Stophanle Y. O'Illalley Executive Director of the Department of Safety Ea: 1331 Cherokee Street Room 302 PUBLIC SAFETY Denver, co 80204 p: 720.913.6020 f: 720.913.7028 mm August 7, 2017 Justin Tomsick 810020 Deputy Sheriff Sergeant Downtown Division Denver Sheriff Department Re: DSD IAB Case #82016-0188 Sergeant Tomsick: 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. 8-21) Career Services Rule 16-29 Grounds for Discipline: The following 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 impr0perly 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 Requlations 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. I CALI. 311 Denver Department of Safety - 2 - Sergeant Justin Tomsick 310020 82016-0188 Disciplinary Determination August 7, 2017 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 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 n. onus AND ALCOHOL TESTING B. Reasonable Suspicion Testing 1. 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 Flesource 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 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 BSD disciplinary matrix, a violation of DSD Rule 30019.1 is a Conduct Category A through violation. FUR CITY SERVICES VISIT Denverlimrg li?ii Denver Department of Safety - 3 - Sergeant Justin Tomsick 810020 82016-0188 Disciplinary Determination August 7, 2017 FIR-200.42 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 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 200.42 is 3 Conduct Category violation. FDR CITY I CALL Denvertiomrg 311 Denver Department of Safety - 4 - Sergeant Justin Tomsick Sf 0020 32016-0188 Disciplinary Determination August 7, 2017 CONTEMPLATION OF DISCIPLINE MEETING You were sewed 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 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 Fieview Office 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 file, incorporated by reference herein. A summary of the contemplation of discipline meeting follows. Your attorney then addressed several issues regarding the incident. You attorney said you have been with the Department for approximately seven years, have received awards and commendations, exceeds on PEPFIs, are on do community service, and teach at the academy. You attorney said this incident was about the security specialist who you were contacted by command staff to transport home. He said you were told by Sergeant Petrie that the security specialist was having an off-day due to his cancer treatments and medication, and he needed to be taken home. Your attorney said you were told by Sergeant Petrie that medical personnel had already examined him and determined that there was nothing else going on. Your attorney said this was the first time you had interacted with the security specialist. Your attorney said the subject of alcohol did not come up until after the security specialist left, when you, Sergeant Petrie, and Sergeant Applegate were in the EFIU armory. Your attorney said you believed Sergeant Petrie first brought up the subject of alcohol. Your attorney said once the three of you discussed the security specialist's behavior, you all decided to report your concerns to Captain Flomero and then to Captain Brown. According to your attorney, Captain Brown said it was not alcohol and this had happened in the past when the security specialist was working at County. Your attorney said you all asked if the security specialist should be brought back and Captain Brown said no. Your attorney said you all checked with the nurse and she had not detected alcohol. Your attorney then discussed everyone that interacted with the security specialist that day but did not smell alcohol. Nurse Garcia checked the security specialist. Sergeant Petrie, Sergeant Applegate and Sheriff Firman interacted with the security specialist. Your attorney said Security Specialist Alexandria Uehling-Abeyta had been training the security specialist all day and did not detect alcohol. You attorney said Security Specialist Kimberly Stone had sat next to him and not detected alcohol. Yvette Medina in the scheduling office interacted with him and did not detect alcohol. Deputy Jesus Grenades from EFIU transported the security specialist home and did not detect alcohol. Your attorney said none of these people smelled or suspected alcohol. FDR CITY SERVICES VISIT DenverGov.urg li?ii Denver Department of Safety - 5 - Sergeant Justin Tomsick St 0020 82016-0188 Disciplinary Determination August 7, 2017 Your attorney said this case is a major training issue because deputies are not trained to detect alcohol usage, are not trained to detect alcohol usage, and you were not trained on Executive Order 94. Your attorney referred to Executive Order 94 and stated when a supervisor has reasonable suspicion that any employee?s in violation of the policy, the supervisor shall remove the employee and notify the HR specialist, safety officer, or City Attorney?s Office and if immediate consultation?s not available, then the supervisor shall initiate testing. Your attorney said you were told it was the security specialist's cancer medication, had been told that medical had checked him and were directed to find a vehicle to get the security specialist home. Your attorney said you only got involved after a supervisor had checked the security specialist and you had no reason to be suspicious based on what you were told. Your attorney said there was no policy violation. Your attorney said once the suspicion arose, after the security specialist had left, you all then followed policy by contacting your supervisor, contacting IA, and offering to bring the security specialist back to the facility. Your attorney said the facts in this case show that you did not violate policy. You then made a brief statement. You said you had been with the Department since June 2010 and have been a supervisor since January 2015. You explained that the day of the incident you were called to request staff to take a sick employee home and you helped arrange a ride home for the security specialist. You said you were concerned enough that you had the security specialist call his wife in case something happened when he was left at home alone. You said after you left, you went to let Sergeant Petrie know that he could contact the Sheriff and let him know the security specialist had been taken care of and was taken home. You said you were asked to talk in private and that is when alcohol was brought up. You said you all notified Captain Flomero and Captain Brown at IAB. You said there is some conflict on the policy regarding these types of situations between the department order and the executive order. You said the department order says to contact IAB and make the determination if testing is necessary and the executive order says any supervisor. You then presented a letter written by Sergeant Petrie at the request of Major Bruning documenting the incident involving the security specialist. You said in his letter Sergeant Petrie stated that the individual that made the claim that they thought alcohol was involved could have been misinformed because of the security specialist's mannerisms that day, which somebody could interpret as a result of alcohol. You explained that you thought you were just directed to help an employee that was sick and needed to get home safely. You said that as soon as alcohol was mentioned, you followed through with the department order as guidance. You then went through your work history including several awards and commendations that you presented at the hearing. You presented your two most recent that indicated you exceeded expectations as were your evaluations as a deputy. You also presented several letters of commendation, training awards, lifesaving awards, and Pride awards. You also discussed your volunteer and community involvement. You said you have volunteered at an elementary school, participated in safe night out with the Department, and participated in Special Olympics events. You said that you are currently an supervisor and a sergeant in classification, restrictive housing sergeant, and 3-Medical. You said you are a investigator and teach at the academy about restrictive housing, dealing with dangerous and belligerent inmates, and CITY SERVICES VISIT I CALI. DenverGor.org 3ll Denver Department of Safety - 6 Sergeant Justin Tomsick 810020 82016-0188 Disciplinary Determination August 7, 2017 Your attorney then addressed the commission of a deceptive act allegation. He stated that nobody disputes that alcohol was brought up after the fact. Your attorney said there may be conflicting memories of who first brought up the subject of alcohol but there is not dispute that you, Sergeant Petrie, and Sergeant Applegate all met in the Armory and discussed it. Your attorney said the video shows Sergeant Applegate making the tipping motion with his hand. Your attorney said he did not think anything from you had been deceptive. Your attorney said your story has always been the same and lines up with Sergeant Applegate?s and everybody else?s story too. Your attorney said he did not feel that there was any policy violation or that you had done anything to try to deceive command staff or Internal Affairs during the investigation. Your attorney then said you were pulled into this incident after you were told it was a medication issue, after you were made aware that the medical staff had checked the security specialist, and you were directed to get him home, which is what you did. Your attorney said he did not believe you had any reasonable suspicion while the security specialist was at the BBC that he was under the influence of alcohol. He said numerous other employees did not have the suspicion of alcohol and neither did a medical employee. Your attorney said, once alcohol came up, you followed policy by contacting supervisors. Your attorney stated there was no policy violation. Your attorney said you and all the other employees involved had no reasonable suspicion. The hearing then concluded. FDR CIIY SERVICES VISIT Denver?omrg lii?i Denver Department of Safety - 7 - Sergeant Justin Tomsick S10020 82016-0188 Disciplinary Determination August 7, 2017 Your previous discipline includes: Date -- Case Number Conduct Discipline 2012-01-10 82011-05206 Knife in Facility Verbal Fleprimand 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 Flule 19. Appeals. You may also initiate dispute resolution pursuant to Career Service Flule 18, Dispute Ftesolution. 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, eputy Director of Safety Luis Lipchak Acting Civilian Review Administrator cc: Career Service Authority, Flecords Management Division IAB File Administration FDR CITY SERVICES VISIT Denver?omrg I EmilL Denver Department of Safety - 8 - Sergeant Justin Tomsick 810020 82016-0188 Disciplinary Determination August 7, 2017 DEPARTMENTAL DETERMINATIONS OF DISCIPLINE Deputy Sheriff Sergeant Justin Tomsick $10020 S2018-0188 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 Justin Tomsick has been employed with the Denver Sheriff Department (DSD) since June 2010. On the date of the incident, Sergeant Tomsick was assigned as the Emergency Response Unit (ERU) Sergeant at the Downtown Detention Center (DDC). As a sergeant, Sergeant Tomsick'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 Tomsick?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 November 22, 2016, Sergeant Tomsick 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 BBC 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 BBC 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 Tomsick was interviewed by DSD IAB regarding this incident on January 12, 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 BBC 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 DSD IAB interview, stated that they were "perfect." Nurse Garcia said, she was ?pretty close? to FDR CITY SERVICES VISIT Denver?omrg Denver Department of Safety - 9 - Sergeant Justin Tomsick 810020 82016-0188 Disciplinary Determination August 7, 2017 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 for cancer treatment and was having an adverse reaction to his medication. Captain John Flomero who was working classification at the DDC was notified that the security specialist was not feeling well and would be going home sick. Sergeant Tomsick was contacted in his office to determine if any EHU 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. During his DSD IAB interview, 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 8rd 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, think 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 therekeep him up and walk him." Sergeant Tomsick was asked about reaching for the security 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. FOR Cl" SERVICES VISIT Denierlimrg lift Denver Department of Safety - 10 Sergeant Justin Tomsick 810020 82016-0188 Disciplinary Determination August 7, 2017 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 Floyal 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 I 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. 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 f?l'l CITY SERVICES VISIT I CALI. Denverlior.org 3ll Denver Department of Safety - 11 - Sergeant Justin Tomsick St 0020 82016-0188 Disciplinary Determination August 7, 2017 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 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 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 Flesponse Unity 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 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 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 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 EFIU 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 smelling alcohol, whether it was another specialist or medical or who but apparently somebody did.? FDR CITY SERVICE VISIT Denverlimrg Hill Denver Department of Safety - 12 - Sergeant Justin Tomsick S10020 82016-0188 Disciplinary Determination August 7, 2017 Sergeant Tomsick explained that when Sergeant Applegate was stumbling in the room, he was mimicking how the security specialist was behaving and "simulating a drunk person.? Sergeant Tomsick said they went into the 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 BBC 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 Ftomero. 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 Flomero 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 made 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 During his DSD IAB interview, Sergeant Tomsick was asked ?When you had the interaction with [the security specialist], did you smell or suspect any type of alcohol or anything on him?? and Sergeant Tomsick responded no. Sergeant Tomsick indicated he did not "smell or suspect any type of alcohol or anything" on the security specialist from his interaction with him. 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 Tomsick was trained on Executive Order 94 on October 29, 2014. During his DSD IAB interview, Sergeant Tomsick said that he was familiar with the supervisor responsibilities detailed in the order since he has been involved in this case. 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 locked 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 FDR CITY SERVICES VISIT I CALL DenverGor.org 3ll Denver Department of Safety - 13 - Sergeant Justin Tomsick S10020 82016-0188 Disciplinary Determination August 7, 2017 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 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 othenivise." 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 specialist's 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 Flomero was then contacted and said to have the security specialist driven home. Sergeant Petrie said as far as he and Captain Ftomero 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 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 small 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 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 FDR CITY Denverlimrg Denver Department of Safety - 14 - Sergeant Justin Tomsick S10020 82016-0168 Disciplinary Determination August 7, 2017 who brought it up first but that 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 Flornero since the security specialist had already left the building. Sergeant Petrie said when Captain Flomero called 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. Major Bruning also reported that he had been told by Sergeant Petrie that Sergeant Tomsick reported the smell of alcohol on the security specialist breath when he left work on November 22, 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. FDR CITY SERVICES VISIT DenverGov.org I 3.1.1. Denver Department of Safety - 15 - Sergeant Justin Tomsick S10020 82016-0188 Disciplinary Determination August 7, 2017 ANALYSIS AND CONCLUSIONS Career Service Rules 16-29 A. Neglect of D, Anv act of R. Conduct which violates the Career Service Rules, the Citv Charter, the Denver Revised Municipal Code, Executive Orders. written djpartmental or agencv regulations, policies or rules, or anv other applicable legal authority, as it pertains to DSD RR-200.4.2I Commission of a Deceptive Act Sergeant Justin Tomsick 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 Employees' Alcohol and Drug Policy. The evidence in this case including the statements of Sergeant Tomsick establish that prior to assisting and coordinating for the security specialist to leave the facility, Sergeant Tomsick 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. Additionally, Sergeant Tomsick?s account of the incident including the reason for going into the ERU armory and stating that the possibility of alcohol was brought to his attention by Sergeant Petrie were also found to be deceptive statements inconsistent with credible evidence. During his DSD IAB interview, Sergeant Tomsick indicated that he did not smell or suspect any type of alcohol or anything on the security specialist from his interactions with him. 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.? The evidence in this case including Sergeant Tomsick?s statements regarding the incident and his own actions establish a reasonable suspicion existed during this incident that required Sergeant Tomsick to take action as a supervisor under Executive Order 94. According to Sergeant Tomsick, when he was first contacted regarding this incident, Sergeant Petrie told him the security specialist was going through cancer treatment, was having an off day, and needed a ride home. Sergeant Tomsick also said he did not suspect the security specialist was under the influence of anything because he had been told the security specialist was ?on heavy cancer medication and he has his good days and bad days.? Sergeant Tomsick's own account is that he was told the security specialist was going through cancer treatment, on heavy cancer medication, and had good and bad days. Sergeant Tomsick recalls being told that the security specialist was taking heavy cancer medication that affected him from day to day. These statements establish a reasonable suspicion that the security specialist was under the influence of, subject to the effects of or impaired by medication while on duty and despite being provided this information, Sergeant Tomsick did not fulfill his duties as a supervisor under Executive Order 94. As Sergeant Tomsick escorted the security specialist to collect his things to leave the facility, the security specialist unsteadily swayed and leaned against the wall to support himself while waiting for the elevator. Sergeant Tomsick put his hand on the security specialist's back to steady him and offered to hold his coffee cup so that he could catch himself if he fell. Sergeant Tomsick explained that when they encountered Sergeant Applegate at the elevator, Sergeant Tomsick asked Sergeant Applegate to accompany them because the security specialist ?was so unstable. I didn't need him collapsing and falling, so at least if therekeep him up and walk him.? Once in the first floor sally port waiting for the slider door to open, FUR CliY VISIT I CALI. Denverliov.org 3ll Denver Department of Safety - 16 - Sergeant Justin Tomsick 810020 82016-0188 Disciplinary Determination August 7, 2017 the security specialist swayed unsteadily, braced himself by putting his hand on the wall, and widened his stance to steady himself. When the slider door opened, they walked through the corridor and the security specialist supported himself with his arm extended and his hand on the wall as they walked through the corridor. They stopped briefly at the scheduling office and when they turned to leave, the security specialist fell into the wall as they turned to make their way through the corridor to the vehicle sally port. As they waited for the salty port door to open on the way to the vehicle sally port, 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 because the security specialist was ?getting wobbly again, so obviously, if he goes over, I don't want him hurting himself Try to hold him up, catch him, something so he doesn't get injured." Sergeant Tomsick repeatedly observed the unsteady nature of the security specialist and indicated by his actions and statements that he was concerned the security specialist would fall and injure himself. Nonetheless, Sergeant Tomsick claimed he did not suspect the security specialist was in violation of Executive Order 94 and that the security specialist suffering the effects of cancer treatment and medication. 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.? Despite his own observations including the stumbling and unsteady nature of the security specialist, Sergeant Tomsick took no action to inquire as to the source of the smell, until after the security specialist had gotten in the vehicle to leave the facility. After the security specialist had gotten in the vehicle to leave the facility, Sergeant Tomsick said he may have asked Sergeant Applegate if the security specialist ?smelled funny.? Sergeant Tomsick said when they were waiting for the sally port door to Open as they headed to the scheduling office, the security specialist was ?definitely unstable,? but Sergeant Tomsick said he did not smell alcohol on 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 Tomsick's own observations and statements, in addition to the information he was told by Sergeant Petrie, and his concerns that the security specialist may fall and injure himself, further establish that Sergeant Tomsick had a reasonable suspicion the security specialist was in violation of Executive Order 94 and was required to take action as a supervisor. The preponderance of the evidence establishes that Sergeant Tomsick had a reasonable suspicion the security specialist was in violation of Executive Order 94 and that Sergeant Tomsick's statements that no such suspicion existed constituted the commission of a deceptive act. In his statements, Sergeant Tomsick said the alcohol did not come up in the scheduling office and the ?only time the topic of alcohol came up was later. I think we were in the armory talking and Petrie I 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 [the security specialist]." Sergeant Tomsick said they went into the 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.? FDR SERVICES VISIT CALI. Denvertiov.org 311 Denver Department of Safety - 17 - Sergeant Justin Tomsick S10020 82016-0188 Disciplinary Determination August 7, 2017 Sergeant Tomsick said there was no reasonable suspicion to think that the security specialist had alcohol, that he was drunk, or under the influence in violation of Executive Order 94. The credible evidence indicates otherwise. Sergeant Petrie said Sergeant Tomsick asked him to speak in the 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. Major Bruning also reported that he had been told by Sergeant Petrie that Sergeant Tomsick reported the smell of alcohol on the security specialist breath when he left work on November 22, 2016. The preponderance of the evidence regarding when the suspicion of alcohol was first discussed and what prompted the discussion between the sergeants in the armory again shows that Sergeant Tomsick engaged in the commission of a deceptive act by stating that he did not raise the issue and that Sergeant Petrie initiated the discussion in the ERU armory. 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 BBC, 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 Tomsick attributed the condition of the security specialist to his ?heavy cancer medication," which in itself establishes a reasonable suspicion existed and that Sergeant Tomsick engaged in the commission of a deceptive act by stating he had no such suspicion. The evidence from the investigation including the statements and actions of Sergeant Tomsick and the other involved officers establish by a preponderance of the evidence that Sergeant Tomsick 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 200.42 is a pre-determined Conduct Categories F. Sergeant Tomsick 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, this rule violation is a Conduct Category violation. A Conduct Category 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. FOR CITY SERVICES VISIT CALI. Denverliomrg 311 Denver Department of Safety - 18 - Sergeant Justin Tomsick S10020 82016-0188 Disciplinary Determination August 7, 2017 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 Tomsick's record with the Department, there are present mitigating factors that include minimal prior discipline, prior awards and commendations, and Sergeant Tomsick?s 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 Tomsick 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 Service Rules 16-29 A. Neglect of 8: 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 authorig, as it pertains to RR-300.19.1, Disobedience of Rule as it pertains to Executive Order 94 City and County of Denver Employees Alcohol and Drug Policy Sergeant Justin Tomsick violated the above Career Service Rules, Department Rule, and Executive Order through his involvement in relieving a security specialist 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 Employees' Alcohol and Drug Policy. The evidence in this case including the statements of Sergeant Tomsick establish that prior to the security specialist leaving the facility with the assistance of Sergeant Tomsick, Sergeant Tomsick 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 Tomsick failed to fulfill his responsibilities as a supervisor under Executive Order 94. As a supervisor, when Sergeant Tomsick has a ?reasonable suspicion that any employee is in violation of [Executive 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 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 performing 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 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 Tomsick was trained on Executive Order 94 on October 29, 2014. During his DSD IAB interview, Sergeant Tomsick said that he was familiar with the supervisor responsibilities detailed in the order since he has been involved in this case. FDR CITY SERVICES VISIT Denierlimrg Denver Department of Safety - 19 - Sergeant Justin Tomsick 810020 32016-0189 Disciplinary Determination August 7, 2017 Throughout his involvement in assisting the security specialist and coordinating a ride home for him, Sergeant Tomsick made independent observations and was provided information that created a reasonable suspicion relating to the security specialist being in violation of Executive Order 94. When Sergeant Tomsick was first contacted regarding this incident he was told by Sergeant Petrie that the security specialist was going through cancer treatment, was having an off day, and needed a ride home. Sergeant Tomsick also said he did not suspect the security specialist was under the influence of anything because he had been told the security specialist was ?on heavy cancer medication and he has his good days and bad days.? Sergeant Tomsick recalls being told that the security specialist was taking heavy cancer medication that effected him from day to day, essentially being told that the security specialist was under the influence of, subject to the effects of or impaired by medication while on duty and despite being provided this information, Sergeant Tomsick did not fulfill his duties as a supervisor under Executive Order 94 and claimed he had no reasonable suspicion the security specialist was in violation of Executive Order 94. As Sergeant Tomsick assisted the security specialist through the facility to gather his belongings and leave the facility, Sergeant Tomsick repeatedly observed the security specialist sway unsteadily and lean against walls to support him. At times, Sergeant Tomsick put his hand to steady the security specialist and offered to hold his coffee cup so that the security specialist could catch himself if he fell. Sergeant Tomsick?s concern that the security specialist would fall prompted him to ask Sergeant Applegate to accompany them because the security specialist was ?so unstable.? The security specialist continued to be unsteady and support himself on walls as they made their way through the first floor. Sergeant Tomsick again put his hand up behind the security specialist to steady him because he was ?getting wobbly again, so obviously, if he goes over, I don?t want him hurting himself so he doesn't get injured.? Sergeant Tomsick said the security specialist was ?definitely unstable? when they were waiting for the sally port door to open as they headed to the scheduling office. 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 Tomsick's own observations and statements, in addition to the information he was told by Sergeant Petrie, and his concerns that the security specialist may fall and injure himself, further establish that Sergeant Tomsick had a reasonable suspicion the security specialist was in violation of Executive Order 94 and was required to take action as a supervisor. Sergeant Tomsick failed to do so. The evidence from the investigation including the statements and actions of Sergeant Tomsick and the other involved officers establish by a preponderance of the evidence that Sergeant Tomsick neglected his duties as a supervisor, violated Department rule including CSA rules, and Executive Order 94. Sergeant Tomsick claimed that he did not have a reasonable suspicion the security specialist was under the influence of anything. The evidence in the investigative file including other statements made by Sergeant Tomsick establishes otherwise. Sergeant Tomsick failed to take appropriate action when he had a reasonable suspicion and had even been told 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 Hule 300.191 falls into a Conduct Categories A through F. Sergeant Tomsick's behavior was ?[clonduct that is substantially CITY SERVICES VISIT I CALI. Denverliov.org 311 Denver Department of Safety - 20 - Sergeant Justin Tomsick S10020 82016-0188 Disciplinary Determination August 7, 2017 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 violations. In his time with the Department, Sergeant Tomsick has no prior discipline that mandatorily increases the penalty level of the current case. Therefore, pursuant to the disciplinary matrix, Sergeant Tomsick'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 Tomsick?s record with the Department, there are present mitigating factors that include minimal prior discipline, awards and commendations, and his record with the Department. However, aggravating factors are also present, including Sergeant Tomsick?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, a ten (10) days suspension is imposed for violations of CSA rules H, as it pertains to 080 Flutes 30019.1 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 Tomsick returns to employment with the City and County of Denver. FOR SERVICES VISIT Denver?mrg l?i?i Denver Department of Safety - 21 - Sergeant Justin Tomsick St 0020 82016-0188 Disciplinary Determination August 7, 2017 SUMMARY OF DISCIPLINARY CSR 16-29 A, 8: R, as it pertains to DSD RR-200.4.2 Conduct Finding Category Level Range Penalty Neglect of Duty, Any act of dishonesty, Conduct which violates Career Service or Sustained 8 Presumptive Dismissal agency regulations, policies or rules; Commission of a Deceptive Act CSR 16-29 A R, as it pertains to DSD RR-300.19.1 relating to Executive Order 94 Neglect of Duty, Conduct which violates Career Service Rules. . .departmental or . . 10 Day agency regulations, Sustained 5 Presumptive Suspension policies or rules; Disobedience of Rule; Alcohol and Drug Policy Dismissal TOTAL 10 Day Suspension NOTE: Suspension is held in abeyance and is to be served it Sergeant Tomsick returns to employment with the City and County of DenverVigil Date De uty Director of Safety 3 /?Loi7' Luis Li ak Date I Actin ivilian Review Administrator FOR CITY SERVICES VISIT I CALL Denverliov.org 311