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HomeMy WebLinkAboutCIV 1976-11-23 Minutes ~ CIVIL SERVICE COMMISSION CITY OF NORTH RICIiLAND HILLS, TEXAS APPEAL HEARING FOR G. H. "BILL" LOPEZ November 23, 1976 S U M M A R Y CASE N0. CS-76-7 Chairman W. C. Moore called the hearing to order at 7:30 p.m. in Room 100 of the Municipal Complex Building, located at 7301 N.E. Loop 820. COMMISSION MEMBERS PRESENT: William C. Moore, Acting Chairman D. M. Carter ~ Don Waters Helen Cline, Secretary OTHERS PRESENT: Police Chief Hamp Scruggs Officer G. H. Lopez, Appe~.lant Members of News Media COUNSEL FOR APPELLANT: Ronald C. Fernandes 1714 Northwood Ct. Fort Worth, Texas WITNESS FOR APPELLANT: Frank W. Snell WITNESSES FOR POLICE CHIEF: Officer Kenneth Richardson, No. Richland Hills Lida Joyce Harrison, Waitress Officer Bruce Southey, Richland Hills Sgt. C. W. Park, Richland Hills Sgt. C. D. Proctor, No. Richland Hills Sgt. B. D. Becknal, No. Richland Hills PROCEDURE Chairman Moore expressed the purpose and status of the Civil Service Commission, outlining the proper procedure for appeal hearings. The entire memorandum from Chief Scruggs, dated November 8, 1976, was read into the record, charging violation of Section 1, Article I02, Competency, as outlined on page 105 of the Department Policies and Appeal Hearing Page 2 ~ Procedure Manual. The appeal by Lopez was also read into the record. Counsel Fernandes stated there were two points on which Lopez based his appeal. (1) He was not properly advised of the reason for which he was dismissed. (Read seven items of competency in the procedure ~ manual) (2) Assuming it was a matter of discretion on Lopez's part, Counsel referred to the intoxication section in the manual. CHAIRMAN: We should get back to_our procedure. (Witnesses for both parties were sworn in.) (Counsel Fernandes invoked the rule of witnesses.) (All witnesses were excused from the room except Appellant Lopez.) Lopez made a brief statement relating what happened on November 5th. He was called to respond to Codes 17 and 20, drunk and disturbance at Denny's located at 8025 Glenview Drive, North Richland Hills. Upon arrival at Denny's, Lopez inquired what the problem was. Waitress said there was no problem, but a man seated at the booth appeared to be intoxicated. Lopez talked to the sub~ect and told him to leave because he was not wanted there. Officer Lopez assisted subject in handing the cashier a$5.00 bill. Officer Richardson had also responded ` to the call. COUNSEL: Did other officers talk to Snell or get close enough to smell whether there was alcohol? Lopez answered, "no". Was there any comment by any other officers regarding what action to take? "No." Did you think Snell was drunk? "No." Had he been drinking? "Yes." Did you ever know Snell before? "Yes, in 1962. He was not a friend, just a person I know." Have you ever arrested Snell before? "I have picked him up before for intoxication." Have you ever had any disciplinary action or have you received any co~nendations? "A letter of commendation in 1972." Lopez stated that he felt it was up to him to make the decision, which he did. SCRUGGS: Did you make the statement that the man was drunk? "No." WATERS: Why did you not arrest the sub~ect? "He was not drunk enough." Did you know he was on probation? "No." CARTER: Did you make the statement regarding Snell's probability of going to the penitentiary? "No." Did you know how far he would have to drive when he left Denny's? "No, he said he was staying at Stop 6, but I don't know which one." MOORE: Summarized that Lopez had the primary responsibility for deciding what action to take. ~ ~ Appeal Hearing Page 3 ~ SCRUGGS: Brought out the fact that Officer Richardson is a probationary employee with the City. Also, inquired as to how much time was spent at the cash register. CARTER: Questioned Lopez regarding the food dropped on subject's clothing. Lopez said he did not notice it and subject was sitting up smoking a cigarette when he arrived at the scene. WATERS: Was there any evidence of intoxication in his driving away from Denny's? "No." Lopez said he made proper stops and signals for turning. COUNSEL: Inquired about sub~ect walking straight, slurring speech and other usual signs of intoxication. Lopez answered that subject walked straight except for a limp, has a speech impediment and had been drinking but not enough ~or jail. Counsel asked Lopez if he was aware of any changes in the written statements from witnesses. Lopez said there was a change in Sergeant Proctor's statement. WITNESS FOR APPEbLANT: Frank Snell, employed at Bell Helicopter for eleven years, stated he was in Denny's Restaurant on November 5th. He had been at some friends' house earlier and drove from the area of Miller Street to get to Denny's. Snell said he had taken two (2) Valiums prior but had not been drinking. He ordered chicken fried steak. They brought out salad. He shook ~ Tabasco sauce which splattered. 5ne11 said he talked only to Officer Lopez, no other officer. He said Lopez had not arrested him before. Snell said he has been on Valium, 10 miligrams, since a divorce about three years ago. Snell is from Mexico, speaks Spanish and English, has been in the States since 1961. After leaving Denny's he went to where he stays on North Main in the area of Meachum Field. Snell said he did call the restaurant the next day. COUNSEL: Have you ever had a conversation with me before now? "No." Have you ever been arrested for intoxication? "Yes." SCRUGGS: Do you have any physical handicaps? "No." CARTER: You were not drinking at all? "No." You were not stopped by any officer on your way home? "No." WATERS: Had you not been drinking immediately prior to going to Denny's? "No." Have you been on probation? "Two years ago, but not now." CARTER: Are you not presently working? "No, I am under a Doctor's care for a back problem and taking medication." COUNSEL: Fernandes reiterated the two basic reasons for the appeal: (1) indefiniteness of the charge of competency, (2) this is a discretionary act in making an arrest for intox3cation. ~ Appeal Hearing Page 4 FIRST WITNESS FOR SCRUGGS: Officer Kenneth Richardson, employed at City of North Richland Hills, since August 20, 1976. SCRUGGS: Did you hear the call for an officer at Denny's? "Yes." Can you give the exact words of the dispatcher? Richardson stated the call was in reference to a drunk and disturbance. Richardson observed the sub~ect seated with food on himself. Later observed him walk outside and talked in Spanish with Officer Lopez. Richardson said sub~ect and officer spent two or three minutes at the cash register. In Richardson's opinion, sub3ect was intoxicated, had slurred speech and rolled his head from side to side. Richardson did not detect the smell of alcohol. Richardson testified to the portion of his written statement saying ~hat Lopez drove up to him and stated that if he had arrested sub~ect he would have been sent to the pen. Richardson has approximately two and a half years of experience as an officer. COUNSEL: Inquired what other officers were present at Denny's. Ae said Lopez and two other officers from Richland Hills were there when he arrived. Richardson did stand about three feet from Snell, smelled no alcohol, but observed his staggering walk. ~ARTER: Inquired when Richardson started work for the City of North Richland Hills. He answered, August 20th, 1976. MOORE: Where was your former experience as a police officer? "In Haltom City and Longview." Moore commented that we are glad to have him. COUNSEL: Is it customary for an officer to call back for a history report? "That is the officer's discretion." (Witness was excused.) SECOND WITNESS FOR SCRUGGS: Lida Harrison, 300 Booth Calloway, Apartment 131, Waitress (not a night manager), stated she was on duty but did not serve sub~ect's table. She observed an awful mess with food, weaving out of the booth as if he might fall out and table items in his plate with the food. She told Officer Lopez that the sub~ect was not causing trouble but was in no condition to drive. Harrison stated she heard Officer Lopez tell sub~ect he had been drinking too much. COUNSEL: D3d you ever get close enough to smell alcohol? "No." Could he stand well on his feet? "No." Did Snell pu11 the money out of his pocket? Harrison explained how he did, but was having difficulty knowing which bills to hand to the cashier. Lopez did assist him in paying the cashier. WATERS: You said earlier that you paid no attention to Snell. How long did it take to serve his order of food? "About fifteen minutes." What evidence of drunkenness did you observe? "He had a place mat in his plate and was chewing on a salt shaker." Harrison noticed no smell of alcohol, but said that he was obviously drunk. CARTER: Confirmed that Snell was causing no problems, but did have strange eating hab3ts. Mr. Carter asked the witness if she realized subject had a problem, but did not know what it was. Witness stated sub~ect was not Appeal Hearing ~age 5 bothering anybody, however, she thought an officer should come down. ~ MOORE: Asked whether Lopez gave change to sub3ect at the cash register. Harrison stated that Lopez did assist subject with his change. THIRD WITNESS FOR SCRUGGS: Officer Bruce Southey, 8901 South Normandale, ~~1012, Richland Hills P.D. Southey stated he was at Denny's, having followed Lopez on a drunk person call approximately 3:45 a.m. Southey said that he saw Lopez take a$5. bill from Snell's billfold to pay the cashier. Southey had approached the booth with Lopez, where Snell was seated. He observed Tabasco sauce bottle in Snell's plate, did smell alcohol; saw that sub~ect was unsteady on his feet and had difficulty counting money. Southey said from his experience as an officer, in his opinion, Snell was intoxicated. When asked if Snell admitted he had been drinking, Southey said he thought so, however, he could not hear the complete conversation. Some of the conversation was in Spanish. COUNSEL: Did you go to the booth? Southey said he was standing facing Snell. Southey was not sure if he had finished eating. He had the smell of alcohol. Counsel said shaving cream smells of alcohol. CARTER: Aow far from the sub~ect were you? Southey answered about four feet. FOURTH WITNESS FOR SCRUGGS: Sergeant C. W. Park, 2817 Cecil, Richland Hills Police Department, ~ advised he would be signal 19, a drunk, and went to Denny's. He saw Lopez and Southey there with sub~ect. Park remained at the cash register and did not go to the booth. Southey and Lopez went outside with Snell. SCRUGGS: Inquired how Snell walked. Park said he was unsteady on his feet. Scruggs asked whether Park got close enough to smell alcohol. Park said, "no." Park expressed that from his experience as an officer, in his opinion, Snell was too intoxicated to operate a motor vehicle. COUNSEL: Did you arrest Snell or make any recommendations? "No." CARTER: So you did not smell alcohol, but were convinced he was intoxicated. FIFTH WITNESS FOR SCRUGGS; Sergeant C. D. Proctor, 4108 Jerri Lane, of the North Richland Hills Police Department. SCRUGGS: Were you inforn?ed of the call and what happened? "Yes." Proctor stated that he was advised of what had happened and he did write a statement of recommendation to the Chief. According to Chief Scruggs, he asked Proctor to put in one change to his written statement, but did not order him to do it. Proctor agreed that he had no firsthand knowledge of the incident and that his report was ~ based on statements of others. Chief inquired whether Proctor thought this was a matter for dismissal. He said, "yes, it was a violation of state law by not arresting a drunk." COUNSEL: Fernandes brought out that under Police Regulations it is a matter of Appeal Hearing Page 6 discretion upon the part of the responsible officer. He also asked whether public intoxication falls under disorderly conduct. Proctor replied that if a man is intoxicated, you arrest him. Counsel read from the Ma.nual the nine alternatives for handling this type of call, then asked if Proctor still felt it was necessary to dismiss for not arresting. CARTER: Questioned again regarding the change in his report, the part that was added at the Chief's request. SIXTH WITNESS FOR SCRUGGS: Sergeant Bobby D. Becknal, 4313 Ken Michael, with North Richland Hills Police Department. Becknal testified that he conducted the internal investigation. He referred to 1972 when a drunk passed out at a drive-through window of Dairy Queen on Davis Blvd., Lopez escorted Snell to the station. Becknal said that Snell had been handled three times in this agency, and that Lopez had never been the arresting officer. Becknal said he got the impression that Lopez and Snell were good friends for a period of several years. CARTER: Inquired whether Harrison's statement was correct in that Snell passed out several times at the table. Becknal was not present. COUNSEL: You were not present at Denny's, but were just the investigating officer. SCRUGGS: Chief asked Becknal if he was present in the Chief's office when Lopez was asked if Snell was drunk, and why he did not arrest him. Becknal agreed that he was present when Lopez answered "yes." Lopez further said he did not arrest the man because he was not creating a disturbance. Chief reiterated that he did advise Lopez that it would be best to submit his resignation in writing. CARTER: What happened to the resignation? SCRUGGS: Officer Lopez resigned and later talked with the City Manager and myself. Since Lopez felt discrimination, he asked the Chief to tear up his resignation so he could appeal to the Civil Service. COUNSEL: Fernandes emphasized that the key point was to determine if Lopez exercised proper discretion. In summarizing, Counsel pointed out that three officers say, yes, the sub3ect was intoxicated, but could not tell by his breath. Only one, Southey, was close enough. The only evidence was the way he walked and the mess on his plate. Waitress Harrison did not serve Snell's table. Sub~ect stated he is on Valium which does not affect the motor abilities. Fernandes said he believed this was no offense for dismissal, but rather for reprimand. There were a total of four officers present and no one made an arrest. SCRUGGS: Chief stated again, that Lopez himself testified the man had been drinking. Lopez was the senior officer on duty; Proctor was not on duty. Other officers present were from another city. Appeal Hearine Page 7 ~ CARTER: Questioned the Chief as to whether this incident was his only grounds for dismissal. Discussion was ma.de on the topic of Lopez' ability to determine a drunk from a sober person, according to his record in the past and arrests made for this same offense. It was observed that Snell had no limp tonight. COUNSEL: Fernandes asked Scruggs if he has been asked by EEO to hire Mexican- Americans. Counsel reviewed Lopez' educational background and basic qualifications for police officer. (Hearing was closed for deliberations.) (Hearing reopened for the Motion from the Civil Service Commission.) Motion was made by Mr. Moore, seconded by Mr. Carter, as follows: "Officer G. H. Lopez be suspended for a period of thirty (30) calendar days without pay, effective 8 November 1976. He will return to duty 8 December 1976." A roll call vote was taken, results as follows: Mr. Carter "for"• Mr. Moore "for" Mr. Waters "for". > > > ; ~ \ (Hearing was adjourned.) ~ William C. Moore, Chairman ~ en Cline, Secretary ~