Stephanie Y. O?Malley Executive Director of the Department of Safety 1331 Cherokee Street Room 302 PUBLIC SAFETY Denver. co 80204 p: T20.913.6020 f: 720.913.7028 wade June 27, 2016 William Jackson, 805025 Deputy Sheriff Downtown Division Denver Sheriff Department Re: DSD IAB Case #32014-0463 Deputy Jackson: This is of?cial noti?cation that. after an independent review by the Of?ce of the Executive Director of the Department of Safety. you are being terminated effective immediately for misconduct that violated the following Career Service Rules and Sheriff Department Rules, as set forth below and discussed more fully in the section of this letter entitled Departmental Determinations of Discipline (pgs- 5 - 11). Career Services Rule 16-60 Discipline and Dismissal: The following may be cause for discipline or dismissal of a Career Service employee: A. Neglect of duty. L. Failure to observe written departmental or agency regulations, policies or rules. As it pertains to: Denver Sheriff Departmental Rules and Regulations PREAMBLE Deputies shall obey all Departmental rules, regulations, duties, procedures, instructions, and orders; the provisions of the Operations Manual; Mayor's Executive Orders; and Rules of the Career Service Authority. Failure to comply with any of these shall be construed as a violation. Members in violation shall be subject to disciplinary action. The following provisions of conduct shall be construed as a rule violation of the Operations Manual and Directives and Orders of the Denver Sheriff Department, but not by way of limitation. RR-300.19.1 - Disobedience of Rule Deputy Sheriffs and employees shall not violate any lawful Departmental rule (including CSA rules), duty, procedure, policy. directive, instruction, order (including Mayor?s Executive Orders), or Operations Manual section. Denver Sheriff Department - 2 - Deputy William Jackson, 805025 82014-0463 Disciplinary Determination June 27, 2016 As it pertains to: Departmental Order 5011.1M - USE OF FORCE 2. Policy: It is the policy of the Denver Sheriff Department (DSD) that of?cers use physical force only as prescribed by the Colorado Revised Statutes (CR8) and internal Department standards to perform any legitimate law enforcement or detention related function. The amount of force used will be reasonable and appropriate in relation to the threat faced. Physical force will not be used as a punishment, under any circumstances. Of?cers should rely on departmentally approved use of force techniques that are taught in training. 4. Explanation: these values in mind, an of?cer shall use only that degree of force which is under the It is important for of?cers to bear in mind that there are many reasons a suspect/inmate may be resisting or may be unresponsive. A person's reasoning ability, including but not limited to a mental condition, mental impairment, developmental disability, physical limitation, language. drug interaction, or emotional crisis, are some examples. An of?cer's awareness of these possibilities, when time and circumstances reasonably permit, should then be balanced against the facts of the incident facing the of?cer when deciding which tactical options are the most appropriate to bring the situation to a safe resolution. The community expects and the Denver Sheriff Department (DSD) requires that [deputies] use only the force necessary to perform their duties. .Of?cers should recognize that their conduct immediately connected to the use of force may be a factor which can in?uence the force option necessary in a given situation. When reasonable under the totality of circumstances, of?cers should use advisements, warnings, verbal persuasion, and other tactics and recognize that an of?cer may withdraw to a position that is tactically more secure or allows an of?cer greater distance in order to consider or deploy a greater variety of force options. When a suspect is under control, either through the application of physical restraint or the suspect's compliance, the degree of force shall be de-escalated The Department will support the use of reasonable and appropriate force by of?cers in the performance of duty. Use of force that is not lawful, reasonable and appropriate will not be tolerated. Department policy as well as relevant federal. state and local laws shall govern use of force actions by of?cers at all times. Under the BSD disciplinary matrix, a violation of DSD Rule 300.19.1 is a Conduct Category A through violation. RR-300.22 Inappropriate Force Deputy Sheriffs and employees shall not use inappropriate force in making an arrest, dealing with a prisoner or in dealing with any other person. Under the BSD disciplinary matrix, a violation of DSD Rule 300.22 is a Conduct Category through violation. Denver Sheriff Department - 3 - Deputy William Jackson. $05025 82014-0463 Disciplinary Determination June 27. 2016 CONTEMPLATION 0F DISCIPLINE MEETING You were served with a contemplation of discipline letter regarding this matter on May 9. 2016. A contemplation of discipline meeting was held on June 6. 2016 at 1:00 pm in the Downtown Detention Center Conference Room, located at 490 West Colfax Avenue, Denver, Colorado, 80204. The purpose of this meeting was to allow you to correct any errors in the Agency's information or facts, to tell your side of the story and to present any mitigating information as to why possible disciplinary action should not be taken against you. Present at this meeting was Sheriff Patrick Firman and Chief Paul Oliva. Present from the Conduct Review Of?ce (CRO) was Captain Stephanie McManus and Ms. Rachelle Wright. Present from the City Attorney's Of?ce was Ms. Jennifer Jacobson. Present from the Executive Director of Safety's Of?ce was Ms. Shannon Elwell. Present from the Of?ce of the Independent Monitor was Mr. Nate Fehrmann. You attended this meeting with Mr. Steven Mandelaris as your attorney. Below is a summary of the pertinent parts of your contemplation of discipline meeting. The transcript and recording of this entire meeting was considered and is contained in the investigative ?le. Sheriff Firman started the meeting by giving you the opportunity to make a statement. You then deferred to your attorney to speak on your behalf. Your attorney then made various arguments on your behalf, including stating that there were no factual bases to sustain the allegations, and arguing that undue delay in the imposition of discipline would prohibit any discipline altogether. As it pertained to the allegations of inappropriate force. your attorney stated that that [you] utilized was essentially improvised. This was a rapidly evolving situation?certainly wasn?t trained also wasn't trained not to do it." Your attorney disputed the characterization of the hold in the contemplation of discipline letter as ?the neck area," and instead argued that it was the ?upper- chest area.? Your attorney then highlighted the inmate's conduct and subsequent discipline for resisting you during this time. as well as argued that the panel should look at the observations and impression of the involved deputies instead of those of a witness inmate. Your attorney then stated that the panel should consider your subjective beliefs, as well as your history of previously being assaulted by inmates. Your attorney then advocated that ?the basic tenet of workplace justice? required no discipline in this case. in which there existed what be characterized as a 19 month ?delay.? Your attorney stated that you have been on the Department for approximately 11 years and submitted for consideration for mitigation a packet of materials that he stated were your accomplishments. Chief Oliva then asked you some questions pertaining to your IAB statement that you ?didn't want to go into the cell ?ghting.? You con?rmed that, and indicated that it was a concern to you because the inmate's cell was such a small area which posed a greater threat of injury to both you and the inmate due to ?whether it's the bunk, the sink, or the seating . . . The Chief then clari?ed some issues pertaining to whether or not the inmate was resisting once he was on the ground. You stated that you didn?t remember if the inmate had his hands in underneath his chest area. and you ?just [knew] that [you] could his hands.? You indicated in response to questions from the Chief that you had known this inmate prior to the date of the incident, and the only dealing that you had with him was "when he was an XO3A, Denver Sheriff Department - 4 - Deputy William Jackson, 805025 82014-0463 Disciplinary Determination June 27. 2016 which is?well, actually SBIXOSAE, you know, his behavior was odd. You know, always stayed in his cell, didn't have very many dealings with him." You then con?rmed the circumstances of your prior assault to Chief Oliva. Ms. Elwell then asked, if you had any documentation of your awards or commendations, you would please provide them to Captain McManus as soon as possible for consideration. You ended the meeting by stating that you take this job very seriously and that when you're dealing with inmates, you treat them as you would want yourself or your family member to be treated if ever in jail. You stated that you understood that the inmate sustained an injury and informed the panel that this was never your intention. You stated that ?[your] intention was to get him under control and back into the cell. And-?-and that?s it." The meeting then concluded with a commitment to get you a response within approximately 21 days. Your previous discipline includes: Date Offense Discipline 2006-02-07 Duty to Report Verbal Reprimand The Department has great concern regarding your ability to act responsibly and to conduct yourself appropriately while on duty. It is clear that your conduct has been unprofessional and in violation of the Department's policies and procedures. Your actions have also breached several of the Department's Guiding Principles including respect, judgment, sensitivity. integrity. accountability, and professionalism. Your conduct has compromised the mission of the Department. Termination of your employment is necessary to protect the integrity and professionalism of the Department and to protect the City and County of Denver from potential liability that could arise from your continued employment. Please be advised that you may appeal the discipline imposed and these determinations in accordance with Career Service Rule 19, Appeals. You may also initiate dispute resolution pursuant to Career Service Rule 18, Dispute Resolution. Sincerely, arm Elwell Civilian Review Administrator cc: Career Service Authority, Records Management Division IAB File Administration Denver Sheriff Department - 5 - Deputy William Jackson. 805025 32014-0463 Disciplinary Determination June 27, 2016 DETERMINATIONS OF DISCIPLINE Deputy William Jackson, 805025 DSD IA Case 32014-0463 After a thorough review of the Internal Affairs Bureau (IAB) investigation, the Of?ce of the Executive Director of the Department of Safety has made the following ?ndings of fact and determinations of discipline. FINDINGS OF FACT The preponderance of evidence establishes the following summary of the facts and circumstances surrounding the conduct upon which discipline is being imposed. Deputy Jackson has been employed with the Denver Sheriff Department (DSD) for approximately 11 years. Deputy Jackson?s main job duties, as re?ected in the DSD Mission, are to ?provide safety and security for the community by ensuring care, custody, transportation, and re-entry services for detainees by operating safe, secure, ef?cient, and humane facilities that adhere to federal, state, and local laws." On November 24, 2014. Deputy Jackson was involved in a use of force incident with inmate The incident took place at approximately 12:10 pm when Deputy Jackson was attempting to lockdown inmate MW in his cell of housing unit 3D of the Downtown Detention Center (000). The incident was investigated by the Denver Police Department (DPD) IAB for any potential criminal law violations, and the District Attorney declined to prosecute the matter, citing ?no reasonable likelihood of conviction." DSD IAB then subsequently investigated for potential administrative rule violations. The entire investigative ?le has been reviewed, including but not limited to video surveillance footage, audio interviews. medical records, and relevant paperwork, including Offense in Custody (010) reports. On November 24, 2014, Deputy Jackson was assigned as one of two housing of?cers in housing unit SD, a special management housing unit that houses inmate with severe mental health issues. Inmate MW was housed in a camera cell in housing unit SD and was classi?ed as XO3B, indicating that inmate MW had exhibited major of mental illness and was taking medication. At approximately 11:38 am, inmates MW was let out of his cell for free time.2 During that time, Deputy Jackson noticed that inmate MW had an object Deputy Jackson believed may be contraband. When interviewed by IAB, inmate MW described the object as a whole Bible that was missing the back cover and looked as if it had been ripped in half although it had not been ripped in half. Inmate MW further stated that he received this Bible from ?God,? when "clouds came down in [his] cell and [God] came down the stairwell and then he handed it to [him], and he said, love you'.? Deputy Jackson told IAB that the object was a ?hardcover for a Bible.? Deputy Jackson directed inmate MW to give him the object. Upon receiving it, Deputy Jackson determined that the object quali?ed as contraband and threw it to the end of the sally port where contraband is collected to be picked up. 1 The inmate is referred to by his initials. 2 Inmate MW's cell, 103-1, was the ?rst cell on the right of the doors once inside the housing unit, on the ground ?oor. Directly across from inmate MW's cell is a circular. metal table and four circular metal stools. all of which are bolted into the ?oor. Denver Sheriff Department - 6 - Deputy William Jackson, 305025 82014-0463 Disciplinary Determination June 27. 2016 At approximately 12:09 pm, inmate MW was at the of?cer's desk in the sally port speaking to Deputy Jackson. Inmate MW and Deputy Jackson were discussing whether or not the object that Deputy Jackson had con?scated was a Bible and whether it was contraband. Inmate MW requested that the object be returned to him, and asked Deputy Jackson questions about it. Deputy Jackson and inmate MW then continued to talk and walked from the of?cer?s desk to the far end of the sally port, where the object was on the ground. Deputy Jackson pointed at the object, and he and inmate MW continued to speak to one another for approximately 25 seconds. Deputy Jackson then pointed at the housing unit entrance. Inmate MW continued speaking and did not proceed toward the housing unit entrance. According to Deputy Jackson?s OIC report, The inmate began saying that the object was a Bible. I attempted to explain to him that it was contraband because it was no longer a Bible. At this point the inmate walked up to me quickly. I told him to ?back off? because ?I'm only going to talk to you about this Bible." After a brief discussion, the inmate then asked me ?Is Jesus Emmanuel?" I told him ?Yes, according to the Bible." The inmate became belligerent and asked other questions. I then told the inmate ?he could enjoy his time out of cell or he could lock down. He continued talking about the previous matter. I told the inmate to ?Go lock in.? At this point, he refused to move in the right direction. As inmate MW continued to speak, Deputy Jackson took hold of inmate MW and began walking him to his cell. As Deputy Jackson and inmate MW walked down the sally port, inmate MW pushed back against Deputy Jackson and planted his feet. Deputy Jackson described inmate resistance as ?trying to cease the movement with his feet." Deputy Jackson stated in his IAB interview that, although inmate MW was pushing against him as inmate MW and Deputy Jackson walked to the housing pod, Deputy Jackson could direct inmate MW's movement. Deputy Jackson described himself as a ?big guy? having ?enough strength [inmate where [Deputy Jackson] wanted to go.? Holding onto inmate MW, Deputy Jackson walked him back to the closed housing pod slider door. Upon reaching the closed housing pod slider door, inmate MW continued to plant his feet and push against Deputy Jackson. According to Deputy Jackson's OIC report, I placed my hand on his right shoulder to guide him. But when I felt resistance, I then grabbed him by his shirt to assist him to cell 103-1. Deputy Jackson and inmate MW stood in the sally port at the housing pod slider door as the slider door opened and then entered the housing pod. Deputy Jackson was able to direct and control inmate movement despite inmate MW planting his feet and pushing against Deputy Jackson. Deputy Jackson was still holding onto inmate MW and physically directing his movement as the two walked to inmate cell. At the closed cell door, inmate MW put one hand?his right hand?up against the doorframe and Deputy Jackson opened the cell door. Video surveillance footage shows inmate hand on the door frame for approximately one second. At the time at which inmate MW is at the open door of the cell, he does not appear to be planting his feet or pushing back against Deputy Jackson. In fact, his feet show fonrvard progression and movement into the cell. At IAB, Deputy Jackson characterized inmate behavior at this time as ?excessive resistance." According to Deputy Jackson's OIC report, Once at the cell, he placed his hands along the door entry way and pushed back to prevent movement into the cell. Denver Sheriff Department - 7 - Deputy William Jackson, 805025 82014-0463 Disciplinary Determination June 27, 2016 The preponderance of the evidence shows, however, that this contention was a gross exaggeration and extremely self serving. In fact, after he watched the video surveillance footage of the incident, Deputy Jackson acknowledged that, despite his report of both hands being on the door frame, inmate MW only placed one hand on the doorframe. Deputy Jackson told IAB that he was ?embarrassed memory of the incident has failed don't remember putting my arm around the guy?s neck. I don't remember not having his left arm up there in the doorway." Deputy Jackson explained that the amount of resistance he felt from inmate MW pushing against the doorway made Deputy Jackson think that inmate MW was using both of his hands. Deputy Jackson characterized the resistance as ?enough not to get him inside his cell." Deputy Jackson further told IAB that, once in the open doonivay, ?as [inmate had his hands on the wasn?t budging as far as getting him into the ddn't know if he turned on a switch or something, but he became pretty strong when he had his hands on the tried once to push him and when that didn?t work I mean, seriously, there was no - there was no budging when he had his hands on the doorway." Deputy Jackson told IAB that, once inmate MW put his hands on the doorframe. Deputy Jackson told inmate MW that he needed to go into the cell. Video surveillance footage shows that, approximately one second after opening the cell door and during the time at which inmate MW's feet are moving fonivard, Deputy Jackson wrapped his left arm around inmate MW's neck from behind and violently threw inmate MW backward off his feet. Inmate head then slammed into the round metal table in front of his cell. Inmate MW then fell to the ground, recoiled into a seated position, and grabbed his head. According to Deputy Jackson's OIC report, Because of the inmate's defensive resistance, I used the inmate?s momentum to take him to the ground. The inmate fell against the table. Again, the preponderance of the evidence indicates that this was not what happened and that, instead, Deputy Jackson forcefully slammed the inmate into the metal table. Deputy Jackson told IAB that his priority was to get inmate MW to the ground and to get him handcuffed. Deputy Jackson stated that he knew that he would not be able to get inmate MW into the cell. Deputy Jackson further stated that inmate MW was pushing against him, which was why Deputy Jackson decided to use his momentum to get him to the ground. Deputy Jackson described the threat posed by inmate MW as a ?little bit when he didn't go - when he pushed the outside of the door he was" and posed no threat once taken to the ground. Deputy Jackson acknowledged that he is ?much bigger" than inmate MW. Deputy Jackson explained that when he felt inmate MW pushing back, Deputy Jackson decided that he was ?not going to go into the cell ?ghting." Deputy Jackson stated that he did not want to ?ght inside the cell ?[b]ecause there?s all sorts of stuff we can injure ourselves though it's not much more of an Open area where we were at, it's better than being inside of the cell." Within approximately one second of throwing inmate MW to the ground, Deputy Jackson reached for inmate MW and jumped on top of him to handcuff him. Due to inmate position on the ground, including the position of his arms, Deputy Jackson had to maneuver inmate MW to be able to be handcuffed. Deputy Jackson repositioned inmate MW and, with the assistance of Deputy Civic, was able to handcuff inmate MW. Deputy Jackson then stood up and grabbed inmate upper arm, lifting him to his feet. Deputy Jackson then guided inmate MW into his cell and closed the cell door. Denver Sheriff Department - 8 - Deputy William Jackson, 305025 32014-0463 Disciplinary Determination June 27, 2016 Inmate MW was screened by medical staff approximately 10 minutes later and exhibited minor bruising or redness on his lower back and left ankle. Inmate MW was then moved to housing unit 20 and again screened by medical staff approximately 2 hours later after crying and complaining that his head hurt. The medical screening in 2D documented a 2cm super?cial laceration to the back right side of inmate head, abrasions to left upper extremity, and lower right side of back. Inmate MW was then sent to Denver Health Medical Center (DHMC) for further evaluation and an X-ray. Inmate MW was evaluated at DHMC and received pain medication. Based on the review of the record, including video footage of the incident and interviews with the parties involved, the preponderance of the evidence establishes various instances of misconduct in violation of the following departmental rules and policies. ANALYSIS AND CONCLUSIONS Career Service Rules 16-60 A. Neglect of Duty. CSR 16-60 L._Failure to observe written departmental or agency regulations, policies or rules, as it pertains to DSD Rule 300.19.1 - Disobedience of Rule as it pertains to DD. 5011.1M - Use of Force: and DSD Rule 300.22 - Inappropriate Force Deputy Jackson violated the above Career Service and Departmental Rule and Use of Force Policy in multiple ways during the above incident. First and foremost, Deputy Jackson failed to exercise the least amount of force necessary to achieve his legitimate detention related function of placing inmate MW in his cell. ?The community expects and the Denver Sheriff Department (080) requires that [deputies] use only the force necessary to perform their duties.? Deputy Jackson has admitted that his objective was to place inmate MW in his cell. While it was appropriate to direct and lead the inmate into the cell, it was not necessary for Deputy Jackson to use the disproportionate degree of force that he used against the inmate. In grabbing the inmate and slamming him into the metal table, Deputy Jackson failed to use the least amount of force necessary once at the open doorway of the cell. If the objective was to get inmate MW into the cell and secure him inside, Deputy Jackson could have employed a far lesser amount of force by simply pushing inmate MW into the cell and shutting the door. There was no need to "?ght" in the cell, as Deputy Jackson claims; in fact, there was no need for a "?ght" at all. Again, even if, as Deputy Jackson claims, inmate MW exhibited such resistance in the doorway that he ?wasn?t budging" (a claim that the video surveillance footage belies, given the progression of the inmate in the doorway, his use of only one hand on the frame, and the only one second of time in which Deputy Jackson would have had to attempt to ?budge? the inmate), Deputy Jackson could have asked Deputy Civic to assist in pushing inmate MW inside the cell and shutting the door. Instead, Deputy Jackson wrapped his arm around the neck of a much smaller, mentally ill inmate and, lifting him off his feet, ?ung him backwards, head ?rst, into a metal table. This technique was not approved or taught by the Department, as required by policy ("Of?cers should rely on departmentally approved use of force techniques that are taught in training?) It was also a far cry from the least amount of force necessary to accomplish Deputy Jackson's legitimate correctional objective of getting inmate MW to lock down into his cell. In failing to use the least amount of force necessary to achieve his legitimate detention related function, Deputy Jackson also failed to consider two very important force variables. First, the Department's Use of Force policy requires ?of?cers to bear in mind that there are many reasons a suspect/inmate may be resisting or may be unresponsive- A person?s reasoning ability, including but not limited to a mental condition [or] mental some examples. An of?cer's awareness of these possibilities, when time and circumstances reasonably permit, should then be balanced against the facts of the incident facing the of?cer when deciding which tactical options are the most appropriate to bring the situation to a safe resolution.? It is Denver Sheriff Department - 9 - Deputy William Jackson. 805025 82014-0463 Disciplinary Determination June 27. 2016 undisputed that Deputy Jackson had ample knowledge that inmate MW was suffering from severe mental illness. Not only did Deputy Jackson admit as much at his IAB interview, but inmate MW was housed in housing unit 3D, where severely mentally ill inmates are housed, and Deputy Jackson was the housing unit deputy. Moreover, inmate MW was having a conversation with Deputy Jackson immediately prior to the use of force in which it was evident that there were some potential mental health concerns with this inmate. Knowing that inmate MW was severely mentally ill, Deputy Jackson was required by policy to consider that as a factor for why inmate MW was uncomprehending of Deputy Jackson?s explanation as it pertained to the contraband item, as well as uncooperative with Deputy Jackson?s orders to go lock down. Deputy Jackson was also required to consider inmate known mental illness when choosing a force option that was the least amount of force necessary. As inmate MW was out on his free time and did not pose a threat to Deputy Jackson when being told and refusing to lock down (indeed, at any time during this incident), Deputy Jackson had time and circumstances that required him to consider other tactical options that would bring the situation to a safe resolution, such as further speaking with the inmate or calling for assistance from Deputy Civic, the other housing unit deputy, to do so. Instead, Deputy Jackson allowed his frustration to get the better of him and he failed to consider the communicative barriers of inmate MW's mental illness when deciding what force option was appropriate under the circumstances. Second, Deputy Jackson neglected to consider the disparity in size between himself and inmate MW. Deputy Jackson is admittedly ?much bigger? than inmate MW. Even if, as Deputy Jackson claims, inmate MW suddenly ?became pretty strong" when resisting Deputy Jackson?s attempts to get him to lock down, Deputy Jackson was physically much larger and more powerful than inmate MW. Moreover, Deputy Jackson had the bene?t of Deputy Civic, the other housing unit deputy, who was right behind Deputy Jackson and could have assisted in the escort and placement of inmate MW in his cell. Again, Deputy Jackson had time and circumstances that permitted him to consider other tactical options than hurling a smaller, mentally ill inmate head?rst into a metal table. Deputy Jackson also violated policy when the force he employed was not "reasonable and appropriate in relation to the threat faced," but rather, was grossly disproportionate to that which was required by the minimal amount of resistance. In his own words, Deputy Jackson described the threat posed by inmate MW as a ?little bit.? Further, once he was taken to the ground, the inmate posted little or no threat. The preponderance of the evidence shows that inmate MW was never a credible threat to Deputy Jackson, who was ?much bigger" and who had inmate MW under control for the entirety of the incident. Deputy Jackson?s behavior was an extreme and unnecessary reaction to inmate minimal level of resistance, at a time when inmate MW was not posing a threat to anyone. To overcome inmate resistance, there were other options available that did not require using the level of force that Deputy Jackson employed. Deputy Jackson was required by policy, ?[w]hen reasonable under the totality of use advisements, warnings, verbal persuasion, and other tactics and recognize that an of?cer may withdraw to a position that is tactically more secure or allows an of?cer greater distance in order to consider or deploy a greater variety of force options." Deputy Jackson failed to consider and use any of these other options. As stated above, verbal persuasion or a simple push (creating distance) and a closing of the door would have suf?ced to accomplish Deputy Jackson's goal. Deputy Jackson could also have asked for assistance from the nearby Deputy Civic. Instead, Deputy Jackson waited only one second at the open doorway of inmate cell before choosing to employ a non-departmentally approved technique to take inmate MW down in an extremely violent manner that was grossly disproportionate to the lack of threat that inmate MW posed. Denver Sheriff Department - 10 - Deputy William Jackson, 305025 82014-0463 Disciplinary Determination June 27, 2016 Of great concern is the fact that, as the housing of?cer, Deputy Jackson knew that the metal table was bolted to the ?oor in front of inmate cell door. and yet he was deliberately indifferent to throwing inmate MW backwards, head ?rst, into it. In doing so. Deputy Jackson exposed inmate MW to unnecessary risk of serious bodily injury in the form of a severe head injury. Deputy Jackson explained that when he felt inmate MW pushing back. Deputy Jackson decided that he was "not going to go into the cell ?ghting." Deputy Jackson stated that he did not want to ?ght inside the cell ?[blecause there's all sorts of stuff we can injure ourselves though it's not much more of an open area where we were at. it's better than being inside of the cell.? Deputy Jackson's knowledge of the placement of the metal table, coupled with the above statements, demonstrate only concern for potential injury to himself, and none for inmate MW. Moreover, as stated above, there was no need to "?ght" in the cell, as Deputy Jackson claims; in fact, there was no need for a ??ght? at all. Deputy Jackson's objective was to place inmate MW in the cell. Such an objective could have been accomplished with very minimal, if any, force. Furthermore, given the totality of the circumstances above and Deputy Jackson's escalating frustration with the inmate?s behavior, Deputy Jackson's excessive response appears to have been motivated in part by a desire to punish a frustrating, uncooperative, and uncomprehending inmate. This also violates the Use of Force policy, in that it is clear that ?[p]hysical force will not be used as punishment, under any circumstances." Lastly, the Department is also greatly concerned that Deputy Jackson chose to use such inappropriate force in the context of a dispute over an object with purported signi?cant religious meaning to a mentally ill individual. Deputies hold a position of trust. a trust bestowed upon them by the Department and the community. and are visible representatives of government. They are given enormous discretion in carrying out their duties?discretion which also carries tremendous responsibility, especially as it pertains to the authority to use force. Because of the trust placed in them and the enormity of the discretion and authority granted to them, deputy sheriffs must understand that the community has every right to expect and demand the highest level of accountability from the Department and from individual deputies, especially as it pertains to the authority to use force. Under the BSD disciplinary matrix, a violation of 30019.1 is a Conduct Category A through violation. A violation of 300.22 is a Conduct Category through violation. Deputy Jackson failed to observe written departmental or agency rules, policies, and procedures by using inappropriate force in multiple and signi?cant ways when dealing with inmate MW. This behavior was ?a violation of law, rule [and] policy a willful and wanton disregard of department guiding principles; [and] involve[d] any act which demonstrates a serious lack of the integrity, ethics or character related to a deputy sherist ?tness to hold his or her position; [and] involve[d] egregious misconduct substantially contrary to the standards of conduct reasonably expected of one whose sworn duty is to uphold the law." As such, this rule violation is a Conduct Category violation. A Conduct Category violation by a deputy is always classi?ed as discipline level 8, the highest level of discipline. Thus the penalty level, pursuant to the disciplinary matrix, would be 8. The mitigated penalty is a ninety (90) days suspension, the presumptive penalty is dismissal, and there is no aggravated penalty for discipline level 8 conduct violations. In determining the disciplinary penalty that should be imposed, full consideration was given to Deputy Jackson?s lack of signi?cant discipline. record with the Department, mitigating information. and the nature and circumstances of his misconduct. A mitigated penalty is not Denver Sheriff Department - 11 - Deputy William Jackson. 805025 82014-0463 Disciplinary Determination June 27. 2016 appropriate given Deputy Jackson?s egregious behavior, his willful disregard of departmental rules, and his inability to acknowledge his wrongdoing. Serious bodily injury, in the form of a severe head injury, was a potential result of the manner and severity of the inappropriate force employed, as well as its unsanctioned use. This caused harm to the Department and City in the form of potential civil liability. Lastly, Deputy Jackson?s conduct also jeopardized the Department's Mission and Guiding Principles. Accordingly the presumptive penalty of dismissal is hereby imposed for each of the violations of CSA rules 16-60 A, L, and D80 Rules 30019.1 and 300.22. SUMMARY OF DISCIPLINARY DETERMINATIONS Conduct Finding Category Level Range Penalty CSR 16-60 L. DSD Rule Disobedience M) Sustained 8 Presumptive Dismissal and DSD Rule Force 300.22 (gr/a?L/xg an Elwell Date ivilian Review Administrator Stephanle Y. O'Malloy Executive Director of the Department of Safety 1331 Cherokee Street Room 302 PUBLIC SAFETY Denver. CO 80204 0: 720.913.6020 r: 720.913.7028 mew? - June 27, 2016 Steven Roybal, 813017 Deputy Sheriff Downtown Division Denver Sheriff Department Re: DSD IAB Case #82015-0196 Deputy Roybal: This is of?cial noti?cation that, after an independent review by the Of?ce of the Executive Director of the Department of Safety, you are being terminated effective immediately for misconduct that violated the following Career Service Rules and Sheriff Department Rules, as set forth below and discussed more fully in the section of this letter entitled Departmental Determinations of Discipline (pgs. 9 16). Career Services Rule 16-60 Discipline and Dismissal: The following may be cause for discipline or dismissal of a Career Service employee: A. Neglect of duty. E. Any act of dishonesty L. Failure to observe written departmental or agency regulations, policies or rules. As it pertains to: Denver Sheriff Departmental Rules and Regulations PREAMBLE Deputies shall obey all Departmental rules, regulations, duties, procedures, instructions, and orders; the provisions of the Operations Manual; Mayor?s Executive Orders; and Rules of the Career Service Authority. Failure to comply with any of these shall be construed as a violation. Members in violation shall be subject to? disciplinary action. The following provisions of conduct shall be construed as a rule violation of the Operations Manual and Directives and Orders of the Denver Sheriff Department, but not by way of limitation. RR-200.4.2 - Commission of a Deceptive Act In connection with any investigation or any judicial or administrative proceeding, Deputy sheriffs and employees shall not willfully, intentionally, or knowingly commit a Denver Sheriff Department - 2 - Deputy Steven Roybal. 82015-0196 Disciplinary Determination June 27. 2016 materially deceptive act, including but not limited to departing from the truth verbally, making a false report, or intentionally omitting information. Under the BSD disciplinary matrix, a violation of DSD Rule 200.42 is a Conduct Category violation. RR-300.19.1 - Disobedience of Rule Deputy Sheriffs and employees shall not violate any lawful Departmental rule (including CSA rules), duty, procedure, policy, directive. instruction, order (including Mayor?s Executive Orders), or Operations Manual section. As it pertains to: Departmental Order 5011.1M USE OF FORCE 2. Policy: It is the policy of the Denver Sheriff Department (DSD) that of?cers use physical force only as prescribed by the Colorado Revised Statutes (CR8) and internal Department standards to perform any legitimate law enforcement or detention related function. The amount of force used will be reasonable and appropriate in relation to the threat faced. In all cases, force will be de-escalated once the legitimate function is achieved or the resistance has ceased. Physical force will not be used as a punishment, under any circumstances. Of?cers should rely on departmentally approved use of force techniques that are taught in training. 4. Explanation; these values in mind. an of?cer shall use only that degree of force which is necessary. ..under the It is important for of?cers to bear in mind that there are many reasons a suspect/inmate may be resisting or may be unresponsive. A person's reasoning ability, including but not limited to a mental condition, mental impairment, developmental disability, physical limitation, language. drug interaction, or emotional crisis. are some examples. An of?cer's awareness of these possibilities. when time and circumstances reasonably permit, should then be balanced against the facts of the incident facing the of?cer when deciding which tactical options are the most appropriate to bring the situation to a safe resolution. .Of?cers should recognize that their conduct immediately connected to the use of force may be a factor which can in?uence the force option necessary in a given situation. When reasonable under the totality of circumstances. of?cers should use advisements. warnings. verbal persuasion. and other tactics and recognize that an of?cer may withdraw to a position that is tactically more secure or allows an of?cer greater distance in order to consider or deploy a greater variety of force options. When a suspect is under control, either through the application of physical restraint or the suspect's compliance. the degree of force shall be de-escalated The Department will support the use of reasonable and appropriate force by of?cers in the performance of duty. Use of force that is not lawful, reasonable and appropriate will not be tolerated. Department policy as well as relevant federal. state and local laws shall govern use of force actions by of?cers at all times. Denver Sheriff Department - 3 Deputy Steven Roybal. 32015-0196 Disciplinary Determination June 27, 2016 Under the DSD disciplinary matrix. a violation of DSD Rule 30019.1 is a Conduct Category A through violation. RR-300.22 Inappropriate Force Deputy Sheriffs and employees shall not use inappropriate force in making an arrest. dealing with a prisoner or in dealing with any other person. Under the DSD disciplinary matrix, a violation of DSD Rule 300.22 is a Conduct Category through violation. CONTEMPLATION OF DISCIPLINE MEETING You were served with a contemplation of discipline letter regarding this matter on May 9. 2016. A contemplation of discipline meeting was held on June 6. 2016 at 2:00 pm in the Downtown Detention Center Conference Room, located at 490 West Colfax Avenue. Denver. Colorado, 80204. The purpose of this meeting was to allow you to correct any errors in the Agency's information or facts. to tell your side of the story and to present any mitigating information as to why possible disciplinary action should not be taken against you. Present at this meeting was Sheriff Patrick Firman and Chief Paul Oliva. Present from the Conduct Review Of?ce (CRO) was Captain Stephanie McManus. Ms. Rose Ceja-Aragon, and Ms. Rachelle Wright. Present from the City Attorney's Of?ce was Ms. Jennifer Jacobson. Present from the Executive Director of Safety?s Of?ce was Ms. Shannon Elwell. Present from the Of?ce of the Independent Monitor was Mr. Nate Fehrmann. You attended this meeting with Mr. Steven Mandelaris as your attorney. Below is a summary of the pertinent parts of your contemplation of discipline meeting. The transcript and recording of this entire meeting was considered and is contained in the IAB investigative ?le. Sheriff Firman started the meeting by giving you the Opportunity to make a statement. You then stated that the incident occurred during breakfast. while you were the only of?cer in the pod at the time. You stated that you have two tier clerks1 in the pod with you helping you serve breakfast to all the inmates. You stated that at the beginning. everything was normal. including while you were feeding inmate JDE his breakfast. You stated that you were able to open inmate door ?ap and give him his breakfast. including his coffee. without incident. You stated that ?things didn't start to go south until once we started picking up trays. that was when [inmate started having?he started freaking out inside his cell." You stated that you didn?t know if inmate JD ?was having an episode or what was going on.? but that you could hear inmate JD ?freaking out" in his cell. throwing his tray and cup, as well as other materials in his cell. You stated that you began to collect the breakfast trays as this was occurring. You stated that. as you approached inmate JD's cell. you attempted to talk to him to ?gure out what was going on and why inmate JD was so upset. You stated that. at that point, inmate JD began to threaten you. saying ?I'll fucking murder you. Hi kill you. Come into my cell.? You stated that you then opened the ?ap. after which inmate JD "came ?ying towards the door with his tray." You stated 1 A tier clerk is an inmate worker with limited duties as assigned by DSD staff and as described in the following Post Order and Department Order. Tier porters may also be referred to as ?tier porters" or ?trustees.? Pursuant to Denver Sheriff Department Van Cise Simonet Housing Post Order. Section XXI. inmate Workers. "[t]he Housing Of?cer shall utilize an inmate from the housing unit to assist in the distribution of meals. laundry. daily cleanup. etc. . . 2 The inmate is referred to by his initials. Denver Sheriff Department - 4 - Deputy Steven Roybal, 813017 82015-0196 Disciplinary Determination June 27, 2016 that you stepped back and inmate JD throw the tray out of the door flap with some force. You stated that inmate JD then began to swing his hand out of the flap with a closed ?st and tried to grab at you and the tier clerks. You stated that you again tried to speak to inmate JD but you were ?not getting through to him, still having an episode.? You stated that you then stepped in to close the ?ap and lock it. You stated that, as soon as you did, inmate JD reached his hands out, grabbed your jacket sleeve, and attempted to pull your arm through the flap. You stated that you pulled your arm back. You stated that this action on the part of inmate JD ?kind of shows that he was carrying through with all the threats that he was making with?with obvioust with malicious intent. He was trying to grab my arm for?for a purpose.? You stated that you stepped back and bent the key on the way back. You stated that you again attempted to speak to inmate JD, but it didn't change inmate attitude or behavior. You stated that you then spoke to the tier clerk and told him ?Let's just keep moving, just don't go by his cell." You stated that you and the tier clerks then went to go collect the other inmates? trays on the top tier. You stated that, at one point, one of the tier clerks was coming up the stairs and inmate JD had thrown hot coffee on him. You informed the panel that inmate JD's cell was right at the top of the stairs on the second tier, in cell 201?8. You stated that, as soon as one walks up those stairs, he is right in front of that cell. You stated that this behavior "shows two assaults that he? he carried through, you know, with some of the threats that he was making: One of them, grabbing my arm; the other hot coffee on the tier clerk.? You stated that, after inmate JD threw coffee on the tier clerk, you realized that you had to do something, and that you could not just leave inmate door ?ap open because ?he was continually carrying through with the threats that he was making by?by the assault on myself and the other tier clerk." You then stated that ?when was coming back across the tier towards his cell, I had told him?l had ordered him to step back away from the door, and when I got close to his cell I ordered him, hey, you know, step? get back from your door. His hands were on top of the flap, they were not hanging over the ?ap. They were way that if it was to close, it would not smash his ?ngers by any means. I kicked the ?back away from the door and also to?in the hopes that the would close. Some of the door flaps in housing units] have known to stick due to the food and juice and whatever else gets stuck in the hinges, some of them stick. So when I kicked it, obviously try to get him to back away from the door, at the same time in the hopes that it would?it would be able to shut the door ?ap . . . You then explained to the panel that "[ojbviously the attempt was unsuccessful and the reason why my ?rst option wasn't just to walk down the stairs is because if I turned by back with him already throwing hot coffee out, he threw his tray out, he?s obviously shown that he knows what he's doing as far as making attempts to hurt somebody. In order for me to go back down the stairs, I would have to turn my back to him while the ?ap is open and give him the opportunity to throw whatever else he may have in his cell. And, again, it may not just be Denver Sheriff Department - 5 - Deputy Steven Roybal, 813017 82015-0196 Disciplinary Determination June 27, 2016 something that he's supposed to have, because we ?nd stuff in cells all the time . . . . There's no telling what he has in that cell. was not going to turn my back on him to give him that opportunity unless it was a last resort. Obviously, that was no choice but to get off the top tier. Like I said, I was pod by myself.? You then stated that, shortly after, your partner for the day, Deputy Austin, was able to go up there and successfully close inmate JD's door flap 3 while later, ?because [inmate had stopped with his violent behavior at that point,? and you "would assume [it was] after [inmate was asleep or something.? You then concluded your statement of fact. You then addressed the allegations in the contemplation of discipline letter. As it pertained to reporting injury, you maintained that "[dluring the incident in with inmate on July 31, 2015, there was at no time during or after the incident any injuries to report.? You stated that one of the tier clerks had hot coffee thrown on him, and that you repeatedly asked the tier clerk if he was harmed and if he needed medical attention, but each time the tier clerk declined medical attention and claimed he was okay. You addressed the photo of inmate hands that you were presented with at your IAB interview, and stated that there was a visible wound only on one ?nger. You argued that, had inmate JD had his hands smashed in the door ?ap hard enough to create a wound on one ?nger, ?it would have, without question, also created wounds on his other ?nger and his other hand.? You also argued that inmate JD was ?several times" slamming his own door flap up and down with his hands over the flap, and therefore, it was possible that inmate JD caused his own wounds. It was also possible, you argued, that inmate JD caused his own wounds from his behavior inside his cell. You stated that, at no time during or after the incident did inmate JD inform you, your partner, or any other staff member of any injury he suffered that day, speci?cally from that incident. You also asked when the photograph was taken, and argued that, if taken a few days later, there was no way to attribute the injuries to this event. You stated that, with respect to accurate reporting, at no time was your report inaccurate. You stated that you wrote each report from the incident based off of all that transpired. With respect to deception, you stated that, once you became aware that inmate JD attempted to ?le criminal charges on you for the allegations of this incident, you submitted a supplemental report to ensure that you went further into the details of the incident. You stated that you reported that the kick of the door ?ap was an attempt to get inmate JD to back away from the door. You stated that the initial report did not include your attempt to shut the door ?ap with your foot because it was unsuccessful, no injury came from it, and there was no change in the outcome of the incident. You argued that the purpose of a supplemental report is to allow the deputy to include additional details that were not in the primary report. You stated that at no time after a report is reviewed is a deputy allowed to change the report due to the requirements of the system; therefore, a supplemental report is required to include any details or information that needs to be reported after the primary report is submitted. You explained that this is encouraged during training to ensure that no details are left out by mistake. You argued that it should not be deemed an act of deception to submit a supplemental report. With respect to the allegation of inapprOpriate force, you stated that ?inmate was never the victim of any amount of force, and that ?[i]nappropriate force would speculate that there was even forced used on an inmate.? You stated that this comports with the fact that medical staff Denver Sheriff Department - 6 Deputy Steven Roybal, 82015-0196 Disciplinary Determination June 27, 2016 was never noti?ed. You stated that, in your career on the Department, you?ve never failed to report any use of force incident and have always followed policy in those respects. You then addressed some additional contemplated speci?cations and submitted that you've never disrespected or retaliated against inmates in your career. You then informed the panel that inmate JD has made false allegations against you in the past, and detailed the events of these incidents. You stated that ?[t]his goes to show that. for whatever reason, inmate made multiple attempts to get me in trouble . . . . I never have had any issues with inmate JD, as stated in my reports, and I?m still confused as to why inmate has made a hobby of making false accusations against me." You stated that this should ?speak volumes about the kind of person that inmate is. Your attorney then made various arguments on your behalf, including arguing that the video is not dispositive of what actually occurred. Your attorney argued that the video has to provide ?indisputable evidence? that you saw inmate JD's hands on the ?ap before the panel could impose discipline. Your attorney stated that it appeared that discipline is being imposed based upon your supplemental report and argued for their elimination altogether. Your attorney then stated that you have been on the Department for three years and that he wished the panel to consider the message that this will send to the Department and to you regarding the kind of conduct that the Department is going to encourage inmates to do. Your attorney highlighted that you have had no prior discipline, and reiterated that your position is that there is ?absolutely no factual basis whatsoever for these allegations." Sheriff Firman then had some questions for you. In response to his questions, you indicated that you did not call for backup because "[t]he inmate was secured in the cell, so, you know . . . . Obviously if he was out running around or something, it would have been a little different, but no, I did not call for backup.? Chief Oliva then had some questions for you. You stated that after you kicked inmate door flap, you went right down the stairs and did not make an attempt to secure the door ?ap. You stated that ?[T]he reason used my foot is because obviously earlier in the incident I tried to put my hand down there?[he] grabbed my sleeve. Fool me once, shame on you; fool me twice, shame on me. I'm not going to fall for it a second time, especially because he?s already shown he's going to try to do something. I?m not going to put my hand back in to be assaulted.? Chief Oliva then asked you "So you were hoping that the power of your foot would then just secure the to which you responded ?No, it won?t secure it, it won?t look it. So in order to lock the ?ap, you obviously have to still use the key to turn the lock to lock it. Some of the flaps in they do get stuck. You have to?some of them you have to?even now?if you go up there right now, some of the flaps you have to pretty much pry open because stuck. I said, my attempt, obviously, was trying to get him to back away from the door, and trying to get the ?ap stuck.? Chief Oliva then asked you if the ?ap was open and you responded ?The ?ap was laid open." Chief Oliva then stated "So the foot kick was to try and you responded ?To get and Chief Oliva supplemented ?To get it to close, but you knew that it wouldn?t lock, but you were trying to kick it in case it was? and you stated ?Exactly. To close it at least. If anything, I know i Denver Sheriff Department - 7 - Deputy Steven Roybal, 82015-0196 Disciplinary Determination June 27, 2016 couldn?t lock it, but to get it to close, Chief Oliva then asked ?But you wouldn't secure it?? and you stated "Right." Chief Oliva then asked ?You would just close it and then it would ?ap back?" and you stated ?if he pushed it back open, which obviously he did.? Chief Oliva then asked you if you?d been to CIT training and you stated that you had. Chief Oliva then asked you if you were angry with inmate JD that day, and you stated that you were not angry with inmate JD. You stated that you?ve worked with him in the past and you?ve never had issues with him or retaliated against any inmate. Ms. Elwell then asked you what you would have done if the ?ap had stuck. You replied ?Obviously that would have been my opportunity to try to go down the stairs. Like I said, that was going to be my last Option was going down the stairs, turning my back on the inmate with the open ?ap; so if it did get stuck, that would have [given] me an opportunity to come down the stairs." Ms. Elwell then asked ?But like you said, he could have opened it again if he wanted to by pushing it?" and you replied ?Exactly.? Ms. Elwell then asked ?What was your concern if the flap remained open and you were not on the top tier?" You responded ?There was no?if?if the ?ap was left open?after everything was done, the ?ap was left open. As long as the?like I said, the workers and stuff weren?t up there, you know, he could throw anything and everything he wants out of his cell; if nobody?s up there, there?s not a chance that anybody's going to get hun,sof Ms. Elwell then asked ?How soon after you went downstairs did your partner close the ?ap? Do you know?? and you replied don't remember to be honest, but it was?it was a while later, I know that." Ms. Elwell asked you if you told your partner that the flap was open, and you responded "When he came into the pod, I explained everything to him that had just transpired- He took it upon himself to say, I'm going to go see if I can talk to him. And when he went up there, like I said, inmate was no longer having an episode.? Ms. Elwell then asked for any awards or commendations you might have to be provided to Captain McManus as consideration for potential mitigation. You stated that you had a letter of recommendation that you would send. Your attorney ended by objecting to a statement in the contemplation of discipline letter as an incomplete rendition of what you actually stated to IAB. The meeting then concluded with a commitment to get you a response within approximately 21 days. Your previous discipline includes: NONE. The Department has great concern regarding your ability to act responsibly and to conduct yourself appropriately while on duty. It is clear that your conduct has been unprofessional and in violation of the Department's policies and procedures. Your actions have also breached several of the Department's Guiding Principles including respect. judgment, sensitivity, integrity, accountability, and professionalism. Your conduct has compromised the mission of the Department. Termination of your employment is necessary to protect the integrity and professionalism of the Department and to protect the City and County of Denver from potential liability that could arise from your continued employment. Denver Sheriff Department - 8 - Deputy Steven Roybal, 82015-0196 Disciplinary Determination June 27, 2016 Please be advised that you may appeal the discipline imposed and these determinations in accordance with Career Service Rule 19, Appeals. You may also initiate dispute resolution pursuant to Career Service Rule 18. Dispute Resolution. Sincerely. Shannon Elwell Civilian Review Administrator cc: Career Service Authority. Records Management Division IAB File Administration Denver Sheriff Department - 9 - Deputy Steven Roybal, 813017 82015-0196 Disciplinary Determination June 27. 2016 DEPARTMENTAL DETERMINATIONS OF DISCIPLINE Deputy Steven Roybal, DSD IAB case 82015-0196 After a thorough review of the Internal Affairs Bureau (IAB) investigation. the Of?ce of the Executive Director of the Department of Safety has made the following ?ndings of fact and determinations of discipline. FINDINGS OF FACT The preponderance of evidence establishes the following summary of the facts and circumstances surrounding the conduct upon which discipline is being imposed. Deputy Roybal has been employed with the Denver Sheriff Department (DSD) for approximately 3 years. Deputy Roybal?s main job duties, as reflected in the BSD Mission, are to ?provide safety and security for the community by ensuring care, custody, transportation, and re-entry services for detainees by operating safe, secure. ef?cient, and humane facilities that adhere to federal, state, and local laws.? On July 31, 2015, Deputy Roybal was involved in a use of force incident with inmate JD3. The incident took place at approximately 5:42 am when Deputy Roybal and two tier clerks4 were serving breakfast to the inmates in housing unit 2D at the Downtown Detention Center (BBC). The incident was investigated by the Denver Police Department (DPD) for any potential criminal law violations, and the District Attorney declined to prosecute the matter, citing ?no reasonable likelihood of conviction." DSD IAB then subsequently investigated for potential administrative rule violations. The entire investigative ?le has been reviewed, including but not limited to video surveillance footage, audio interviews, medical records, and relevant paperwork. including Offense in Custody (OIC) reports. On July 31, 2015. Deputy Roybal was assigned as a housing of?cers in housing unit 20. a special management housing unit that houses inmate with severe mental health issues. Inmate JD was housed in a cell on the second tier of housing unit 2D. located in front of and to the right of one of the stair cases. inmate JD was classi?ed as X033, indicating that inmate JD had exhibited major of mental illness. Deputy Roybal and two tier clerks served breakfast that morning. There were no other inmates out and no other deputies present. When Deputy Roybal served breakfast to inmate JD through the door flap5 of his cell. Deputy Roybal was able to give him his meal through the door ?ap and then close the ?ap without incident.'5 Video surveillance footage shows Deputy Roybal closing the flap by picking up his right knee to close the ?ap. and then looking it with his right hand. 3 The inmate is referred to by his initials. A tier clerk is an inmate worker with limited duties as assigned by DSD staff and as described in the following Post Order and Department Order. Tier porters may also be referred to as ?tier porters? or ?trustees? Pursuant to Denver Sheriff Department Van Cise Simonet Housing Post Order, Section XXI. Inmate Workers. ?[t]he Housing Of?cer shall utilize an inmate from the housing unit to assist in the distribution of meals. laundry. daily cleanup. etc . . . 5 Door ?aps are portions of a cell door. secured to the door by hinges. which cover openings of the cell door and. when open. allow deputies to pass items through the door to the inmate inside without having to open the door. Door flaps can only be open and closed and secured by the locking of a key. 5 Video surveillance footage also shows a tier clerk kicking inmate JD's door and putting inmate JD's food tray near the tier clerk's mouth prior to inmate JD being given the food tray. Denver Sheriff Department - 10 - Deputy Steven Roybal. 313017 32015-0196 Disciplinary Determination June 27. 2016 Deputy Roybal and the two tier clerks then continued to deliver meal trays to the other inmates in the housing unit. After breakfast, when the trays were being picked up from the cells. inmate JD became agitated when his door flap was once again Opened. Deputy Roybal characterized inmate JD's behavior as ?going off" in his cell and very upset. Inmate JD refused to give Deputy Roybal the tray and when Deputy Roybal attempted to speak to inmate JD about why he was upset. inmate JD did not answer and instead threw coffee at Deputy Roybal and a tier clerk. Inmate JD then began moving his hands out of the door ?ap. Deputy Roybal backed away from inmate hand and inmate JD threw his tray out of the door ?ap. The tray was then picked up by the tier clerk. Deputy Roybal stated that. when he backed away from the door. the door ?ap key bent. Deputy Roybal appeared to speak with inmate JD for approximately 30 seconds and then walked away from inmate cell without closing the door flap. Deputy Roybal and the tier clerks then went around to the other cells to pick up the breakfast trays. As Deputy Roybal and the tier clerks came back towards inmate JD's cell. Deputy Roybal attempted to close inmate door ?ap and again backed away from the cell door. Inmate hands were again extended out of the flap and moving. Deputy Roybal and the tier clerks walked away from inmate cell and continued to collect breakfast trays. Deputy Roybal then turned around to come back toward inmate JD's cell and toward the staircase. Inmate JD started moving the door flap up and down by grasping the bottom of the ?ap with both hands. Inmate JD did this six times in approximately ?ve seconds, and did not remove his hands from the their grasp around the door ?ap. As Deputy Roybal and the tier clerks walked toward inmate JD's cell. the tier clerks walked in front of Deputy Roybal and turned to go down the stairs before they got to inmate JD's cell. The tier clerks were halfway down the staircase when Deputy Roybal approached inmate cell. \Mthout preamble. Deputy Roybal delivered a swift kick to the door ?ap of inmate cell while inmate hands were clearly visible still grasping the door ?ap. The door ?ap shot upward. struck the door. and then immediately came back down. Deputy Roybal then appeared to speak to inmate JD for a brief time before walking down the stair case- There was no follow up attempt to secure or otherwise close the ?ap. Deputy Roybal left the door ?ap of inmate JD's cell open. and it was closed some time later by another deputy. Deputy Roybal reported inmate DJ through a Conduct Adjustment Board (CAB) for making threats and assaultive behavior. Deputy Roybal also noti?ed Sergeant James Sanford of the incident after he ?nished picking up the food trays. but neglected to tell Sergeant Sanford that he had kicked inmate JD's door flap. Deputy Roybal also did not report injury to inmate JD or ensure that inmate JD received medical treatment. Deputy Roybal?s OIC report states that During pickup of food trays for breakfast on 78112015 inmate began punching his door as I opened his door flap. As I asked inmate what was going on and what he was upset about. he yelled ?Fuck you!" I asked again what happened? He replied ?Fuck you!" He then said "I?ll fucking murder you when I come out! Let me out. bring it on motherfucker!" I was confused about why he was so upset as have had no communication with the inmate in over a week. I requested his food tray and inmate threw it out of the tray slot and it nearly ?ew off the top tier. As I then 7 It should be noted that there is enough space on the tier walkway for Deputy Roybal and the two tier clerks to walk around inmate JD's cell and place themselves outside his reach. Furthermore. there are two available stair cases to reach the second tier. Denver Sheriff Department - 11 - Deputy Steven Roybal. 313017 32015?0196 Disciplinary Determination June 27. 2016 attempted to close the tray slot inmate tried to grab my hand. He repeatedly kept swinging his ?st out of the flap and threatened to hit anyone who walked by his door as he refused to allow me to close the door flap. I kept moving with my workers as we continued to pick up the other food trays. A few minutes later. inmate threw coffee on one of my tier clerks as he walked by. He continued to threaten myself and the tier clerks as I made another attempt to close the door ?ap inmate grabbed my coat sleeve and tried to pull my arm through the tray slot. yanked my arm away and as I pulled away I bent the door ?ap key. I ordered him to back away from the door and allow me to close the ?ap. he continued to threaten and ignore all commands. I left the ?ap open and continued with my tray pickup. Later DIS Austin came in and spoke with the inmate and [inmate eventually allowed him to close the ?ap. This is the end of my involvement in the incident. Deputy Roybal explained in detail the actions of inmate JD in this report; however. he failed to report that he kicked inmate JD's door ?ap. When asked by IAB why he didn't include kicking the door flap in his OIC report. Deputy Roybal stated that ?The purpose of that was because to me the whole incident. to me. it was not signi?cant." Deputy Roybal added. "To me, I want to make sure I put the major points in there." inmate JD subsequently lodged a complaint with the Department alleging that his hands were injured as a result of Deputy Roybal kicking the door ?ap of his cell. On August 4. 2015, inmate JD was examined by medical staff after complaining of injury to his right hand from the incident. Medical staff noted that inmate JD's right hand ?has some light bruising and redness and minimal swelling." On August 11. 2015. the case was assigned to DPD IAB for investigation of any potential criminal aspects of the incident and Deputy Roybal was informed of the investigation on August 13. 2015. Deputy Roybal then created a supplemental report? to his initial report on August 14, 2015. the day after he were noti?ed by DPD IAB. Deputy Roybal stated that kicking the door ?ap was ?insigni?cant until I found out that he was accusing me of assaulting him at that time." Deputy Roybal created the following supplemental report: During the incident I did kick the door ?ap of the cell in which inmate was housed. in an attempt to get him to back away from the door. Due to the inmate?s continued threats. as well as the actions taken to follow through with the threats he made. I was not going to make another attempt to close the ?ap with him standing right by the door. The inmate never made a claim to me about his hands hurting during the day the event occurred. nor any other time have worked with the inmate before or after the incident. Inmate has had several outbursts at random during the time that have worked with him but to my knowledge they have never been directed towards any person in speci?c. Inmate has an TAG alert. this means the inmate has a a Deputy Roybal claims to have subsequently created and submitted a supplemental report; however, technology records do not show such a supplemental report to Deputy Roybal?s original OIC report exists. Regardless. Deputy Roybal submitted the supplemental report to IAB at his interview and it is considered as submitted for purposes of this matter. Denver Sheriff Department - 12 - Deputy Steven Roybal. 813017 82015-0196 Disciplinary Determination June 27. 2016 severe mental health condition. I have had no issues with the inmate assaulting another person since I have worked with inmate JD however on 7/31/2015 [inmate mood appeared to be more violent and aggressive than usual. During Deputy Roybal's interview with IAB. Deputy Roybal maintained that inmate JD's hands were and that they were on top of the ?ap when Deputy Roybal kicked the ?ap shut. Deputy Roybal acknowledged that inamte JD's hands were ?pulling it up. he has his hands on the end and he's banging it" while inmate JD was moving the ?ap up and down. Deputy Roybal stated that inmate JD ?puts them back Deputy Roybal indicated that he saw inmate JD's hands when he kicked the door flap, but stated that inmate JD's hands ?were not over the ?ap door because there's absolutely no way I would be able to close the ?ap with him having a handle of the ?ap itself. If his hands were on the ?ap I would still be able to push it up and close it. There's absolutely no way that I'd be able to close it which is exactly why it would be pointless for me to kick it with his hands over the edge.? Deputy Roybal used a piece of paper to give a demonstration to the IAB investigator of how inmate JD's hands were ?at on the ?ap and how ?they weren't hanging over at any point." Deputy Roybal stated multiple times in his interview with IAB that inmate JD's hands were resting on top of the door ?ap before he kicked it and stated that he did not see inmate JD's hands at any point get ?smashed.? However, when the door was kicked. it did not close and instead immediately retracted. Deputy Roybal acknowledged this. stating ?it [the door ?ap] did not stay shut. It just flew back open." Deputy Roybal also explained how "you can?t push it in and it locks. you have to hold it closed and then secure it with a key." Deputy Roybal stated that the purpose of kicking the door shut was attempted to close the ?ap. Some of the ?aps for whatever reason, some of them you have to pry open when you try to open them. so some of them do stay shut when you push them. It's not secured. but it does stay shut.? Deputy Roybal's next statement. however. was that ?The purpose of me trying to do that was to allow me to secure the ?ap. and. fortunately. since he did not let me close the ?ap. I had no choice but to then leave it open. and just told my tier clerk since we were done up there. I told him . . . . [djon't come back up we get this whole thing secured.? Deputy Roybal also told IAB that ?my intention was to get the ?ap to either get stuck like some of the ?aps do or to get him to back away. That way I could have an opportunity to close the Deputy Roybal also told IAB that he was attempting to catch inmate JD off guard. which is why he approached him from the angle that he did. Deputy Roybal stated that he felt his actions were appropriate because ?there was no intention to cause harm to anybody." When explaining to IAB his intent in kicking the door flap. Deputy Roybal gave multiple reasons. which included closing it for safety and security reasons to prevent inmate JD from harming others; to get inmate JD to back away from the door so Deputy Roybal could secure the door ?ap and catch inmate JD off guard; to prevent inmate JD from throwing something at Deputy Roybal when he turned his back on inmate JD to walk down the stairs; to make the door ?ap get ?stuck?; and because Deputy Roybal and the tier clerks were still working up there. However. when asked if the tier clerks jobs were completed at the time of the kick. Deputy Roybal stated that ?Theirjob was . . . . [but] they didn't clean; they just picked up trays." Also. when asked. ?Instead of kicking the door, if you would have just gone down the stairs. left the door flap Open. was that an option?? Deputy Roybal admitted that ?it was an option.? Based on the review of the record. including video footage of the incident and interviews with the parties involved. the preponderance of the evidence establishes various instances of misconduct in violation of the following departmental rules and policies. Denver Sheriff Department - 13 - Deputy Steven Roybal, 313017 82015-0196 Disciplinary Determination June 27, 2016 ANALYSIS AND CONCLUSIONS Career Service Rules 16-60 A. Neqlect of Duty. CSR 16-60 L, Failure to observe written departmental or adencv regulations. policies or rules. as it pertains to DSD Rule 300.19.1 - Disobedience of Rule as it pertains to DD. 5011.1M Use of Force; and DSD Rule 30% Inappropriate Force Deputy Roybal violated the above Career Service and Departmental Rule and Use of Force Policy by failing to exercise the least amount of force necessary to achieve his purported legitimate detention related function of closing and securing inmate JD's door ?ap. ?The community expects and the Denver Sheriff Department (DSD) requires that [deputies] use only the force necessary to perform their duties." Deputy Roybal?s purported objective was to close and secure inmate JD's door ?ap. While it was appropriate to close inmate JD's door ?ap due to his prior behavior, a preponderance of the evidence indicates that Deputy Roybal's swift kick of the door ?ap was not done for that purpose, and was instead done for the purpose of punishment and retaliation. This also violates the Use of Force policy, in that it is clear that ?[p]hysical force will not be used as punishment, under any circumstances.? Primarily, kicking a door ?ap neither closes nor secures a door flap. In fact, the door flap opens outward, and inmate JD would have been able to push against the door flap to open it again. Kicking the door ?ap therefore serves no legitimate detention related function insofar as it is ineffective for the purpose of closing and securing a door ?ap. Furthermore, in kicking the door ?ap, Deputy Roybal failed to consider other options available that did not require using the level of force that Deputy Roybal employed. Deputy Roybal was required by policy, ?[w]hen reasonable under the totality of use advisements, warnings, verbal persuasion, and other tactics and recognize that an of?cer may withdraw to a position that is tactically more secure or allows an of?cer greater distance in order to consider or deploy a greater variety of force options." Deputy Roybal failed to consider and use any of these other options. Deputy Roybal could have simply asked for assistance to close the ?ap from his partner who was due to come on shift in approximately 15 minutes. He also could have radioed for assistance if his concern for safety and security was that great. However, Deputy Roybal himself admitted that the inmate was not a threat, as he was enclosed in his cell. Further, Deputy Roybal?s tier clerks were already downstairs at the time that Deputy Roybal kicked the door ?ap, and therefore, were themselves removed from inmate reach. Indeed, Deputy Roybal could merely have walked out of reach of the inmate?s hands, or removed himself from the inmate?s area altogether by descending the other available stair case. Instead, Deputy Roybal chose to employ a disproportionate amount of force to the lack of threat posed by inmate JD when he kicked inmate door ?ap. A preponderance of the evidence shows that, when Deputy Roybal kicked inmate JD's door ?ap, inmate JD's hands were still hanging over the edge of the door ?ap and gripping it, as they had not moved after inmate JD placed them in that position to move the ?ap up and down. As Deputy Roybal himself admitted, ?it would have been pointless for me to kick it with his hands over the edge? because the ?ap would not have stuck shut. Therefore, with inmate hands gripping the edge of the door ?ap, no legitimate detention related function could be accomplished, as closing and securing the door ?ap by kicking it would be impossible. Moreover, the swift nature of Deputy Roybal?s kick, combined with the fact that Deputy Roybal did nothing to close or secure the ?ap immediately after his attempt to kick it shut failed, as well as his many contradictory claimed reasons for kicking the door flap, discredit Deputy Roybal's purported purpose for kicking the door ?ap. It is more likely than not, therefore, that Deputy Roybal kicked inmate JD's door ?ap, when inmate hands were gripping the edge, for the purpose of punishing and retaliating against inmate JD for his behavior earlier that morning. Denver Sheriff Department - 14 - Deputy Steven Roybal, 313017 S2015-0196 Disciplinary Determination June 27, 2016 Deputies hold a position of trust, a trust bestowed upon them by the Department and the community, and are visible representatives of government. They are given enormous discretion in carrying out their duties?discretion which also carries tremendous responsibility, especially as it pertains to the authority to use force. Because of the trust placed in them and the enormity of the discretion and authority granted to them, deputy sheriffs must understand that the community has every right to expect and demand the highest level of accountability from the Department and from individual deputies, especially as it pertains to the authority to use force. This is especially true where a Deputy chooses to employ wholly unnecessary and utterly punitive inappropriate force against a mentally ill inmate in his cell who posed very little to no threat to Deputy Roybal. Under the BSD disciplinary matrix, a violation of 30019.1 is a Conduct Category A through violation. A violation of 300.22 is a Conduct Category through violation. Deputy Roybal failed to observe written departmental or agency rules, policies, and procedures by using inappropriate force in multiple and significant ways when dealing with inmate JD. This behavior was ?a violation of law, rule [and] policy a willful and wanton disregard of department guiding principles; [and] involve[d] any act which demonstrates a serious lack of the integrity, ethics or character related to a deputy sheriff?s ?tness to hold his or her position; [and] involve[d] egregious misconduct substantially contrary to the standards of conduct reasonably expected of one whose sworn duty is to uphold the law." As such, this rule violation is 3 Conduct Category violation. A Conduct Category violation by a deputy is always classi?ed as discipline level 8, the highest level of discipline. Thus the penalty level, pursuant to the disciplinary matrix, would be 6. The mitigated penalty is a ninety (90) days suspension, the presumptive penalty is dismissal, and there is no aggravated penalty for discipline level 8 conduct violations. In determining the disciplinary penalty that should be imposed, full consideration was given to Deputy Roybal's lack of discipline, record with the Department, and the nature and circumstances of his misconduct. A mitigated penalty is not appropriate given Deputy Roybal's egregious behavior, his willful disregard of departmental rules, lack of candor, and his inability to acknowledge his wrongdoing. Inmate JD claimed injury as a result of Deputy Roybal's wholly unnecessary and punitive inappropriate force. This caused harm to the Department and City in the form of potential civil liability. Lastly, Deputy Roybal?s conduct also jeopardized the Department's Mission and Guiding Principles. Accordingly the presumptive penalty of dismissal is hereby imposed for each of the violations of CSA rules 16-60 A, L, and DSD Rules 300.191 and 300.22. Career Service Rules 16-60 A. Neglect of Duty, CSR 16-60 L. Failure to observe written departmental or agency regulations. policies or rules. as it pertains to DSD Rule 200.4.2 - Commission of a Deceptive Act Deputy Roybal violated the above Career Service and Departmental Rule when he willfully, intentionally, or knowingly committed a materially deceptive act by departing from the truth verbally during his interview with IAB and at his contemplation of discipline meeting. Deputy Roybal misrepresented the position of inmate JD's hands numerous times during his interview with IAB and at his contemplation of discipline meeting. A preponderance of the evidence indicates that inmate JD's hands had not moved from the position of gripping the door ?ap and hanging over the edge when Deputy Roybal kicked the door ?ap. Deputy Roybal maintained several times that inmate JD's hands were and that they were on top of the ?ap. Deputy Roybal even used a piece of paper to demonstrate the position of Denver Sheriff Department - 15 Deputy Steven Roybal, 313017 82015-0196 Disciplinary Determination June 27, 2016 inmate hands as ?at on the flap and ?[not] hanging over at any point.? His assertion that inmate hands were ?at is not only unreasonable, but also contradicted by the video surveillance footage of the incident, which shows inmate JD grasping the edge of the door ?ap with both hands and using this hold to bang it six times in ?ve seconds prior to Deputy Roybal kicking it. Further, the fact that the door ?ap retracts immediately upon Deputy Roybal kicking it supports the fact that inmate JD's hands were in the way of the door ?ap sticking closed as Deputy Roybal claims it might have. Furthermore, in his interview with IAB and at his contemplation of discipline meeting, Deputy Roybal gave multiple contradictory reasons for why he kicked the door ?ap, which included closing it for safety and security reasons to prevent inmate JD from harming others; to get inmate JD to back away from the door so Deputy Roybal could secure the door ?ap and catch inmate JD off guard; to prevent inmate JD from throwing something at Deputy Roybal when he turned his back on inmate JD to walk down the stairs; to make the door ?ap get ?stuck?; and because Deputy Roybal and the tier clerks were still working up there. However, Deputy Roybal?s reasons are contradicted by his own statements to IAB. By his own admission, kicking the door ?ap would not have secured the door flap, which was his purported purpose. Rather, it only might have momentarily closed the door ?ap shut to give Deputy Roybal the ability to attempt to properly secure the door ?ap with a key. Once Deputy Roybal swiftly kicks the door flap, he makes no attempt or movement to close or secure the door ?ap. Furthermore, Deputy Roybal?s tier clerks were already halfway down the stairs when Deputy Roybal kicked the door flap, and no one else was even out and walking around at the time; therefore. there was no safety or security reason present to kick the ?ap. Additionally. Deputy Roybal stated to IAB that he intended to get inmate JD to back away from the door, and told inmate JD to do so prior to the kick. However. Deputy Roybal also told IAB that he was attempting to catch inmate JD off guard. which is why he approached him from the angle that he did. It is also evident from the video surveillance footage that Deputy Roybal does not speak with inmate JD prior to swiftly kicking the door ?ap, which Deputy Roybal claims. Lastly, it does not make sense that Deputy Roybal would kick the door ?ap to prevent inmate JD from throwing something out of the flap, because kicking the ?ap would not secure it and inmate JD would still be able to re-open it. Further, if Deputy Roybal was so concerned about inmate JD's ability to throw items at him, Deputy Roybal could have taken the other set of stairs. Instead, Deputy Roybal chose to remain at inmate cell window and speak to him for a short period of time before turning his back on inmate JD and descending the stair case. This contradicts Deputy Roybal?s claim of fear of security issues from inmate JD throwing items at him. Lastly, Deputy Roybal?s omission of his kick of the door ?ap in his OIC report, but inclusion of inmate JD's behavior as it pertained to the ?ap, as well as subsequent addition of this information upon learning of the DPD IAB case, is not favorable to Deputy Roybal. Under the DSD disciplinary matrix, a violation of DSD Rule 200.42 is a pre-determined Conduct Category violation. Deputy Roybal failed to observe written departmental or agency rules, policies and procedures by his commission of a deceptive act in connection with the IAB investigation in this case. This behavior involves a ?violation of law, rule, [and] policy which constitutes a willful and wanton disregard of department guiding principles; [and] involves [an] act which demonstrates a serious lack of the integrity, ethics [and] character related to a deputy sheriff's ?tness to hold [her] position; [and] involves egregious misconduct substantially contrary to the standards of conduct reasonably expected of one whose sworn duty is to uphold the law.? As such, this rule violation is a Conduct Category violation. A Conduct Category violation by a deputy is always classi?ed as discipline level 8, the highest level of discipline. Thus the penalty level, pursuant to the disciplinary matrix, would be 8. The Denver Sheriff Department - 16 - Deputy Steven Roybal, 32015-0196 Disciplinary Determination June 27, 2016 mitigated penalty is ninety (90) days suspension, the presumptive penalty is dismissal, and there is no aggravated penalty for discipline level 8 conduct violations. In determining the disciplinary penalty that should be imposed, full consideration was given to Deputy Roybal's lack of discipline, record with the Department, and the nature and circumstances of his misconduct. A mitigated penalty is not appropriate given the repetition of Deputy Roybal's egregious behavior, his refusal to take responsibility for his conduct, and the nature of his behavior as the deception applied to his reasons for using entirely inappropriate force. Deputy Roybal's conduct also jeopardized the Department?s Mission and Guiding Principles. Accordingly. the presumptive penalty of dismissal is hereby imposed for violations of CSA rules 16-60A, E, L, and D80 Rule 200.4.2. SUMMARY OF DISCIPLINARY DETERMINATIONS Conduct Finding Category Level Range Penalty CSR 16-60 L, 080 Rule Disobedience 30019.1 of Rule . . . . (DO 5011.1M) Inappropriate Sustained 8 Presumptive and DSD Rule Force 300.22 CSR 16-60 L, . DSD Rule Dgcegtwe Sustained 8 Presumptive Dismissal 200.4.2 ?Ct ate 8 an Elwell ivilian Review Administrator Stephenie Y. O?Melley Executive Director of the Department of Safety 77% I 1331 Cherokee Street Room 302 PUBLIC SAFETY Denver. co 30204 p: 720.913.6020 f: 720.913.?028 June 27, 2016 Rudy Olave, 815013 Deputy Sheriff County Jail Division Denver Sheriff Department Re: DSD Case #82015?0243 Deputy Olave: This is of?cial noti?cation that, after an independent review by the Of?ce of the Executive Director of the Department of Safety, you are being suspended without pay for 10 days (80 hours). This is a penalty that you have accepted for your misconduct in this matter. Your ten (10) day suspension will begin on July 17, 2016 through and inclusive of July 29, 2016. You may return to work on July 29. 2016 at 11:30 am to complete the remainder of your shift. or use your own time. During this suspension. you shall not wear the Department uniform or exercise any power or authority granted to you as a deputy sheriff, included but not limited to using your identi?cation card to gain entry or access to City and County of Denver facilities or entering City and County of Denver facilities for reasons other than to conduct personal business. You are further not authorized to work for the City and County of Denver for the duration of your suspension. This suspension is for misconduct that violated the Career Service Rules set forth below and is discussed more fully in the section of this letter entitled Departmental Determinations of Discipline (pgs. 6-7). Career Services Rule 16-60 Discipline and Dismissal: The following may be cause for discipline or dismissal of a Career Service employee: A. Neglect of duty. L. Failure to observe written departmental or agency regulations. policies or rules. As it pertains to: Denver Sheriff Departmental Rules and Regulations PREAMBLE Deputies shall obey all Departmental rules, regulations. duties, procedures, instructions. and orders; the provisions of the Operations Manual; Mayor's Executive Orders; and Rules of the Career Service Authority. Failure to comply with any of these shall be construed as a violation. Members in violation shall be subject to disciplinary action. The following provisions of conduct shall be construed as a rule violation of the Operations Manual and Directives and Orders of the Denver Sheriff Department, but not Denver Sheriff Department - 2 - Deputy Rudy Olave, 815013 32014?0243 Disciplinary Determination June 27, 2016 by way of limitation. RR-300.19.1 Disobedience of Rule Deputy Sheriffs and employees shall not violate any lawful Departmental rule (including CSA rules), duty, procedure, policy, directive, instruction, order (including Mayor's Executive Orders), or Operations Manual section. As it pertains to: DSD Department Order 2440.1P - Human Relations I Code of Ethics and Standards of Conduct 2. Policy: [l]t is the policy of the Denver Sheriff Department that staff conduct themselves at all times in a manner that re?ects the ethical standards consistent with the rules contained in this policy and otherwise disseminated. Further, it is the policy of the Denver Sheriff Department that every DSD employee, volunteer, or contractor has the right to work in a professional environment free from discrimination, harassment, hazing, retaliation or intimidation. It is also the Department?s policy that persons with whom we come in contact in the course of performing our duties or otherwise shall enjoy freedom from such discriminatory or harassing behavior. To this end, it is the policy of the Denver Sheriff Department that its staff, volunteers and contractors receive and be familiar with and adhere to the standards of conduct as explained and set forth in this Department Order. Finally, because public con?dence in the integrity of members of the Denver Sheriff Department (DSD) demands that we demonstrate the highest standards of conduct at all times, the Denver Sheriff Department maintains a zero tolerance for violations of any part of this policy. 6.Ethical, moral and lawful standards governing employee conduct: All employees, volunteers, and contractors of DSD are expected to adhere to the standards of conduct described in this 7. therence to and Accountability for Delegated Authority: A. Denver Sheriff Department Guiding Principles (also see Appendix A): Employees of the Denver Sheriff Department, as well as Department volunteers and contractors, should conduct themselves according to the following guiding principles while performing their duties: 2. Acting with respect to all, including other employees and the public; 3. Treating others as we would want to be treated; 7. Encouraging a harmonious, supportive environment, putting the team ?rst and fostering posit 9. Making reasonable decisions based on common sense and good judgment; 11. Being proactive rather than reactive; 13. Setting a positive example for others to follow; 15. Maintaining self-discipline, control and self-restraint; 8. Other Prohibited Conduct: A. Conduct Prohibited by Departmental Rules and Regulations Denver Sheriff Department Deputy Rudy Olave, 815013 82014-0243 Disciplinary Determination June 27, 2016 O. R. 1. DSD employees, contractors and volunteers shall observe Departmental Rules and Regulations governing conduct, and not engage in conduct prohibited in such rules and regulations. B. Discrimination. harassment, retaliation and intimidation 1. Discrimination, harassment, retaliation or intimidation based on race, color, religion. national origin, gender, age, sex, sexual orientation, gender variance, marital status, military status, political af?liation, physical or mental disability is expressly prohibited. This includes but is not limited to: a. Verbal conduct such as racial epithets, derogatory comments, slurs, jokes, sexual remarks or audio recordings containing any such verbal content; Under the BSD disciplinary matrix, a violation of DSD rule 30019.1 is a Conduct Category A through violation. 30021.1 - Discrimination, Harassment, and Retaliation Deputy sheriffs and employees are prohibited from engaging in any form of discrimination. harassment, including sexual harassment, or retaliation, based on any class or personal characteristic protected by federal, state, or local law; or as delineated by Mayor?s Executive Orders, CSA rules, Manager of Safety policies or Departmental orders. Under the BSD disciplinary matrix, a violation of DSD rule 30021.1 is a Conduct Category through violation. Failure to maintain satisfactory working relationships with co-workers, other City employees, or the public. Discrimination or harassment of any employee or of?cer of the City because of race, color, creed, religion, national origin, gender, sexual orientation, marital status, military status, age, disability, or political af?liation, or any other status protected by federal, state, or local laws. This includes making derogatory statements based on race, color, creed, religion, national origin, gender, sexual orientation, marital status, military status, age, disability, or political af?liation, or any other status protected by federal, state, or local laws. Discipline for this prohibited conduct does not have to rise to the level of a violation of any relevant state or federal law before an employee may be disciplined and the imposition of such discipline does not constitute an admission that the City violated any law (Revised January 22, 2010; Rule Revision Memo 44C). CONTEMPLATION OF DISCIPLINE MEETING You were served with a contemplation of discipline letter regarding this matter on May 10, 2016. A contemplation of discipline meeting was held on June 7. 2016 at 1:00 pm in the Downtown Detention Center Conference Room, located at 490 West Colfax Avenue, Denver, Colorado, 80204. Denver Sheriff Department - 4 Deputy Rudy Olave, 815013 82014-0243 Disciplinary Determination June 27, 2016 The purpose of this meeting was to allow you to correct any errors in the Agency?s information or facts, to tell your side of the story and to present any mitigating information as to why possible disciplinary action should not be taken against you. Present at this meeting was Sheriff Patrick Firman and Chief Connie Coyle. Present from the Conduct Review Of?ce (CRO) was Captain Stephanie McManus, Sergeant Steve Koch, and Ms. Rachelle Wright. Present from the City Attorney?s Of?ce was Ms. Jennifer Jacobson. Present from the Executive Director of Safety?s Of?ce was Ms. Shannon Elwell. Present from the Of?ce of the Independent Monitor was Mr. Nate Fehrrnann. You attended this meeting with Mr. Jonathan Datz as your attorney. Below is a summary of the pertinent parts of your contemplation of discipline meeting. The transcript and recording of this entire meeting was considered and is contained in the IAB investigative ?le. Sheriff Firman started the meeting by giving you the opportunity to make a statement. You then stated that you never intended malice in what you said and that you were really sorry for what you made Security Specialist (SS) Deniro go through. You stated that you were open to accepting discipline and that you value your job a lot. You further stated that you understood that "[your] actions were not appropriate .what this Department stands," and that you would accept whatever discipline the panel deemed reasonable. Your attorney then made a brief statement on your behalf that highlighted your understanding of victim empathy and ?if there was discipline that could be placed that will take the pain of what occurred away to the true victim in this case, he's made it very clear to me he wants my statements to be today that he?s willing to accept that.? Your attorney also indicated that you love and take pride in your job and the community. and that you see yourself as becoming a positive contribution to where the community and the City are going. Your attorney emphasized. at your direction, that you believe that you deserve to be disciplined, that you acknowledge that you did something wrong and that you hurt someone. Your attorney ended by stating that ?[ilf that plays even a small part in making the true victim in this case feel better about her safety, her security here, then that?s what needs to happen. So I?d ask you to consider a path that allows a positive to come out of what really is just not a fair event to the true victim." Ms. Elwell then asked you for awards or commendations that you would like to be considered for mitigation. Your attorney responded that know Rudy?s a brand new of?cer. It's not a mystery if anybody's read the ?le that he's still on his initial stages of his service, but he also made it clear it didn't matter, even if he was the most decorated of?cer in the Department, it doesn?t justify his actions, and he would feel very uncomfortable talking about all that he?s done well as some sort ofjusti?cation or mitigation for what happened. So that's how he feels." You concluded by reiterating that you are not the victim, and stating that you did not lie in your IAB interview about what you said. You stated that SS Deniro?s impression of what you said was different than your intent. You made clear that you were not justifying what you said, and that you would accept whatever penalty is deemed appropriate. The meeting then concluded. Your previous discipline includes: NONE Denver Sheriff Department - 5 - Deputy Rudy Olave. 315013 82014-0243 Disciplinary Determination June 27, 2016 The Department has concern regarding your ability to act responsibly and to conduct yourself appropriately while on duty. Your conduct has been in violation of the Department?s policies and procedures. There is an immediate need for improvement in this area. Further rule violations shall be dealt with appropriately. Please be advised that you while you may appeal the discipline imposed and these determinations in accordance with Career Service Rule 19, Appeals. as well as initiate dispute resolution pursuant to Career Service Rule 18, Dispute Resolution, you have chosen to accept responsibility for your misconduct as well as the resulting penalty. Finally, please be reminded that you are not to take any retaliatory action against anyone has a result of this disciplinary action. If any such action is taken, further discipline may be contemplated and taken, up to and including dismissal. xzfxi/ Shannon Elwell Civilian Review Administrator Sincerely, cc: Career Service Authority, Records Management Division IAB File Administration Denver Sheriff Department - 6 - Deputy Rudy Olave, 815013 82015?0243 Disciplinary Determination June 27. 2016 DEPARTMENTAL DETERMINATIONS OF DISCIPLINE Deputy Rudy Olave, 315013 DSD IA Case 82015-0243 After a thorough review of the Internal Affairs Bureau investigation, the Of?ce of the Executive Director of the Department of Safety has made the following ?ndings of fact and determinations of discipline. FINDINGS OF FACT The preponderance of evidence establishes the following summary of the facts and circumstances surrounding the conduct upon which discipline is being imposed. Deputy Olave has been employed with the Denver Sheriff Department (DSD) since February 2015. Deputy Olave's main job duties. as re?ected in the DSD Mission, are to ?provide safety and security for the community by ensuring care, custody, transportation, and re-entry services for detainees by operating safe, secure, ef?cient, and humane facilities that adhere to federal, state, and local laws." On October 7, 2015, Deputy Olave was involved in an incident with Security Specialist (88) Gabrielle Deniro and SS Monica Zavala that ultimately resulted in a complaint ?led against him by SS Deniro. DSD investigated the matter for potential administrative rule violations. The entire investigative ?le has been reviewed, including but not limited to video surveillance footage, audio interviews, and relevant paperwork. On October 7, 2015, Deputy Olave was scheduled to work overtime at the BBC. Video surveillance evidence shows that Deputy Olave greeted SS Deniro outside of the control center before entering the control center to visit with SS Zavala. Shortly thereafter, SS Deniro entered the control center while Deputy Olave and SS Zavala were socializing in a mixture of Spanish and English and talking about their personal lives. Deputy Olave was speaking loudly in Spanish and SS Deniro was unable to hear her radio. 88 Deniro told Deputy Olave and SS Zavala that she could not hear the radio, and Deputy Olave replied with a racial epithet. SS Deniro then asked Deputy Olave what he said, and Deputy Olave replied with the same racial epithet. SS Deniro advised Deputy Olave that his comments were ?harsh, aggressive, and wrong,? and Deputy Olave apologized and said that ?it just slipped out." SS Deniro was shocked and saddened, and ?led a complaint. At his interview, Deputy Olave indicated that he has used the racial epithet in his personal life, and it is a word that he hears often in music. Deputy Olave admitted that after he said the word, he realized he had made a mistake. Based on the review of the record, including video footage of the incident and interviews with the parties involved, the preponderance of the evidence establishes various instances of misconduct in violation of the following departmental rules and policies. ANALYSIS AND CONCLUSIONS Career Service Rgles 16-60 A. Neglect of Duty. CSR 16-60 L, Failure to observe written departmental or agency regulations. policies or rules, as it pertains to DSD Rule 300.19.1 - Disobedience of Rule as it pertains to DD. 2440.1PI Human RelationsICode of Ethics and Standards of Conduct'I 30021.1I DiscriminationI Harassment, and Retaliation; CSR 0, Failure to maintain satisfactom working relationships with co-workers: CSR R. Discirmination or harassment of any the City because of race Denver Sheriff Department - 7 Deputy Rudy Olave. 815013 82014-0243 Disciplinary Determination June 27. 2016 Deputy Olave violated the above Career Service and Departmental Rules when he used a racial epithet in the workplace. This use of a racial epithet caused his coworker, SS Deniro. to experience racial discrimination in her professional work environment. In using the racial epithet. Deputy Olave failed to adhere to the standards of conduct expected of all members of the Department, as well as failed to maintain a satisfactory working relationship with his coworker. He likewise neglected his duty to act with respect toward his coworker by refraining from using offensive racial epithets in the workplace. Under the DSD disciplinary matrix. a violation of 30019.1 is a CondUct Category A through violation. A violation of 30021.1 is a Conduct Category through violation. Deputy Olave failed to observe written departmental or agency rules. policies. and procedures by using a racial epithet in the workplace. This behavior was ?substantially contrary to the guiding principles of the Department [as well as] substantially interfere[d] with its mission, Operations, or professional image.? As such. this rule violation is a Conduct Category violation. During his time on the Department. Deputy Olave has no prior discipline. Therefore. pursuant to the disciplinary matrix. the penalty level is a 5. The presumptive penalty for a Conduct Category D. level 5 offense is a ten (10) day suspension. The mitigated penalty is a four (4) to six (6) day suspension. and the aggravated penalty is a fourteen (14) to sixteen (16) day suspension. In determining the appropriate disciplinary penalty that should be imposed. full consideration was given to Deputy Olave's lack of discipline, record with the Department. willingness to accept responsibility. and the nature and circumstances of his misconduct. However. aggravating factors are also present. including prejudicial conduct regarding race. harm to a fellow Department employee. and Deputy Olave?s recent training in the academy regarding appropriate workplace behavior- After considering the above mitigating and aggravating factors. none are suf?ciently weighty to justify a departure from the presumptive penalty. Accordingly the presumptive penalty of a 10 day suspension is hereby imposed for each of the violations of CSA rules 16-60 A. O. and R, and DSD Rules 30019.1 and 30021.1. SUMMARY OF DISCIPLINARY DETERMINATIONS Conduct Finding Category Level Range Penalty Disobedience of Rule; CSR 16-60 A. Discrimination. L. O. R. and Harassment. DSD Rule and 10 da 30019.1 Retaliation; Sustained 5 Presumptive sus ensli?on (DO 2440.1 P) Failure to and DSD Rule maintain 30021.1 satisfactory working relationships =1 3 an Elwell Date Civilian Review Administrator Stephanie Y. O'Malley Executive Director of the Department of Safety i774: I. 1331 Cherokee Street Room 302 PUBLIC SAFETY Denver, co 30204 p: 720.913.6020 f: 720.913.7028 July 11, 2016 Gerry Carter, 801012 Deputy Sheriff Downtown Division Denver Sheriff Department Re: DSD IAB Case #82015-0194 Deputy Carter: This is of?cial noti?cation that, after an independent review by the Of?ce of the Executive Director of the Department of Safety. you are being suspended without pay for two (2) days (16 hours). Your two (2) day suspension will begin on July 25, 2016 through and inclusive of July 26, 2016. You may return to work on July 26, 2016 at 1:22 pm to complete the remainder of your shift, or use your own time. During this suspension. you shall not wear the Department uniform, or exercise any power or authority granted to you as a deputy sheriff, including but not limited to using your identi?cation card to gain entry or access to City and County of Denver facilities or entering City and County of Denver facilities for reasons other than to conduct personal business. You are further not authorized to work for the City and County of Denver for the duration of your suspension. This suspension is for misconduct that violated the Career Service Rules set forth below and is discussed more fully in the section of this letter entitled Departmental Determinations of Discipline (pgs. 4-6). Career Service Rule 16-60 Discipline and Dismissal: The following may be cause for discipline or dismissal of a Career Service employee: B. Carelessness in performance of duties and responsibilities. L. Failure to observe written departmental or agency regulations, policies or rules. As it pertains to: Denver Sheriff Degartmental Rules and Regulations PREAMBLE Deputies shall obey all Departmental rules, regulations, duties, procedures, instructions, and orders; the provisions of the Operations Manual; Mayor's Executive Orders; and FOR CITY SERVICES VISIT Denvertiomrg 311 Denver Department of Safety - 2 - Deputy Gerry Carter, 301012 32015-0194 Disciplinary Determination July 11, 2016 Rules of the Career Service Authority. Failure to comply with any of these shall be construed as a violation. Members in violation shall be subject to disciplinary action. The following provisions of conduct shall be construed as a rule violation of the Operations Manual and Directives and Orders of the Denver Sheriff Department, but not by way of limitation. RR-400.4.4 Erroneous Release Deputy Sheriffs and employees shall not release a prisoner who is not eligible for release. Under the DSD disciplinary matrix, a violation of DSD Rule 400.4.4 is a Conduct Category through violation. CONTEMPLATION 0F DISCIPLINE KNOWN AS PREJJISCIPLINARY) MEETING You were served with a pre-disciplinary letter regarding this matter on May 9, 2016. A pre- disciplinary meeting was held on June 20, 2016 at approximately 1:00 pm, in the Denver Sheriff Department (DSD) Downtown Detention Center (DDC) administrative conference room, located at 490 West Colfax Avenue, Denver, Colorado. The purpose of this meeting was to allow you to correct any errors in the Agency's information or facts, to tell your side of the story, and to present any mitigating information as to why possible disciplinary action should not be taken against you. Present at this meeting was Sheriff Patrick Firman and Division Chief Paul Oliva. Present from the Conduct Review Of?ce (CRO) was Captain Stephanie McManus, Mr. Luis Lipchak, and Ms. Rachelle Wright. Present from the Executive Director of Safety?s Of?ce was Ms. Shannon Elwell. Present from the Of?ce of the Independent Monitor was Mr. Gregg Crittenden. Present from the City Attorney's Of?ce was Ms. Jennifer Jacobson. You attended this meeting with Mr. Reid Elkus as your attorney. The pre-disciplinary meeting was transcribed and is contained in the IAB ?le, incorporated by reference herein. A summary of the pre-disciplinary meeting follows. You began by stating that you read over the contemplation of discipline letter and that you ?have to agree? with everything in it. You stated ?It was a mistake and I made a mistake. I'm only human.? Your attorney then made some statements on your behalf, which included arguing that it is dif?cult for you to remember the speci?c details of this release, given the number of the releases in which you participate. Your attorney also detailed the differences in the release processes at BBC and County Jail. Your attorney then stated that your error may have been a simple mistake?misreading one number?and therefore not a knowing violation of departmental policy. Your attorney concluded by detailing your service with the Department, lack of disciplinary issues, and exceptional performance evaluations. Given your years of service with the Department and no prior mistakes, your attorney argued that you should not receive any discipline. Chief Oliva then asked you what if anything you've changed in your practice to ensure that this does not happen again. You stated that you attempt to ?nish one job at a time, as well as have FOR CIIY SERVICES VISIT Denvertiomrg Denver Department of Safety Deputy Gerry Carter, 801012 32015-0194 Disciplinary Determination July 11. 2016 purchased reading glasses. You then con?rmed to Chief Oliva that, on your days off, no one else does what you do. Ms. Elwell then asked you to provide any awards or commendations you'd like to be considered to Captain McManus. You stated that you're not sure if you have anything, that you ?just show up to work and do the best I I don't expect to be acknowledged for that.? Ms. Elwell then con?rmed with you that this is your ?rst erroneous release in 13 years. Your attorney then commented that he sees a need for improvement of procedure in the release process at County Jail. You stated that when the IAB sergeant ?rst called about this case, he also made the mistake of misreading the year. The meeting then concluded. Your previous discipline includes: NONE. The Department has concern regarding your ability to act responsibly and to conduct yourself apprOpriately while on duty. Your conduct has been in violation of the Department's policies and procedures. There is an immediate need for improvement in this area. Further rule violations shall be dealt with appropriately. Please be advised that you may appeal the discipline imposed and these determinations in accordance with Career Service Rule 19, Appeals. You may also initiate dispute resolution pursuant to Career Service Rule 18. Dispute Resolution. Please note that pursuing dispute resolution does not toll your time for ?ling an appeal. Finally, please be reminded that you are not to take any retaliatory action against anyone has a result of this disciplinary action. If any such action is taken. further discipline may be contemplated and taken, up to and including dismissal. Sincerely, Civilian Review Administrator cc: Career Service Authority, Records Management Division IAB File Administration enveanv.org Denver Department of Safety - 4 - Deputy Gerry Carter, 801012 32015-0194 Disciplinary Determination July 11, 2016 DEPARTMENTAL DETERMINATIONS OF DISCIPLINE Deputy Sheriff Gerry Carter, 301012 82015-0194 After a thorough review of the DSD Internal Affairs Bureau (IAB) investigation, the Executive Director of the Department of Safety?s Of?ce has made the following ?ndings of fact and determinations of discipline. SUMMARY OF FACTS The preponderance of evidence establishes the following summary of the facts and circumstances surrounding the conduct upon which discipline is being imposed. Deputy Carter has been a Deputy Sheriff with the Denver Sheriff Department (DSD) for approximately ?fteen years. On the date of the incident, Deputy Carter was assigned to the Fugitive Desk in Records. As the Fugitive Of?cer, Deputy Carter's primary duty was to manage the information and documentation related to inmates that have fugitive holds. The fugitive of?cer is also responsible for updating ?les throughout the day and assisting Records Of?cers as needed. Deputy Carter?s main job duties, as re?ected in the DSD Mission, are to "provide safety and security for the community by ensuring care, custody, transportation, and re-entry services for detainees by operating safe, secure, ef?cient and humane facilities that adhere to federal, state, and local laws.? On June 29, 2015, Deputy Carter and Sergeant Jeffrey Smith inadvertently authorized the release of inmate approximately one year before she was eligible for release on June 28, 2016. Inmate RS was booked into the BBC on April 23, 2015. She was transported to the COJL on April 27, 2015. During her court appearance, on May 12, 2015, inmate R8 was sentenced to 730 days of incarceration. The out date for inmate RS was projected in the Jail Management System (JMS) to be June 28, 2016. On the morning of June 29, 2015, Sergeant Smith updated the sentence history of inmate R8 in JMS to re?ect six days of earned time credit. lnadvertently thinking the projected out data showed that of June 28, 2015 and not June 28, 2016, Sergeant Smith updated the sentence history of inmate RS with the comment ?time expired." According to Department policy, time expired status is when an inmate has completed the required amount of time sentenced with good time deducted. Thinking that inmate R8 was now eligible for release, Sergeant Smith cleared inmate RS through National Crime Information Center (NCIC). Sergeant Smith then prepared a DSD County Jail (COJL) inmate eligibility for release form. The DSD COJL inmate eligibility for release form requires two central records staff signatures. These signatures indicate each staff person has veri?ed all charges have been disposed. They are also authorizing the release of the inmate based upon a thorough review of the inmate's arrest documentation and corresponding release documents. The DSD COJL inmate eligibility for release form also requires a third signature from a COJL release of?cer to con?rm that the of?cer veri?ed the identity only of the inmate before releasing them. After Sergeant Smith signed the eligibility for release, it was given to Deputy Carter to review and sign as the second records of?cer. 1 The inmate is referred to only by her initials. FDR Denierliomrg li?i?i Denver Department of Safety - 5 - Deputy Gerry Carter. 801012 82015-0194 Disciplinary Determination July 11, 2016 After Deputy Carter and Sergeant Smith each signed the eligibility for release form, it was faxed to COJL. According to Deputy Carter and Sergeant Smith, Deputy Carter was the last DDC records staff member to sign the form and more than likely was the one who sent it to the COJL. Once the form was received by COJL. Deputy Romero as required veri?ed the identity only of inmate RS and released her. Deputy Carter indicated that he was ?rst made aware of the error after someone placed the ?le on his desk. Deputy Carter stated, ?Apparently somebody got wind of it or something and it was sitting on my when I reviewed it and I went to Captain Brown." On August 6, 2015, approximately 39 days after the erroneous release, the incident was directed to IAB by Sheriff Diggins. Also, on August 6, 2015, Denver County Courts were advised of the situation, and a warrant was issued for inmate RS. On August 19, 2015, approximately 52 days after being erroneously released, inmate RS was returned to DSD custody. During his IAB interview, Deputy Carter did not remember processing the paperwork of inmate RS but believed that he had reviewed it thoroughly as he does with each case. Deputy Carter indicated that he would not have signed the form without reviewing the paperwork and suggested rather that it was an unintentional mistake. Deputy Carter explained the incident during his interview as ?i guess we missed just didn't catch the year." During Deputy Carter?s interview, he indicated that when he saw the time expired status he thought inmate R8 was done with her time. Deputy Carter further explained that when an inmate's status is changed to time expired, there is no sentence history. Additionally, Deputy Carter said that the records post is a six man post, but there usually are not six people assigned to records. Sergeant Smith explained during his interview that he ?would have disposed of the charges and made it time expired if [he] thought she was released." Sergeant Smith explained the incident by saying missed though I check and double check, I missed that one digit [for the year]." Based on the review of the record, a preponderance of the evidence establishes the following acts of misconduct in violation of the following departmental rules and policies. ANALYSIS AND CONCLUSIONS Career Service Rules 16-60 B. Carelessness in Performance of Failure to observe written departmental or agency regulationsI policies or rules as it Qertains to DSD RR-400.4.4 - Erroneous Release Deputy Carter violated these Career Service Rules and the above Departmental Rule when he erroneously released a prisoner who was not eligible for release. Signing as the second records of?cer, Deputy Carter signed the form that authorized the release of inmate RS from the DDC approximately one year prior to her actual release date. Inmate RS was not eligible for release from DSD custody on June 29, 2015, as she should have remained incarcerated until June 28, 2016. At his DSD IAB interview, Deputy Carter did not contest that inmate RS should not have been released. Moreover, Deputy Carter acknowledged wrongdoing in his DSD IAB interview in that he stated that, upon viewing the ?le, he "guess we missed just didn't catch the year.? In erroneously releasing inmate RS, Deputy Carter was careless in the performance of his duties as they pertained to ensuring that inmates are not released when they are ineligible for release. FUR SERVICE VISIT Denveriiomrg HillL Denver Department of Safety - 6 - Deputy Gerry Carter, 801012 82015-0194 Disciplinary Determination July 11, 2016 Under the BSD disciplinary matrix, a violation of DSD Rule 400.4.4 falls in Conduct Categories through D. Deputy Carter?s behavior that ?ha[d] a pronounced negative impact on the operations or professional image of the Department, or on relationships with other deputy sheriffs, employees, agencies, or the public." Deputy Carter?s carelessness contributed to the release of a prisoner with approximately one year left to serve on her sentence, who remained out of custody for approximately 52 days before being returned to custody on a warrant issued by Denver County Courts. As such, this rule violation is a Conduct Category violation. In his approximately ?fteen years on the Department, Deputy Carter has no prior instances of discipline. Therefore, pursuant to the disciplinary matrix, the penalty level is a 3. The presumptive penalty for a Conduct Category C, level 3 offense is a two (2) day suspension. The mitigated penalty is a written reprimand to one (1) day suspension, and the aggravated penalty is a three (3) to four (4) day suspension. In analyzing the appropriate penalty, sections 19 through 23 of the disciplinary matrix, pertaining to considering and weighing mitigating and aggravating factors, have been considered. After an examination of the circumstances of the case, nature of the misconduct, and Deputy Carter's record, there are present mitigating factors that include no prior disciplinary history, excellent PEPRs, and history with the Department. Furthermore, Deputy Carter has processed releases of many inmates in his career, and this was his ?rst erroneous release. Additionally, he admitted his mistake and took full responsibility. However, aggravating factors are also present. Deputy Carterjeopardized the Mission of the BSD when he erroneously released inmate RS. Moreover, an inmate erroneously released with one year remaining on her sentence creates the existence of an actual and demonstrable legal or ?nancial risk to the Department and the City. After considering the above mitigating and aggravating factors, none were found to be suf?ciently weighty to warrant a penalty other than the presumptive penalty. Accordingly, the presumptive penalty of two (2) days suspension is hereby imposed for violations of CSA rules 16-608, L, and DSD Rule 400.4.4. SUMMARY OF DISCIPLINARY DELERMINATIONS CSR 16-60 B, L, as it pertains to DSD RR-400.4.4 Conduct Finding Category Level Range Penalty . . 2 days Erroneous Release Sustalned 3 suspension rim/c annon Elwell Date Civilian Review Administrator FOR BUY SERVICES VISIT Denverlimrg li?ii Stephanie Y. O?Malley Executive Director of the Department of Safety 77% 1331 Cherokee Street Room 302 PUBLIC SAFETY Denver. co 80204 p: 720.913.6020 f: ?20.913.7028 llama-?15 nv July 11, 2016 Jeffrey Smith, 890013 Deputy Sheriff Sergeant Downtown Division Denver Sheriff Department Re: DSD IAB Case #82015-0194 Sergeant Smith: This is of?cial noti?cation that, after an independent review by the Of?ce of the Executive Director of the Department of Safety, you are being suspended without pay for two (2) days (16 hours). Your two (2) day suspension will begin on August 28, 2016 through and inclusive of August 29, 2016. You may return to work on August 29, 2016 at 8:30 am to complete the remainder of your shift, or use your own time. During this suspension, you shall not wear the Department uniform, or exercise any power or authority granted to you as a deputy sheriff, including but not limited to using your identi?cation card to gain entry or access to City and County of Denver facilities or entering City and County of Denver facilities for reasons other than to conduct personal business. You are further not authorized to work for the City and County of Denver for the duration of your suspension. This suspension is for misconduct that violated the Career Service Rules set forth below and is discussed more fully in the section of this letter entitled Departmental Determinations of Discipline (pgs. 4-6). Career Service Rule 16-60 Discigline and Dismissal: The following may be cause for discipline or dismissal of a Career Service employee: B. Carelessness in performance of duties and responsibilities. L. Failure to observe written departmental or agency regulations, policies or rules. As it pertains to: Denver Sheriff Degartmental Rules and Regulations PREAMBLE Deputies shall obey all Departmental rules, regulations, duties, procedures, instructions, and orders; the provisions of the Operations Manual; Mayor?s Executive Orders; and FOR UN VISIT Denverliomrg Denver Department of Safety - 2 - Sergeant Jeffrey Smith. 890013 32015-0194 Disciplinary Determination July 11, 2016 Rules of the Career Service Authority. Failure to comply with any of these shall be construed as a violation. Members in violation shall be subject to disciplinary action. The following provisions of conduct shall be construed as a rule violation of the Operations Manual and Directives and Orders of the Denver Sheriff Department, but not by way of limitation. RR-400.4.4 - Erroneous Release Deputy Sheriffs and employees shall not release a prisoner who is not eligible for release. Under the DSD disciplinary matrix, a violation of DSD Rule 400.4.4 is a Conduct Category through violation. CONTEMPLATION 0F DISCIPLINE (FORMERLY KNOWN AS PRE-DISCIPLINARY) MEETING You were served with a pre-disciplinary letter regarding this matter on May 9, 2016. A pre- disciplinary meeting was held on June 20, 2016 at approximately 1:00 pm, in the Denver Sheriff Department (DSD) Downtown Detention Center (DDC) administrative conference room, located at 490 West Colfax Avenue, Denver, Colorado. The purpose of this meeting was to allow you to correct any errors in the Agency?s information or facts, to tell your side of the story, and to present any mitigating information as to why possible disciplinary action should not be taken against you. Present at this meeting was Sheriff Patrick Firman and Division Chief Paul Oliva. Present from the Conduct Review Of?ce (CRO) was Captain Stephanie McManus and Ms. Rachelle Wright. Present from the Executive Director of Safety?s Of?ce was Ms. Shannon Elwell. Present from the Of?ce of the Independent Monitor was Mr. Gregg Crittenden. Present from the City Attorney's Of?ce was Ms. Jennifer Jacobson. You attended this meeting with Ms. Marcy Ongert as your attorney. The pre-disciplinary meeting was transcribed and is contained in the IAB ?le, incorporated by reference herein. A summary of the pre-disciplinary meeting follows. You had a written statement which Ms. Ongert passed out to the meeting participants and which was read into the record. A copy of the written statement has been incorporated into the IAB ?le for this case and has been considered. In your written statement, you acknowledged that you made ?an honest mistake" when you ?inadvertent[ly] . . . . failed to correctly note the year of inmate release date when I entered her earned time credits." Your statement also highlighted your service with and commitment to the Department, as well as your special assignments and awards. You concluded by stating that you "admitted [your] mistake in this case, took responsibility, and apologized profusely [as well as] . . . . expressed remorse and responsibility.? Your attorney then made various arguments on your behalf. including reiterating that you are a human being who made a mistake and who has taken responsibility for that mistake. Your attorney also advocated for mitigation to be applied, and advocated that there should be a better process in place to catch errors. FOR CITY SERVICE VISIT llenverliomrg HullL Denver Department of Safety - 3 - Sergeant Jeffrey Smith, 590013 82015-0194 Disciplinary Determination July 11. 2016 Ms. Elwell then asked if you could please provide any awards or commendations to Captain McManus for consideration. She also con?rmed with you that this is your ?rst erroneous release in 24 years. You concluded by stating that you?re embarrassed and that you beat yourself up every day over this incident. You stated that you carry a reminder with you every day that you have value. The meeting then concluded. Your previous discipline includes: 4/28l2009 X0 94 Procedure Written Reprimand The Department has concern regarding your ability to act responsibly and to conduct yourself appropriately while on duty. Your conduct has been in violation of the Department?s policies and procedures. There is an immediate need for improvement in this area. Further rule violations shall be dealt with appropriately. Please be advised that you may appeal the discipline imposed and these determinations in accordance with Career Service Rule 19, Appeals. You may also initiate dispute resolution pursuant to Career Service Rule 18, Dispute Resolution. Please note that pursuing dispute resolution does not toll your time for ?ling an appeal. Finally, please be reminded that you are not to take any retaliatory action against anyone has a result of this disciplinary action. If any such action is taken, further discipline may be contemplated and taken, up to and including dismissal. Sincerely, Civilian Review Administrator cc: Career Service Authority, Records Management Division IAB File Administration FUR CITY SERVICES VISIT DenverGov.org I Denver Department of Safety - 4 - Sergeant Jeffrey Smith. $90013 82015-0194 Disciplinary Determination July 11, 2016 DEPARTMENTAL DETERMINATIONS OF DISCIPLINE Sergeant Jeffrey Smith, 890013 32015-01 94 After a thorough review of the DSD Internal Affairs Bureau (IAB) investigation, the Executive Director of the Department of Safety's Of?ce has made the following ?ndings of fact and determinations of discipline. SUMMARY OF FACTS The preponderance of evidence establishes the following summary of the facts and circumstances surrounding the conduct upon which discipline is being imposed. Sergeant Smith has been an employee with the Denver Sheriff Department (DSD) for approximately 26 years. On the date of the incident, Sergeant Smith was assigned to the Records Unit as the Records Sergeant. As the Records Sergeant, Sergeant Smith's primary duty was to oversee the records unit, which included releasing of inmates. Sergeant Smith's main job duties, as re?ected in the DSD Mission, are to ?provide safety and security for the community by ensuring care, custody, transportation, and re-entry services for detainees by operating safe, secure, ef?cient and humane facilities that adhere to federal, state, and local laws-" On June 29, 2015, Deputy Gerry Carter and Sergeant Smith inadvertently authorized the release of inmate RS1, approximately one year before she was eligible for release on June 28, 2016. Inmate RS was booked into the DDC on April 23. 2015. She was transported to the COJL on April 27, 2015. During her court appearance, on May 12, 2015, inmate R8 was sentenced to 730 days of incarceration. The out date for inmate R8 was projected in the Jail Management System (JMS) to be June 28, 2016. On the morning of June 29, 2015, Sergeant Smith updated the sentence history of inmate RS in JMS to re?ect six days of earned time credit. Inadvertently thinking the projected out date showed that of June 28. 2015 and not June 28, 2016, Sergeant Smith updated the sentence history of inmate RS with the comment ?time expired.? According to Department policy, time expired status is when an inmate has completed the required amount of time sentenced with good time deducted. Thinking that inmate RS was now eligible for release, Sergeant Smith cleared inmate RS through National Crime lnforrnation Center (NCIC). Sergeant Smith then prepared a DSD County Jail (COJL) inmate eligibility for release form. The DSD COJL inmate eligibility for release form requires two central records staff signatures- These signatures indicate each staff person has veri?ed all charges have been disposed. They are also authorizing the release of the inmate based upon a thorough review of the inmate's arrest documentation and corresponding release documents. The DSD COJL inmate eligibility for release form also requires a third signature from a COJL release of?cer to con?rm that the of?cer veri?ed the identity only of the inmate before releasing them. After Sergeant Smith signed the eligibility for release, it was given to Deputy Carter to review and sign as the second records of?cer. 1 The inmate is referred to only by her initials. FORWSERVICESVISIT Denierlimrg ?ll Denver Department of Safety - 5 - Sergeant Jeffrey Smith, 890013 82015-0194 Disciplinary Determination July 11, 2016 After Deputy Carter and Sergeant Smith each signed the eligibility for release form, it was faxed to COJL. According to Deputy Carter and Sergeant Smith, Deputy Carter was the last DDC records staff member to sign the form and more than likely was the one who sent it to the COJL. Once the form was received by COJL, Deputy Romero as required veri?ed the identity only of inmate RS and released her. Deputy Carter indicated that he was ?rst made aware of the error after someone placed the ?le on his desk. Deputy Carter stated, ?Apparently somebody got wind of it or something and it was sitting on my when I reviewed it and I went to Captain Brown." On August 6, 2015, approximately 39 days after the erroneous release, the incident was directed to IAB by Sheriff Diggins. Also, on August 6, 2015, Denver County Courts were advised of the situation, and a warrant was issued for inmate RS. On August 19, 2015, approximately 52 days after being erroneously released, inmate RS was returned to DSD custody. During his IAB interview, Deputy Carter indicated that when he saw the time expired status he thought inmate RS was done with her time. Deputy Carter further explained that when an inmate's status is changed to time expired, there is no sentence history. Additionally, Deputy Carter said that the records post is a six man post, but there usually are not six people assigned to records. Sergeant Smith explained during his interview that he ?would have disposed of the charges and made it time expired if [he] thought she was released.? Sergeant Smith admitted that he initiated the release, and that it should not have moved fonNard to Deputy Carter. Sergeant Smith explained the incident by saying missed though I check and double check, i missed that one digit [for the year]." Sergeant Smith apologized and stated he felt ?bad that it got to the second signer?s desk. It should have never been there." Based on the review of the record, a preponderance of the evidence establishes the following acts of misconduct in violation of the following departmental rules and policies. ANALYSIS AND CONCLUSIONS Career Service Rules 16-60 BI Carelessness in Performance of Duties: L, Failure to observe written departmental or agency regulations. policies or rules as it pertains to DSD RR-400.4.4 Erroneous Release Sergeant Smith violated these Career Service Rules and the above Departmental Rule when he erroneously released a prisoner who was not eligible for release. By incorrectly reading the projected out date and updating the sentence history, Sergeant Smith initiated an erroneous release. Furthermore, Sergeant Smith signed the form that authorized the release of inmate RS from the BBC approximately one year prior to her actual release date. Inmate RS was not eligible for release from DSD custody on June 29, 2015, as she should have remained incarcerated until June 28, 2016. At his DSD IAB interview, Sergeant Smith did not contest that inmate RS should not have been released. Moreover, Sergeant Smith acknowledged wrongdoing in his DSD IAB interview in that he stated that, upon viewing the ?le, he ?missed though I check and double check, I missed that one digit [for the year]." In erroneously releasing inmate RS, Sergeant Smith was careless in the performance of his duties as they pertained to ensuring that inmates are not released when they are ineligible for release. Under the DSD disciplinary matrix, a violation of DSD Rule 400.4.4 falls in Conduct Categories through D. Sergeant Smith's behavior that ?ha[d] a pronounced negative impact on the FDR CITY SERVICES VISIT DenverGov.org li?ii Denver Department of Safety - 6 - Sergeant Jeffrey Smith. 390013 S2015-0194 Disciplinary Determination July 11, 2016 operations or professional image of the Department, or on relationships with other deputy sheriffs, employees, agencies, or the public.? Sergeant Smith's carelessness contributed to the release of a prisoner with approximately one year left to serve on her sentence, who remained out of custody for approximately 52 days before being returned to custody on a warrant issued by Denver County Courts. As such, this rule violation is a Conduct Category violation. In his approximately 26 years on the Department, Sergeant Smith has one prior instance of discipline that does not count for purposes of determining a penalty in the instant matter. Therefore, pursuant to the disciplinary matrix, the penalty level is a 3. The presumptive penalty for a Conduct Category C, level 3 offense is a two (2) day suspension. The mitigated penalty is a written reprimand to one (1) day suspension, and the aggravated penalty is a three (3) to four (4) day suspension. In analyzing the appropriate penalty, sections 19 through 23 of the disciplinary matrix, pertaining to considering and weighing mitigating and aggravating factors, have been considered. After an examination of the circumstances of the case, nature of the misconduct, and Sergeant Smith?s record, there are present mitigating factors that include no prior disciplinary history, excellent PEPRs, and history with the Department. Furthermore, Sergeant Smith has processed releases of many inmates in his career, and this was his ?rst erroneous release. Additionally, he admitted his mistake and took full responsibility. However, aggravating factors are also present. Sergeant Smith jeopardized the Mission of the BSD when he erroneously released inmate RS. Moreover, an inmate erroneously released with one year remaining on her sentence creates the existence of an actual and demonstrable legal or ?nancial risk to the Department and the City. After considering the above mitigating and aggravating factors, none were found to be suf?ciently weighty to warrant a penalty other than the presumptive penalty. Accordingly, the presumptive penalty of two (2) days suspension is hereby imposed for violations of CSA rules 16-608, L, and 080 Rule 400.4.4. SUMMARY OF DISCIPLINARY DETERMINATIONS CSR 16-60 B, L, as it pertains to DSD RR-400.4.4 Conduct Finding Category Level Range Penalty . . 2 days Erroneous Release Sustained 3 Presumptive suspension 4/11/44? Sh non lwell Date Civilian Review Administrator FDR CITY SERVICES VISIT llenverliomrg li?ii Stephanie Y. O?Malley Executive Director of the Department of Safety 1331 Cherokee Street Room 302 PUBLIC SAFETY Denver, co 80204 p: 720.913.6020 f: 720.913.7028 wwdenvergovorggsafem July 12, 2016 Monwell Fuller, 800005 Deputy Sheriff Downtown Division Denver Sheriff Department Re: DSD IAB Case #82016-0006 Deputy Fuller: This is official notification that, after an independent review by the Office of the Executive Director of the Department of Safety, you are being terminated effective immediately for misconduct that violated the following Career Service Rules and Sheriff Department Rules, as set forth below and discussed more fully in the section of this letter entitled Departmental Determinations of Discipline (pgs. 6-12). Career Services Rule 16-60 Discipline and Dismissal: The following may be cause for discipline or dismissal of a Career Service employee: A. Neglect of duty. L. Failure to observe written departmental or agency regulations, policies or rules. As it pertains to: Denver Sheriff Departmental Rules and Regulations PREAMBLE Deputies shall obey all Departmental rules, regulations, duties, procedures, instructions, and orders; the provisions of the Operations Manual; Mayor?s Executive Orders; and Rules of the Career Service Authority. Failure to comply with any of these shall be construed as a violation. Members in violation shall be subject to disciplinary action. The following provisions of conduct shall be construed as a rule violation of the Operations Manual and Directives and Orders of the Denver Sheriff Department, but not by way of limitation. RR-300.19.1 Disobedience of Rule Deputy Sheriffs and employees shall not violate any lawful Departmental rule (including CSA rules), duty, procedure, policy, directive, instruction, order (including Mayor?s Executive Orders), or Operations Manual section. Denver Sheriff Department Deputy Monwell Fuller, 800005 82016-0006 Disciplinary Determination July 12, 2016 As it pertains to: Departmental Order 5011.1 USE OF FORCE 2. Policy: It is the policy of the Denver Sheriff Department (DSD) that officers use physical force only as prescribed by the Colorado Revised Statutes (CR8) and internal Department standards to perform any legitimate law enforcement or detention related function. The amount of force used will be reasonable and appropriate in relation to the threat faced to accomplish a lawful objective. In all cases, force will be de-escalated once the legitimate function is achieved or the resistance has ceased. Physical force will not be used as a punishment, under any circumstances. Officers should rely on departmentally approved use of force techniques that are taught in training. Explanation: The Denver Sheriff Department (DSD) recognizes the value of all human life and is committed to respecting human rights and the dignity of every individual . . . . With these values in mind, an officer shall use only that degree of force which is the It is important for officers to bear in mind that there are many reasons a suspect/inmate may be resisting or may be unresponsive. A person?s reasoning ability, including but not limited to a mental condition, mental impairment, developmental disability, physical limitation, language, drug interaction, or emotional crisis, are some examples. An officer?s awareness of these possibilities, when time and circumstances reasonably permit, should then be balanced against the facts of the incident facing the officer when deciding which tactical options are the most appropriate to bring the situation to a safe resolution. should recognize that their conduct immediately connected to the use of force may be a factor which can influence the force option necessary in a given situation. When reasonable under the totality of circumstances, officers should use advisements, warnings, verbal persuasion, and other tactics and recognize that an officer may withdraw to a position that is tactically more secure or allows an officer greater distance in order to consider or deploy a greater variety of force options. When a suspect is under control, either through the application of physical restraint or the suspect?s compliance, the degree of force shall be de-escalated The Department will support the use of reasonable and appropriate force by officers in the performance of duty. Use of force that is not lawful, reasonable and appropriate will not be tolerated. Department policy as well as relevant federal, state and local laws shall govern use of force actions by officers at all times. The community expects and the Denver Sheriff Department (DSD) requires that [deputies] use only the force necessary to perform their duties. Under the DSD disciplinary matrix, a violation of DSD Rule 300.19.1 is a Conduct Category A through violation. Denver Sheriff Department - 3 - Deputy Monwell Fuller, 800005 82016-0006 Disciplinary Determination July 12, 2016 RR-300.22 - Inappropriate Force Deputy Sheriffs and employees shall not use inappropriate force in making an arrest, dealing with a prisoner or in dealing with any other person. Under the DSD disciplinary matrix, a violation of DSD Rule 300.22 is a Conduct Category through violation. CONTEMPLATION OF DISCIPLINE MEETING You were served with a contemplation of discipline letter regarding this matter on May 9, 2016. A contemplation of discipline meeting was held on June 21, 2016 at 1:00 pm in the Downtown Detention Center Conference Room, located at 490 West Colfax Avenue, Denver, Colorado, 80204. The purpose of this meeting was to allow you to correct any errors in the Agency?s information or facts, to tell your side of the story and to present any mitigating information as to why possible disciplinary action should not be taken against you. Present at this meeting was Sheriff Patrick Firman and Chief Paul Oliva. Present from the Conduct Review Office (CRO) was Captain Stephanie McManus and Ms. Rachelle Wright. Present from the City Attorney?s Office was Ms. Jennifer Jacobson. Present from the Executive Director of Safety?s Office was Ms. Shannon Elwell. Present from the Office of the Independent Monitor was Mr. Gregg Crittenden. You attended this meeting with Mr. Reid Elkus as your attorney. Below is a summary of the pertinent parts of your contemplation of discipline meeting. The transcript and recording of this entire meeting was considered and is contained in the IAB investigative file. Sheriff Firman started the meeting by giving you the opportunity to make a statement. You then deferred to your attorney to speak on your behalf. Your attorney then made various arguments on your behalf about what he believed the facts of the case to show, including stating that, ?at some point in time, the becomes bladed to [yours],? during which the inmate is ?still jawing at, making inappropriate comments to [you] where other present at the time.? Your attorney stated that the inmate was ?dragging his feet fairly close to which point [you] create distance and push him.? Your attorney then argued that the inmate ?turns his fists, indicating to my client that I?m going to fight you, at which point my client was justified in punching the inmate, and pursuant to policy, he could punch him in the face at that point in time and the matter get resolved.? Your attorney argued that the use of force policy in place at the time did not require you to retreat. Your attorney also stated that the evidence does not support the allegation that you attempted to provoke the response from the inmate. Your attorney further stated that, if you wanted to provoke the inmate to start a fight, you would have grabbed him with two hands and pushed him. Your attorney then made arguments about the culture in the Department as ?the inmates are sort of running the roost,? and stated that the inmates are very dangerous criminals. Your attorney argued that a deputy?s job is to maintain safety and security, especially with an inmate who is defying orders, blading himself, and acting aggressively toward a deputy. Your attorney then stated that you ?clearly acted appropriately here,? as the inmate was in a ?fighting stance? and you had to defend yourself to maintain order. Your attorney then stated that the incident was a very short period of time and no other inmates were hurt or acted aggressively. Your attorney further stated that you radioed for backup ?and the matter got Denver Sheriff Department - 4 - Deputy Monwell Fuller, 800005 82016-0006 Disciplinary Determination July 12, 2016 resolved and that was it.? Your attorney then concluded that, based on the totality of the circumstances, your conduct was ?very reasonable? and argued that you should not be disciplined at all. Sheriff Firman then asked you to clarify ?when you pushed the inmate in the back, he was not moving at that point?? You stated ?Basically he was shuffling, so no, no. The Sheriff then asked ?Well, was he shuffling or was he not? I mean, if he?s shuffling, he?s moving.? You responded ?Well, yes, he was moving and? and your attorney interrupted you and stated ?Well, actually, you got to look at the video?because the video?he?s not really moving. You could see he?s sort of shuffling his feet. If that?s what you think is a movement of a direct order, then maybe that?s what the Department thinks is movement and proper movement of a direct order. Frankly, if an officer says, move, that ought?that person should move. It shouldn?t be, I?ll just shuffle my feet whenever I feel like it. That?s the concern here, Sheriff, that this individual is clearly not complying with a court?well, with a lawful order of a deputy sheriff.? Chief Oliva then asked you if you were trying to create distance by pushing the inmate away and you responded that you were. Chief Oliva then asked ?And then prior to that push from you, did you feel that you were in danger or threatened?? to which you responded felt the threat, yeah, because he had already been defiant.? Chief Oliva then asked ?Do you think that as he was walking away from you, prior to the push, do you think that the push may have escalated the situation?? You responded don?t think it escalated the situation. He [the inmate] was already amped up and was already going negative?it already went negative with him; he had already denied the, you know, the direct orders, so.? Ms. Elwell then asked you to please provide any awards or commendations you might have to Captain McManus, and you stated that you don?t have any. The meeting then concluded with a commitment to get you a response within approximately 21 days. Your previous discipline includes: Date Type of Violation Discipline July 17, 2014 Improper Procedure 10 day suspension (Use of Force) September 28, 2010 Improper Procedure Verbal Reprimand (Firearms Program violation) June 6, 2007 Improper Procedure Verbal Reprimand (Leave Policy violation) The Department has great concern regarding your ability to act responsibly and to conduct yourself appropriately while on duty. It is clear that your conduct has been unprofessional and in violation of the Department?s policies and procedures. Your actions have also breached several of the Department?s Guiding Principles including respect, judgment, sensitivity, integrity, accountability, and professionalism. Your conduct has compromised the mission of the Department. Termination of your employment is necessary to protect the integrity and professionalism of the Department and to protect the City and County of Denver from potential liability that could arise from your continued employment. Denver Sheriff Department - 5 - Deputy Monwell Fuller, 800005 82016-0006 Disciplinary Determination July 12, 2016 Please be advised that you may appeal the discipline imposed and these determinations in accordance with Career Service Rule 19, Appeals. You may also initiate dispute resolution pursuant to Career Service Rule 18, Dispute Resolution. Sincerely, (Shannon Elwell Civilian Review Administrator cc: Career Service Authority, Records Management Division IAB File Administration Denver Sheriff Department - 6 - Deputy Monwell Fuller, 800005 32016-0006 Disciplinary Determination July 12, 2016 DEPARTMENTAL DETERMINATIONS OF Deputy Monwell Fuller, 800005 DSD IAB Case 82016-0006 After a thorough review of the Internal Affairs Bureau (IAB) investigation, the Office of the Executive Director of the Department of Safety has made the following findings of fact and determinations of discipline. FINDINGS OF FACT The preponderance of evidence establishes the following summary of the facts and circumstances surrounding the conduct upon which discipline is being imposed. Deputy Fuller has been employed with the Denver Sheriff Department (DSD) for approximately 16 years. Deputy Fuller?s main job duties, as reflected in the DSD Mission, are to ?provide safety and security for the community by ensuring care, custody, transportation, and re-entry services for detainees by operating safe, secure, efficient, and humane facilities that adhere to federal, state, and local laws.? On January 18, 2016, Deputy Fuller was involved in a use of force incident with inmate The incident took place at approximately 10:48 am after Deputy Fuller engaged with inmate JA over the use of the inmate phone in housing unit 2C of the Downtown Detention Center (DDC). The incident was investigated by the Denver Police Department (DPD) IAB for any potential criminal law violations, and the District Attorney declined to prosecute the matter, citing ?no reasonable likelihood of conviction.? DSD IAB then subsequently investigated for potential administrative rule violations. The entire investigative file has been reviewed, including but not limited to video surveillance footage, audio interviews, medical records, and relevant paperwork, including Offense in Custody (OIC) reports. On January 18, 2016, Deputy Fuller was assigned as a housing deputy in housing unit 20, a housing unit that houses inmates prior to classification. Inmate JA was housed in housing unit 2C and was out of his cell. The lunch meal was almost finished, and inmate JA asked Deputy Fuller if he could use an inmate phone to make a call. Deputy Fuller told inmate JA that he could not use the phone during meal time, and that inmate JA would have to wait until his next period of out time to use the phone. Deputy Fuller told inmate JA three times that he could not use the inmate phones. Inmate JA then went to the inmate phones and picked up an inmate phone. Video surveillance footage shows three inmates finishing their meals, and two inmate tier portersz beginning the clean up process. Inmate JA was standing by the inmate phones at that time. Deputy Fuller and inmate JA engaged in conversation, and Deputy Fuller left the desk area to approach inmate JA. Deputy Fuller walked over to inmate JA and once more told inmate JA that he could not use the inmate phones during meal time. Inmate JA ignored Deputy Fuller. Deputy Fuller then put inmate phone down and ordered inmate JA to lock down. Inmate JA refused to move and exclaimed several times that Deputy Fuller should not put his hands on inmate JA. Inmate JA 1 The inmate is referred to by his initials. 2 A tier porter is an inmate worker with limited duties as assigned by DSD staff and as described in the following Post Order and Department Order. Tier porters may also be referred to as ?tier clerks? or ?trustees.? Pursuant to Denver Sheriff Department Van Cise Simonet Housing Post Order, Section XXI, Inmate Workers, ?[t]he Housing Officer shall utilize an inmate from the housing unit to assist in the distribution of meals, laundry, daily cleanup, etc . . . Denver Sheriff Department - 7 - Deputy Monwell Fuller, 800005 82016-0006 Disciplinary Determination July 12, 2016 then began to walk toward the center of the housing unit at approximately a 2:00 position. Deputy Fuller followed inmate JA for about two steps, and then, facing forward at approximately a 12:00 position, pushed inmate JA with his right hand in inmate back. While doing so, Deputy Fuller?s arm is extended and his hand and wrist push into inmate back for a prolonged amount of time. Furthermore, at the time of the push, Deputy Fuller?s head and body is faced forward in the approximate 12:00 position and not looking at inmate JA. Deputy Fuller is back to the deputy?s desk on the side of the two tables, while inmate JA is walking between the two tables back into the center of the housing unit. Immediately after Deputy Fuller pushed him, inmate JA stopped walking, turned around, and took a step toward Deputy Fuller. Deputy Fuller then moved his arm out toward the inmate and inmate JA began to take steps backward. Deputy Fuller then took steps forward toward inmate JA, closing the distance between them, and delivered a strike to inmate face. Deputy Fuller then took inmate JA to the ground by his neck and slammed inmate face into the ground. Once on the ground, Deputy Fuller struggled with inmate JA. Inmate JA resisted Deputy Fuller?s efforts to control him, but did not appear to make any attempts to assault or act aggressively to Deputy Fuller. Deputy Fuller radioed for assistance and numerous DSD personnel arrived soon thereafter. Inmate JA was handcuffed and escorted from the housing unit. Deputy Fuller?s OIC report from the incident reads: On the above date and approximate time while working 20 pod. Lunch chow was finishing up when I told inmate not to get on the phones during chow. [Inmate and other inmates had been told this just a few minutes prior. [Inmate then approached the desk and asked me when could he use the phones. I told him during his next free time. I then explained when that might be. He then asked me if the groups had come out this morning. I told him they had just prior to starting chow. He then asked could he make a quick call. I told him no. He then walked back over to the phones, picked one up and began to dial. I said to him "Get off the phone.? I stated this three (3) times and was ignored by inmate every time. I then approached [inmate and told him again to hang up the phone. He said "You weren't cool with me, so why should I be cool with you." I told him ?This has nothing to do with cool, it's the rules.? I then took the phone from him and put it down. I told him to go look down. He refused to move. I stated again "Go lock down.? I was about to put my hand on his shoulder to move him along, when he stated to me, "Don't put your fucking hands on me. I'm telling you, don't do that." He then aggressively looked at me and said ?Don't fucking touch me Fuller!" as he crossed in front of me. To create distance for my safety I placed my hand on his back and guided him away from me. He then turned and squared up on me with clenched fist and lunged at me. He then began to Iunge at me again, when fearing the attack I made a departmentally approved strike to his face. I then attempted to gain control of inmate on the ground. Once I had the opportunity to call for assistance I did through the radio. When other officers and the Sergeant arrived, [inmate continued to resist. At some point inmate complied and was then handcuffed and escorted from the building. Denver Sheriff Department - 8 - Deputy Monwell Fuller, 800005 82016-0006 Disciplinary Determination July 12, 2016 At his DSD IAB interview, Deputy Fuller stated he was unaware of any previous interaction with inmate JA.3 Deputy Fuller was asked if he felt that the force he used was appropriate and Deputy Fuller responded that he did. When asked to explain why, Deputy Fuller said, ?As I said, you know, for -- as the deputy, it?s my job to maintain the control in the pod. I?m already outnumbered. He had been given direct orders. He ignored those direct orders. He then, you know, showed aggression and I say acted on his aggression.? Deputy Fuller was asked if he felt force could have been avoided during the incident in question. Deputy Fuller replied, want to say no because anything further -- I mean, it depends on how, you know, if it took longer if I had called more officers, disruption of the jail would have occurred. There would have been more officers sitting here now doing this very same thing. His defiance, I don?t think it would have been avoided . . . . He was clearly not going to do what he was told.? Deputy Fuller was asked if he felt that his push of inmate JA was necessary. Deputy Fuller stated that ?at the time [he] felt it was.? When asked why, Deputy Fuller replied, ?As I said, for one, it was creating distance. It was getting him away from me. I said he -- he continued to be verbal, but I felt it was necessary to keep the distance to keep him moving. That?s -- to keep the order, I mean, it was initially to keep the, to create the distance and get him moving.? Inmate JA was interviewed by DPD IAB. Inmate JA stated that he asked Deputy Fuller if he could use the inmate phone during the meal time, and Deputy Fuller told him that he could not. Inmate JA admitted that he disregarded Deputy Fuller?s instruction and proceeded to pick up one of the inmate phones. Inmate JA stated that Deputy Fuller then ordered inmate JA to get off the phone, to which inmate JA replied, ?No, I?m good.? Inmate JA told DPD IAB that Deputy Fuller then began to approach inmate JA, at which point inmate JA stood up. Inmate Anderson stated that he thought that Deputy Fuller walked toward him with his ?chest pumped he wanted to fight,? so inmate JA ?got up with the same posture, pumped up like [Deputy Fuller].? Inmate JA stated that Deputy Fuller then ordered inmate JA to lock down. Inmate JA stated that he responded by saying some ?smart-ass shit? like ?whatever then, fuck you.? Inmate JA then walked away from the phones to go to his cell, at which point Deputy Fuller ?pushed [him] in the back.? In response to that, inmate JA stated that he ?turned around and acted like [he] was going to hit [Deputy Fuller].? Inmate JA indicated that Deputy Fuller responded by punching inmate JA once in the face, in the area of his left cheekbone. Inmate JA stated that Deputy Fuller then wrestled inmate JA to the ground. Inmate JA was seen and cleared by medical shortly after the incident and prior to being taken to his new housing unit. Inmate JA indicated to DPD IAB that he did not receive any injuries as a result of the incident. A review of medical records indicates that inmate JA received no visible injuries. Based on the review of the record, including video footage of the incident and interviews with the parties involved, the preponderance of the evidence establishes various instances of misconduct in violation of the following departmental rules and policies. ANALYSIS AND CONCLUSIONS Career Service Rules 16-60 A, Neqlect of Dutv. CSR 16-60 Failure to observe written ?a?mental or aqencv requlations, policies or rules, as it pertains to DSD Rule 300.19.1 Disobedience of Rule as it pertains to D.O. 5011.1 - Use of Force; and DSD Rule 300.22 Inappropriate Force 3 An examination of JMS records shows that inmate JA and Deputy Fuller have not had prior interactions. Denver Sheriff Department - 9 - Deputy Monwell Fuller, 800005 82016-0006 Disciplinary Determination July 12, 2016 Deputy Fuller violated the above Career Service and Departmental Rule and Use of Force Policy in multiple ways during the above incident. First and foremost, Deputy Fuller instigated and escalated the situation by unnecessarily pushing the inmate when the inmate had already begun to comply, and then by closing the distance between himself and the inmate even though the inmate had begun to back away from Deputy Fuller. In doing so, Deputy Fuller?s own conduct created a use of force situation where absolutely no force was required. Therefore, Deputy Fuller failed to exercise the least amount of force necessary?none whatsoever?to achieve his purpose of locking down inmate JA. By instigating and escalating the situation, Deputy Fuller also failed to ?recognize that [his] conduct immediately connected to the use of force may be a factor which can influence the force option necessary in a given situation.? ?The community expects and the Denver Sheriff Department (DSD) requires that [deputies] use only the force necessary to perform their duties.? By Deputy Fuller?s own admission, inmate JA was walking away from Deputy Fuller after being given a direct order to go lock down in his cell. Despite his rude verbal response, inmate JA was complying with Deputy Fuller?s order. Deputy Fuller then approached inmate JA and antagonized him by pushing him in the back, making physical contact with inmate JA when inmate JA posed no threat to Deputy Fuller?s safety. If Deputy Fuller?s purposes in pushing inmate JA were in fact, as he claimed, to create distance from inmate JA and to get inmate JA to lock down, Deputy Fuller simply had to remain where he was and allow inmate JA to continue to walk away from Deputy Fuller towards his cell. Inmate JA admitted to IAB that his intention was to go lock down at that point. No force whatsoever was required at this point to achieve Deputy Fuller?s purported legitimate correctional purposes. The preponderance of the evidence indicates that the level of force used was not a justified response to the behavior of inmate JA. Deputy Fuller also failed to use the least amount of force necessary when he squared off with inmate JA. Deputy Fuller?s conduct created a situation where inmate JA reacted, turned around, and faced off with Deputy Fuller. So provoked, inmate JA took a step toward Deputy Fuller, who reacted by moving his arm out toward the inmate. Inmate JA then began to take steps backward, creating distance between himself and Deputy Fuller. At this point, the inmate?s threat level was decreasing due to the increasing distance, and there were other options available to Deputy Fuller that did not require using the level of force (or any, for that matter) that Deputy Fuller employed. Rather than engaging inmate JA physically at this point, Deputy Fuller could also have used advisements, warnings, verbal persuasion, or other tactics, including withdrawing to a position that is tactically more secure or allowed Deputy Fuller to consider or deploy a greater variety of force options. As inmate JA was out on his free time and posed a minimal and diminishing threat, if any, to Deputy Fuller (one of Deputy Fuller?s own making), Deputy Fuller had time and circumstances that required him to consider other options that would bring the situation to a safe resolution. Deputy Fuller could also easily have called for assistance if he felt that his safety was truly jeopardized. Instead, Deputy Fuller chose to take steps forward toward inmate JA, closed the distance between them, and delivered a strike to inmate face, which was not the least amount of force necessary as required by policy. Moreover, when Deputy Fuller took inmate JA to the ground by his neck and slammed inmate face into the ground, his response was disproportionate to the potential threat, if any, that inmate JA posed. Not only was the use of force situation created and escalated by Deputy Fuller, it was also unnecessary. At this point, Deputy Fuller could have allowed inmate JA to continue to back up and return to his cell. However, Deputy Fuller employed a technique not approved or taught by the Department, as required by policy, when he took inmate JA down by his neck. (?Officers should rely on departmentally approved use of force techniques that are taught in training?) Taking inmate JA down by his neck and slamming his face into the ground Denver Sheriff Department - 10 - Deputy Monwell Fuller, 800005 82016-0006 Disciplinary Determination July 12, 2016 was also a far cry from the least amount of force necessary to accomplish Deputy Fuller?s purported purpose of getting inmate JA to lock down. Furthermore, a preponderance of the evidence demonstrates that Deputy Fuller?s actions were not done in self-defense: the manner of the push, its duration, and the totality of the circumstances indicate that the push, as well as the subsequent strike, takedown, and struggle, were done for the illegitimate purpose of punishment or retaliation. This also violates the Use of Force policy, in that it is clear that ?[p]hysical force will not be used as punishment, under any circumstances.? Deputy Fuller?s push of inmate JA was done to communicate to inmate JA in sum and substance ?get out of here, get moving,? and to show inmate JA who was in charge by ?maintain[ing] control of the pod.? The push occurred after inmate JA had disobeyed Deputy Fuller?s multiple direct orders not to use the inmate phones and to lock down, and immediately after inmate JA had warned Deputy Fuller multiple times not to put his hands on inmate JA. Therefore, it is more likely than not that Deputy Fuller was frustrated and chose to engage with inmate JA for the purpose of being dismissive of inmate JA and for showing inmate JA who was in charge. Second, the manner of the push itself as well as Deputy Fuller?s behavior during the incident belies Deputy Fuller?s incredible explanation that he feared for his safety and sought to create distance. As it pertains to the push, Deputy Fuller?s arm is extended and his hand and wrist push into inmate back in a seemingly taunting manner, for a prolonged amount of time. It is not a quick, simple defensive move orchestrated to create distance in an atmosphere of fear for one?s safety. If that was the case, Deputy Fuller?s other body language would support his position. Instead, Deputy Fuller does not react or behave othenNise to indicate that he is concerned that inmate JA is so much of an imminent threat to him that there was no choice but to push inmate JA away. Were that the case, Deputy Fuller would not have been looking away from inmate JA, but instead would have been facing inmate JA straight on. Likewise, Deputy Fuller would not have turned his body so that he remained in a vulnerable position where inmate JA was on his side and more easily able to attack. As it pertains to Deputy Fuller?s decision to approach the inmate as he is backing away and deliver a strike to the inmate?s face, Deputy Fuller?s choice to close distance contradicts his prior statements about seeking to create distance due to fear of an assault. It is therefore more likely than not that Deputy Fuller acted out of purposes of punishment or retaliation for the inmate?s prior behavior. In sum, after pushing and antagonizing inmate JA, Deputy Fuller escalated the situation by approaching inmate JA, who was backing away, and engaging him in a use of force by striking inmate JA in the face. By pushing an inmate in the back as he was walking away to comply with Deputy Fuller?s orders, Deputy Fuller created a situation in which a provoked inmate turned around and squared off with Deputy Fuller. To suggest that Deputy Fuller then be permitted to use the existence of that self-created situation as an excuse for using wholly unnecessary, inappropriate, and punitive force on that inmate is ludicrous and reprehensible. Deputy Fuller therefore instigated and escalated a wholly unnecessary use of force situation; failed to use the least amount of force necessary; utilized a technique not approved or trained; employed force disproportionate to the potential threat that he (created and) faced; and used inappropriate force for the purpose of punishing a frustrating, non-compliant, and rude inmate. Deputies hold a position of trust, a trust bestowed upon them by the Department and the community, and are visible representatives of government. They are given enormous discretion in carrying out their duties?discretion which also carries tremendous responsibility, especially as it pertains to the authority to use force. Because of the trust placed in them and the enormity of the discretion and authority granted to them, deputy sheriffs must understand that the community has every right to expect and demand the highest level of accountability from the Department and from individual deputies, especially as it pertains to the authority to use force. Denver Sheriff Department - 11 - Deputy Monwell Fuller, $00005 82016-0006 Disciplinary Determination July 12, 2016 Under the DSD disciplinary matrix, a violation of 300.19.1 is a Conduct Category A through violation. A violation of 300.22 is a Conduct Category through violation. Deputy Fuller failed to observe written departmental or agency rules, policies, and procedures by using inappropriate force in multiple and significant ways when dealing with inmate JA. This behavior was ?a violation of law, rule [and] policy a willful and wanton disregard of department guiding principles; [and] involve[d] any act which demonstrates a serious lack of the integrity, ethics or character related to a deputy sheriff?s fitness to hold his or her position; [and] involve[d] egregious misconduct substantially contrary to the standards of conduct reasonably expected of one whose sworn duty is to uphold the law.? Deputy Fuller likewise neglected his duty to protect and serve the members of the community to whose care DSD is entrusted when he employed wholly unnecessary, inappropriate force against an inmate. As such, these rule violations are Conduct Category violations. A Conduct Category violation by a deputy is always classified as discipline level 8, the highest level of discipline. Thus the penalty level, pursuant to the disciplinary matrix, would be 8. The mitigated penalty is a ninety (90) days suspension, the presumptive penalty is dismissal, and there is no aggravated penalty for discipline level 8 conduct violations. Of great concern is Deputy Fuller?s prior disciplinary history. In 2014, Deputy Fuller was disciplined for a very similar use of force situation in which he approached an inmate and instigated and unreasonably escalated the level of force used in his interaction with that inmate. The situation itself was not only unnecessary, the resultant force was also disproportionate to the threat faced, exceeded the least amount of force necessary, employed a technique not taught by the Department, and was for punitive purposes. Deputy Fuller received a 10 day suspension for his misconduct as it relates to the 2014 case, which was subsequently upheld by the CSA Hearing Office and Board. Despite maintaining that he did nothing wrong in the 2014 case, Deputy Fuller was on notice that the Department found his behavior to be inappropriate, in violation of policy, and intolerable. Deputy Fuller?s continued demonstration of such concerning behavior is an indication that he is either unable to comprehend the expectations of the Department as they pertain to the use of appropriate force, or unwilling to adhere to them. His behavior in the instant matter therefore constitutes a ?willful and wanton disregard of department guiding principles,? as well as involve ?act[s] which demonstrate a serious lack of the integrity, ethics, or character related to [Deputy Fuller?s] fitness to hold his position.? Deputy Fuller?s behavior in the instant matter also indicates that he is unable to be rehabilitated or trusted as a deputy sheriff. Termination of his employment is necessary to protect the integrity and professionalism of the Department and to protect the City and County of Denver from potential liability that could arise from his continued employment. In determining the disciplinary penalty that should be imposed, full consideration was given to Deputy Fuller?s record with the Department and mitigating information, such as commendations and PEPRs. A mitigated penalty is not appropriate given the circumstances of Deputy Fuller?s misconduct, his willful disregard of Departmental rules, and his inability to acknowledge his wrongdoing. Deputy Fuller?s use of inappropriate force caused harm to the Department and City in the form of potential civil liability. Lastly, Deputy Fuller?s conduct also jeopardized the Department?s Mission and Guiding Principles. Accordingly the presumptive penalty of dismissal is hereby imposed for each of the violations of CSA rules 16-60 A, L, and DSD Rules 300.19.1 and 300.22. Denver Sheriff Department - 12 - Deputy Monwell Fuller, 800005 82016-0006 Disciplinary Determination July 12, 2016 SUMMARY OF DISCIPLINARY DETERMINATIONS Conduct Finding Category Level Range Penalty CSR 16?60 A, Neglect of L, DSD Rule Duty; (Dgosod?le) a?g?ggce Sustained 8 Presumptive Dismissal and DSD Rule Inappropriate 300.22 Force Clip/762 Date Civilian Review Administrator Stephanie Y. O'Malley Executive Director of the Department of Safety 77% 1331 Cherokee Street Room 302 PUBLIC SAFETY Denver. co 80204 p: 720.913.6020 f: 720.913.?028 0' August 1, 2016 Daniel Williams. 811099 Deputy Sheriff Downtown Division Denver Sheriff Department Re: DSD IAB Case #82015-0033 Deputy Williams: This is of?cial noti?cation that, after an independent review by the Of?ce of the Executive Director of the Department of Safety. you are being suspended without pay for ?ve (5) days (40 hours). Your ?ve (5) day suspension will be on September 10, 2016, September 11, 2016, September 15, 2016. and September 16, 2016. You may return to work on September 16. 2016 to complete the 1.28 hours remaining in your shift, or use your own time. During this suspension. you shall not wear the Department uniform, or exercise any power or authority granted to you as a deputy sheriff, including but not limited to using your identi?cation card to gain entry or access to City and County of Denver facilities or entering City and County of Denver facilities for reasons other than to conduct personal business. You are further not authorized to work for the City and County of Denver for the duration of your suspension. This suspension is for misconduct that violated the Career Service Rules set forth below and is discussed more fully in the section of this letter entitled Departmental Determinations of Discipline (pgs. 6-8). Career Service Rule 16-60 Discip?ne and Dismissal: The following may be cause for discipline or dismissal of a Career Service employee: B. Carelessness in performance of duties and responsibilities. L. Failure to observe written departmental or agency regulations, policies or rules. FDRUTYSERVICESVISII CALL an! Denver Department of Safety - 2 - Deputy Daniel Williams, 311099 82015-0033 Disciplinary Determination August 1. 2016 As it pertains to: Denver Sheriff Departmental Rules and Regulations PREAMBLE Deputies shall obey all Departmental rules, regulations. duties, procedures, instructions. and orders; the provisions of the Operations Manual; Mayor?s Executive Orders; and Rules of the Career Service Authority. Failure to comply with any of these shall be construed as a violation. Members in violation shall be subject to disciplinary action. The following provisions of conduct shall be construed as a rule violation of the Operations Manual and Directives and Orders of the Denver Sheriff Department, but not by way of limitation. RR-200.9 Full Attention to Duties Deputy Sheriffs and employees shall devote their full attention to their duties in accordance with the policies and procedures of their post. Under the DSD disciplinary matrix, a violation of DSD Rule 400.4.4 is a Conduct Category A through violation. CONTEMPLATION OF DISCIPLINE KNOWN AS MEETING You were served with a pre-disciplinary letter regarding this matter on May 17. 2016. A contemplation of discipline meeting was held on July 13, 2016 at approximately 9:00 am. in the Denver Sheriff Department (DSD) Downtown Detention Center (DDC) administrative conference room, located at 490 West Colfax Avenue, Denver, Colorado. The purpose of this meeting was to allow you to correct any errors in the Agency's information or facts, to tell your side of the story. and to present any mitigating information as to why possible disciplinary action should not be taken against you. Present at this meeting was Sheriff Patrick Firman and Division Chief Paul Oliva. Present from the Conduct Review Of?ce (CRO) was Captain Stephanie McManus and Ms. Rachelle Wright. Present from the Of?ce of the Independent Monitor was Mr. Gregg Crittenden. Present from the City Attorney's Of?ce was Ms. Jennifer Jacobson. You attended this meeting with Mr. Doug Jewell as your attorney. The ore-disciplinary meeting was transcribed and is contained in the IAB ?le, incorporated by reference herein. A summary of the pro-disciplinary meeting follows. Your attorney made some statements on your behalf, which included giving the panel an overview of the matter. Your attorney stated that you admit that you made a mistake in that you pushed the wrong button for ?at time instead of regularjail time, and that you take responsibility for that mistake. Your attorney then gave some context with regard to the system of checks and balances that is designed to catch errors such as the one here, and argued that there were ?three or four times when the mistake??-that he takes responsibility for?could have or should have been caught . . . FOR CITY SERVICES VISIT DenverGuv.org Hill Denver Department of Safety - 3 - Deputy Daniel Williams, 811099 32015-0033 Disciplinary Determination August 1, 2016 You then read a statement into the record in which you admitted that, on February 6, 2015, at approximately 1:35 pm, you made an error on the TAG system and entered ?at time for the inmate instead of jail time. You stated that ?the sentencing error occurred on TAG under TAG's offender court case screen under the tab sentence." You further stated that ?[you were] infomed that some of?cers use or key, but [you] were never taught this." You also stated that the audit system was not done on February 9, 2015, the inmate's ?le was converted from a short term ?le, a badge number was typed, and Captain Brown wrote "chart this" on the ?rst line of the record audit sheet. You stated that an audit was not done and the error was not caught. You further stated that, on February 28, 2015, the inmate's ?le was audited by another bade number and Captain Brown wrote in ?Shimek.? You argued that your post orders, training, and experience required a ?six point? audit, and not just updating court dates. You further stated that no audit was completed in March, which you claimed further missed an opportunity to correct the error. You then stated that, on March 21 and 26, Sergeant Shelton imputed additional earned program good time into the inmate's ?le and manually entered a projected good time date instead of questioning why this was not updated by the TAG system automatically. You explained that. since the inmate's was mistakenly sentenced as ?at time, he would be ineligible to receive program good time. You stated that this lack of automatic update should have alerted the sergeant to an issue, which would also have triggered an audit which would have resulted in the inmate being released on March 12, 2015. You then stated that, on March 31, 2015, Sergeant Shelton gave the inmate his ?nal earned good time and prepared the inmate's ?le for release. You stated that you were transferred out of the Records Unit on February 3, and that you were open to additional questions. Sheriff Firman asked you some clarifying questions with respect to who would have been responsible for the ?rst audit and what the original ?le would have looked like in Records as both a short term and long term ?le. You then took the Sheriff through the audit sheet and discussed who you believed would have been responsible for the subsequent audits. The Sheriff then asked you what you are looking at when you do an audit, and you responded "the sentencing, the last sentence, the last then the sentence screen. So this would be actually in TAG, and TAG sentence aggregates, it will show that [the inmate] received 60 days?a sentence of 60 days . . . . And these zeros here will indicate that he had ?at time. If it was?if it was a regular jail time?he would receive?one section will have 20 days and the other section would have 4 days, so giving him 24 days off . . . .Because under, I believe it's state law?CRS is the one that gives county sheriffs ability to give ten days off and another one gives it two days off every 30 days . . . . So a total of 24 days.? You then stated that ?[a]nd the ?nal release date?the projected release date?would be the 3/14. That's the way it was supposed?if it was all done correctly, it would be 3114." The Sheriff then looked at the last mitt with you and asked you where on the last mitt would ?at time or jail time be re?ected. You replied that on this form it will actually say it right in the box, it will say 60 days and HI write out ?at . . . . When I originally received the ?le, I couldn?t con?rm if it was correct, so I went back to the state website and looked on the state website just to con?rm that it was 60 days?and that I did make?con?rm that I did make the mistake. . . FUR CITY SERVICES VISIT Denverliomrg lii?i Denver Department of Safety - 4 - Deputy Daniel Williams, 811099 32015-0033 Disciplinary Determination August 1, 2016 You clari?ed that you did this once you received the copy of the original packed on February 3. You af?rmed that you then visited the state website so that you could con?rm everything was correct and that you did make a mistake. You then reiterated that Sergeant Shelton had an opportunity to audit the form, which, had he done so, the inmate would have been released on March 12. You explained how Sergeant Shelton was able to manually enter good time for the inmate. You also explained what the screen looks like when you enter information, and described the sentence tab. You described the various options on the tab. The Sheriff then asked you if you believed it was a ?at sentence and intentionally put ?at, or if you hit the wrong button in entering the information. You replied that you believed that you hit the wrong button. but you don*t recall. Chief Oliva then asked you if you believed that this error should have been caught through audits and you replied that you did. Chief Oliva clari?ed with you that the zeroes "come up because of the mistake that you originally did . . . . Where you..hit ?at time instead of jail time and that?s where it originated from . . . and you replied that was correct. You explained that, if a deputy was to go into ?sentence adjust," the sentence itself will indicate ?at time or jail time. You stated that there would be zeroes for ?at, which should have thrown a red flag. You stated that, by looking at the mitt, you could compare the information in the computer to the sentence handed down. Chief Oliva then asked you if you were admitting to a mistake on your part, and you stated that mistake was made on a previous screen, yes sir." Chief Oliva then clari?ed with you that your position was that subsequent audits should have caught the mistake. You stated that, ?[ijf they had completed the audit the way the post order and the was trained by them, it was done that way, it would have been caught." Your attorney then concluded by stating that you have ?ve years as a deputy and no prior discipline. Your attorney also stated that you just became a Field Training Of?cer (FTO). The Sheriff concluded by stating that Ms. Elwell would have asked for awards or commendations, and asked that you please provide those to Captain McManus. The meeting then concluded. Your previous discipline includes: NONE. The Department has concern regarding your ability to act responsibly and to conduct yourself appropriately while on duty. Your conduct has been in violation of the Department's policies and procedures. There is an immediate need for improvement in this area. Further rule violations shall be dealt with appropriately. Please be advised that you may appeal the discipline imposed and these determinations in accordance with Career Service Rule 19, Appeals. You may also initiate dispute resolution pursuant to Career Service Rule 18, Dispute Resolution. Please note that pursuing dispute resolution does not toll your time for ?ling an appeal. FOR cm SERVICES VISIT Denverliomrg [gill Denver Department of Safety - 5 - Deputy Daniel Williams, 811099 32015-0033 Disciplinary Determination August 1. 2016 Finally, please be reminded that you are not to take any retaliatory action against anyone has a result of this disciplinary action. If any such action is taken, further discipline may be contemplated and taken, up to and including dismissal. Sincerely, Elwell ivilian Review Administrator on: Career Service Authority, Records Management Division IAB File Administration FOR CITY SERVICES VISIT Denveriiov.org lg? Denver Department of Safety - 6 - Deputy Daniel Williams, S11099 82015-0033 Disciplinary Determination August 1, 2015 DEPARTMENTAL DETERMINATIONS OF DISCIPLINE Deputy Sheriff Daniel Williams, 811099 82015-0033 After a thorough review of the DSD Internal Affairs Bureau (IAB) investigation, the Executive Director of the Department of Safety's Of?ce has made the following ?ndings of fact and determinations of discipline. SUMMARY OF FACTS The preponderance of evidence establishes the following summary of the facts and circumstances surrounding the conduct upon which discipline is being imposed. Deputy Williams has been a Deputy Sheriff with the Denver Sheriff Department (DSD) for approximately ?ve years. On the date of the incident, Deputy Williams was assigned to the Records Unit at the Downtown Detention Center (DDC). As a deputy working in the Records Unit, Deputy Williams's job duties included, among other things. accurately inputting an inmate's records in the TAG computer system to re?ect information as ordered by the court. Deputy Williams's main job duties, as re?ected in the DSD Mission, are to ?provide safety and security for the community by ensuring care, custody, transportation, and re-entry services for detainees by operating safe, secure, ef?cient and humane facilities that adhere to federal, state, and local laws." On April 1, 2015, it was discovered during an audit that inmate who was incarcerated at the DDC on January 22, 2015, had been held in the DDC 24 days over his release date. As re?ected in the mittimus, inmate PL was sentenced to 60 days; however, it was discovered that on Friday, February 6, 2015, Deputy Williams inadvertently input the sentence into the TAG computer system as 60 days ?flat time.? Deputy Williams did this by checking the incorrect sentence option in the drop down box in the TAG computer system. Technology Management Unit (TMU) con?rmed that Deputy Williams was the one who entered the sentencing information for inmate PL into the TAG computer system. The computation for inmate release date should have included good time of 18 days and an additional earned time credit of 6 days, resulting in a release date of March 8, 2015; however, due to Deputy Williams?s error, inmate PL's release date was listed as April 7, 2015. Inmate PL was immediately released on April 1, 2015, the date the error was discovered. During Deputy Williams's interview with Internal Affairs, he acknowledged that he knew the difference between regularjail time and ?at time in an inmate's sentence and conveyed that this information is obtained from the mittimus or the memorandum from the courts. When reviewing the documents related to inmate ?le and his incorrect release date, Deputy Williams said that when he entered the ?at time designation for inmate PL's sentence, it was an accident. Deputy Williams admitted that it was his mistake.2 The inmate is referred to by his initials. 2 Deputy Williams also stated to IAB that he believed there were opportunities for other individuals to catch the mistake in the form of subsequent audits of inmate ?le. Deputy Williams likewise stated that Sergeant Shelton should have noticed the sentencing error when he manually adjusted inmate PL's earned time credits. However, Captain Brown indicated that he did not agree, as it would be unreasonable to expect a full sentence recalculation as part of an audit. Captain Brown also stated that FOR CITY SERVICES VISIT Denverliomrg '31? Denver Department of Safety - 7 Deputy Daniel Williams, 811099 82015-0033 Disciplinary Determination August 1. 2016 Based on the review of the record, a preponderance of the evidence establishes the following acts of misconduct in violation of the following departmental rules and policies. ANALYSIS AND CONCLUSIONS Career Service Rules 16-60 BI Carelessness in Performance of Duties; LI Failure to observe written departmental or agency regulations, policies or rules as it pertains to DSD RR-200.9. Full Attention to Dpties Deputy Williams violated these Career Service Rules and the above Departmental Rule when he carelessly and erroneously entered inmate sentence information into the TAG computer system to re?ect a longer time in custody than inmate PL was sentenced to. This resulted in inmate PL remaining in DSD custody 24 days past the time he should have been released. By selecting the inappropriate sentence option on the drop down menu in the TAG computer system, Deputy Williams was not only careless in the performance of his duties, but also failed to pay full attention to his duties to accurately input an inmate's records in the TAG computer system to reflect information as ordered by the court. Further, at his DSD IAB interview as well as his contemplation of discipline meeting, Deputy Williams admitted his mistake. Under the DSD disciplinary matrix, a violation of DSD Rule 200.9 falls in Conduct Categories A through F. Deputy Williams's behavior was ?substantially contrary to the guiding principles of the department interfere[d] with its mission, operations, or professional image, or a demonstrable serious risk to Deputy Sheriff. employee, or public safety." Deputy Williams's carelessness contributed to the maintenance in custody of an inmate 24 days past his actual release date. As such, this rule violation is 3 Conduct Category violation. In his approximately ?ve years on the Department, Deputy Williams has no prior instances of discipline. Therefore, pursuant to the disciplinary matrix, the penalty level is a 5. The presumptive penalty for a Conduct Category D, level 5 offense is a ten (10) day suspension. The mitigated penalty is a four (4) to six (6) day suspension, and the aggravated penalty is a fourteen (14) to sixteen (16) day suspension. In analyzing the appropriate penalty, sections 19 through 23 of the disciplinary matrix, pertaining to considering and weighing mitigating and aggravating factors, have been considered. After an examination of the circumstances of the case. nature of the misconduct, and Deputy Williams's record, there are present mitigating factors that include no prior disciplinary history. excellent PEPRs, awards and commendations, and history with the Department. Furthermore, Deputy Williams has processed records for many inmates in his career, and this was his ?rst careless mistake in that respect. Additionally, Deputy Williams admitted his mistake and took full responsibility. However, an aggravating factor is also present. An inmate remaining in DSD custody 24 days past the time he should have been released creates the existence of an actual and demonstrable legal or ?nancial risk to the Department and the City. deputies do not recalculate the time on every ?le; rather, deputies simply look to make sure that inmates' court dates have been met and that nothing has been missed. Further, Captain Brown stated that there would not be anything alerting the deputies of an inmate's ?at time status. FOR CITY lienverliomrg lift Denver Department of Safety - 8 - Deputy Daniel Williams, 811099 82015-0033 Disciplinary Determination August 1. 2016 After considering the above mitigating and aggravating factors, the mitigating factors were found to be sufficiently weighty to warrant a penalty other than the presumptive penalty. Accordingly, a mitigated penalty of ?ve (5) days suspension is hereby imposed for violations of CSA rules 16- 603, L, and DSD Rule 200.9. SUMMARY OF DISCIPLINARY DETERMINATIONS CSR 16-60 B, L, as it pertains to DSD RR-200.9 Conduct Finding Category Level Range Penalty . . . . . 5 days Full Attention to Duties Sustained 5 Mitigated suspension 40 Shannon Elwell Date Civilian Review Administrator FDR CITY Ilenveriimrg Hill Stephanie Y. O'Malley Executive Director of the Department of Safety 1331 Cherokee Street Room 302 PUBLIC SAFETY Denver, CO 80204 p: ?20.913.6020 f: 720.913.7028 W?mr? Enlist! August 3. 2016 Craig Cooper, 806031 Deputy Sheriff County Jail Division Denver Sheriff Department Re: DSD IAB Case #82015-0090 Deputy Cooper: This is of?cial noti?cation that you are being suspended without pay for ten (10) days (80 hours). Your ten (10) days suspension will begin on August 14. 2016 through and inclusive of August 17. 2016, as well as August 28, 2016 through and inclusive of August 31, 2016. You may return to work on August 31, 2016 at 9:26 am to complete the remainder of your shift. or use your own time. During this suspension, you shall not wear the Department uniform, or exercise any power or authority granted to you as a deputy sheriff, including but not limited to using your identi?cation card to gain entry or access to City and County of Denver facilities or entering City and County of Denver facilities for reasons other than to conduct personal business. You are further not authorized to work for the City and County of Denver for the duration of your suspension. This suspension is for misconduct that violated the Career Service Rules set forth below and is discussed more fully in the section of this letter entitled Departmental Determinations of Discipline (pgs. 4- 6). Career Service Rule 16-60 Discipline and Dismissal: The following may be cause for discipline or dismissal of a Career Service employee: A. Neglect of Duty L. Failure to observe written departmental or agency regulations, policies or rules. As it pertains to: Denver Sheriff Departmental Rules and Regulations PREAMBLE FOR SERVICES VISIT Denver?omrt Denver Department of Safety - 2 - Deputy Craig Cooper, 806031 32015-0090 Disciplinary Determination August 3, 2016 Deputies shall obey all Departmental rules, regulations, duties, procedures, instructions, and orders; the provisions of the Operations Manual; Mayor's Executive Orders; and Rules of the Career Service Authority. Failure to comply with any of these shall be construed as a violation. Members in violation shall be subject to disciplinary action. The following provisions of conduct shall be construed as a rule violation of the Operations Manual and Directives and Orders of the Denver Sheriff Department, but not by way of limitation. - Unauthorized Leave Deputy Sheriffs and employees shall not use unauthorized leave in violation of Departmental Orders. As it pertains to: 080 Department Order 2053.1F, Employee Use of Leave and Time Off Under the BSD disciplinary matrix, a violation of DSD rule 200.3 is a Conduct Category violation. S. Unauthorized absence from work; or abuse of paid time off, sick leave, or other types of leave; or violation of any rules relating to any forms of leave de?ned in Rule 10 PAID LEAVE or Rule 11 UNPAID AND EXTENDED LEAVE PRE-DISCIPLINARY MEETING You were served with a pre-disciplinary letter regarding this matter on June 6, 2016. A pre- disciplinary meeting was held on July 13, 2016 at approximately 10:10 am, in the Denver Sheriff Department (DSD) Downtown Detention Center (DDC) administrative conference room, located at 490 West Colfax Avenue, Denver, Colorado. The purpose of this meeting was to allow you to correct any errors in the Agency?s information or facts, to tell your side of the story, and to present any mitigating information as to why possible disciplinary action should not be taken against you. Present at this meeting was Sheriff Patrick Firman and Division Chief Paul Oliva. Present from the Conduct Review Of?ce (CRO) was Captain Stephanie McManus and Ms. Rachelle Wright. Present from the Of?ce of the Independent Monitor was Mr. Gregg Crittenden. You attended this meeting without a representative. The pre?disciplinary meeting was transcribed and is contained in the IAB ?le, incorporated by reference herein. A summary of the pre-disciplinary meeting follows. You stated that, during the days of leave without approval, you were the primary caregiver for your mother and three children. as well as going through a 16 month long divorce process including 4 court appearances. You stated that there were a "gamut" of other issues and surrounding circumstances involved as well. You stated that you reiterate the mitigating factors offered in your IAB interview. You further stated that ?this is not normal behavior for [you]?missing days" and that "[you] take [your] job pretty the circumstances that put [you] in that situation were kind of out of [your] FOR CITY SERVICE VISIT Denverliov.org I gill Denver Department of Safety - 3 - Deputy Craig Cooper, 806031 32015-0090 Disciplinary Determination August 3, 2016 control." You further stated that you have been with the Department for 10 years and have never had disciplinary issues before. The Sheriff then asked you if you've had any other instances of unauthorized leave since the last case in 2016, and you stated not that you're aware of. The Sheriff then asked you how you're dealing with the ongoing situation with your mother's health if you are not incurring any more unauthorized leave, and you responded that you are dealing with the matter on your days off and when you get off of work. The Sheriff then con?rmed with you that, for a period of time during the same period of this matter, you had FMLA leave. The Sheriff then asked you why you didn't apply for FMLA leave instead of using unauthorized leave, and you replied ?[blecause [you weren't] aware that [you were] in an unauthorized leave situation, and [you had] FMLA [leave for your] ex-wife yourself[, realize that the time had expired, that [you] needed to do it again." The Sheriff then engaged in conversation with you and Chief Oliva to determine the process of calling to report not coming to work. It was determined that, when you would call in to your supervisor to report not coming to work, you would have indicated that you were using FMLA leave, not knowing that it had expired. You told the Sheriff that you didn?t recall anyone ever telling you that the FMLA leave had expired until this incident arose. Chief Oliva then asked you if you have reapplied for FMLA and you stated that you are currently on FMLA again. The Sheriff then asked you for any awards or commendations you would like to be considered, and directed that they be sent to Captain McManus. Chief Oliva then referred you to the employee assistance programs that are offered through the City and County of Denver. The meeting then concluded. Your previous discipline includes: 2-9-13 RR-100.10.2 - Unauthorized Leave Verbal Reprimand 6-17-1 1 RR-100.10.2 Unauthorized Leave Verbal Reprimand 5-13-1 1 RR-100.10.2 Unauthorized Leave Written Reprimand 1-20?10 Failure to Pay Fair Share Written Reprimand Your conduct has been in violation of the Department's policies and procedures. There is an immediate need for improvement in this area. Further rule violations shall be dealt with appropriately. While you may appeal the discipline imposed and these determinations in accordance with Career Service Rule 19, Appeals, you have in fact chosen to waive your rights as a condition of your agreement to accept the recommended discipline. Finally, please be reminded that you are not to take any retaliatory action against anyone has a result of this disciplinary action. If any such action is taken, further discipline may be contemplated and taken, up to and including dismissal. FOR CITY VISIT Denverlinmrg I?i?ii Denver Department of Safety 4 Deputy Craig Cooper, 806031 82015-0090 Disciplinary Determination August 3, 2016 Sincerely, han on Elwell Civilian Review Administrator cc: Career Service Authority, Records Management Division IAB File Administration DEPARTMENTAL DETERMINATIONS OF DISCIPLINE Deputy Sheriff Craig Cooper, 806031 8201 5-0090 After a thorough review of the Denver Sheriff Department (DSD) Internal Affairs Bureau (IAB) investigation, the Executive Director of the Department of Safety's Of?ce has made the following ?ndings of fact and determinations of discipline: SUMMARY OF FACTS The preponderance of evidence establishes the following summary of the facts and circumstances surrounding the conduct upon which discipline is being imposed. Deputy Craig Cooper has been employed with DSD since 2006. Beginning with October 23, 2014 through December 16, 2015, Deputy Cooper incurred 187.6 hours total of unauthorized leave. Deputy Cooper incurred 10.32 hours of unauthorized leave on October 23, 2014; 10.32 hours of unauthorized leave on October 24, 2014; 10.32 hours of unauthorized leave on October 25, 2014; 0.32 hours of unauthorized leave on November 5, 2014; 10.32 hours of unauthorized leave on November 29, 2014; 5.96 hours of unauthorized leave on January 3, 2015; 10.32 hours of unauthorized leave on January 22, 2015; 10.32 hours of unauthorized leave on January 23, 2015; 10.32 hours of unauthorized leave on January 24, 2015; 5.46 hours of unauthorized leave on March 26, 2015; 10.32 hours of unauthorized leave on March 27, 2015; 2.32 hours of unauthorized leave on April 9, 2015; 10.32 hours of unauthorized leave on April 16, 2015; 10.32 hours of unauthorized leave on April 17, 2015; 10.32 hours of unauthorized leave on April 30, 2015; 2.32 hours of unauthorized leave on May 9, 2015; 10.32 hours of unauthorized leave on May 22, 2015; 4.64 hours of unauthorized leave on July 3, 2015; 10.32 hours of unauthorized leave on August 5, 2015; 4.82 hours of unauthorized leave on September 25, 2015; 10.32 hours of unauthorized leave on September 26. 2015; 2.32 hours of unauthorized leave on October 29, 2015; 10.32 hours of unauthorized leave on October 30, 2015; 2.32 hours of unauthorized leave on November 7, 2015; and 2.32 hours of unauthorized leave on December 16, 2015. Deputy Cooper was not covered by Family Medical Leave Act (FMLA) leave during this time, nor had he received approval by his supervisor to take leave for those dates and times. During his IAB interview, Deputy Cooper provided a letter that explained the personal reasons that Deputy Cooper incurred unauthorized leave. As a result of those reasons, Deputy Cooper stated that he was overwhelmed to the extent that he needed to take time off to address all of FOR CITY llenverlimrg Denver Department of Safety - 5 - Deputy Craig Cooper. 306031 82015-0090 Disciplinary Determination August 3. 2016 these issues. Although he could not remember what he was doing on each individual unauthorized leave date. Deputy Cooper stated that all of his unauthorized leave was due to those personal reasons. Deputy Cooper further stated to IAB that. as he had requested FMLA leave in the past. he was familiar with the process of getting the proper papenlvork submitted and processed.? Deputy Cooper's letter ended with the statement that he is aware that he should seek FMLA leave approval for his situation. Deputy Cooper further admitted that he was not authorized to take the time off of work. ANALYSIS AND CONCLUSIONS Career Service Rules 16-60 AI Neglect of Dug; LI Failure to observe written degartmental or agency regulations, golicies or rules as it gertains to DSD RR--100.10.2I Unauthorized LeaveI as it gertains to DSD Degartment Order _2_053.1 F. Unauthorizegeave Deputy Cooper violated these Career Service Rules and the above Departmental Rule when. by a preponderance of the evidence. he ?use[d] unauthorized leave in violation of Department Order Unauthorized leave impacts the operations of the Department in that it produces shortages in the schedule. which then generates overtime to ?ll the position if the assignment is a mandatory post. This can result in a serious short term and long term negative effect on budgeting. staff effectiveness, and facility operations. When the assignment is not a mandatory post. a loss of productivity occurs which may have signi?cant impacts on the operations of the Department. By using a total of 187.6 hours of unauthorized leave. under circumstances in which Deputy Cooper should have known to have applied for FMLA. Deputy Cooper demonstrated ?conduct that is substantially contrary to the guiding principles of the Department or that substantially interferes with its mission. operations, or professional image. or that involves a demonstrable serious risk to deputy sheriff. employee. or public safety." As such, this rule violation is a Conduct Category violation. Deputy Cooper has no prior disciplinary history that would affect the penalty level in this case; however, it is important to note that Deputy Cooper has had three prior sustained cases for unauthorized leave. Therefore. pursuant to the disciplinary matrix. the penalty level is a 5. The presumptive penalty for a Conduct Category D. level 5 offense is a ten (10) days suspension. The mitigated penalty is a four (4) to six (6) days suspension, and the aggravated penalty is a fourteen (14) to sixteen (16) days suspension. In analyzing the appropriate penalty for the above rule violations. sections 19 through 23 of the disciplinary matrix. pertaining to considering and weighing mitigating and aggravating factors. have been considered. After considering and weighing the mitigating and aggravating factors in this case. including Deputy Cooper's history with the Department. positive performance 1 Documentation obtained from Human Resources shows that Deputy Cooper was on FMLA from October 17. 2013 through October 16. 2014. Deputy Cooper is currently on FMLA. which started on January 1. 2016 and ends December 31, 2016. Deputy Cooper was not on FMLA during the dates in question. October 23. 2014 through December 16. 2015. FOR CITY SERVICES VISIT Denverliumg li?ii Denver Department of Safety - 6 - Deputy Craig COOper, $06031 82015-0090 Disciplinary Determination August 3. 2016 evaluations, acceptance of responsibility, and prior disciplinary history, none are suf?ciently weighty to justify a departure from the presumptive penalty. Accordingly. the presumptive penalty of a 10 days suspension is hereby imposed for violations of CSA rules 16-60A, L. S. and D80 Rule 200.3. SUMMARY OF DISCIPLINARY DETERMINATIONS CSR 16-60 A, L, S, and D80 100.102, Unauthorize Leave Conduct Finding Category Level Range Penalty Neglect of Duty; Unauthorized 10 Leave; Sustained 5 Presumptive Unauthorized Absence from Work a non Elwell Date Civilian Review Administrator days suspension ma EEFNCE Denieanmrg lii?i Stephanie Y. O'Mnlley Enocutive Dirac-tor of the Department of Safety 1331 Cherokee Street Room 302 PUBLIC SAFETY Denver. c0 30204 p: 720.913.6020 r: 720.913.7028 August 8. 2016 Gerry Carter, 801012 Deputy Sheriff Downtown Division Denver Sheriff Department Re: DSD IAB Case #82016-0044 Deputy Carter: This is of?cial noti?cation that. after an independent review by the Of?ce of the Executive Director of the Department of Safety. you are being suspended without pay for three (3) days (24 hours). Your three (3) day suspension will begin on September 22. 2016 and include the dates of September 26. 2016 and September 27. 2016. You may return to work on September 27, 2016 at 11:02 am to complete the remainder of your shift. or use your own time. During this suspension, you shall not wear the Department uniform, or exercise any power or authority granted to you as a deputy sheriff. including but not limited to using your identi?cation card to gain entry or access to City and County of Denver facilities or entering City and County of Denver facilities for reasons other than to conduct personal business. You are further not authorized to work for the City and County of Denver for the duration of your suspension. This suspension is for misconduct that violated the Career Service Rules set forth below and is discussed more fully in the section of this letter entitled Departmental Determinations of Discipline (pgs. 4-6). Career Service Rule 16-60 Discipline and Dismissal: The following may be cause for discipline or dismissal of a Career Service employee: B. Carelessness in performance of duties and responsibilities. L. Failure to observe written departmental or agency regulations. policies or rules. FDR VISIT Ilenverliomre I 3111 Denver Department of Safety - 2 - Deputy Gerry Carter, 801012 82016-0044 Disciplinary Determination August 8, 2016 As it pertains to: Denver Sheriff Departmental Rules and Regulations PREAMBLE Deputies shall obey all Departmental rules, regulations, duties, procedures, instructions, and orders; the provisions of the Operations Manual; Mayor?s Executive Orders; and Rules of the Career Service Authority. Failure to comply with any of these shall be construed as a violation. Members in violation shall be subject to disciplinary action. The following provisions of conduct shall be construed as a rule violation of the Operations Manual and Directives and Orders of the Denver Sheriff Department, but not by way of limitation. RR-400.4.4 Erroneous Release Deputy Sheriffs and employees shall not release a prisoner who is not eligible for release. Under the DSD disciplinary matrix, a violation of DSD Rule 400.4.4 is a Conduct Category through violation. CONTEMPLATION 0F DISCIPLINE KNOWN AS PRE-DISCIPLINARY) MEETING You were served with a pre-disciplinary letter regarding this matter on June 9, 2016. A pre- disciplinary meeting was held on July 19, 2016 at approximately 10:00 am, in the Denver Sheriff Department (DSD) Downtown Detention Center (DDC) administrative conference room, located at 490 West Colfax Avenue, Denver, Colorado. The purpose of this meeting was to allow you to correct any errors in the Agency?s information or facts, to tell your side of the story, and to present any mitigating information as to why possible disciplinary action should not be taken against you. Present at this meeting was Sheriff Patrick Firman and Division Chief Paul Oliva. Present from the Conduct Review Of?ce (CRO) was Captain Stephanie McManus and Ms. Rachelle Wright. Present from the Executive Director of Safety's Of?ce was Ms. Shannon Elwell. Present from the Of?ce of the Independent Monitor was Mr. Gregg Crittenden. Present from the City Attorney's Office was Ms. Jennifer Jacobson. You attended this meeting without a representative present. The pre-disciplinary meeting was transcribed and is contained in the IAB ?le, incorporated by reference herein. A summary of the pre-disciplinary meeting follows. You began by stating that you remember this erroneous release more because you discovered that it had occurred about an hour or so afterward. You further stated that ?[elverything?s pretty much right, except for there was wrong paperwork in there with it. There [were] two different parole detainers in there; one that matched the release and one that didn?t, so Deputy Lujan didn?t catch that, I didn't catch that." FOE CITY SERVICESVISIT DenverGor.org gillL Denver Department of Safety - 3 - Deputy Gerry Carter. 301012 82016-0044 Disciplinary Determination August 8, 2016 You commented that ?this one's kind of strange too because when you look at the case identi?ers, there's actually two parole detainers in there. That means somebody else also at one time stuck another case number in there, whether or not they changed it later. I don?t know, but there's two entries. It should have only came with one when they got arrested, so this one?s kind of strange . . . . We didn?t catch the other parole detainer, we just saw the one releasing the wrong?there was wrong paperwork in it and we had one that was releasing that wrong paperwork . . . . [W]e just missed the right one that was inside there." Chief Oliva asked you why the wrong papenivork was in the ?le and you replied that the wrong papenNork was in the ?le with the same last name, but two different ?rst names. You explained that, when Deputy Lujan picked up the detainer to release, she grabbed the wrong one that was together with the correct detainer in the ?le. You admitted that ?there was a right one in there that we just didnjust didn?t catch that one; that?s all." Chief Oliva then asked you the process for verifying a person?s identity. You stated that you don't always look at the name, because individuals frequently come into custody using aliases. You explained that, although the last names were the same, you ?just think we looked at the two wrong paperwork in there.? The Sheriff then asked you at what point you knew that there was wrong paperwork in the ?le, and you replied that it was after you learned that the inmate had been erroneously released. Ms. Elwell then asked you to provide any awards or commendations to Captain McManus. You concluded by asking for some additional staff in the unit. The meeting then concluded. Your previous discipline includes: Date Type of Violation Discipline Imposed 7-11-2016 Erroneous Release 2 Days Suspension The Department has concern regarding your ability to act responsibly and to conduct yourself appropriately while on duty. Your conduct has been in violation of the Department's policies and procedures. There is an immediate need for improvement in this area. Further rule violations shall be dealt with appropriately. Please be advised that you may appeal the discipline imposed and these determinations in accordance with Career Service Rule 19, Appeals. You may also initiate dispute resolution pursuant to Career Service Rule 18, Dispute Resolution. Please note that pursuing dispute resolution does not toll your time for ?ling an appeal. Finally, please be reminded that you are not to take any retaliatory action against anyone has a result of this disciplinary action. If any such action is taken, further discipline may be contemplated and taken, up to and including dismissal. QZ/m/c hannon Elwell Sin NR CITY SERVICES VISIT Denverliomrg Denver Department of Safety - 4 - Deputy Gerry Carter. 301012 82016-0044 Disciplinary Determination August 8, 2016 Civilian Review Administrator cc: Career Service Authority. Records Management Division IAB File Administration DEPARTMENTAL DETERMINATIONS OF DISCIPLINE Deputy Sheriff Gerry Carter, 301012 32016-0044 After a thorough review of the Denver Sheriff Department (DSD) Internal Affairs Bureau (IAB) investigation, the Executive Director of the Department of Safety's Of?ce has made the following ?ndings of fact and determinations of discipline. SUMMARY OF FACTS The preponderance of evidence establishes the following summary of the facts and circumstances surrounding the conduct upon which discipline is being imposed. Deputy Carter has been a Deputy Sheriff with the DSD for approximately ?fteen years. On the date of the incident, Deputy Carter was assigned to the Downtown Division Records Unit, through which inmate releases are veri?ed and processed. Deputy Carter's main job duties, as re?ected in the DSD Mission, are to ?provide safety and security for the community by ensuring care, custody, transportation, and re-entry services for detainees by operating safe. secure, ef?cient and humane facilities that adhere to federal, state, and local laws.? On February 25, 2016, inmate TR1 was erroneously released from County Jail. Judicial Assistant Nicole Martinez was subsequently contacted by Parole Of?cer Mike Paulson, who inquired about the release of inmate TR. He indicated that he had transmitted the issuance of a release form for an inmate however, inmate TR was inadvertently released instead? In response to the inquiry of Parole Of?cer Paulson, Judicial Assistant immediately noti?ed Sergeant Michael Jordan in the Records Unit of the erroneous release. She then contacted Deputy Carter, who was still in possession of the ?le. The documents were reviewed and it was found that the release authorization from the Department of Corrections, referred to as the C- WISE document, authorized the release of inmate MR from the Denver County Jail; however, the other documents contained in the ?le were for inmate TR. During the review of the ?le, it was found that Deputy Brenda Lujan generated the Inmate Eligibility for Release form for the wrong person.4 During her interview with DSD IAB, Deputy Lujan stated that she remembered receiving the release authorization from the Department of Corrections that was sent via fax from the Parole Of?ce to the BBC Records Section. Deputy Lujan said she looked at the name on the release form and pulled the incorrect ?le from the stored ?les based only on the last name. She further said she did not check the ?rst name nor did she check the case number on the ?le. This 1 The inmate is referred to by his initials. 2 The inmate is referred to by his initials. 3 Inmates TR and MR have the same last name. 4 Deputy Lujan was also disciplined with respect to this case. FOR CITY VISIT li?ii Denver Department of Safety - 5 - Deputy Gerry Carter, 301012 S2016-0044 Disciplinary Determination August 8. 2016 resulted in Deputy Lujan generating the Inmate Eligibility for Release form with the wrong inmate identi?ers, which contributed to the erroneous release of inmate TR. Deputy Lujan indicated that both inmate TR and inmate MR were being held in custody for a parole violation. During his interview with Internal Affairs, Deputy Carter described the typical procedures that he follows once the noti?cation is received authorizing the release of an inmate. Deputy Carter admitted that, although Deputy Lujan generated the Inmate Eligibility for Release form for the wrong person, he did not thoroughly review the documents for accuracy before signing off on the form, and the incorrect information was submitted to the County Jail.5 Inmate TR was taken into custody at a Denver bus stop by DSD warrant of?cers hours approximately 90 minutes after the discovery of his erroneous release. inmate MR was then properly released pursuant to the directives of Parole Of?cer Paulsen. Based on the review of the record. a preponderance of the evidence establishes the following acts of misconduct in violation of the following departmental rules and policies. AND CONCLUSIONS Career Service Rules 16-60 B, Carelessness in Performance of Duties; Ll Failure to observe written departmental or agency regulationsI policies or rules as it pertains to DSD RR-400.4.4 - Erroneous Release Deputy Carter violated these Career Service Rules and the above Departmental Rule when he erroneously released a prisoner, inmate TR, who was not eligible for release. Deputy Carter admitted that he neglected to thoroughly review the Inmate Eligibility for Release form before he signed it. and in doing so, inadvertently authorized the release of inmate TR from custody instead of inmate MR. Further. at his contemplation of discipline meeting. Deputy Carter acknowledged wrongdoing by admitting that We didn't catch the other parole detainer, we just saw the one releasing the wrong?there was wrong papenrvork in it and we had one that was releasing that wrong paperwork . . . . [W]e just missed the right one that was inside there" and "there was a right one in there that we just didnjust didn't catch that one; that's all." In erroneously releasing inmate RS, Deputy Carter was careless in the performance of his duties as they pertained to ensuring that inmates are not released when they are ineligible for release as well as that inmates who are eligible for release are properly released. Under the BSD disciplinary matrix, a violation of DSD Rule 400.4.4 falls in Conduct Categories through D. Deputy Carter's behavior that "ha[d] a pronounced negative impact on the operations or professional image of the Department. or on relationships with other deputy sheriffs, employees, agencies, or the public.? Deputy Carter's carelessness contributed to the release of an inmate who required the efforts of multiple units of DSD to return to custody. Furthermore, the error was discovered not by DSD personnel, but rather by a parole officer and judicial assistant. Lastly, while Deputy Carter's carelessness contributed to the erroneous 5 Deputy Welch at County Jail received the Inmate Eligibility for Release form that erroneously identi?ed inmate TR as eligible for release. As Deputy Welch was only required to verify the identi?ers from the TAG computer system with the identi?ers on the Inmate Eligibility for Release form to ensure that he was releasing the correct inmate, Deputy Welch had no way of knowing that he was releasing the wrong inmate pursuant to an incorrect form. FDR CITY SERVICESVISW Denver?omrg I ?ll Denver Department of Safety - 6 - Deputy Gerry Carter, $01012 82016-0044 Disciplinary Determination August 8, 2016 release of one inmate, it also contributed to the improper holding in DSD custody of an inmate who should have been released. As such, this rule violation is a Conduct Category violation. In his approximately ?fteen years on the Department, Deputy Carter has one prior instance of discipline, which does not count for the purpose of determining a penalty in the instant matter. Therefore, the presumptive penalty for a Conduct Category C, level 3 offense is a two (2) day suspension. The mitigated penalty is a written reprimand to one (1) day suspension, and the aggravated penalty is a three (3) to four (4) day suspension. In analyzing the appropriate penalty. sections 19 through 23 of the disciplinary matrix, pertaining to considering and weighing mitigating and aggravating factors, have been considered. After an examination of the circumstances of the case, nature of the misconduct, and Deputy Carter's record, there are present mitigating factors that include excellent PEPRs and history with the Department. Furthermore, Deputy Carter admitted his mistake and took full responsibility. However, aggravating factors are also present. Deputy Carter jeopardized the Mission of the DSD when he erroneously released inmate TR and failed to release the proper inmate, inmate MR. Moreover, an erroneously released inmate on parole, as well as an inmate who improperly remains in DSD custody, creates the existence of an actual and demonstrable legal or ?nancial risk to the Department and the City. Lastly, Deputy Carter's disciplinary history, while not used to mandatorin increase the discipline level. is relevant and signi?cant. Deputy Carter?s one prior disciplinary matter for erroneous release re?ects a similar nature and seriousness as the instant matter; is recent; and re?ects similar careless mistakes as reasons for the misconduct. After considering the above mitigating and aggravating factors, the aggravating factors were found to be suf?ciently weighty to warrant a penalty other than the presumptive penalty. Accordingly. the aggravated penalty of three (3) days suspension is hereby imposed for violations of CSA rules 16-608, L, and DSD Rule 400.4.4 SUMMARY OF DISCIPLINARY DETERMINATIONS CSR 16-60 B, L, as it pertains to DSD RR-400.4.4 Conduct Finding Category Level Range Penalty Erroneous Release Sustained 3 Aggravated 3 . days suspension ?i Elm Shannon Elwell Date Civilian Review Administrator FOR CITY SERVICES VISIT Denverliov.org ?ll