Phoenix Law Enforcement Association

The Nobility of the Cover Up

Chief Garcia preaches the concept of Nobility yet does not seem to practice it. Instead he dishonors the rank and file with baseless actions of retaliation and condemnation. Police officers are human and make mistakes. If there is a rule in the book that covers the discrepancies in an officer’s conduct, the motto has always been, take your discipline and move on. Many officers have received formal discipline over the years. Most have overcome it continuing on with their lives and with the mission to protect and to serve. In the last 2.5 years that has not been the case. Officers have made mistakes, owned up to them and then been crucified by the Almighty Knight of Nobility himself. Considering the difficulty we have in hiring qualified candidates to be police officers combined with the expense of training them, encouraging officers to be successful by applying only that discipline needed to effect change is a win for everyone. Enter the Almighty Knight of Nobility. Nobility speaks of dignity, virtue, integrity, honor, graciousness, decency and goodness. The very traits we do not see in our Chief. Of course, this is due to the fact the Almighty Knight of Nobility is practicing his Attila the Hun management style attempting to prove his superiority, loftiness, royalty and magnificence.

Recently you have heard that PLEA and PPSLA have embarked on a vote of no confidence in our Chief. This article will explain how he violated state law and an officer’s rights. A statement like this in and of itself should have a chilling effect. Police officers are empowered by the police chief to enforce laws. How do you think people would react if they were to find out that the very police department that is sworn to protect and to serve intentionally withholds information that proves you are innocent? I am talking about PSB (our internal affairs) intentionally withholding exculpatory information in internal investigations then lying to conceal it. Sounds unbelievable I know. Read on and you be the judge.

It all started back in November 2013. Two officers with around 7 years of experience each observe a traffic violation and made a traffic stop. I will not go into to all the details of the stop but the highlights are these:

• Its night time
• The subject does not pull over immediately but drives down to a street with no street lights
• The subject makes a lot of furtive movements towards the inside of the car
• The subject will only place one hand out of the car and refuses to obey commands.
• The subject is then extracted from car, struggles with officers and is taken to the ground
• After the dust settles it is discovered the subject had a 44 ounce drink and nowhere to put it.
• He did not listen to commands as he was trying to secure his drink and spilled it in the process.
• He told officer Impastato he was having a bad day.
• Officer Impastato decides to write no citations believing it would add to the frustration of an already bad day the citizen was having
• Officer Impastato handles the incident as an educational-contact.
• A few days later, the citizen made a complaint.

Scenarios such as this are not all that uncommon in the normal course and scope of police work and everything seemed pretty routine. That is of course, until PSB entered the picture and latched onto the complaint like a pit-bull with a chew toy. Both officers now found themselves under investigation by PSB Sergeant Jennifer Hanson. Sergeant Hanson sees nothing routine about this. Anyone who listens to the tone and line of questioning in the interview can easily tell she has made up her mind to sustain a violation prior to hearing the complete story from the involved officers.

Of the two officers, Clark Impastato, is sustained on a use of force violation. The second officer is unresolved. Because Clark had a prior discipline issue within last five years this is headed to the DRB.

A couple of days later, officer Impastato received a complaint while working an off-duty job. Officer Impastato was speaking to a subject who was crouched down and suddenly sprang up into his personal space. This took officer Impastato by surprise and he immediately reacted based on training and pushed the subject away from him. Not an impact push which would have knocked the guy down; Officer Impastato used enough force to get the subject out of his personal space and create distance between them. Both techniques have been taught at the police academy. The subject complained that during the push he was hit in the face with officer Impastato’s flashlight and had an injury. There were several witnesses on scene that supported officer Impastato’s claim that he did not strike the subject with a flashlight. Due to the complaint, a supervisor was called to the scene and spoke with the complainant. He investigated and determined this was not a use of force situation and the supposed injury (on the inside of the subjects mouth) was not consistent to what the subject alleged had occurred. The supervisor also had a photo certified officer respond to photograph the complainant to include photos of his face and inside his mouth. The supervisor wrote it up and sent an email to officer Impastato’s immediate supervisor explaining the steps he had taken and that the statements and evidence did not support the complainant’s allegations. Officer Impastato’s immediate supervisor, upon receiving the e-mail called PSB and handed the report over to them for further investigation telling them that officer Impastato had another use of force issue.

Enter the PSB varsity squad. PSB does not bother interviewing everyone involved. Why bother doing a thorough investigation by interviewing everyone involved when you can sustain an allegation by just interviewing a couple of people? Especially concerning is that the sergeant who initially responded to the scene and sent the e-mail with details of the incident was never interviewed. Think about this for a minute. This would be the equivalent of having an officer respond to a call that turns out to be a homicide, having homicide come out to assume the scene and then having the case agent never bothering to interview or require a supplement of the officer who initially responded. This would be severe dereliction of duty at a minimum but when PSB does the same it’s A-OK. What’s worse is the chain of command at PSB tries to defend these actions.

PSB ultimately sustained another use of force allegation. They believed that officer Impastato pushing the subject out of his personal space was unreasonable. Apparently, officer Impastato should have had the reflexes of a cat and jumped back like a ninja to avoid any physical contact. Officer Impastato notified his PLEA Rep that there was an e-mail from the investigating supervisor that responded to the scene that was not presented at his PSB interview. This e-mail is part of an investigation and under ARS 38-1101 PSB must provide it to the involved officer as a part of the investigation. Just like a discovery motion, you have to present all the evidence you have good or bad. Since we did not see this information presented at the interviews at PSB, a grievance was filed on behalf of the member against PSB for violating officer Impastato’s rights by failing to provide all the relevant materials as required under the MOU.

Fast forward to May of 2014, the next stage was the (IRP) Investigation Review Process. During this review the PSB Commander, Joe Knott, said he was aware of the grievance and that all three supervisors present at the IRP meeting to include Sgt. Jennifer Hanson and Lt. Greg Carnicle had seen the email and it was their belief that it was not relevant to the investigation but was merely administrative information. The sergeant and lieutenant agreed stating they had seen it and it was not relevant. About a week later at the level 3 grievance hearing, the PSB commander again stated that although the e-mail had no relevance it should have been retained and presented as part of the case. The PSB Sergeant would be advised along with the entire Bureau of additional retention policies of any and all information related to an investigation. That concluded this grievance (or so I was led to believe).

One has to question what the heck is going on. If the supervisor who responded to the original complaint didn’t investigate it, then why isn’t PSB giving him an NOI for neglect of duty? If he did investigate it, where is the paperwork?

A PLEA representative contacted the precinct commander of the involved officer to discuss with him what his views were with regard to these investigations. To be perfectly clear, PLEA did not agree with either of these investigations being sustained against officer Impastato. The use of force used (a shove to get a subject out of an officer’s personal space) was clearly not a violation of policy and the technique used is taught at the academy. Officer Impastato’s commander called PSB. Later, the involved PLEA Rep received a call stating the executive staff had decided that, in looking at both investigations, the discipline would compound up to the level of a Loudermill (termination) hearing and therefore moved to terminate officer Impastato.

Enter officer Impastato’s attorney. Knowing that PSB never interviewed the supervisor that responded to the scene, the attorney interviewed him. The sergeant willingly gave an interview and signed a statement under penalty of perjury. Standing up to do the right thing is real Nobility by the way, especially when one knows the history of retaliation from our Chief. In his statement, the supervisor stated that he did in fact author the previously mentioned e-mail. The same one that PLEA was told numerous times was irrelevant now appears to be extremely relevant. But why give up exculpatory information if you want that conviction. Gee we don’t know…Maybe because it’s the right and noble and the lawful thing for police to do!

At this point we now know that we were lied to multiple times. Officer Impastato attended the Loudermill hearing. His attorney brought up all the inconsistent statements, lack of interviews, exculpatory information and a signed affidavit from the on-scene supervisor. So what does the Chief of Nobility do? Does he at least call for a fair investigation that would include interviewing the first supervisor on the scene? No, he fires Officer Impastato. He obviously does not care that the investigation is incomplete, inconsistent and factually not accurate (much in the same way that he doesn’t seem to care about or believe the morale of the department is his problem).

As soon as the Loudermill hearing was over PLEA received a copy of the signed declaration of the supervisor at the scene from officer Impastato’s attorney. Now there is proof PLEA was lied to about the e-mail.  The original grievance that we believed had been concluded was refiled to the city with the additional document attached.  It is currently scheduled for an arbitration hearing in Jan 2015. A complaint letter was also sent to AZPOST (CLICK HERE to view complaint letter) requesting an investigation on the involved PSB investigators and the Police Chief for intentionally withholding exculpatory information (ARS 38-1101) and lying about it.

To make matters even worse, the second officer who was initially unresolved with regard to committing any acts of misconduct was called back down to PSB in September, 2014. PSB is now going to re-investigate him.  Since officer Impastato got fired, the Chief needs to make sure the second officer is discredited in order to strengthen his case against officer Impastato appealing his termination.  This was a blatant underhanded tactic to try to discredit a potential future witness that might be called in Impastato’s defense.  An NOI is issued based on the case from November 2013, almost a year later. The NOI in question was asked and answered in 2013. This is known because PLEA has the transcripts from the interview in 2013.  At this new PSB interview, a discussion is had about the validity of the language in the NOI.  All supervisors present are quick to point out they are just following orders (you know, the Nuremberg defense). This is what happens under Attila the Hun’s leadership style under our most Noble Chief that requires one to sacrifice their integrity or lose your job. Integrity doesn’t make that house payment anymore. Maybe that’s why our Noble Chief wants everyone to renew their oath of office every year, so they can start with a clean slate.

The interview of the second employee is a rehash of the past interview with no new information being brought into the picture (which tends to show retaliation). The conclusion was that PSB was going to take this up the chain of command and see if a deal could be made for the second officer. He may only get a written reprimand. This is yet another lesson in integrity. We’ll re investigate you a year after the fact with no new information and then try to convince you that you’re getting a smoking deal if you take a written reprimand for something you did that wasn’t wrong then but is somehow wrong now. This will help to strengthen that case against officer Impastato. PLEA filed a grievance. Damn those pesky PLEA representatives protecting the rights of officers.

The grievance went before Chief Yahner. The request was to make the whole thing go away. After all, the NOI violated state law ARS 38-1101, again. Chief Yahner agreed and the investigation went away. Maybe Chief Yahner got a letter of concern from Chief Garcia for doing the right thing.

That brings us up to date. Officer Impastato’s Civil Service Board hearing was set to begin December 5th. It was decided that it would be an open hearing so people could come out and judge for themselves.  Did officer Impastato use unreasonable force?  Did officer Impastato deserve to be fired?  Oh wait!  Disregard the December 5th Civil Service Board. Due to some last minute shenanigans by the City Legal Unit, the date has been changed to December 29th and 30th at 0900.

NEWS FLASH!

Just before going to print, PLEA received a copy of the information contained in the on-scene supervisors e-mail communication! You know, the one PSB said did not exist! The on-scene supervisor did in fact investigate it and forwarded the paperwork to the first officer’s immediate supervisor (this is why there is no NOI for neglect of duty for the responding supervisor). This on-scene investigation by the sergeant shows it was investigated and there was no evidence to prove officer Impastato committed misconduct with regard to injuring the subject. This was the very information that was intentionally withheld in violation of state law. By removing this mitigating piece of evidence the henchmen at PSB were able to “get their man” and have officer Impastato terminated. Then they tried to convince us the e-mail “was not relevant”.

It is incomprehensible that the leadership of the Phoenix Police Department would intentionally withhold evidence on any type of investigation and engage in blatant rule violations on a level of this magnitude. It frankly, boggles the mind especially when PSB is supposed to be the guardians of the rules and integrity for the department. Acts such as these violate the trust that the citizens place in the “Most Noble Profession” and make one ask, who investigates PSB when they commit misconduct?

Conduct of this nature is unconscionable and egregious to the point that Chief Garcia should have his AZPOST certification revoked for malfeasance and be fired, especially when one considers the Chief was made fully aware of all the inconsistencies, discrepancies and crucial evidence that was missing prior to deciding to terminate officer Impastato.

A reasonable person, confronted with this type of information, would have put the brakes on and required a full, complete, and accurate investigation be completed before arbitrarily stripping a person of their livelihood. Our men and women who patrol the streets and the citizens of Phoenix deserve better than the non-existent leadership and lack of integrity coming out of this man.

IT’S TIME FOR POSITIVE CHANGE!