at that time tried to contact Charles Williams, City Manager, to advise him. He said he asked Sgt. Fischer why and was told that he tried to do it for public relations purposes. Capt. Lynn said Sgt. Fischer asked him what he thought might happen, but he said he did not commit himself because he did not feel it was his place. Ms. Clare asked if he knew of any other incidents where police officers have raced. Captain Lynn said he had no personal observations but had in the past heard of it. Mr. McEntire questioned the witness. He asked him if he knew if the . police who had raced in the past had been caught and if any disciplinary action had been taken. Captain Lynn said he had no knowledge. Captain Lynn was excused. Ms. Clare called Captain M. D. Chenault as her next witness. Ms. Clare asked Captain Chenault how long he has known Sgt. Fischer and how much would a person with that much experience be worth to the city and the Police Department. Captain Chenault testified he has known Sgt. Fischer for approximately 7~ years. He said he will be worth a lot if he continues to perform his duties as he is suppose to. Captain Chenault testified that most officers stay with the department for two years and there is an approximate 30 percent turnover because of the salary. Ms. Clare asked what his evaluation of Sgt. Fischer would be outside of this incident. Capt. Chenault said during the time Sgt. Fischer has worked for him he would have to say poor. Mr. McEntire questioned the witness. He asked Capt. Chenault to explain what the cireumstances were that caused him to feel that the best interest of the department was to let Sgt. Fischer go. Capt. Chenault testified that when he was first made aware of the incident he was not made aware of all of the facts. He said Captain Lynn and Captain Shiflett advised him during , a discussion Tuesday morning that a sergeant had authorized the race in which one of the patrol units was damaged. He said he talked to Sgt. Fischer about it and asked him some questions that were pertinent and important to the issue, and his answers were "I don't know, I can't remember." Capt. Chenault said later that day he learned that another - • CSC Hearing ~ase No. CS-81-2 November 17, 19$1 Page 12 officer had been called to the scene that was on duty on the streets. Capt. Chenault said he did not realize that Sgt. Fischer was the on-duty sergeant and was the one who called another officer to the scene. He said in his opinion the officer was called out of his district to play games. Mr. McEntire asked if he still felt it was in the best interest of the department and the citizens of the city that this action be upheld. Capt. Chenault said he feels it is deterimental to the department. He stated that the department has received a lot of ridicule from other police departments--Tarrant County Sheriff's Dept., Grapevine, Hurst, and numerous others. Mr. McEntire asked if he had serious doubts about Sgt. Fischer's ability to exercise judgment under a stress situation. Capt. Chenault said that was one of the main points why the decision was made--both officers could have been in3ured seriously and to perform such an act in the presence of the citizens and knowing all of the problems the city has had with Green Valley Raceway. Ms. Clare questioned the witness again. She q~~estioned him ~ about the remark Sgt. Fischer said he made, "don't worry, we're not trying to get your ~ob." Capt. Chenault said it was an incorrect statement. He said the correct statement was "it was a firing offense and I didn't know what was going to happen until the conclusion of the investigation." He stated that he never did assure Sgt. Fischer that he would not be terminated. Ms. Clare asked if he talked with any other city officials between the first time he talked with Sgt. Fischer and the time he decided to terminate him. Capt. Chenault stated he talked with the City Manager, Captain Chenault, and Captain Lynn. Ms. Clare asked if the incident figured in any way in the litigation that the city was involved in recently at Green Valley. Capt. Chenault said the litigation had been resolved, but he had no knowledge if this incident figured in the case in any way. Ms. Clare asked if he had ever been a party to any previous conversation with the City Manager or Ma.yor in which they stated they wanted Gary Fischer off the force. Capt. Chenault said no. _ ~ , . CSC Hearing ` Case No. CS-81-2 November 17, 1981 Page 13 Mr. McEntire requestioned the witness again. He asked if Sgt. Fischer's name ever ~ame- up in any conversation with any of the city officials and himself concerning any type of disciplinary action prior to the time of this offense. Capt. Chenault said he could not think of one incident. The witness was excused and both attorneys rested and closed their cases. Ms. Clare gave her summation. She stated she thought they all could agree that this race did not reflect the best judgment that a person in Sgt. Fischer's position could have exercised. She said the question the Commission has to consider is should he be terminated for this offense. She explained there were many things that could have happened but did not. She said she felt that Sgt. Fischer has been straight forward about the incident and has explained his rationale for what he did. She said she believed that he was trying to do the right thing for the citizens of North Richland Hills and his intent was a good intent. She said there is nothing in his records to show that he has been a poor officer. She said that this case hinges on the Commission's ~udgment on his ~udgment as a supervisor. She said that he is a very new supervisor. She urged the Co~ission to rescind the termination and instate a lesser penalty in light of what a good officer he is, his experience and value to the city, and the difficulty in keeping a good experienced officer. Mr. McEntire gave his summation. He said Captain Chenault heard a set of facts, which the Commission has heard, made his decision and has had time to think his decision over and thinks it is justified. He said they were not here to run the Police department. He said they are not here to substitute their ~udgment with a man who is charged with protecting the safety of the citizens of North Richland Hills. The Chairman asked if either party had anything further. Ms. Clare said she wanted to add that she feels the Coumnission is here to substitute their judgment and give a fair and impartial hearing. She urged them to consider all the facts and come to'their own independent determination. DELIBERATION The Chairman closed the hearing,at 9:55 p.m. for deliberation in closed quarters. BACK TO ORDER The Chairman called the hearing back to order at 12:01 a.m. and announced the decision. DECISION "There is no question in the Commission's mind that Mr. Fischer used extreme mis~udgment as a Supervisor in authorizing the - , « CSC Hearing ' Case No. CS-81-2 November 17, 1981 Page 14 ~ two patrolmen to participate in a drag race which resulted in damage to city property and had the potential of endangering the lives of the participants and spectators. In view of the short time Mr. Fischer has acted as a supervisor and the absence of evidence of unacceptable performance as a patrolman in a non-supervisory position, we feel the indefinite suspension is too severe. However, do to his extreme misjudgment we feel the following penalty should be imposed in lieu of discharge: A reduction in grade from Sergeant to Police Officer II with the appropriate reduction in pay. A suspension of thirty (30~ working days. Mr. Fischer shall not be eligible for promotion for a period of one year." ROLL CALL The Chairman called for a roll call with the following vote recorded: Chairman Szol yea Commissioner Skelton yea Commissioner Roark yea Commissioner Phelps yea Chairman Szol informed Mr. Fischer he would be given notice of the decision and that he could appeal to a district court where the only evidence that would be presented would be the tapes from this hearing. ADJOURNMENT The meeting adjourned at 12:05 p.m. D SZOL, CHAIRMAN . Ron cK nney, Civil rvice Secretary