Stephanie Y. O'Malley Executive Director of the Department of Safety 1331 Cherokee Street DE~V~R Room 302 r PUBLIC SAFETY Denver, CO 8Q204 p:720.913.6020 f:720.913.7028 www. envergov.or~/safety August 1, 2017 Timothy Applegate S08014 Deputy Sheriff Sergeant Downtown Division Denver Sheriff Department Re: DSD (AB Case #S2016-0188 Sergeant Applegate: 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. 8-20) Career Services Rule 16-29 Grounds for Discipline: The fallowing may be cause for discipline or dismissal of a Career Service employee: A. Neglect of duty or carelessness in performance of duties and responsibilities. D. Any act of dishonesty which may include but is not limited to, lying, or improperly altering or falsifying records, examination answers, or work hours. R. Conduct which violates the Career Service Rules, the City Charter, the Denver Revised Municipal Code, Executive Orders, written departmental or agency regulations, policies or rules, or any other applicable legal authority. When citing this subsection, a department or agency must cite the specific regulation, policy or rule the employee has violated. As it pertains to: Denver Sheriff Departmental Rules and Regulations 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. 3 FOR C(TY SERVICES VISR CALL Denverfnv_nr~ ~ 311 1. _~.__._~..~..._....__ ~._.~.. _..._..~.__........._.~.._...~ Denver Department of Safety Sergeant Timothy Applegate S08014 S2016-0188 Disciplinary Determination August 1, 2017 - 2- As it pertains to Executive Order 94 City and County of Denver Employees Alcohol and Drug Policy: I. PROHIBITIONS FOR ALL CITY EMPLOYEES INCLUDING CLASSIFIED MEMBERS OF POLICE AND FIRE DEPARTMENTS. A. Alcohol Employees are prohibited from consuming, being under the influence of, or impaired by alcohol while performing city business, while driving a city vehicle or while on city property [...] B. Legal Drugs [• •l 2. Employees who work in positions operating vehicles or dangerous equipment or positions affecting the health or safety of co-workers or the public are prohibited from consuming, being under the influence of, subject to the effects or impaired by legal obtained prescription drugs while performing city business [...] II. DRUG AND ALCOHOL TESTING [...] B. Reasonable Suspicion Testing When a supervisor has reasonable suspicion that any employee is in violation of this policy, after taking appropriate safety measures, i.e. removing the employee from any situation which may pose a safety risk to the employee, co-worker or the public, the supervisor shall immediately consult with his/her Human Resource Specialist, Safety Officer or the City Attorney's Office to determine further actions. However, if immediate consultation is not possible, it is the responsibility of the supervisor to promptly initiate alcohol and drug testing [...] a. Alcohol [...] iv. Escort the employee to the testing site as soon as possible. However, if the supervisor is unable to escort the employee, the supervisor should have another individual escort the employee for testing [...] b. Legal Drugs [...] iv. Escort the employee to the evaluation site as soon as possible. However, if the supervisor is unable to escort the employee, the supervisor should have another individual escort the employee for testing [...] Under the DSD disciplinary matrix, a violation of DSD Rule 300.19.1 is a Conduct Category A through F violation. FAR CITY SER4'ICES VISR CALL DenuerGou.org 311 Denver Department of Safety Sergeant Timothy Applegate S08014 S2016-0188 Disciplinary Determination August 1, 2017 -3- RR-200.4.2 Commission of a Deceptive Act I n connection with any investigation or any judicial or administrative proceeding, deputy sheriffs and employees shall not willfully, intentionally, or knowingly commit a materially deceptive act, including but not limited to departing from the truth verbally, making a false report, or intentionally omitting information. Under the DSD disciplinary matrix, a violation of DSD Rule 200.4.2 is a Conduct Category F violation. FOR CITY SERVICES VISIT CALL DenverGov.org 311 Denver Department of Safety Sergeant Timothy Applegate S06014 S2016-0188 Disciplinary Determination August 1, 2017 - 4- CONTEMPLATION OF DISCIPLINE MEETING You were served with a contemplation of discipline letter regarding this matter on April 27, 2017. A contemplation of discipline meeting was held on July 12, 2017 at approximately 9:30 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 Office (CRO) was Major Stephanie McManus. Present from the Office of the Independent Monitor was Mr. Greg Crittenden. Present from the City Attorney's Office was Ms. Jennifer Jacobson. Present from the Executive Director of Safety's Office was Mr. Luis Lipchak. You attended this meeting with counsel, Mr. Zach Wagner. The contemplation of discipline meeting was transcribed and is contained in the IAB file, incorporated by reference herein. A summary of the contemplation of discipline meeting follows. Your attorney then made a statement addressing several issues regarding this incident. Your attorney thanked everyone in attendance and for having the opportunity to present your case. He stated that you have been with the Department for over nine years and have received a Pride Award, met or exceeded expectations on your performance evaluations, had no prior discipline, and worked in special management housing units. Your attorney said that on the day of the incident, you were asked to bring a nurse down and you did not know the reason the nurse was needed. He said, the nurse checked the security specialist and said he seemed fine. Your attorney said the sheriff was in the office and said the security specialist seemed fine. Your attorney said you were informed by Sergeant Petrie that the security specialist was undergoing cancer treatment, was having a bad day on his medication, and was not feeling well. Your attorney said, the sheriff turned to you and said,"Just make sure he gets home fine." Your attorney said Sergeant Tomsick was called to arrange an ERU transport for the security specialist to be taken home. He said you went to the third floor with the security specialist to get his things and rode down the elevator with the security specialist and Sergeant Tomsick. Your attorney said after the security specialist had been transported home that you met with Sergeant Tomsick and Sergeant Petrie in the ERU armory where the subject of alcohol came up. He said the three sergeants cannot recall who brought up alcohol but nobody disputes that it was discussed in the armory. Your attorney said you noted a sweet smell when you were on the elevator but did not think it was alcohol and that there are a lot of smells in the DDC. Your attorney said you all then decided to notify Captain Romero and went to speak with him. Your attorney said Captain Romero called IAB Captain Brown, who told everyone that the security specialist had "this problem when he was a deputy at the county jail." Your attorney said, Captain Brown said it was not alcohol. Your attorney said you all offered to bring the security specialist back and IA said not to bring him and just to make sure he got home. Your attorney said you "definitively" did not feel that the security specialist was under the influence of alcohol. Your attorney said afterwards, you all went and asked the nurse who had screened the security specialist and she had not smelled alcohol and did not suspect that he was under the influence of alcohol. FOR CIiY SERVICES VISIT CALL DenverGov.org 311 -. Denver Department of Safety Sergeant Timothy Applegate S08014 S2016-0186 Disciplinary Determination August 1, 2017 -5- Your attorney said it is noteworthy that everyone who interacted with the security specialist did not smell or detect the present of alcohol. He listed the various people who interacted with the security specialist that day, Nurse Garcia who checked him, Sergeant Petrie, Sergeant Tomsick, the Sheriff, Security Specialist Alexandria Uehling-Abeyta who trained the security specialist that day, Security Specialist Kimberly Stone who sat with him that day, Yvette Medina who was in the scheduling office when he reported he was feeling unwell, and Deputy Granados who drove him home. Your attorney explained that multiple people told you about the security specialist's cancer treatment and medications including Sergeant Petrie and Captain Brown. He said you were told to get the security specialist home and that you collected his personal items, arranged a ride, and got him home. Your attorney then discussed Executive Order 94. He said that you are not trained to administer sobriety tests, are not trained to detect alcohol usage, and have received zero training specific to Executive Order 94. He then discussed the reasonable suspicion testing policy and began by reading the policy aloud stating, when a supervisor has reasonable suspicion that an employee's in violation of the policy, the supervisor shall remove the employee and immediately notify the HR specialist, safety officer, or the City Attorney's Office. He further stated, if immediate consultation is not available, then the supervisor shall initiate testing. Your attorney said, you were called in halfway through this incident, after the security specialist had already been seen by a nurse and after Captain Romero had ordered him to be sent home. Your attorney said you were told to get the security specialist stuff, arrange a ride for him, and get him home. Your attorney said it all goes back to reasonable suspicion because numerous individuals did not think the security specialist was under the influence of alcohol and you were told that the security specialist was having a bad day because of his cancer medication and treatment. Your attorney said all you were told was to get the security specialist home and there was no reason for you to be suspicious based on everything that you were told and that happened. Your attorney said there was no policy violation. He said, after the security specialist was taken home, that is when you all decided to follow policy by notifying a superior that there may be a problem and contacting IAB who said not to bring him back and it was an ongoing issue with his cancer treatments. Your attorney said the facts show you did not violate policy, were doing your job, and helping another employee get home like you were ordered to do by the Sheriff. You then made a statement and said you have been with the Department for almost ten years. You said it has been an honor to work for the Department and you always put the Department first when you make decisions. You said you are a community servant and are really here to serve the community. You said you would never do anything to violate a rule or put anybody in danger. You said that you are a leader in the department, you are responsible for many challenging issues, and you make great decisions. Chief Oliva asked you to explain the gesture, which looked like it referred to drinking alcohol, you made when talking to Sergeant Petrie and Sergeant Tomsick in the ERU armory room. You explained that you could not remember who said it but alcohol came up and you made the gesture to clarify drinking alcohol. You said if you had known the security specialist was drunk you would have handled the situation. You said you did not know the security specialist and had only bumped into him once or twice before. Chief Oliva asked if you recalled who brought up FOR CITY SERVICES VISR CALL DenverGoY.org 3i1 ~; Denver Department of Safety Sergeant Timothy Applegate S08014 S2016-0188 Disciplinary Determination August 1, 2017 - 6- alcohol. You said you thought Sergeant Petrie had but everyone was talking about how "messed up" the security specialist seemed and Sergeant Petrie said it was his chemo. Sheriff Firman asked you the reason you went into the ERU armory with Sergeant Tomsick and Sergeant Petrie. You said Sergeant Petrie called you into the ERU armory. You said Sergeant Petrie asked what do you guys think and you responded it was good, he has cancer, and is on chemo. Sheriff Firman asked about a comment your attorney made regarding you saying we might have a problem when IA was called. Your attorney explained that you said it needed to be taken to superiors because there was the possibility that the security specialist may have been drunk on the job but you said you did not detect anything or smell anything. Sheriff Firman asked if you would have handled it differently if you had suspected alcohol. You responded that you would have kept the security specialist there, let Captain Romero know, and probably would have had to take him down to get tested immediately. You said you would have done the same thing if you had suspected the security specialist was under the influence of drugs. Sheriff Firman asked if it would fall under Executive Order 94 if the security specialist was under the influence of chemo therapy or cancer drugs. Your attorney explained that you were informed part way through the incident that the security specialist was not doing well because of his chemo and having a bad day on his medications. Your attorney said you did not conduct an initial assessment and it appeared to you as if Sergeant Petrie had handled it, had a nurse screen the individual, and told you to get him home. Your attorney said even Sheriff Firman had interacted with the security specialist and said get him home safe. Your attorney said you were told about his issue with medications, command staff was aware of it, and you were told to get him home. Sheriff Firman confirmed with you that Sergeant Petrie had initially called you down because you were working classification and he needed a nurse. Your attorney said you came in halfway through the incident, knew a nurse had screened the security specialist, were told it was an issue with cancer medications, and were told to get him home safe. He said you were doing your job, did not detect the presence of alcohol, did not smell alcohol, and everybody else that worked with the security specialist did not smell alcohol. Your attorney said even the nurse who screened him and checked his vitals did not detect alcohol. You attorney said you did not violate policy. Chief Oliva asked in relation to the commission of a deceptive act allegation if you have been truthful the whole time. You said you have been truthful, you came into the middle of the incident, did what you were asked, did not smell alcohol, and supported going to Captain Romero when it was suggested. You said there was no deception on your part. The hearing then concluded. ALL I~~ :, y ...W._ "' ,.,:~...~...~.........~....r.r...~..~~...~~.......a.....~...~~.~+rte.,... .. ~ _.. _ -- _ ..____.~~.,... "__ Denver Department of Safety Sergeant Timothy Applegate S08014 S2016-0188 Disciplinary Determination August 1, 2017 .. ,.~.r.~.~ - 7- Your previous discipline includes: No Prior Discipline 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. Given your conduct, termination is the only appropriate sanction available to address your egregious behavior. 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 filing 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, ~~ eB ss Vigil Deputy Director of Safety Luis L pchak Acting Civilian Review Administrator cc: Career Service Authority, Records Management Division IAB File Administration FOR CIiY SERVICESVI5IT CALL DenverGou.org 311 - .__. Denver Department of Safety Sergeant Timothy Applegate S06~14 S2016-01 B8 Disciplinary Determination August 1, 2017 - 8- DEPARTMENTAL DETERMINATIONS OF DISCIPLINE Deputy Sheriff Sergeant Timothy Applegate S08014 S2016-0188 After a thorough review of the DSD 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. 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 Timothy Applegate has been employed with the Denver Sheriff Department (DSD) since September 2005. On the date of the incident, Sergeant Applegate was assigned as the Classification Sergeant at the Downtown Detention Center (DDC). As a sergeant, Sergeant Applegate's duties included understanding the principles and practices of supervision, department policy, procedures and rules, and ensuring staff compliance with procedures, orders and rules. Sergeant Applegate'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 reentry services for detainees by operating safe, secure, efficient and humane facilities that adhere to federal, state, and local laws." On November 22, 2016, Sergeant Applegate was involved in relieving a security specialist from duty who complained of feeling unwell as a result of cancer treatment and medication and coordinating a ride home for him. Prior to being relieved, the security specialist was unstable as he walked in the DDC and repeatedly braced himself against the wall as he was preparing to leave his shift. After this incident occurred, the security specialist admitted that he had consumed alcohol at his home prior to arriving for work and had brought alcohol into the DDC on that day, which he had consumed while on duty. This incident was subsequently investigated by DSD IAB for potential administrative rule violations including possible violations of Executive Order 94 regarding testing of employees for reasonable suspicion of being under the influence of alcohol or a drug while on duty. Sergeant Applegate was interviewed by DSD IAB regarding this incident on January 10, 2017. Video surveillance footage documented the incident from various angles. The entire investigative file has been reviewed, including but not limited to video surveillance footage, investigative interviews, and relevant paperwork. On the morning of the incident, Sergeant Robert Petrie was working in the scheduling office with Administrative Assistant Yvette Medina. The security specialist was assigned to work the control center on the 3rd floor of the DDC with Security Specialist Kimberly Stone. During his shift, the security specialist went to Sergeant Petrie in the scheduling office and reported that he was not feeling well and asked if he could be relieved to go home. Sergeant Petrie knew from his prior interactions with the security specialist that he had ongoing medical issues relating to his cancer treatment and medications. Once in the scheduling office, the security specialist sat in a chair and said that he was dizzy and light headed. Sergeant Petrie contacted Sergeant Applegate requesting him to bring a nurse to the scheduling office. Sergeant Applegate arrived at the scheduling office with Nurse Antonia Garcia at 0805 hours. Nurse Garcia checked the vitals of the security specialist and during her FOR CITY SERVICES VISIT CALL DenverGov.org 311 Denver Department of Safety Sergeant Timothy Applegate 508014 S2016-0186 Disciplinary Determination August 1, 2017 -9- DSD IAB interview, stated that they were "perfect." Nurse Garcia said, she was "pretty close" to the security specialist when checking his vitals and did not smell alcohol. While Nurse Garcia was checking the security specialist's vitals, Sheriff Patrick Firman walked by the scheduling office; he briefly stopped and spoke to the security specialist to see what was happening then proceeded through the corridor at approximately 0808 hours. Nurse Garcia left the scheduling office at approximately 0811 hours. During his DSD IAB interview, Sergeant Applegate said when he first arrived at the scheduling office he saw the security specialist "sitting in the chair looking like he was out of it." Sergeant Applegate said, he was told by Sergeant Petrie that the security specialist was on medication far cancer treatment and was having an adverse reaction to his medication. Captain John Romero who was working classification at the DDC was notified that the security specialist was not feeling well and would be going home sick. Emergency Response Unit(ERU) Sergeant Justin Tomsick was contacted in his office to determine if any ERU staff was available to drive the security specialist home. Sergeant Applegate left the scheduling office at approximately 0815 hours. At approximately 0816 hours, Sergeant Tomsick arrived at the scheduling office with two officers to drive the security specialist home, Deputy Jesus Granados and Deputy Darryn Brown. Deputy Granados drove the security specialist home in a Department vehicle and Deputy Brown drove the personal vehicle of the security specialist to his house. Sergeant Justin Tomsick was interviewed by DSD IAB regarding this incident on January 12, 2016. Sergeant Tomsick said when he was contacted to ask for staff to take the security specialist home, he thought Sergeant Petrie had told him the security specialist was going through cancer treatment, was having an off day, and needed a ride home. Sergeant Tomsick said Sergeant Petrie also told him that the security specialist had already been seen by medical and "the sheriff had stopped by too, and the sheriff had said, you know, let's make sure we get him home safely." Sergeant Tomsick was not present for the Sheriff's interaction with the security specialist but later in his interview said that he believed Sergeant Petrie told him "the sheriff had met with [the security specialist] and medical staff to check on him, and the sheriff had given the order to get him home safely." At approximately 0821 hours, Sergeant Tomsick and the security specialist exited the scheduling office to retrieve his personal items from the 3rd floor control center where he had been working. After retrieving his personal items from the control center, Sergeant Applegate was exiting the elevator on the 3rd floor as Sergeant Tomsick and the security specialist were approaching it. Sergeant Applegate then stayed with Sergeant Tomsick and the security specialist as they waited for the elevator. While waiting for the elevator, the security specialist swayed and Sergeant Tomsick put his hand on the security specialist's back. The security specialist leaned against the wall on his side then shifted onto his back. The security specialist was holding his coffee cup in his hand. Sergeant Tomsick extended his hand to offer to hold his coffee cup, but the security specialist refused. Sergeant Tomsick, Sergeant Applegate, and the security specialist took the elevator to the first floor and entered the first floor sally port. Sergeant Tomsick recalled when he encountered Sergeant Applegate at the elevator bank, "I think I asked Sergeant Applegate to come with me `cause [the security specialist] was so unstable. I didn't need him collapsing and falling, so at least if there's two of us, we can try to keep him up and walk him." Sergeant Tomsick was asked about reaching for the security fDR CI1Y SERVICES VI51T CALL DenuerGoy.org 311 Denver Department of Safety Sergeant Timothy Applegate S08014 S2016-0188 Disciplinary Determination August 1, 2017 -10 - specialist coffee cup when they were waiting for the elevator and explained he offered to hold the cup so the security specialist's hands would be free if he fell. Sergeant Tomsick said he did not smell the coffee cup. Sergeant Applegate said when he encountered the security specialist and Sergeant Tomsick on the 3rd floor the security specialist "like went to fall over. Like, he goes, oh, my head like he was hurt' and Sergeant Tomsick asked him to walk with them in case the security specialist fell. Sergeant Applegate said when they were on the elevator "there was a weird smell, and I don't know who said it was alcohol but it was a weird smell. I drink. A lot of us drink. I can't say it was Crown Royal or it was whiskey. It was just a weird smell [...] After we got off the elevator though, there was no smell." During his DSD IAB interview, Sergeant Applegate said he smelled the same smell from the day of the incident on the elevator on the day of his interview. During his DSD IAB interview, Sergeant Tomsick said "in the elevator I got like a brief like sweet smell but it's a jail. I don't know if that was just something in the elevator in the shaft or what, but that was the only time I ever smelled it." As they waited in the first floor sally port for the slider door to open, the security specialist swayed, braced himself by putting his hand on the wall, and widened his stance. Once the slider door opened, they walked through the corridor towards the scheduling office. As they walked through the corridor, Sergeant Tomsick walked in front of the security specialist. The security specialist supported himself with his arm extended and his hand on the wall as they walked through the corridor. They then stopped briefly at the scheduling office. As they turned to leave the scheduling office, the security specialist fell into the wall and the three of them then continued through the corridor into the sally port. Sergeant Tomsick said when they were waiting for the sally port door to open, the security specialist was "definitely unstable," but Sergeant Tomsick said he did not smell alcohol on the security specialist. Sergeant Tomsick said he did not suspect the security specialist was under the influence of anything because he "was going off what [he] was told that [the security specialist] was on heavy cancer medication and he has his good days and bad days." Sergeant Tomsick said that upon arriving to the scheduling office, alcohol did not come up and the "only time the topic of alcohol came up was later. I think we were in the armory talking and Petrie believe asked if we had smelled any alcohol which I said no. Apparently [off the letter] Petrie had said somebody somewhere along the way said alcohol or had claimed they smelled alcohol on [the security specialist]." In the sally port, when they were waiting for the sally port door to open, the security specialist again began to sway and Sergeant Tomsick put his hand up behind the security specialist. Sergeant Tomsick said he put his hand up behind the security specialist in the sally port because the security specialist was "getting wobbly again, so obviously, if he goes over, I don't want him hurting himself so [...] Try to hold him up, catch him, something so he doesn't get injured." As they walked from the sally port to the vehicle in the car port, Sergeant Applegate had his hand up behind the security specialist. The security specialist got into the department vehicle at approximately 0832 hours. After the security specialist got into the vehicle, Sergeant Applegate and Sergeant Tomsick turned back and entered the building at approximately 0833 hours. The vehicle then exited the car port at approximately 0834 hours. FOR CITY SER4'ILES VISIT CALL DenuerGou.org 311 Denver Department of Safety Sergeant Timothy Applegate S08014 52016-0188 Disciplinary Determination August 1, 2017 -11 - Sergeant Applegate said after the security specialist got in the vehicle, he and Sergeant Tomsick were walking into the building "then Tomsick's like, you don't think anything other than that? And I said, no, dude, he's got cancer. He's on chemo, you know? And he goes, what was that smell in the elevator? I said I don't know; I don't know. He goes, that was weird, huh? But you don't think he was drunk? I said, no, I don't think so at all." Sergeant Tomsick was asked if after the security specialist got in the vehicle and he and Sergeant Applegate were walking back into the building if either of them asked any questions to each other or smelled alcohol. Sergeant Tomsick responded,"When the alcohol thing came up was when we were talking with Petrie `cause he asked if we smelled anything. I said, no, I didn't smell alcohol." Sergeant Tomsick said he might have asked Sergeant Applegate if the security specialist smelled funny and said "I remember alcohol didn't come up until later when somebody said alcohol and that's the point where we brought the captain involved and then called out here [to IAB]. Like I said, who actually made the statement of smelling alcohol, I have no idea who that is." Sergeant Tomsick said Sergeant Applegate did not ask him if he smelled alcohol. Sergeant Tomsick said, "It wasn't until later. I'm almost positive it was Petrie that asked if we smelled alcohol." At approximately 0837 hours, Sergeant Tomsick, Sergeant Applegate, and Sergeant Petrie entered the Emergency Response Unity(ERU)armory. The three sergeants stood in the armory having a discussion for approximately four minutes. At approximately 08:37:16, Sergeant Petrie gestured to his face and shook his head from side to side. Approximately four seconds later at 08:37:20, Sergeant Applegate made a gesture with his right hand near his mouth and his thumb and pinky finger extended. The discussion continued and at approximately 08:37:37, Sergeant Petrie again gestured to his face and shook his head from side to side. At approximately 08:37:42, Sergeant Applegate mimicked the unsteady and stumbling motions of the security specialist. The officers continued their discussion and exited the room at approximately 0841 hours. Sergeant Applegate said the discussion in the ERU armory was about the security specialist and how he could not keep his balance. Sergeant Applegate said he made the alcohol hand gesture to clarify when he was asked if he smelled alcohol if they meant drinking alcohol or rubbing alcohol. Sergeant Applegate said they went into the ERU armory to talk because "Sergeant Tomsick didn't want to talk out in the hallway in front of everybody. He —nobody wants to accuse something if it's not true." Sergeant Tomsick explained the conversation in the ERU armory as "We went back to the office to let Petrie know so he could let the sheriff know that we had got him sent off home and then Petrie wanted to talk to us. So we came down [to the ERU armory] privately. And then here this is where it was brought up about somebody smelling alcohol. Who made that statement, I don't know. So he was asking us if we had smelled anything. I had said no, that I hadn't smelled anything. Applegate I believe had said the same thing, and I think Petrie was saying the same thing `cause he had been in that little small office with him for a long time and somebody somewhere made the allegation that they smelled alcohol. So now we had to inform the captain, so then we can call IA per the department order which then we talked to Chris Brown here." Sergeant Tomsick said he did not remember who brought up the department order, but somebody had made the allegation of suspecting alcohol. Sergeant Tomsick said "So we had already sent him home. So now we're like, okay, now we got to follow this, get a captain involved and contact IA [...] Who made that accusation, I still don't know who made that claim of FOR CITY SERVICES VISR CALL DenuerGou.org ~ 311 Denver Department of Safety Sergeant Timothy Applegate S08014 S2016-0188 Disciplinary Determination August 1, 2017 -12 - smelling alcohol, whether it was another specialist or medical or who but apparently somebody did." Sergeant Tomsick explained that when Sergeant Applegate was stumbling in the ERU room, he was mimicking haw the security specialist was behaving and "simulating a drunk person." Sergeant Tomsick said they went into the ERU room because "[w]ith that hallway with the conversation, I'm guessing `cause Petrie was getting ready to ask us about if we smelled any alcohol, that's not something you want to ask in front where you've got people walking by, deputies walking by, civilian staff sitting in that same room. So this is a private conversation with supervisors away from prying ears." Sergeant Tomsick said nobody brought up having the security specialist brought back to the DDC or taken the hospital. Sergeant Tomsick said, "At that time, I had no reason to suspect. Like I said, I never smelled alcohol on him [...] I don't know who made the claim of alcohol, but this is when it was brought to my attention that somebody may have smelled alcohol on him." Sergeant Applegate said after they got the security specialist in the car, "We were off and Tomsick was like, what was that smell? That was just a weird smell. I said yeah. So we went and we were talking and we went over and Sergeant Petrie, we went into — we started talking and they're like you don't think it was alcohol, do you? I said it wasn't — I didn't say it was alcohol. I just said it was a weird smell, and Tomsick goes it just was like kind of like a sweet smell I think would be the best to describe it, but it was very briefly and then we went up. We told Captain Romero. Petrie was with us and Petrie wanted to bring it to the Captain's attention. He goes let's just — he goes, that way he goes we follow the proper channels. But the whole time it was like not a definitive smell and we voiced that." The three sergeants then went to the classification office to speak with Captain Romero and entered the office at approximately 0843 hours. Captain Romero called Captain Christopher Brown in IAB on speaker phone with the three sergeants and reported the incident with the security specialist. Sergeant Applegate said Captain Brown said the security specialist had the same issue at the County Jail and had been going through a lot with his cancer treatment. Sergeant Applegate said, "Sergeant Petrie chimed in. He said sometimes these chemotherapy meds or something have like an odd smell to them and that was it." Sergeant Tomsick said on the phone call with IAB Captain Brown, it was suggested to have the security specialist brought back and "we were told no, that IA is familiar with his health situation [...] and that in times in the past when he was out at County, I guess, they had to drive him home also because he was displaying the same symptoms." During his DSD IAB interview, Sergeant Tomsick said he did not smell or suspect any type of alcohol from his interaction with the security specialist. Sergeant Tomsick said, the security specialist "seemed confused. He was repeating himself a lot. It's like he would forget what he said and then he would repeat again. He had trouble keeping on his feet, you know, stating he was dizzy and not feeling well at the time." Sergeant Applegate said there was no reasonable suspicion to think that the security specialist had alcohol or that he was drunk. Sergeant Applegate said you could tell something was wrong, but he did not think the security specialist looked or smelled drunk. Sergeant Applegate said he did not know where the allegation of alcohol was raised but that it was brought up in Captain Romero's office. Sergeant Applegate said if he had smelled alcohol, this would have been handled differently, but he did not smell alcohol during the incident. Sergeant Applegate said "I FQR CfTY SERVICES 4158 CALL DenverGou.org~ 311 ~~..~~..~~.~.~___m.__. __..~..._..._....~~,~ .~.~~__~~_,. _m.......~._... .~..o.. Denver Department of Safety Sergeant Timothy Applegate S08014 S2016-01 SS Disciplinary Determination August 1, 2017 -13- had no reasonable belief or suspicion that he was under the influence of anything." Sergeant Applegate was asked if he understood that he did not have to smell alcohol to have a reasonable suspicion to have somebody tested, and he responded, "Yes, but I didn't suspect that. I didn't suspect anything like that. That was never even —this is all brought up after the fact." Sergeant Applegate was trained on Executive Order 94 on January 7, 2015. During his DSD IAB interview, Sergeant Applegate said that he was familiar with the supervisor responsibilities detailed in the order. Sergeant Applegate said the security specialist was not slurring his speech on the day of the incident. Sergeant Applegate described his body language as "kind of like wobbly and stuff" and the security specialist kept saying that his equilibrium was off because of his ears and how the chemotherapy had damaged his nerves. Sergeant Applegate explained during his IAB interview, "from the time that we got engaged with this incident, the whole thing was said that he's bad in chemo, that he's going through chemo, and if anybody knows of anybody going through chemo, they're weak, they're dizzy, they're vomiting, they're not in good shape. And he reiterated that the whole time too. He was like this chemo's jacking me up, you know, this and that. That's what he kept saying. So —and like I said, I hadn't smelt anything to make me believe otherwise." Sergeant Petrie was interviewed regarding this incident on December 13, 2016 and January 19, 2017. Sergeant Petrie said the security specialist came to him that morning and said he was not feeling well and needed to go home. Sergeant Petrie said the security specialist then began to say that he was feeling dizzy and lightheaded so he sat in the scheduling office. Sergeant Petrie said because of his knowledge of the security specialists medical conditions, he contacted Sergeant Applegate to bring a nurse to evaluate the security specialist. Sergeant Petrie said when Sergeant Applegate arrived with the nurse there was no discussion of alcohol. Sergeant Petrie said when Sheriff Firman passed by the scheduling office, he was told the security specialist was not feeling well and Sheriff Firman said feel better, take care of him. Sergeant Petrie said the security specialist seemed to have difficulty remembering and concentrating. Sergeant Petrie said Captain Romero was then contacted and said to have the security specialist driven home. Sergeant Petrie said as far as he and Captain Romero knew at that time "it was a medical issue." During his first interview, Sergeant Petrie said about 30 minutes after they went to retrieve the security specialist's personal items, Sergeant Applegate and Sergeant Tomsick came and asked him if he had smelled anything. Sergeant Petrie said he asked, what do you mean and they responded "we smelled alcohol." Sergeant Petrie said he asked for clarification and they said the security specialist smelled of alcohol. Sergeant Petrie said "I don't know which one told the other but they were both in that state of mind. They smelled something." Sergeant Petrie said he did not smell alcohol on the security specialist when the security specialist had come to the scheduling office. During his second interview, Sergeant Petrie said before going into the ERU armory to talk, Sergeant Tomsick and Sergeant Applegate came to the scheduling office and Sergeant Tomsick said we need to go talk. Sergeant Petrie said he asked what they needed to talk about and Sergeant Tomsick said the security specialist. Sergeant Petrie said Sergeant Tomsick said let's go somewhere private and then they went into the ERU armory. Sergeant Petrie said when they went into the armory, Sergeant Tomsick asked if he smelled anything and Sergeant Petrie said smell what? Sergeant Petrie said, Sergeant Applegate then said "we smelled alcohol or he was drinking." Sergeant Petrie then said, he could not remember who brought it up first but that FUR CITY SERVICESUISR CALL DenuerGou.org 311 Denver Department of Safety Sergeant Timothy Applegate S08014 S2016-0188 Disciplinary Determination August 1, 2017 -14- was the gist of the conversation. Sergeant Petrie said Sergeant Tomsick and Sergeant Applegate approached him and brought up the topic of alcohol. Sergeant Petrie said he did not bring up alcohol to Sergeant Applegate and Sergeant Tomsick. Sergeant Petrie said he asked Security Specialist Stone and Administrative Support Assistant Medina, who both said they had not smelled alcohol on the security specialist. Sergeant Petrie said after Sergeant Tomsick and Sergeant Applegate raised the issue of alcohol with him, he said they would need to get guidance from Captain Romero since the security specialist had already left the building. Sergeant Petrie said when Captain Romero called IAB; his understanding was no action would be taken since the security specialist had already been transported home. Security Specialist Kimberly Stone had been working in the control center with the security specialist on the day that he reported feeling unwell and went home. Stone was interviewed regarding this incident by DSD IAB on December 30, 2016. Stone said she had not smelled alcohol on the breath of the security specialist that morning. Stone said she did not think much of the security specialist leaving early because of his medical condition. Administrative Support Assistant Yvette Medina was working in the scheduling office with Sergeant Petrie the morning when the security specialist came to report that he was not feeling well. Medina was interviewed by DSD IAB regarding the incident on December 21, 2016. Medina said the security specialist was tired and disoriented when he came to the scheduling office where he sat for approximately 20 minutes before Sergeant Petrie requested a nurse come to screen the security specialist. Medina said her interaction was approximately 30-40 minutes with the security specialist but she intermittently left the office. Medina said she did not smell alcohol on the security specialist, and at times was "very close" approximately 1-2 feet away from him. Medina said the security specialist was not slurring his speech but seemed to be having trouble remembering information. Medina said the security specialist "is off balance" but he has always been because of radiation treatment to the back of his head that affected his equilibrium. Medina said nobody mentioned alcohol while she was present during this incident. Deputy Granados was interviewed by DSD IAB regarding this incident on January 5, 2017. Deputy Granados drove the security specialist home in a Department vehicle and said it was an approximately 45 minute drive to the security specialist's house. Deputy Granados said he did not smell alcohol on the breath of the security specialist. Deputy Granados said he did not recall the security specialist slurring his speech or have issues walking during their interaction. Deputy Granados said he did not suspect that the security specialist had been drinking or was drunk when he drove him home. On December 1, 2016, Major Kelly Bruning and Chief Paul Oliva both reported that on November 28, 2016 they had a phone conversation with the security specialist where he admitted that he brought alcohol to work. Major Bruning reported that the security specialist said he consumed the alcohol while at work and that it contributed to the medical problems he was having that day and the need for him to go home. 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. FOR CITY SERVICESVISIT CALL DenverGou.org 311 Denver Department of Safety Sergeant Timothy Applegate S08014 S201fi-0188 Disciplinary Determination August 1, 2017 -15 - ANALYSIS AND CONCLUSIONS Career Service Rules 16-29 A. Neglect of duty; R. Conduct which violates the Career Service Rules, the City Charter, the Denver Revised Municipal Code, Executive Orders, written departmental or agencv regulations, policies or rules. or any other applicable legal authority, as it pertains to DSD RR-200.4.2, Commission of a Deceptive Act Sergeant Timothy Applegate violated these Career Service Rules and the above Departmental rule through his statements about relieving a security specialists from duty and coordinating a ride home for the security specialist, contrary to the requirements of Executive Order 94 City and County of Denver Employee' Alcohol and Drug Policy. The evidence in this case including the statements of Sergeant Applegate establish that prior to assisting and coordinating for the security specialist to leave the facility, Sergeant Applegate had a reasonable suspicion that the security specialist was in violation of Executive Order 94, despite his statements to the contrary that he had no reasonable suspicion. During his DSD IAB interview, Sergeant Applegate said "I had no reasonable belief or suspicion that jthe security specialist] was under the influence of anything." Sergeant Applegate was also asked if he understood that he did not have to smell alcohol to have a reasonable suspicion to have an employee tested for drug or alcohol use, and he responded,"Yes, but I didn't suspect that. I didn't suspect anything like that. That was never even —this is all brought up after the fact." Sergeant Applegate made contradictory statements to his assertion that he had no reasonable suspicion and was in compliance with his responsibilities under Executive Order 94. From the outset of his involvement in the incident. there was evidence that gave rise to a reasonable suspicion concerning the condition of the security specialist. Sergeant Applegate described the security specialist when he first arrived to the scheduling office as "sitting in the chair looking , like he was out of it." Sergeant Applegate recalled that he was told by Sergeant Petrie that the security specialist was on medication for cancer treatment and was having an adverse reaction to his medication. By his own account, Sergeant Applegate recalls that Sergeant Petrie in substance told him the security specialist was under the influence of, subject to the effects of or impaired by medication while on duty and despite being provide this information did not fulfill his duties as a supervisor under Executive Order 94. Sergeant Applegate said when he encountered the security specialist and Sergeant Tomsick on the 3rd floor the security specialist alike went to fall over. Like, he goes, oh, my head like he was hurt" and Sergeant Tomsick asked him to walk with them in case the security specialist fell. Sergeant Applegate stayed with the security specialist as they went from the 3rd floor to the scheduling office, and to the vehicle, throughout which Sergeant Applegate observed the security specialist walk in an unsteady manner, lean into walls, and brace himself against the wall. Sergeant Applegate's own observations, in addition to the information he was told by Sergeant Petrie, and Sergeant Tomsick's concern that the security specialist may fall, further establish that Sergeant Applegate had a reasonable suspicion and was required to take action as a supervisor under Executive Order 94. He failed to do so. Sergeant Applegate said when they were on the elevator "there was a weird smell, and I don't know who said it was alcohol but it was a weird smell. I drink. A lot of us drink. I can't say it was Crown Royal or it was whiskey. It was just a weird smell [...] After we got off the elevator though, there was no smell." During his DSD IAB interview, Sergeant Applegate said he smelled the FDR LITY SERVICE5V15R CALL , DenuerGou,org 311 Denver Department of Safety Sergeant Timothy Applegate S08014 52016-0188 Disciplinary Determination August 1, 2017 -16 - same smell from the day of the incident on the elevator on the day of his interview. Despite the other evidence including the stumbling and unsteady nature of the security specialist, Sergeant Applegate took no action and did not inquire to the source of the smell, until after the security specialist had gotten in the vehicle to leave the facility. Sergeant Applegate said after they got the security specialist in the car,"We were off and Tomsick was like, what was that smell? That was just a weird smell. I said yeah. So we went and we were talking and we went over and Sergeant Petrie, we went into — we started talking and they're like you don't think it was alcohol, do you? I said it wasn't — I didn't say it was alcohol. I just said it was a weird smell, and Tomsick goes it just was like kind of like a sweet smell I think would be the best to describe it, but it was very briefly and then we went up. We told Captain Romero. Petrie was with us and Petrie wanted to bring it to the Captain's attention. He goes let's just — he goes, that way he goes we follow the proper channels. But the whole time it was like not a definitive smell and we voiced that." Sergeant Applegate said there was no reasonable suspicion to think that the security specialist had alcohol or that he was drunk. The credible evidence indicates otherwise. Sergeant Petrie said Sergeant Tomsick asked him to speak in the ERU armory and he went to the armory with Sergeant Applegate and Sergeant Tomsick. Once there, Sergeant Applegate told Sergeant Petrie "we smelled alcohol or he was drinking." Sergeant Petrie then said, he could not remember who brought it up first but that was the gist of the conversation. Sergeant Petrie said Sergeant Tomsick and Sergeant Petrie approached him and brought up the topic of alcohol. Sergeant Petrie said he did not bring up alcohol to Sergeant Petrie or Sergeant Tomsick. Despite claiming to not have had a reasonable suspicion concerning the security specialist being in violation of Executive Order 94, Sergeant Applegate and Sergeant Tomsick, immediately after allowing the security specialist to leave the DDC, discussed their concerns as they returned to the building, went to speak with Sergeant Petrie regarding the condition of the security specialist as he left the facility and proceeded to bring the issue to the attention of Captain Romero. Additionally, Sergeant Applegate attributed the condition of the security specialist to his cancer treatment medication and chemotherapy, which further establishes the presence of a reasonable suspicion and shows that Sergeant Applegate engaged in the commission of a deceptive act. The evidence from the investigation including the statements and actions of Sergeant Applegate and the other involved officers establish by a preponderance of the evidence that Sergeant Applegate neglected his duties and engaged in an act of dishonesty by in "connection with [an] investigation or [an] administrative proceeding [...] willfully, intentionally, or knowingly [committing] a materially deceptive act, including but not limited to departing from the truth verbally, making a false report, or intentionally omitting information." Under the DSD disciplinary matrix, a violation of DSD Rule 200.4.2 is apre-determined Conduct Categories F. Sergeant Applegate 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 integrity, ethics [and] character related to a deputy sheriff's fitness to hold [his] 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, these rule violations are Conduct Category F violations. F4R CITY SERVICES V151T CALL DenuerGou.org 311 J...~...~.. — -.......rw.~~.~.e~~~.....~.. .e.e.~....~..~......~.,.~.e~.~. -.....W....r........~...r....,.........,. ,~.~.~..~.~.~,.~......~,~.~.~..~~...y.. Denver Department of Safety Sergeant Timothy Applegate S08014 S2016-0188 Disciplinary Determination August 1, 2017 -17- A Conduct Category F violation by an officer is always classified as a 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 for Conduct Category F, level 8 offenses is dismissal and there is no aggravated penalty for discipline level 8 conduct violations. 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 Applegate`s record with the Department, there are present mitigating factors that include no prior discipline and his record with the Department. However, aggravating factors are also present, including his supervisory rank, the risk posed to safety and health of employees and the public, and jeopardizing.the Department's mission and guiding principles. After considering the above mitigating and aggravating factors, the circumstances of this incident warrant a presumptive penalty. Accordingly, Sergeant Applegate is hereby dismissed for violations of CSA rules 16-29 A, D,& R, as it pertains to DSD Rules 200.4.2 Commission of a Deceptive Act. Career Serrrice Rules 16-29 A. Necllect of duty; & R, Conduct which violates the Career Service Rules, the City Charter, the Denver Revised Municipal Code, Executive Orders, written departmental or agencv regulations, policies or rules. or any other applicable legal authority, as it pertains to DSD RR-300.19.1, Disobedience of Rule as it pertains to Executive Order 94 City and County of Denver Employees Alcohol and Druct Policy Sergeant Timothy Applegate violated the above Career Service Rules, Department Rule, and Executive Order through his involvement in relieving a security specialists from duty and coordinating a ride home for the security specialist, contrary to the requirements and his responsibilities under Executive Order 94 City and County of Denver Employee' Alcohol and Drug Policy. The evidence in this case including the statements of Sergeant Applegate establish that prior to the security specialist leaving the facility with the assistance of Sergeant Applegate, Sergeant Applegate had a reasonable suspicion that the security specialist, who worked a position affecting the safety of co-workers and the public, was in violation of Executive Order 94 and Sergeant Applegate failed to fulfill his responsibilities as a supervisor under Executive Order 94. As a supervisor, when Sergeant Applegate has a "reasonable suspicion that any employee is in violation of jExecutive Order 94], after taking appropriate safety measures [...] shall immediately consult with his/her Human Resource Specialist, Safety Officer or City Attorney's Office to determine further actions. However, if immediate consultation is not possible, it is the responsibility of the supervisor to promptly initiate alcohol and drug testing." The City has a vital interest in maintaining a safe, healthy and efficient environment for its employees and the public. Being under the influence of, subject to the effects of, or impaired by alcohol or a drug on the job may pose serious safety and health risks to the use, the user's co-workers and the public. City and County of Denver employees are prohibited from consuming, being under the influence of, or impaired by alcohol while pertorming City business, while driving a City vehicle or while on City property. Additionally, employees who work in positions operating vehicles or dangerous equipment or positions affecting the health or safety of co-workers or the public are prohibited from consuming, being under the influence of, subject to the effects of or impaired by FOR CITY SERVICESVISIT CALL DenyerGoY.org 311 - -..r~ ~~..d..{ Denver Department of Safety Sergeant Timothy Applegate S08014 S2016-0188 Disciplinary Determination August 1, 2017 -18- legally obtained prescription drugs while performing City business unless determinations by the employee's supervisor and Human Resource Specialist or Safety Officer permit doing so. Sergeant Applegate was trained on Executive Order 94 on January 7, 2015. During his DSD IAB interview, Sergeant Applegate said that he was familiar with the supervisor responsibilities detailed in the order. Throughout his involvement in assisting the security specialist and coordinating a ride home for him, Sergeant Applegate made independent observations and was informed by numerous individuals of information that created a reasonable suspicion relating to the security specialist being in violation of Executive Order 94. When Sergeant Applegate first arrived to the scheduling office, he described the security specialist as "sitting in the chair looking like he was out of it." During his DSD IAB interview, Sergeant Applegate recalled that Sergeant Petrie told him the security specialist was on medication for cancer treatment and was having an adverse reaction to his medication. Sergeant Applegate's own recollection of the incident includes him being told. by Sergeant Petrie that the security specialist was under the influence of, subject to the effects or impaired by medication while on duty, even so Sergeant Applegate claims he had no reasonable suspicion of the security specialist being in violation of Executive Order 94. Furthermore, Sergeant Applegate said when he encountered the security specialist and Sergeant Tomsick on the 3rd floor the security specialist "like went to fall aver. Like, he goes, oh, my head like he was hurt" and Sergeant Tomsick asked him to walk with them in case the security specialist fell. Sergeant Applegate stayed with the security specialist as they went from the 3rd floor to the scheduling office, and to the vehicle, throughout which Sergeant Applegate observed the security specialist walk in an unsteady manner, lean into walls, and brace himself against the wall. Sergeant Applegate's own observations in addition to the information he was told by Sergeant Petrie; and Sergeant Tomsick's concern that the security specialist may fall further establish that Sergeant Applegate had a reasonable suspicion the security specialist was in violation of Executive Order 94 and Sergeant Applegate would be required to take action as a supervisor. Additionally, Sergeant Applegate reported that he detected a "weird smell" when he was on the elevator with Sergeant Tomsick and the security specialist. After the security specialist was in the vehicle to be taken home, Sergeant Applegate and Sergeant Tomsick discussed the security specialist and had a conversation with Sergeant Petrie about the condition of the security specialist. Sergeant Applegate said you could tell something was wrong, but engaged in deceptive conduct when he claimed he could not smell alcohol. Sergeant Applegate said the security specialist was not slurring his speech on the day of the incident. Sergeant Applegate described the security specialist's body language as "kind of like wobbly and stuff" and the security specialist kept saying that his equilibrium was off because of his ears and how the chemotherapy had damaged his nerves. Even after his own observations of the security specialist, stating that "something was wrong," and his statements to Sergeant Petrie, Sergeant Applegate refused to acknowledge that a reasonable suspicion existed concerning the security specialist being in violation of Executive Order 94. Sergeant Applegate explained during his IAB interview,"from the time that we got engaged with this incident, the whole thing was said that he's bad in chemo, that he's going through chemo, and if anybody knows of anybody going through chemo, they're weak, they're dizzy, they're vomiting, they're not in good shape. And he reiterated that the whole time too. He was like this chemo's jacking me up, you know, this and that. That's what he kept saying. So —and like FOR CITY SERVICES VISIT CALL DenuerGou.org 311 Denver Department of Safety Sergeant Timothy Applegate S08014 S2016-0188 Disciplinary Determination August 1, 2017 -19 - said, I hadn't smelt anything to make me believe otherwise." Sergeant Applegate acknowledges he was told by the security specialist and Sergeant Petrie that the security specialist behavior was a result of chemotherapy, which is the use of drugs to treat a disease. Sergeant Applegate said that he attributed the security specialist's lack of balance and unsteady walking to his chemotherapy, a drug treatment regimen, and nevertheless claimed that he had no reasonable suspicion the security specialist was "under the influence of anything." The evidence from the investigation including the statements and actions of Sergeant Applegate and the other involved officers establish by a preponderance of the evidence that Sergeant Applegate neglected his duties as a supervisor, violated Department rule including CSA rules, and Executive Order 94. Sergeant Applegate was deceptive when he later claimed that he did not have a reasonable belief the security specialist was under the influence of anything. The evidence in the investigative file including other statements made by Sergeant Applegate establishes otherwise. Sergeant Applegate failed to take appropriate action when he had a reasonable suspicion and had even been told by numerous individuals that the security specialist was under the influence of, subject to the effects of or impaired while on duty. Under the DSD disciplinary matrix, a violation of DSD Rule 300.19.1 falls into a Conduct Categories A through F. Sergeant Applegate's behavior was "[c]onduct that is substantially contrary to the guiding principles of the Department or that substantially interferes with its mission, operations (and] professional image,[and] that involves a demonstrable serious risk to deputy sheriff, employee or public safety." As such, these rule violations are Conduct Category D violations. I n his time with the Department, Sergeant Applegate has no prior discipline. Therefore, pursuant to the disciplinary matrix, Sergeant Applegate's penalty is a level 5. The presumptive penalty for Conduct Category D, level 5 offense is a ten (10) days suspension. The mitigated penalty range is four (4) to six (6) days suspension, and the aggravated penalty range fourteen (14) to sixteen (16) days 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 Applegate's record with the Department, there are present mitigating factors that include no prior discipline and his record with the Department. However, aggravating factors are also present, including Sergeant Applegate's supervisory rank, the risk posed to the safety of employees and the public, and jeopardizing the Department's mission and guiding principles. After considering the above mitigating and aggravating factors, the circumstances of this incident warrant a presumptive penalty. Accordingly, an ten (10) days suspension is imposed for violations of CSA rules 16-29A & R, as it pertains to DSD Rules 300.19.1 relating to Executive Order 94 —City and County of Denver Employees Alcohol and Drug Policy, to run concurrently with one another and to be held in abeyance and is to be served if Sergeant Applegate returns to employment with the City and County of Denver. 2VICESVI5IT I CALL Go~.org 311 Denver Department of Safety Sergeant Timothy Applegate S080i4 S2016-0188 Disciplinary Determination August 1, 2017 -20- SUMMARY OF DISCIPLINARY DETERMINATIONS CSR 16-29 R, as it ertains to DSD RR-200.4.2 Conduct Findin Cate o Level Ran e Penal Conduct which violates Career Service Rules...departmental or agency regulations, Sustained Presumptive Dismissal F $ policies or rules; Commission of a Dece tive Act CSR 16-29 R, as it pertains to DSD RR-300.19.1 relating to Executive Order 94 Conduct which violates Career Service Rules...departmentat or 10 Day agency regulations, Sustained Presumptive D 5 Suspension policies or rules; Disobedience of Rule; Alcohol and Dru Polic Dismissal+ TOTAL 10 Day Sus erasion NOTE: Suspension is held in abeyance and is to be served if Sergeant Applegate returns to employment with the City and County of Denver. . ~~ V vigil ty Director of Safety ~~1f~7 Date 08 ~, wit Luis chak Acting Civilian Review Administrator FOR CITY SERVICES VISR CALL DemerGoy.org 311 Dat