CIVIL SERVICE COMMISSION, CITY AND COUNTY OF DENVER, COLORADO Case No. 11 CSC 23 ______________________________________________________________________________ In the matter of: DERRICK SAUNDERS (07079) Officer in the Classified Service of the Denver Police Department Petitioner. ______________________________________________________________________________ FINDINGS, CONCLUSIONS, DECISION AND ORDER ______________________________________________________________________________ An evidentiary hearing in the above captioned matter was held on April 3 and 5, 2012 before Lawrence B. Leff, Timothy R. Arnold and Carolyn Lievers, Civil Service Commission Hearing Panel. The Petitioner, Derrick Saunders ("Petitioner") testified and was represented by David J. Bruno. The Respondent, Hon. Alex J. Martinez, Manager of Safety ("the Manager") testified and was represented by Andrea J. Kershner, Assistant City Attorney. PRELIMINARY MATTERS The following witnesses were sworn or affirmed before testifying in this case: State Patrol Trooper Edward Gawkoski, Hon. Alex J. Martinez, Manager and Officer Derrick Saunders. The following exhibits were admitted into evidence: Respondent's Exhibits 1, 2, 3, 5, 7, 11, 12, 13 and 17 (the Chief's Hearing only); and Petitioner's Exhibits A, B, C, D, E, F, G, H, I, and J. Prior to the presentation of evidence, it was ordered that the "(R)espondent shall not introduce any record of the conviction of the Petitioner into evidence, including the issuance of a summons." This order was reaffirmed in response to a motion to reconsider the ruling at the outset of the hearing. Consequently Respondent's Exhibits 4 and 8 were admitted for the limited purpose to verify that the Manager reviewed these documents and Respondent's Exhibits 14 and 15 were admitted for the limited purpose to verify that Trooper Gawkoski issued these documents; all references to "charges" in these documents expressly were not admitted into evidence. Also it was ordered that prior orders of disciplinary actions under the current Matrix could be used as comparators to the discipline given in this case. THE APPEAL The Manager issued a Departmental Order of Disciplinary Action, P2010 06 119, dismissing Petitioner in a letter dated December 7, 2011. The Manager found that Petitioner, while off-duty on June 17, 2010, was clocked on radar going 143 miles per hour ("mph") in a 55 mph zone; that when Petitioner was stopped by the Colorado State Patrol he was also found to have a Blood Alcohol Content ("B.A.C.") of 0.089 which placed his B.A.C. in the Driving While Ability Impaired ("DWAI") category; and that Petitioner performed unsatisfactorily the roadside maneuvers in connection with the stop. Also the Manager found it significant that the incident occurred at night and that there was a passenger in the vehicle with Petitioner. Consequently the Manager found the Petitioner violated RR-115.1 of the Operations Manual, Conduct Prohibited by Law as it pertains to sections 42-4-1301(1)(b) and 42-4-1401, C.R.S. (2012) because Petitioner entered a guilty plea to DWAI and reckless driving. The Manager found "the extraordinary high speed of 143 mph "stunning" and "shocking." The Manager wrote that the "extraordinary high speed while impaired is egregious misconduct substantially contrary to the standards of conduct reasonably expected of one whose sworn duty is to uphold the law. Thus, your misconduct demonstrates a willful and wanton disregard of Department values and demonstrates a serious lack of character related to fitness to hold the position of police officer, a Category F violation." Petitioner appealed the Departmental Order of disciplinary action on December 19, 2011. In his appeal Petitioner claims that the discipline is not supported by the evidence against him, is unlawful in that the discipline is disproportionate to the offense alleged and/or is comparatively excessive thus violating the City's and the Department's policy requiring consistent discipline and fair and equal treatment and ultimately constitutes an abuse of discretion by the Manager. Petitioner also complains that the discipline received failed to consider his employment history in the manner contemplated by the Denver Police Department Matrix, specifically Appendix D and Section 19 of the Denver Police Department Discipline Handbook: Conduct Principles and Disciplinary Guidelines ("Handbook"). Petitioner seeks de novo review of the Manager's Disciplinary Action terminating him, to have the action vacated or modified by reducing the penalty and reinstating him with appropriate back pay and seniority. ISSUES 1. Whether Petitioner violated the following rules and regulations as set forth in the Departmental Order of Disciplinary Action dated December 7, 2011, RR 115.1, Conduct Prohibited by Law [Officers shall obey the Charter of the City and county of Denver, all City Ordinances, and all state and federal statutes - As it pertains to CRS 42-4-1301(1)(b) - Driving While Ability Impaired and 42-4-1401- Reckless Driving]. 2. Whether the Manager was justified in finding that an alleged violation was proven and in imposing the disciplinary sanctions that were ordered. (Handbook 27.3) FINDINGS OF FACT Petitioner joined the Denver Police Department on October 1, 2007. Initially Petitioner had FTO training and was assigned to District 2. He transferred to DIA, then came back to District 2, and was assigned to Traffic Operations doing photo radar at the time of the incident that is the subject matter of this case. Between the incident and 2007, Petitioner had one commendation and one disciplinary action at Category D, level 5 (no alcohol involved). The incident in this appeal occurred on June 17, 2010 while Petitioner was off duty. Petitioner and his passenger had been at the Rock Bar playing pool and watching the NBA finals. Petitioner and his passenger drank alcoholic beverages while at the Rock Bar. Petitioner had three to five drinks containing vodka before attempting to drive home. Petitioner was stopped by Colorado State Patrol Trooper Gawkoski on his way home at 10:52 P.M. for speeding. 2 Petitioner was driving a 2007 Infinity G-37 coupe, which he described as a two door, low sitting sports car with a six speed manual transmission, a "hot car." While on Gun Club Road Petitioner put the car in sixth gear and drove "fast" to show his passenger what the car could do. He knew he was speeding and thought he was going approximately 90 mph in a 55 mph zone. Trooper Gawkoski stopped Petitioner heading north on Gun Club Road at Mile Marker 18. The section of Gun Club Road where Petitioner was stopped is two lanes, has no shoulder, and has minimal roads that cross it. At the time of the stop no vehicles were trying to cross Gun Club Road and other vehicle traffic was light. Trooper Gawkoski activated his radar because he thought Petitioner was driving at a high rate of speed. The radar used was "certified and gave a reading of 143 mph for Petitioner's car." June 17, 2010 was the first time Trooper Gawkoski clocked a vehicle going 143 mph. Petitioner immediately pulled over when the Trooper started flashing his lights. In his initial conversation with Petitioner, Trooper Gawkoski noticed the odor of alcohol, that Petitioner's speech was thick and slurred, and that the whites of Petitioner's eyes were pink. Petitioner admitted to Trooper Gawkoski that he had been drinking alcohol. As a consequence Petitioner was asked to perform roadside maneuvers. Petitioner consented and performed the tests. However, Petitioner failed enough of the roadside maneuvers that Trooper Gawkoski concluded Petitioner was not sober. Petitioner was then given a breath test which he failed with a B.A.C. of 0.089. The Manager found that driving 143 mph was "stunning" because 143 mph was "so far in excess of what I would ordinarily consider speeding" and that he had "never heard of people going that fast outside of an arena." It was also significant to the Manager that the incident occurred at night and with a passenger in the vehicle, and that the Manager believed driving 143 mph would make it hard to avoid an accident given that Petitioner was impaired at the time. He also found the fact Petitioner drove 143 mph was egregious misconduct and outlandish behavior. The Manager concluded that Petitioner's guilty plea confirmed that the Petitioner drove recklessly. The Manager concluded that Petitioner's misconduct could nominally fit in Category D, except that Category D did not cover driving 143 mph. The Manager did not consider any of the factors under section 25, Special Circumstances of the Application Considerations Regarding Certain Violations, of the Handbook. Petitioner accepted responsibility for violating RR-115.1, Conduct Prohibited by Law as it pertains to DWAI and reckless driving. He cooperated and was courteous at the traffic stop. He completed level 2 education classes. He has not consumed alcohol since October 30, 2010 despite two tragic personal events (the death of his 17 month old son and a suicide attempt by his wife). The Manager agreed that the Matrix was adopted to correct behaviors, to ensure consistent discipline without regard to who is Manager, to allow officers to predict likely discipline for certain behaviors through predetermined categories and presumptive consequences and that special or extraordinary circumstances are required to move categories, up or down. CONCLUSIONS OF LAW 1. RR 115.1, Conduct Prohibited by Law It is notable that the Manager dismissed Petitioner for violating RR-115.1, Conduct Prohibited by Law rather than Aggravated Conduct Prohibited by Law RR-115.2. In Appendix D, Application Considerations Regarding Certain Violations, of the Denver Police Department 3 Discipline Handbook: the disciplinary considerations are described for violations of RR-115.1 involving Driving Under the Influence (DUI) or DWAI, the violation alleged in this appeal. Contrary to this Handbook guidance, the Manager treated the aggravating factor, "(c) Reckless driving or excessive speeding (20 mph or more over the speed limit)," as an independent cause for discipline and used it to move from the presumptive discipline choices in Category D to presumptive termination under Category F. (Handbook, Appendix D at pp. 7-8) The Manager 's conclusion that the words 20 mph or more over the speed limit was not intended to cover speeding 88 miles over the speed limit has no support in the record. The plain language of the provision does not make that distinction - any amount of speed more than 20 mph over the limit is reckless or excessive. Thus, starting with 21 mph over the speed limit is defined as reckless or excessive. There was no evidence presented about administrative intent in the use of the words 20 mph or more over the speed limit when these rules were adopted. By including an express measure, 20 mph or more over the speed limit, for applying the reckless driving or excessive speeding aggravator for Category D the rule makers left no room for creating sub-categories based on personal value judgments of the Manager. Moreover, the reckless driving and excessive speeding as defined in the Handbook is a standards or values statement of what the rule makers considered 'stunning, shocking and egregious,' inter alia, in arriving at the definition adopted by virtue of choosing that factor as an aggravator. While the list of aggravators is not intended to be exhaustive no authority is given to ignore the plain terms of the factors given. The Petitioner engaged in conduct prohibited by law by consuming alcohol and speeding more than 20 mph over the posted speed limit and therefore could have been disciplined under RR-115.1 or RR-115.2. The Handbook explicitly points to RR-115.1 as "intended to apply to a wide range of conduct prohibited by local and State or Federal statutes. This conduct includes, but is not limited to ..., traffic ... violations of law and may range from minor infractions to extremely serious misconduct." (Handbook, Appendix D, p.7) In discussing conduct involving DUI or DWAI charged under RR-115.1 the Handbook provides express guidance: "Therefore, the violation of RR-115.1, Conduct Prohibited by Law, related to driving offenses involving alcohol/intoxicants should generally be considered a Conduct Category D violation." (Handbook, Appendix D, p.8) There was no evidence that Petitioner had a prior DUI or DWAI conviction or prior sustained discipline involving DUI or DWAI, the two special qualifiers that could move DUI or DWAI misconduct from Category D to Category F. (Handbook, Appendix D, p. 8) Also there is a list of factors considered serious departures from Department standards for use in determining the appropriate presumptive penalty. There was no evidence that any of these serious departures from Department Standards apply to the Petitioner's case. (Handbook, Appendix D, p.7) Thus the violation proven in this case is a Category D Violation that requires consideration of mitigating and aggravating conduct to determine the appropriate penalty. 2. Applying the Discipline Matrix The Handbook directs that the Department apply consistently the guidelines, policies and rules when considering disciplinary action. It also directs that any discipline imposed be consistent with that given other officers in similar circumstances and that consequences be given only for proven misconduct. The intent of the Matrix is to define conduct categories and to set levels of sanctions that are appropriate within a set range, i.e., the Handbook and Matrix are designed to reasonably manage supervisory discretion. (Handbook section 23.2 and .3) The 4 Matrix also grants flexibility to choose a higher or lower Category in the event there are compelling mitigating and/or aggravating factors to be considered. (Handbook section 12.5) The Manager can change the Category and presumptive penalty only if there are unique and extraordinary factual circumstances as flushed out by the answers to the questions in section 15 of the Handbook. In other words the starting point for considering the appropriate penalty on the facts proven in this appeal is Conduct Category D based on the express rules for DUI and DWAI conduct prohibited by law. (Handbook, Appendix D, pp. 7-10 and Question 15.1.10) The Handbook directs the decision maker to examine previous cases for guidance on the appropriate penalty. (Handbook 15.1.11) Several disciplinary action examples since the Handbook and Matrix were adopted were discussed by the parties in their arguments before the panel. A review of these examples of disciplinary actions reveals that a Manager gave a penalty of eight days suspension to an officer with a DUI violation, who had 33 commendations and three reprimands in the relevant time period. (Petitioner's Exhibit C) Another action by a Manager resulted in a 16-day suspension for a DUI violation that involved speeding 80 mph. This officer had two commendations and three disciplinary actions in the relevant time period. (Exhibit D) In a third disciplinary action the officer received a ninety day suspension for a DUI violation involving a one vehicle accident wherein the officer was seriously injured. (Exhibit F) In the final comparable, the officer received a 16 day suspension for a DUI violation. He had one commendation and two disciplinary actions the relevant time period. (Exhibit G) a. Applying Conduct Category D Petitioner has one commendation and one prior Category D disciplinary action (no alcohol), which at minimum places the possible penalty under consideration at level 6 because it would become Petitioner's second Category D violation. An officer in a comparable disciplinary action received 16 days for speeding 80 mph and running off the roadway. (Exhibit D) Petitioner was clocked driving 143 mph without causing an accident and has fewer prior disciplinary actions (one instead of three). Comparing this disciplinary action to Petitioner's facts leads to assessing a penalty of 1.7875 times 16 days (28.6 days) multiplied by Petitioner's two violations, reckless driving and DWAI, for a possible total of 57.2 days of suspension. On balance the aggravator, reckless driving or excessive speeding (20 mph or more over the speed limit) (Appendix D, p. 8) could cancel out Petitioner's commendation but does not give Petitioner credit for two fewer prior disciplinary actions than the officer in Exhibit D. Consideration for the Handbook's Section 19 criteria, such as accepting responsibility and acknowledging wrong doing; cooperating with the Trooper, and successfully completing an alcohol/driving program should weigh in petitioner's favor. The combination of aggravating and mitigating factors [and the disciplinary actions given in similar cases since the Handbook was adopted] justifies reliance on the presumptive penalty of a 30 day suspension. Alternatively, applying Category D as the appropriate Category with a second violation, the presumptive penalty that could be assessed is a thirty day suspension. (A level 6 penalty automatically takes into account that this is a second Category D violation.) The officer in Exhibit D was driving 80 mph, was DUI, had a loaded weapon in his front pocket and was argumentative with the trooper when stopped and refused to perform the roadside maneuvers. The DUI (B.A.C. level of 0.217) and driving 80 mph for the Exhibit D officer resulted in one penalty, a 16 day suspension. Balancing Petitioner's commendation and cooperating during the 5 stop and remediation since the incident as mitigating factors against the aggravating factors of DWAI and reckless driving could, at most, move this violation to the aggravated penalty for a second Category D violation, a possible 38 to 42 day suspension. The disciplinary cases argued by the parties imposed separate penalties only for separate behaviors unrelated to a DWAI or DUI violation. As noted above the Handbook treats reckless driving or excessive speeding as one violation capable of being aggravated (20 mph or more over the speed limit) or capable of being moved to a Category F violation (if there has been a prior alcohol conviction or a prior alcohol related rule violation) rather than two separate violations. Moreover the decision maker is directed to avoid stacking: to avoid citing multiple violations that are simply alternate theories used to describe the same conduct. (Handbook, 31.8) In this instance reckless driving or excessive speeding are addressed in the same aggravator in Appendix D p. 8 which leads to the conclusion that the Matrix intends one violation if an officer is DWAI or DUI and drives recklessly or with excessive speed. b. Applying Conduct Category F The decision maker is directed by section 31 of the Handbook to prove special circumstances pursuant to section 25 of the Handbook when considering going outside the Matrix to give a greater penalty than the matrix allows. (Handbook 31.12) Section 25.4.2 requires a showing that the Matrix fails to appropriately address the conduct under review supported by documentation and reasoned explanation. It requires more than applying a personal standard or life experience to reach the "extraordinary aggravation" required to go outside of the Matrix. There was no evidence beyond the Manager's use of the words 'willful and wanton' and 'egregious misconduct' in a sentence in his disciplinary action letter and his testimony. There was no evidence of the same or similar acts in the past, or disruption of the Department, or an on duty act that showed untrustworthiness or a lack of ethics, or of serious legal or financial risk to the Department or the City by Petitioner actions. It is possible that the public' trust of the Department could be affected if the incident was publicized. Petitioner's speed was a risk to public safety which was lowered by the time and place of the incident according to Trooper Gawkoski. Also this was not a repeat violation. (Handbook 25.6.1.) Nor would using Category D of the Matrix's result in a less severe penalty than other officers for similar misconduct. (Handbook, section 25.8) Even if there had been evidence of extraordinary aggravation, Petitioner's mitigating factors should have been considered. Moreover the disciplinary actions imposed since the Matrix became effective do not support termination. As a consequence the maximum penalty under Category F, considering the mitigating factors, would have been a 90 day suspension. DECISION The Petitioner violated RR-115-1, Conduct Prohibited by Law, as it pertains to DWAI and reckless driving. Respondent failed to prove any extraordinary aggravation and thus failed to prove that going outside of the Matrix is authorized instead of using presumptive penalties for a Conduct Category D violation. Respondent also failed to consider the Petitioner's mitigating factors. Moreover, the disciplinary action of termination far exceeds the discipline given to other officers in comparative or greater misconduct cases since the Handbook and Matrix became effective. 6 ORDER The Manager of Safety's Order of Disciplinary Action in Case No. P2010 06 119, dated December 7, 2011, is affirmed and modified as follows: 1. The Manager's decision that Petitioner violated RR-115.1, Conduct Prohibited by Law, as it pertains to DWAI and reckless driving is sustained. 2. Petitioner's dismissal for violating RR-115.1, Conduct Prohibited by Law, as it pertains to DWAI and reckless driving is overruled. A Conduct Category D violation at the level 6 aggravated penalty of a 42 day suspension is ordered. NOTICE OF APPEAL RIGHTS Pursuant to Charter ? 9.4.15(E), and Rule 12 ? 11 (A)(1 and 2), the decision of the Hearing Officer may be appealed to either the Civil Service Commission, or directly to District Court. Any appeal to the Commission shall be initiated by filing a Notice of Appeal with the Commission, within fifteen (15) calendar days of the date noted on the certificate of service of the Hearing Officer's decision by the Commission. Any appeal to District Court shall be initiated in accordance with the Colorado Rules of Civil Procedure currently in effect. DONE AND SIGNED THIS 22nd day OF MAY 2012. */s/ Lawrence B. Leff _________________ Lawrence B. Leff Chief Hearing Officer */s/ Carolyn Lievers __________________ Carolyn Lievers Hearing Officer */s/ Timothy R. Arnold ____________________ Timothy R. Arnold Hearing Officer *The original signed Order is filed with the Civil Service Commission 7