Phoenix Law Enforcement Association

Chief Garcia Violates the Rules

This communiqué is the first of many, that will show specific examples as to why the PLEA/PPSLA members have called for a vote of No Confidence in Chief Garcia. In the press conference held on November 17, 2014, both Associations made mention of a litany of abusive and tyrannical actions by this Chief. Below is the first of many examples to follow in the days to come.

Police Officers rely on the rule of law, the American concept of Due Process and the legal rights outlined in the US Constitution in order to perform our duties correctly. This ensures the rights of the citizens we serve are not violated. We respect the rights afforded the citizens, which are outlined in the Constitution, and know this is what sets us apart from the rest of the world. It is important to understand that police officers are afforded these same rights. As employees of an organization called the City of Phoenix, we are afforded certain protections under the tenets of ‘Just Cause’ (CLICK HERE), case law, the City Ordinance, (CLICK HERE), our Contract or Memorandum of Understanding (MOU), (CLICK HERE) and Arizona State law (CLICK HERE).

What has become abundantly clear to us is that Phoenix Police Chief Daniel Garcia has no concept or desire to comport with these provisions of law, contract, or ordinance in the way he conducts the day-to-day operations of the Phoenix Police Department, or in his dealings with its employees. He seems to believe that he is not accountable to the rules and that  his position as Police Chief allows him the luxury of making up the rules on the fly.  This is why we characterize his reign over the Phoenix Police Department as tyrannical in nature.

Example #1
Officer David Hough

This officer was investigated by the Professional Standards Bureau (PSB) which is the internal affairs unit of the Phoenix Police Department.

Without rendering an opinion as to the validity of the accusations, it is the process (or lack thereof) by Chief Garcia that we wish to bring to the public’s attention.

As you can see from the attached conclusion of the PSB investigation, (CLICK HERE) the investigation concluded that the officer violated several specific departmental policies (Operations Orders). It further states the officer’s conduct amounts to “unprofessional conduct” as classified in the Discipline Policy, Operations Order 3.18, Addendum A,2.C.(5) (d)., the document states “the incident involved the intentional abuse of police powers, authority, and privileges.” Under policy in effect at the time of the violation this was a class II violation which called for a referral to the Executive Assistant Chief or DRB (Disciplinary Review Board) for a 24 or 40 hour suspension and/or demotion (CLICK HERE).

This is a very straight forward application of the rules and policies in place at the Phoenix Police Department. We have an alleged/sustained violation of specific policies pertaining to the conduct as well as direct and specific policies that spell out the prescribed discipline for the policy violations. This is a situation that is clear on its face and therefore should have been adjudicated in a fair, consistent and expedient manner however, that’s not what happened.

Keep in mind that this PSB investigation began on August 8, 2013 and was concluded in March of 2014. The officer continued to work the street for this entire time (seven months). This is important because in cases involving truly serious misconduct, officers are normally stripped of their police powers and placed at home on administrative assignment, pending the outcome of the investigation.

Six months later on October 1, 2014, the officer received a notice for a Loudermill (termination) hearing and was assigned to administrative desk duties. In a Loudermill hearing the officer and their representative are given an opportunity for a one-on-one hearing with the Chief to determine, as stated in the Loudermill notice: “the status of your employment with the City of Phoenix Police Department and your possible termination.” In essence, it is a very serious situation and your career is literally on the line.

Imagine the shock especially when the officer knows what policies were violated and what the requisite discipline is for those violations. The policies outlined in the Phoenix Police Department Operations Orders CLEARLY state the range of discipline for the associated violation, in this case is a 24-40 hour suspension. So what happened? What changed?

It seems the Chief felt it necessary to insert some new, never before discussed language in the Loudermill notice (CLICK HERE). The new language contained in the third paragraph of the Loudermill notice reads as follow;

“Additionally, your conduct violates Operations Order 1.1.2.C (1) & (2) “the unique service we provide to the community demands the highest degree of public trust, and we will not tolerate the violation of that trust and; we demand the highest degree of integrity and professionalism from all members of the department,” and the City of Phoenix Ethics Handbook and City Code, Ch. 2 Art. II, section 2-52 “It is the policy of the City of Phoenix to uphold, promote and demand the highest standards of ethics from all its employees and officials whether elected, appointed or hired. Accordingly, all City employees…should maintain the utmost standards of personal integrity, truthfulness, honesty and fairness in carrying out their public duties, avoid any improprieties in their roles as public servants and never use their City position or powers for improper personal gain.”

The language found in this clause essentially states “we’re firing you because you’re not perfect.” With language like this the City might as well start firing employees for not obeying the Golden Rule and violating the Ten Commandments.

At this point, we should point out the Chief has violated these policies on more than one occasion since his arrival in Phoenix, to include his actions and decisions with regard to this very case. What consequences has the Chief suffered for his conduct? None so far, but let’s stick to this case for now. If one views this case through the lens of the seven tenets of just cause, this case essentially violates every one of them; this new paragraph was inserted in this investigation at the 11th  hour. The language contained in the paragraph is pretty heady stuff and contains some pretty lofty standards. It is written just vaguely enough so as not to be quantifiable and therefore can be molded to fit just about any situation and have enough wiggle room built in to be interpreted any number of ways. If this is to be the new standard of judging employee conduct, it will need to be placed in EVERY internal investigation where an employee falls short and is disciplined. This would include Police Chiefs, sorry “Chiefs’ of Police”, Change Agents, City Managers, Department heads, elected employees and any and ALL city workers in all departments. To be fair and consistent in following this newly invented HR employee discipline template, ALL employees would be subject to a Loudermill hearing for any transgression. In addition, be prepared to get City HR along with the police and fire academies ramped up to full production capacity to start hiring since we will obviously be firing employees by the dozens for not maintaining the City’s high standards of perfection. Policies and ethics statements such as these might be important for any organization to strive for, but we should never lose sight of the fact that we hire employee from the pool of humanity. ALL people are fallible, which is why we have specific policies with specific consequence laid out, otherwise we should just use the philosophical statements of “the highest degree of…” and fire every one that falls short.

The involved employee attended the Loudermill hearing on October 22, 2014 and was advised by the chief via a phone call on October 27, 2014 that he would receive a 120-hour suspension.  This is 3 to 5 TIMES the punishment delineated in the rule book. It would be interesting for the Chief to explain how a personality driven management decision of this type squares with the Five Pillars of Policing (CLICK HERE)?  Is this his idea of “nurturing and protecting democracy” or “ensuring justice?” How do management actions of this nature encourage “a spirit of service?” Please explain how this remotely comports with Pillar #4, “Fundamental fairness?” When it comes to Pillar #5, “Protecting Phoenix residents from harm,” WE, the officers, Sergeants, and Lieutenants do that daily because we are professionals and are committed to OUR community, in spite of you. Our question is this, Who is going to protect Phoenix Police employees from you and your arbitrary discipline decisions and vindictiveness?

But wait, like a Sham-Wow commercial, there’s more… After the Loudermill hearing and upon being advised that the Chief had rendered a 120-hour suspension on the 27th of October, the employee called The Professional Standards Bureau to inquire about receiving his separation notice so he could appeal the discipline to the civil service board. The employee was advised to return to a patrol assignment on the streets until he received word. On November 14, 2014, the employee was contacted by Assistant Chief Markley who is in charge of the Patrol division and told that he needed to come to police headquarters to sign a “last chance agreement.”  The employees attorney immediately filed a written protest with the Department and the City (CLICK HERE).

By way of explanation: a last chance agreement is given in VERY rare situations where an employee has committed a violation where they should have been terminated, but because of mitigating facts, they are given an opportunity to salvage their career. The employee is literally given a “last chance.” The last chance agreement normally instructs the employee to do certain things to improve his or her chance of success as well as advising them that future violations will result in termination. There is one other thing a last chance agreement does that is of great significance; It requires the employee to surrender their appeal rights (CLICK HERE).

So in summary, the Chief is threatening to terminate an employee for a violation that, per policy, specifically calls for a 24-40 hour suspension. He arbitrarily decides to throw the rule book out the window (because hey, when you’re the Chief you can do whatever you want) and give him a 120-hour suspension which, in and of itself, is excessive. The employee is then sent back to work for over three weeks. The employee is finally called in to sign off on his discipline notice and told by Assistant Chief Harry Markley that he will be signing for a 120 hour suspension with a last chance agreement attached. The employee told Assistant Chief Markley that a last chance agreement was never part of the original deal.  Although PLEA and the employee believe the 120 hours to be grossly unfair, the employee was willing to sign off on the 120 hour suspension knowing he could still appeal the discipline in front of the Civil Service Board.  The employee told Assistant Chief Markley that he wouldn’t sign the last chance and if they were going to fire him he would sign his termination papers. Assistant Chief Markley put things on hold. So the employee is in a holding pattern, yet again, and now has the specter of termination hanging over his head. While the employee is in this holding pattern, he is working the street in a full-duty capacity. This employee knows that by refusing to sign the last chance agreement he will at least be able to preserve his appeal rights. It is a risk he is willing to take and who can blame him?

Talk about an abuse of power and management by threats, fear, and intimidation. These are the oppressive and retaliatory actions of public officials who believe they are accountable to no one and believe they can make the rules up as they go along.  A blind man can see this is over the top.

This new trend of the Chief wanting employees to sign off on last chance agreements is a disturbing one we are starting to see more frequently. Make no mistake, this new course of action is being done for one reason and that is to deny employees their appeal rights by threatening them with termination if they don’t sign on the dotted line. This course of action also prevents disciplinary cases, that are too weak to stand on their own merits, from ever seeing the light of day in a Civil Service hearing, where the case would collapse like a house of cards. It also shields the Chief from public accountability by being forced to testify in an open setting which would put his ignorance on public display.

What we are seeing is merely a new way for the Chief to continue his reign of terror by gaming the system in order to remove the threat of outside review. We have noticed a significant increase in discipline being overturned or reduced by the Civil Service Board, since the Chief’s arrival.

Ironically, by engaging in the gross overreach to apply triple the discipline to the involved employee, the Chief himself intentionally violated departmental policies. From where we sit, that sure sounds a lot like an intentional abuse of police powers, authority, and privileges.   Oh, that’s right, the same thing the Chief is accusing the officer of. Perhaps the Chief should be given a last chance agreement.

This is yet another epic failure on the part of the Department under the Chief’s management.  Not only are transgressions like this allowed to occur, but it would seem that the Chief is actively directing and participating in them. Even in the face of continued actions like this he proclaims there is no morale problem and wonders why Phoenix Police Officers think he’s a tyrant and have no confidence in his abilities to lead.