PeaceOfficer California
Fall 2011
New Media FBI LEO System Law Enforcement Budgets in a Falling Economy
table of contents
2011-2012 Executive Committee President
Sandra Spagnoli Chief San Leandro Police Department sspagnoli@sanleandro.org
1st Vice President
FEATURES 6 Legislative Update
Rick Braziel Chief Sacramento Police Department rbraziel@pd.cityofsacramento.org
8 Law Enforcement Budgets in a Falling Economy
2nd Vice President
14 FBI’s LEO System Offers No-Cost Training for Law Enforcement Agencies
Rich Lucero Captain Fremont Police Department rlucero@ci.fremont.ca.us
3rd Vice President
Mark Yokoyama Chief of Police Alhambra Police Department myokoyama@alhambrapd.org
4th Vice President
Scott Jones Sheriff Sacramento Co. Sheriff’s Department sjones@sacsheriff.com
Treasurer
David McGill Lieutenant Los Angeles Police Department mcgilld@lapd.lacity.org
Immediate Past President
Jim McDonnell Chief Long Beach Police Department Jim.mcdonnell@longbeach.gov
10 New Media: The LASD Perspective
16 A Look Back at CPOA’s Past Presidents 17 Virtual Reality Training in Law Enforcement 19 Is the Supervisory Leadership Institute for You?
DEPARTMENTS 4 President’s Message 5 Executive Director’s Message
Publisher
20 2011-12 Education Calendar
California Peace Officers’ Association 555 Capitol Mall, Suite 1495 Sacramento, CA 95814 (916) 263-0541 Fax: (916) 520-2277 E-mail: cpoa@cpoa.org www.cpoa.org
23 Legal Services Program News 24 General Counsel 26 Advertiser Index
Managing Editor
Tricia Schomus (916) 263-0541 tschomus@cpoa.org
Chair, Regional Advisory Council Brian Evanski Captain El Segundo Police Department bevanski@elsegundo.org
Parliamentarian
Edward Pape Lieutenant Los Angeles Police Department 31313@lapd.lacity.org
Executive Director Carol Leveroni, CAE Cleveroni@cpoa.org
Opinions expressed are those of the authors or persons quoted and are not necessarily those of the CPOA state board, appointees, staff and its membership. The publication of any advertisement by CPO or the California Peace Officers’ Association is neither an endorsement of the advertiser nor of the products or services advertised. Neither CPO nor CPOA are responsible for any claims made in an advertisement published in California Peace Officer. © California Peace Officers’ Association. All right reserved. The contents of this publication may not be reproduced, in whole or in part, without prior written consent of the publisher. The California Peace Officers’ Association is committed to developing progressive leadership for the California law enforcement community. This is accomplished by organizational networking, professional development, technology advancement and public policy advocacy. The purpose of California Peace Officer is to inform and educate CPOA members; to promote professional development; to generate interest in association activities and to foster a cohesive and involved membership.
Editor
Lisa Kopochinski (916) 481-0265 lisakop@sbcglobal.net
Advertising Manager
Cici Trino Association Outsource Services (916) 990-9999 Fax: (916) 990-9991 cicit@aosinc.biz
Layout and Design Lori Mattas
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California Peace Officer | Fall 2011 | 3
president’s message
The New Normal
A By Sandra Spagnoli, Chief of Police San Leandro Police Department
“The key is not to prioritize what’s on your schedule, but to schedule your priorities.” –Stephen Covey
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s law enforcement faces the challenges of the “New Normal,” agencies are taking the time to identify organizational priorities that reduce or eliminate programs and services that are no longer germane to the agency’s primary mission. The reality is, with fewer resources and funding, even the programs that have been untouchable in the past are being put on the back burner or eliminated in order to focus on the key public safety priorities, and do them well. CPOA is no different and recently began a process to review and reset our priorities. It has been many years since a critical review was conducted of our programs and services provided to members, so a portion of the August board of directors meeting was dedicated to strategic planning and priority setting. Although there is still more work to do, the session focused on two areas: • First and foremost, defining the focus of CPOA membership, i.e.; who are our members and who will be our future members? • Second, it was important to identifying the organizational priorities so that staff efforts can be focused on the areas that are critically valuable to the membership. Membership is a key factor in the success of CPOA. Defining who our members are is essential to providing the programs and services that you have come to expect. Members represent a broad range of organizations, including police departments, sheriff departments, state and federal agencies, professional staff, retirees and corporate partners. After reviewing the membership profiles, on-line membership survey and a great deal of discussion with the board of directors, it is clear that CPOA’s membership represents law enforcement leaders and future leaders—from the police officer/ line-level rank to police chief/ sheriff or agency head. With that, CPOA is committed to preparing tomorrow’s leaders today by focusing on the top organizational priorities which were identified by the membership and CPOA leadership—personal and career development, training, and advocacy. As an organization that represents law enforcement leaders and future leaders, it is no surprise that personal and career development rose to the top of the list, hand in hand with training. One of the cornerstones of CPOA has always been training. By providing high level training coupled with personal and career development opportunities, members will be well prepared for the next steps in their career. CPOA takes great pride in being at the forefront of the most pressing legislative issues impacting law enforcement along with our public safety partners across the state. Advocacy is a powerful tool essential in shaping the future of public safety. We have been successful in the legislative process and fortunate to have our Legislative Advocate, Jennifer Wada, representing us at the State Capital. There is a great deal of behind-the-scenes work involved in advocacy and Captain Rich Lucero, CPOA Second Vice President, has played a significant role in many of these issues, most recently representing CPOA in the discussions with CDCR on the topic of Public Safety Realignment. Let us not forget that September marked the 10-year anniversary of 9/11 and the reflection of the loss our nation suffered on that tragic day; the many sacrifices not only by police officers and firefighters, but citizens that rushed to the aid of others at the World Trade Center, the Pentagon and in Pennsylvania. In closing, I want to thank the membership and board of directors for their participation in the strategic planning process and ongoing support of CPOA. Members have also stepped up and contributed their time and expertise on many of our committees, adding value to the direction of programs and initiatives. I appreciate your involvement in the important decisions we are making to shape the future of CPOA. r Be safe!
| Fall 2011 | California Peace Officer
executive director’s message
Engage and Train
By Carol Leveroni, CAE
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o I learned a few things in August: 1. St. Louis is a living outdoor sauna and there is no reason to ever go back. (Sorry if I just offended anyone hailing from St. Louis.) 2. When you sit in good training—and I mean really good training, the kind that makes the hair on your neck tingle, your eyes light with a-ha moment and an anticipation of being able to integrate those new ideas into your work world the second you return to the office—there is nothing like it. (And maybe, just maybe, I’d even return to St. Louis to hear the same speaker again.) That is what training can do for you. It can inspire, teach, motivate, demonstrate. In some cases the training can be for personal reasons—self-reflection or career advancement. In other cases, the training is strictly for keeping you on the right side of the courtroom. Regardless, I’d argue that training is, at its core, a requirement, but in the grander scheme of things, is expansive and dynamic to the development of the individual. This issue of CPO is about training. The need for it and articles focused around it. It also highlights upcoming training offerings. If you get one thing from this issue that encourages a follow up conversation, that provides a pearl of wisdom, or that encourages you to schedule yourself for some upcoming CPOA training, then it will have succeeded in its mission. Not incidentally, we understand that times remain tough and that there is the tendency to first strike through training budgets, but we would submit that in addition to the continuing mandate for trained officers for your agency, the impending growth and talent to be found within the profession will come from well-trained individuals. Our closing speaker in St. Louis was Peter Sheahan, founder and CEO of ChangeLabs,™ a global consultancy delivering large-scale behavioral change projects for clients such as Apple and IBM. Sheahan, having worked with some of the world’s leading brands in the area of innovation and change, recently tweeted, “The new psychological exchange for talented people will not be time for money. It will be engagement for meaning.” What are you doing to engage your people…to be engaged yourself? r
California Peace Officer | Fall 2011 | 5
legislative update
Legislative Update By Jennifer Wada
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Jennifer Wada is an attorney, legislative advocate, and Chief Executive Officer of The W Group, LLC. She offers her clients a blend of strong advocacy, relationships at all levels of government, and a wealth of legislative and regulatory knowledge. She can be reached at jennifer@thewgroupspa.com.
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ess than one month remains in this legislative session and things are in high gear. On the legislative front, hundreds of bills that impact public safety are flowing through the process. These include bills on human trafficking, needle exchange programs, bans on the self-service checkout of alcohol, industrial hemp, open carry and more. Two important pieces of legislation to note are AB 353 (Cedillo) and AB 1389 (Allen), dealing with sobriety checkpoints. AB 1389 seeks to codify the Ingersoll case regarding DUI checkpoints in an attempt to make such checkpoints uniform. Unfortunately, the law enforcement community believes that the bill severely restricts their ability to enforce the law and would potentially create a safe harbor for drivers under the influence of controlled substances, driving without a valid license or persons with active arrest warrants. On the other hand, AB 353 seeks to prevent unnecessary impoundment of vehicles at DUI checkpoints and we believe a compromise has been reached that would ensure law enforcement is able to properly enforce the law at these checkpoints. Another bill of interest includes SB 490 (Hancock). This bill was introduced late in the legislative session and proposes to abolish the death penalty, providing instead for life without the possibility of parole. The bill provides that, where a defendant or inmate was sentenced to death prior to the date of voter approval of the bill, that upon such voter approval, the defendant’s or inmate’s sentence would automatically convert to LWOP. The bill would only become effective if it is approved by voters at the November 2012 statewide general election. The death penalty debate is certainly nothing new. However, in light of the dire budget situation, the debate is seemingly focused on more of a fiscal analysis in addition to a philosophical one. The author states that the death penalty is a costly failure with no deterrent effect and it drains state and local budgets when such money could be used toward more effective public safety measures. During the Assembly Appropriations hearing, the
| Fall 2011 | California Peace Officer
death penalty structure was said to cost at least $100 million annually. Other statistics were cited, such as the gap between sentence and execution being about 24 years and that since capital punishment was reinstituted in 1978, 13 persons have been executed in California. This legislation is currently on the “suspense file” due to costs and its fate is yet to be determined. But it brings up a larger point and highlights how the state of the budget can impact the most historically controversial policies. What was unacceptable to many before may be palatable to some now if it means a reduced deficit. And we are living with a new frontier in terms of realignment and seeing the real world impacts that the budget situation is having on law enforcement across the state. Which brings us to the topic du jour: realignment. Realignment is set to become effective on October 1, 2011. It is prospective and only those sentenced or released to supervision on or after October 1 are subject to the provisions of AB 109. Now that realignment is a reality, implementation efforts are ongoing. CDCR has been holding weekly meetings and planning road shows, and various groups around the state are actively working on implementation. One critical aspect of implementation includes the significant role the Community Corrections Partnerships play. The CCP must submit an implementation plan to the Board of Supervisors. An executive committee of the CCP votes on this plan and the plan is deemed accepted by the County Board of Supervisors unless the Board rejects the plan by a four-fifths vote of the board. The executive committee is composed of the Chief Probation Officer, the Chief of Police, the Sheriff, the District Attorney, the Public Defender, the Presiding judge of the superior court, and a representative from either the county Department of Social Services, Mental Health, or Alcohol and Substance Abuse Programs, as appointed by the County Board of Supervisors. It is important to note that there is no requirement on how these implementation plans should
legislative update
look so local law enforcement will have to be very specific and clear as to what the plan and funding allocations should be. This is new territory and the power to shape realignment rests within the local communities. Never before have the stakes been so high and how realignment is implemented now will carry on into the future of public safety. Efforts to obtain constitutional protection of realignment funding are still being discussed. The picture has not changed much in terms of getting the two-thirds approval in the Legislature necessary to place a measure on the ballot. An initiative drive is possible and continues to be discussed. On the larger front, the budget picture is not improving as hoped. The budget relied on $4
billion in revenue assumptions. In early August, State Controller John Chiang released a report stating that California’s revenues were nearly $540 million, in other words, 10.3 percent below the state’s budget projections. The budget includes “trigger cuts” to public safety, social services, education and transportation should revenues fall below projections. The budget plan requires the Governor’s Director of Finance to certify on December 15 whether the $4 billion projection is accurate. Because revenues are already falling behind projections, there is a very real possibility that trigger cuts are forthcoming and we will be back to the drawing board on the budget in the near future. But for now, we plug away at realignment implementation and work to protect public safety no matter what. r
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On the legislative front, hundreds of bills that impact public safety are flowing through the process. These include bills on human trafficking, needle exchange programs, bans on the selfservice checkout of alcohol, industrial hemp, open carry and more.
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California Peace Officer | Fall 2011 | 7
Law Enforcement Budgets in a Falling Economy: The Argument for Preserving Training By Craig T. Steckler and Rich Lucero
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he decline in the general economy has clearly gripped public entities including law enforcement agencies. Virtually every aspect of our functioning has been impaired in some manner. Many of us have faced service reductions, positions vacated through attrition, as well as actual lay off of tenured personnel. As we make decisions under the circumstances facing our organizations, we are shaping the future of both our agencies as well as our communities. Everyone agrees that training is critical to providing for the safety of our communities and employees. So why is it that as a chief, sheriff or member of a command team, when we find ourselves in difficult economic conditions, we put our training programs and conferences on the budget chopping block as one of our first cost cutting initiatives? According to an article in USA Today, a survey this fall of 608 agencies by the Police Executive Research Forum, a Washington-based think tank, reported that “nearly 70 percent of police agencies cut back or eliminated training programs this year as part of local government budget reductions.”1 In the same article, a chief of a large agency reported that “his department’s entire in-service training program was shuttered for a year, beginning in June 2009.” 2 According to NECN. com, as a further example, the “Massachusetts State Senate cut police training funds.” 3 The logic and arguments for continuing and contemporary police training are understood by all of us. Better trained officers and professional employees perform better in their assignments. Similarly, liability is significantly reduced because employees are trained
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and perform with a higher level of confidence and accuracy. Within the Fremont Police Department, we have made a conscious decision to think differently. We made sure that everyone understood we had to make budget reductions and that they would be painful (and certainly continue to be so), but we also pledged that we would do all we could to keep the training programs and conferences intact and, in fact, we increased some forms of our training. Part of this education needs to be a cognizance that training budgets often do not represent enough of a component of an operating budget to significantly alter personnel circumstances. It is also helpful to realize, in this era of declining compensation and benefits, the ability to offer professional growth may be one of the few areas still within our control to preserve the way employees view their department. As an example of potential expansion, we have been very pleased with the results of leadership training conducted twice a year for all supervisors and managers, both sworn and professional. We make use of outside trainers and experts who have ordinarily been validated by a member of the department who has seen their curriculum elsewhere. It has always been our belief that an organization is only as good is it’s frontline leadership and we view it as a means of fulfilling our obligation to make sure we continue to offer the best training available. The utility of this training has been compounded by the accelerated succession associated with the present rate of service retirements. This perspective does not imply training assets
In his words
“
Having been in law enforcement for nearly 45 years—with 33 of those years as a command officer—I have some experience with economic downturns and the impacts on a law enforcement agency. I will be the first to admit the current economic climate is the worst of my career. Regardless, I did work through Proposition 13 in 1978 and the reductions that came with voters’ discontent with high property taxes. These events were followed in the early 1980s with housing interest rates reaching nearly 17 percent. In 1992, for our department, the impact of the recession at that time was the loss of 24 sworn positions. Just when we had regained those positions, we were hit in 2003-04 with the downturn in technology stocks and resulting loss of sales tax revenues reclaiming all those positions plus an additional five sworn as well as 16 professional positions. Although our City has grown by 40,000 citizens, similar to many cities and counties, we are policing with just three more officers than we had in 1992 when I was appointed the Chief in Fremont. In 1992, I fell prey to the same logic we now challenge, which was to reduce the training budget with the idea that it was the “right” thing to do and we could save positions. In 2004, again faced with significant and ongoing budget reductions, we made a conscious decision not to reduce the training and conference budget. Instead, we wanted to make sure that our training continued and was contemporary.
”
—Chief Craig T. Steckler
should continue to be expended in exactly the same manner as they always have without reflection. In our case, we have chosen to emphasize officer safety, use of force, emergency vehicle operations, principals of command and control, and leadership. As an aside, apart from producing better incident resolution, the training has been of extremely high value in defending the department and individual officers in tort and civil rights litigation, an important point of persuasion in terms of emphasizing the value of training to the City Manager and Council. All strategies may not work for every organization. It may be necessary to hold vacant positions open longer in order to generate salary savings. Bargaining units may also be asked to change some past practices related to travel. Agencies can also enhance training of experts internally as well as cooperatively with neighboring departments to provide essential training with minimal travel expenses. We are not saying that to keep training programs will be an easy decision; it won’t. Something has to give to meet reduction targets. We are saying that all of us as law enforcement professionals understand the benefits of progressive and relevant training. We also know as our departments decline numerically and programmatically, we will be more dependent than ever on the skills and abilities of the individual. We can only hope the metric of our budget decisions will not be enduring successful lawsuits, or much worse, a debilitating injury suffered by an officer due to lack of training. r (Endnotes) 1 USA Today 10/20/2010 2 Ibid 3 NECN.com May 2011
Chief Craig T. Steckler has been the Chief of Police in Fremont since 1992. He started his career in San Clemente in 1968 and rose through the ranks to Lieutenant before being appointed Chief of Police in Piedmont in 1980. In 1986 he was appointed to the rank of Deputy Chief in Fremont. He is a life member of CPOA, Past President of the California Police Chiefs Association and currently second Vice President of the IACP.
Captain Richard Lucero has been a police officer for 24 years and is a captain with the Fremont Police Department. He is the second Vice President of the California Peace Officers’ Association and a member of the State Bar of California.
California Peace Officer | Fall 2011 | 9
New Media Has Dramatically Changed Communications with the Public:
The LASD Perspective By Mike Parker
A
t great risk, another great arrest was made as officers took the heavily armed robber into custody without the use of force. Law enforcement tried to get the news media interested, but even with our best efforts, the story was never shared with the public. That was just a few years ago. Like other progressive leaders, Los Angeles County Sheriff Lee Baca saw that harnessing new eCommunications technology makes it possible for the public to hear of the excellence of our personnel directly from the LASD, instead of hoping for the best from what is often a disinterested mainstream news media. To accomplish this, a strategy was employed and powerful combinations of new eCommunications systems were implemented. Since 2010, these efforts have expanded to direct the right message to the right audience with internationally recognized results. This includes the fact we are building trust and confidence in the public, because they can now hear a message that we care, try hard and succeed. The new Los Angeles County Sheriff’s Department eCommunications systems include an innovative new website, Nixle text and email messaging, interactive Social Media, confidential public messaging and more. While still evolving, news releases are now delivered directly to the public (and news media) in the most popular ways they want to receive them. As the second largest policing agency in the nation, the LASD’s diverse jurisdiction demands additional efforts to truly give the public what they want; hyper-local, geo-specific and topic-specific information. This is why each of the patrol stations has their own
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geo-specific Nixle text and email feeds, and new local station-specific websites are being implemented. Localized social media (Twitter and Facebook) will soon follow. By utilizing the LASD marketing plan, which defines our strategies and identifies our target markets for our timely, quantity and quality messaging, the following communication strategies have been deployed and can be found on www.lasd.org.
www.lasd.org Designed by the LASD in consultation with marketing experts, lasd.org was modeled after news media websites. The target market is the public as we cover the LASD as a news story. The public and news media have responded well with lasd.org receiving more than 500,000 page views monthly from the L.A. area and from over 100 countries. With translation into over 50 languages available, some of its features include: The Home page posts LASD news releases on the regularly updated center column. Photos and videos greet you at logon. The left and right columns are consistent links for the returning public. The upper left has search engines and the most popular links. The upper right has secondary homepages to other target markets, such as the Justice Community and LASD Family. The Newsroom page includes all LASD news releases. The Crime Information and Prevention page includes detailed crime statistics and mapping, wanted and missing persons, and crime prevention resources.
Instant Messaging and Social Media New eCommunication technologies allow us to send messages directly to the public and continued on page 12
Communicate with residents by SMS and email at no cost In times of crisis, it’s imperative that your residents stay instantly informed. Nixle Connect is the most robust, effective and easy-to-use public notification system available – and it’s available to your agency at no cost.
Nixle is the first professional-grade mass communications system allowing the LAPD to communicate directly with a geographically specific portion of the community. — Police Chief Charlie Beck, Los Angeles PD To learn more about Nixle Connect and other Nixle products, or to enroll your agency, visit:
www.nixle.com
THE LASD PERSPECTIVE continued from page 10 the news media. Now, whether our story is covered or not by mainstream news, we know our message will reach thousands of people.
Nixle (free) instant messaging With more than 30,000 Nixle subscribers, the LASD has the most Nixle subscribers of any one police agency in the nation. Nixle.com short codes have proven how much the public wants timely and quality topic-specific information via text: 5,000 new subscribers joined during the two-day Crown Fire in July 2010.
Twitter @LASD_News This is auto-populated via Nixle and has thousands of followers, including all major news media outlets and the public. Re-tweeting news stories via PIO’s Twitter feeds has been particularly effective in amplifying our messages.
Facebook LASD’s fan page has thousands of “friends” and grows daily. There are few problematic postings from the public and more than 75 percent of the feedback comments are positive or appreciative. Visit www.facebook.com/LosAngelesCountySheriffsDepartment.
YouTube The LASD main newsroom channel continues to expand its video library of LASD-created videos and links to news videos about the LASD. Visit www.youtube.com/LACountySheriff.
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RESOURCES Sharing successful strategies and technologies with each other helps us all to adapt to the endless changes in new media.
IACP Center for Social Media Directory
http://www.iacpsocialmedia.org/
Social Media – Interactive Training Video
(now completing production) P.O.S.T. video library The Commission on Peace Officer Standards and Training—California http://post.ca.gov/
Internet, Instant Communications, Social Media, Marketing and the LASD More than 40 links to articles and resources, and the LASD marketing plan www.Marketing.lasd.org
PRESENTATIONS COPSWEST — California Peace Officers Association (CPOA)
Messaging Through Partnerships LACrimeStoppers Over 40 policing agencies in LA County have partnered to create the successful Los Angeles Regional Crime Stoppers program. The anonymous phone, web and text tips system have resulted in at least 200 arrests and the recovery of over $1.2 million in property and drugs in 2010, and is one of the largest programs in the nation. Check out www.lacrimestoppers.com.
SNAP –Specific Needs Disaster Voluntary Registry This is for persons in LA County who may need specific disability-related assistance and/or accommodations during major disasters. These may include communicating through alternative means, requiring specialized para-transit services, life-sustaining medications or equipment, etc. It is a project of the Los Angeles County Office of Emergency Management (OEM) in cooperation with other cities and agencies in the LA County disaster response operational area. Visit http://snap.lacounty.gov.
Alert LACounty This is an emergency mass notification system to contact LA County residents and businesses via recorded phone messages, text messages and email during emergencies. An emergency message is created and sent to designated phone numbers in the affected area. It is available for use by all police agencies in LA County. Cell phones and voice over IP phones need to be registered, but millions of traditional “land line” phones are already in the system. Check out http://alert.lacounty.gov. r
Nov. 8 to 9, 2011 Ontario, San Bernardino County, California
Captain Mike Parker is the Unit Commander of Sheriff’s Headquarters Bureau (SHB), Los Angeles County Sheriff’s Department. SHB leads the media, marketing and communications efforts of the LASD, internally and externally. Contact Twitter@mpLASD, SHBNewsroom@ lasd.org and (323) 267-4800.
Social Media — Benefits, Your Cybersecurity & Criminal Investigations Nov. 8 1 p.m. to 4 p.m. http://www.cpoa.org/
New: CPOA Social Media training classes www.cpoa.org Dates and locations coming soon A. Introduction to Social Media, eCommunication and the Internet (lecture, 8 hours) B. Hands-on Introduction (lab, 8 hour): Social Media, eCommunications and News Media Relations
Eliminate Computer Downtime Automatic Shutdown Before Losing Critical Data Prevents Laptops from Draining Batteries Low Vehicle Voltage Detection Monitors Vehicle Voltage USB 2.0 Connectivity Connectivi Selectively Discharge Laptop Battery Comes with Customizable Software Two Year Warranty
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California Peace Officer | Fall 2011 | 13
FBI’s LEO System Offers No-Cost Training for California’s Law Enforcement Agencies By Kathleen McChesney
S
ince 2007, more than 200 California police and sheriff’s departments have received nocost classroom-based training on the FBI’s Law Enforcement Online (LEO) information sharing network. This training has familiarized thousands of participants with LEO’s new and legacy products and services and has advanced their abilities to use LEO tools such as: • Virtual Command Center • Special Interest Groups • Secure communications networks • Law enforcement databases • National Alert System • Distance learning modules • Online multi-media resource library Begun in 1995 and continuously enhanced to meet the current and future needs of its nearly 140,000 members, LEO is a secure, Internet-based communications portal for law enforcement, criminal justice professionals, and anti-terrorism and intelligence agencies. LEO strengthens interagency collaboration by providing its vetted members with 24/7 access to sensitive but unclassified (SBU) information through its Virtual Private Network (VPN). Moreover, there is no cost to departments or individuals to use LEO’s tools or receive training from LEO representatives. LEO’s products and services have been proven to increase an agency’s overall effectiveness by enabling its leaders to manage crisis situations, extraordinary events and even complex, multi-jurisdictional investigations through a variety of information sharing mechanisms. Its electronic infrastructure expedites and enhances communications among law enforcement agencies and other members and its online learning and research services save numerous hours of in-service training time and expense. LEO’s secure network also provides another method for member departments to submit fingerprints to the FBI’s Integrated Automated Fingerprint Identification System.
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Much more than crisis management software, LEO’s Virtual Command Center (VCC) provides secure, real-time information at local and remote sites. This “electronic command center” has robust data and graphic capabilities for maps and photographs. Managing assignments, follow-up and record keeping is simple and access to data can be segmented by category, or on a need-to-know basis. LEO’s services provide national alerts and emails to its members regarding critical incidents as well as law enforcement events and conferences. In addition to being an efficient way for sworn and civilian personnel to safely discuss law enforcement issues and cases via e-mail, e-forums and e-bulletin boards, more than 1,000 national and international “Special Interest Groups” (SIGs) allow members with a particular expertise or interest to connect with one another. These specialty groups, such as those for canine officers or bomb-detection teams, are restricted and managed by their members. Some police agencies have multiple internal SIGs, such as San Jose Police Department’s SIGs for their Metro Division, Homicide, Robbery and Assault Detectives. Other, larger, multi-agency SIGs focus on broader areas such as terrorism and gangs. LEO’s Internet portal interfaces with several other secure networks and facilitates quick access to important and useful databases, such as those run by the National Center for Missing and Exploited Children. The extensive and continuously updated list of criminal justice resources simplifies research and is augmented by LEO’s and online multimedia library of publications, documents, studies, and technical bulletins. In addition to the personal training provided by LEO representatives at locations selected by the law enforcement agency, LEO also offers a series of on-line courses designed by law enforcement experts. Connected to the FBI’s Training Academy in Quantico, Virginia and LEOKA (Law Enforcement Officers Killed and Assaulted in the Line of Duty) Training
“The on-site training and support provided by LEO has convinced us that its Virtual Command Center is the best technology available for managing critical events. Using this ‘no-cost’ software is ‘a ‘no-brainer’ for us. Virtual Command Center proved its value during Urban Shield 2009 and was a critical communications component during an exercise inject at Urban Shield 2010. ” —Donald M. Buchanan, Commander, Alameda County Sheriff’s Office
as well as with many state POST training programs, some of the popular offerings include “Officer Safety”, “Ethics”. These courses can provide immediate basic information to a new hire or refresher training for more senior professionals.
posts. Once the entries are displayed the data are easily searched and retrieved. After the exercise or incident is complete, LEO prepares a CD of the events as a permanent record for the participating agencies.
LEO and the Urban Shield Field Training Exercise (FTX)
Each LEO training session is tailored to an agency’s specific needs and time available. In-person training, delivered to groups or classes of any size, is best delivered in an office or classroom setting with direct or wireless internet access. LEO training is provided by former FBI agents or by LEO specialists from the FBI’s Criminal Justice Information Services Division. At various times, LEO presentations are conducted in conjunction with presentations about other FBI systems such as the N-DEX (National Data Exchange); e-Guardian (conduit to the FBI’s internal Guardian system for Suspicious Activity Reports); and LEOKA. Access to LEO is restricted to vetted members who are duly employed by a law enforcement, criminal justice or public safety agency or department whose position requires secure communications with other agencies via the Internet. Potential members can download an application form from the LEO website or obtain one from their regional LEO representative. To familiarize themselves with all of LEO’s resources, new members can request LEO training for their departments, attend a local LEO presentation, or utilize the on-line tutorial on the LEO portal. As public safety budgets continue to remain at past levels, or decline, California’s law enforcement leaders can benefit by taking advantage of the no-cost services and training provided by LEO. Additional information is available online at www.leo.gov. Training and support can be arranged by contacting the LEO Program Management Office at the FBI’s Criminal Justice Information Services Division, or through direct contact with California’s LEO representative, James M. Sheehan, at James.M.Sheehan@leo.gov. r
The Alameda County Sheriff’s Office began using LEO’s Virtual Command Center in 2009 to support Urban Shield—a unique, extensive and complex series of tactical exercises that are part of the nation’s Urban Area Security Initiative (UASI). In the 2010 FTX, over 138 law enforcement agencies, fire departments, emergency medical providers, explosive ordinance disposal teams, emergency management units and other local, state, federal and international public safety organization participated as a means of strengthening their preparedness to respond to threats or domestic terrorist attacks, major disasters and other emergencies. The Urban Shield exercises test the ability of 27 special weapons and tactics (SWAT) teams from the San Francisco Bay Area Region to plan and execute hastily organized support and rescue missions. Urban Shield challenges the skills and physical capabilities of the teams against Tier One critical infrastructure sites, high value targets and problem areas within the greater San Francisco Bay area. The 48-hour non-stop endurance tests create opportunities for teams to evaluate their abilities in addressing real life scenarios that involve emerging and future threats. LEO’s Virtual Command Center bolsters coordination among the participating agencies by providing a secure, encrypted Internet-based environment that allows information to be shared among them. This situational awareness system benefits Urban Shield by displaying all significant incidents simultaneously on an “events board” in the Joint Operations Command Center (JOCC) and in multiple mobile area command
LEO Training: The Basics
Kathleen McChesney, Pd.D., is CEO of Kinsale Management Consulting, a firm that specializes in organizational problem solving. McChesney was the Special Agent in Charge/Assistant Director of the FBI Training Academy in Quantico, Virginia. A co-author of the book, Pick Up Your Own Brass: Leadership the FBI Way, McChesney can be reached at kathleenkinsale@msn.com.
California Peace Officer | Fall 2011 | 15
past presidents
A Look Back at CPOA’s Past Presidents
Richard (Dick) Moore 1987-1988 CPOA President By Sal Rosano
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ichard began his law enforcement career in 1965 as a reserve police officer for the Atherton Police Department. In 1967, he became a sworn police officer and rose through the ranks of sergeant & lieutenant, and ultimately appointed chief of police for that department in 1976. He served in that capacity until 1988, when he took on the dual roles of both chief of police and city manager until his retirement in 1993. Dick Moore is a graduate of the National FBI Academy, appointed to the POST Commission, has both bachelor and master degrees in public administration, has taught at junior college and graduate programs and was on the IACP’s membership and election committees. He received a Police Foundation Fellowship in 1987and was awarded life time membership status by PORAC for his work with the California Peace Officers’ Memorial Foundation.
Service to CPOA
Sal Rosano, retired Chief of Police of Santa Rosa Police Department, was the CPOA president from 1984-1985. He is actively gathering CPOA historical information. If you would like to contribute, contact Sal at salrosano@aol.com.
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Chief Moore joined CPOA in 1976 and became a member of the membership committee and later chaired the small law enforcement agencies committee. He was then elected as fourth vice president in 1983 and served through the chairs until he was elected president in 1987 at the annual conference in San Diego. Following his election, he assisted in the formation of a task force that led to enhancing middle management involvement throughout our association and, more importantly, to the formation of CPOA’s membership into our existing regionalization approach for improving communications and training, with the purpose of bringing CPOA to localized areas throughout the state. In addition to these activities, he started an award to honor those members who had proven to assist in developing CPOA as a leader in law enforcement, which was named the Mickey Rainey Award and presented the first of those awards to Martin Mayer.
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During his presidency, he was appointed by Governor George Deukmejian to the newly created California Police Officers’ Memorial Commission, whose role was to build an appropriate monument on the State Capital grounds in Sacramento to honor all those officers who were killed in the line of duty while serving in California. Richard was elected president of this commission, a position he held for five years through its transition into the present day California Peace Officers’ Memorial Foundation. He continues to serve the Foundation as its finance committee chairperson, and now after 24 years of service to the Foundation, he takes great pride of CPOA’s involvement which allowed him to honor our fallen heroes and assist those survivors left behind.
Accomplishments Following this Tenure as CPOA’s President Following his term of office with CPOA, Chief Moore continued his career until his retirement in 1993. In that same year, he accepted a position as administrative service manager for the Bechtel Corporation at its San Francisco headquarters. With work now behind him, he enjoys retirement and spoiling his four grandchildren, and still has time to volunteer to serve on the County Grand Jury, Civil Service Commission, his local Park and Recreation Commission, and his long-time commitment to the California Peace Officers’ Memorial Foundation. He recently wrote an article for our April 2011 issue on the Annual Peace Officers’ Memorial Services in Sacramento, in which he provided a historical involvement of CPOA’s in the formation of this important event. In 1995, Chief Moore was the recipient of the CPOA’s Mickey Rainey Award for his work with the California Peace Officers’ Memorial Foundation by then President Morey Hannigan. r
Virtual Reality Training in Law Enforcement By Rick Braziel and Mickey Bennett History Virtual Reality (VR) technology goes beyond traditional Web pages and allows users to operate in three dimensions of space, simulated within the computer. VR is part of what is known as Web 2.0, a second-generation method of using Web technology to create communities, or social networks, where instead of passively viewing content, each user can dynamically create, modify, and share Web content. Thus, Web 2.0 technology allows users to collaborate and create self-organizing communities that can; 1) increase the value and power of peer relationships; and 2) simultaneously disrupt traditional, realworld methods for hierarchical control over information flow.1 Early examples of 2-D Web 2.0 social network communities include YouTube, LinkedIn, and Wikipedia. Many businesses now use different 2-D Web 2.0 tools to accelerate innovation, and several large corporations have established a simulated presence inside commercial 3-D VR worlds to expand real-world sales. According to Linden Lab (the founder of VR Second Life), more than 300 hundred colleges and universities have set up their own presence in VR environments2. Modeling and computer simulation have traditionally been used to train military pilots and tank crews. In many cases, the trainee steps into a simulator device, which is surrounded by screens that generate a 3-D image completely controlled by high-powered, computerized artificial intelligence. New VR tools go beyond many traditional limitations and now allow multiple participants to freely interact with each other in similar 3-D computerized environments. In many cases,
computer networking capabilities have dramatically increased to the point where users can now run complex 3-D VR simulations in the field using a laptop computer connected to the Internet. VR technology and the Internet allow large numbers of personnel (e.g., military units, first responders, civilians, and medical personnel) to interact in a simulated face-to-face environment, providing a training experience that is increasingly effective, but at a much lower cost than would be required for assembling these personnel for a real-life, face-to-face training exercise.3 Virtual Reality technology offers an effective and economically efficient tool for training military personnel to better deal with dynamic or potentially dangerous situations. It is timely and appropriate that we determine whether and how effective this technology can be used in the law enforcement environment. VR participants use self-designed computer images, called avatars, which look and act like real people. Some avatars can be programmed to perform specific tasks and follow specific scripts like any computer game. Other avatars must be operated or controlled by individuals. The people behind the computerized avatars heighten the reality of the training environment. They operate in virtual world environments that can have almost any combination of simulated characteristics—a busy U.S. border crossing checkpoint or a BART tunnel in San Francisco under chemical attack by terrorists. The resulting interactions can be unpredictable and can seem highly realistic to the individual operators involved. Some avatars can be used to simulate local citizens and, when operatedonbypage real-life continued 18 people, can demonstrate continued on page 18 California Peace Officer | Fall 2011 | 17
VIRTUAL REALITY TRAINING continued from page 17 culturally correct gestures, show facial expressions, and communicate emotions, which trainees must interpret correctly during these virtual world encounters.
Research, Test, and Evaluation The question is not whether VR social networking sites can provide training, but rather how effective is the training and does the training produce the desired results. To determine whether VR training is effective in a law enforcement environment, the Northern California Regional Public Safety Training Authority utilizing a Department of Justice-NIJ grant will compare results from traditional classroom and physical simulation facilities to VR classrooms and VR simulation sites. The comparison will include surveys, interviews, content analysis, observations, and reflective journals.
Avatar-to-Avatar Relationships Avatars formally communicate by three methods; 1) voice, 2) general area display texting, and 3) avatar to avatar instant messaging. 1) The voice is created by using computer attached headsets and microphones. The voice is transmitted a limited distance by the speaking avatar. This duplicates the abilities of a person to speak in a large area. If a listening avatar moves too far away from a speaking avatar, the volume is reduced. 2) General area display texting allows written communication to all avatars. The text is typed into a specific box and when activated, the text is temporarily posted on all avatars’
Self-contained unit that Mounts Anywhere Green and Red Status LEDs Low 3-Milliamp standby current Programmable delay from 15 min to 16 hours Optional direct-ignition sensing (recommended for emergency vehicles apps) Low Voltage Protection (Turns off when system voltage falls below 10.5-Volts for 15-Seconds) 16.5-Volt Over Voltage Protection 5 second test mode (all switches off) Two year warranty
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computer screen for all to see. The text can be retained for review many days after the training has concluded or permanently retained in an avatar’s diary. 3) Instant messaging allows avatars to have private conversations with other in the same area. You could say this is like students passing notes in class.
Other Communications Information can be presented to avatars by PowerPoint, video, robot avatars, web sites, YouTube, etc. With the exception of touch and smell, if it can be done in a classroom it can be replicated in VR.
Current Deficiencies Current technology prevents VR from providing an acceptable presentation of touch, smell and students subtle body language. Subtle body movement or body language may be available to SL within a year or two. Research is currently being conducted to determine if facial recognition software can be used to transfer a student’s body language to their avatar. Smell and touch replication may take a little longer.
Prediction of Classroom Replacement Virtual reality training programs will never completely replace actual experience. Educators have been searching for processes and systems to replace experience as the primary learning tool for hundreds of years. A virtual reality system will be able to replace some classroom activities and processes. It will be the responsibility of the
law enforcement community to determine when to use this new training tool to its maximum. r (Endnotes) 1 Don Tapscott and Anthony Williams, Wikinomics, Penguin Group, New York, 2006. 2 Retrieved from: http://secondlife.com/destinations/ learning 3 Kathleen Hickey, Virtual training gets real, Government Computer News, November 19, 2007, pg. 16
Rick Braziel was sworn in as the Sacramento Police Department’s 43rd Chief of Police on January 9, 2008. He has been a member of the Sacramento Police Department since 1979. Chief Braziel’s prior assignments include Deputy Chief of the offices of operations, investigations, technical services, and homeland security and emergency services. He received his Bachelor of Arts and Master of Arts Degrees in Communication from California State University, Sacramento. In 2006, Chief Braziel received a Master of Arts in Security Studies from the U.S. Naval Postgraduate School. He is graduate and class spokesperson of the P.O.S.T. Command College; and a graduate of the Police Executive Research Forum’s (P.E.R.F.) Senior Management Institute for Police. Chief Braziel has received the Silver Medal of Valor in 1988; Distinguished Service Award in 2001; and a Unit Citation in 2002. He has been an active member of CPOA since 1986, serving on the COPSWEST and Training Committees, Board of Directors and the Executive Committee. Mickey Bennett has more than 45 years of experience in law enforcement, vocational education, the accreditation of law enforcement training programs, as a tenured college professor, and as a college and university training program management. He is currently the Director of Training for a Department of Homeland Security (DHS) National Fusion Center Training Grant, and a Department of Justice, National Institute of Justice research grant. He brings to this position the experience of developing more than 100 vocational training programs, and the development of Bachelors and Masters Degrees in Emergency Services Administration. As a manager for the California Commission on Peace Officer Standards and Training (POST), he coordinated all 38 Basic Peace Officer Academies within the state that includes public safety agencies, colleges, and private section organizations. He serviced with the Long Beach Police Department (Calif.), Los Alamitos Police Department (Calif.) and the 82nd Airborne Division, Military Police Company.
Is the Supervisory Leadership Institute for you? By Jason Kravetz
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Lieutenant Jason Kravetz began his law enforcement career with the Los Angeles County Sheriff’s Department in 1989. He currently serves at the Support Services/Investigations Division Commander for the Laguna Beach Police Department. He has been a Facilitator for the Sherman Block Supervisory Leadership Institute since 2006 and graduated from Class 128 in 2001. He can be reached at jkravetz@lagunabeachcity.net.
o you have walked the hallowed halls of your organization and heard about this program for many years; having wondered if it is something that could benefit you in the long run, or was it simply a way to get away from work for an extended period of time? If you are looking for that exotic get away, you might skip this article and move to the next page. Still with me? Curious what the Sherman Block Supervisory Leadership Institute (SLI) is all about? Then you are seriously taking the first step in an exploratory way of looking forward and finding a contemporary way of examining leadership through the lens of your peers and yourself. It has often been said that “imitation is the truest form of flattery.” If this is true, then SLI has been a much flattered program throughout the country. Members of organizations from across the United States have asked to attend the prestigious program, while others have waited on long lists for their turn to participate. What does this say about the program? They must be doing something right! The Institute started 23 years ago, when a group of law enforcement professionals and educators came together and promoted a way to deliver a leadership program to first line supervisors in California. Many months were spent piecing together a contemporary curriculum, which came to include several books, case studies and numerous other training materials. In the end, it developed into what many have described as; “a class that not only changed my life at work, it also improved my life at home with my family and friends.” The Institute recently completed a curriculum review, which validated a vast majority of the contemporary concepts while also offering new features. The goal is to make the program as cutting edge as possible while continuing to ensure that the concepts are not compromised. A lot has changed since the original offering of Class 1 in 1988, but the nuts and bolts of the Leadership Institute continue to this day. Currently the Supervisory Leadership Institute contains 192 hours of curriculum spread across eight months (three days per month). Students are tasked with spending a great deal of their off time reading, studying and preparing projects. It is not a course to be taken lightly, but one that offers reciprocal demands and benefits. During these eight months, students are exposed to timely issues and timeless theories about leadership. They engage in spirited dialogues on topics such as the code of silence, principle versus preference and whether
a sergeant is acting according to their values or department policy. The SLI program also includes interactive presentations from people who have actually lived through stressful experiences. These speakers discuss how they used their leadership skills and abilities in order to survive. On some occasions, they were rescuing themselves from impending leadership doom. During session six, the classes visit the Museum of Tolerance in Los Angeles. This is definitely an eye-opening visit and one that is much different from what the general public is exposed to. Through a specially designed program, POST has teamed with the museum staff in order to specifically write and incorporate some of the SLI leadership principles and tenets into the diverse museum program. Two days are spent inside the museum, touring new exhibits, while also engaging in dialogue with fellow classmates and members of the speaker’s bureau. The program concludes in session eight when the students each present their specially constructed Adaptive Leadership Projects to their classmates. The Adaptive Leadership Project takes the entire eight months to complete. The end product is something that can be taken back to the student’s respective agencies for implementation. As the POST website states, “The Sherman Block Supervisory Leadership Institute is a program designed to stimulate personal growth, leadership, and ethical decision-making in California law enforcement front line supervisors.” Laguna Beach Police Chief Paul Workman added that, “the Institute has always reinforced the ethics and values I expect from a member of this supervisory team.”
Why should I attend? This isn’t a class for the faint hearted. You will be expected to work hard and complete all written and reading assignments. An application isn’t always a guarantee for admittance either. In order to apply for the prestigious program, one must meet these basic criterion; currently serving as a full-time supervisory peace officer (generally at the Sergeant’s level), completion of the POST Supervisory Course or possession of a Supervisory Certificate; along with two years of Supervisory experience, and agreement to remain in law enforcement at least five years from graduation. In return, the Institute promises to offer you the best learning environment possible. The goal is to have you continued on page 25
California Peace Officer | Fall 2011 | 19
2011 - 2012 CPOA Education Calendar Find registration options and detailed information online at www.cpoa.org. Preregistration and payment is required in full to guarantee your seat in these courses. Canine Program Management Registration fee: $393 POST Plan III Dates & Locations: Mar. 21-23, 2012
Simi Valley
Pitchess Motion Registration fee: $190 POST Plan III - 5.5 MCLE credit Dates & Locations: Oct. 26, 2011 Nov. 30, 2011 Dec. 13, 2011 Jan. 25, 2012 Feb. 15, 2012
Monterey Sacramento Fontana Walnut Creek Seal Beach
Officer Involved Shootings: Supervisory and Management Responsibilities Registration fee: $226 POST Plan III - 15 MCLE credit Dates & Locations: Oct. 27-28, 2011
Seal Beach
Nov. 3-4, 2011 Jan. 11-12, 2012 Jan. 26-27, 2012 Feb. 1-2, 2012 Mar. 8-9, 2012
Ontario Fresno Signal Hill Sacramento Carlsbad
Mar. 22-23, 2012 Dates TBA, 2012
Walnut Creek Anaheim
Promotions Panel Registration fee: Free to CPOA members & $49 for non-members No POST certification *promotion to sergeant class
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Dates & Locations:
Dates & Locations: Nov. 16, 2011 Walnut Creek* Dates TBA San Bernardino Co.
Jan. 12-13, 2012 Sacramento Feb. 22-23, 2012 San Bernardino Mar. 8 - 9, 2012 Seal Beach
Peace Officer’s Bill of Rights (POBR) Registration fee: $125 POST Plan III - 6.25 MCLE credit
2012 Legislative Update Registration fee: $80 POST Plan III - 4 MCLE credit
Dates & Locations: Jan. 20, 2012 Seal Beach Feb. 28, 2012 Sacramento Dates TBA, 2012 Irvine
Public Records Act Registration fee: $250 POST Plan III - 15 MCLE credit Dates & Locations: Nov. 3-4, 2011 Nov. 16-17, 2011 Dec. 1-2, 2011 Jan. 19-20, 2012 Feb. 23-24, 2012 Mar. 1-2, 2012 Apr. 19-20, 2012 Apr. 26-27, 2012 Dates TBA, 2012
Seal Beach Corona W. Sacramento Fresno Monterey Stockton Signal Hill Walnut Creek Irvine
Please forward this flyer to your colleagues and neighboring agencies. www.cpoa.org
Legal Update Reg. Discovery, Personnel and Civil Liability Registration fee: $254 POST Plan III - 11 MCLE credit
555 Capitol Mall, Suite 1495
* class time is 1 pm to 5 pm
Dates & Locations: Nov. 29, 2011 Nov. 30, 2011 Dec. 1, 2011 Dec. 2, 2011 Dec. 2, 2011 Dec. 6, 2011 Dec. 7, 2011 Dec. 8, 2011 Dec. 9, 2011 Dec. 9, 2011 Dec. 13, 2011 Dec. 15, 2011 Dec. 15, 2011 Dec. 20, 2011
Walnut Creek Petaluma San Mateo Westminster Corona* Simi Valley Escondido Torrance Irvine Irvine* Fresno Lodi Sacramento* Redding
Leadership Training Day Registration fee: $135 8 hours of POST CPT credit Dates & Locations: Nov. 7, 2011
Sacramento, CA 95814
P
916-263-0541
Ontario
F
916-263-6090
November 8–9, 2011
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California Peace Officer | Fall 2011 | 21
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| Fall 2011 | California Peace Officer
legal service program news
Discipline Settlement Agreements on Unsteady Ground By Jeffrey M. Schaff and Jeffrey R. A. Edwards, Esq.
I Apply online at
www.cpoa.org for CPOA’s Legal Service Program.
Jeffrey M. Schaff and Jeffrey R. A. Edwards are associate attorneys in the Labor Department of Mastagni, Holstedt, Amick, Miller and Johnsen. Mr. Schaff represents public safety officers against disciplinary actions and criminal prosecutions. Mr. Edwards’ focus is complex civil litigation concerning public safety professionals.
n Ferguson v. City of Cathedral City (2011) Cal.Rptr.3d 2011 WL 2582134, the Fourth District Court of Appeal upheld the termination of a police officer after the Department agreed to settle his discipline case for a 160-hour suspension. The Court’s decision relied on a letter sent by the officer’s attorney declaring the settlement “null and void.” A Southern California police officer was arrested and charged with soliciting a prostitute. The Department proposed termination but at the employee’s Skelly hearing the parties reached a separation agreement. The terms of the agreement were the employee would serve a 160-hour suspension and would waive his right to assert an administrative appeal in exchange for the City rescinding his discharge. The agreement also included a provision stating the employee would resign if he was convicted of violating certain Penal Code sections. The officer later heard the Department had been contacting the District Attorney’s office about his criminal case. As a result, his lawyer sent a letter to the Department, which read in part: “[I]t has come to our attention that [the] Police Department has been in contact with the San Bernardino District Attorney’s office. This certainly gives the appearance that there was and has been an attempt to influence the DA’s decision as to how the office would prosecute this case if at all .... [d]ue to the departments [sic] efforts to undermine [the officer’s] agreement he now considers the agreement including the condition that he resign in the event he is convicted of or pleads guilty to any related offense null and void.” (emphasis added). The Court found the letter was an “unequivocal repudiation of the separation agreement,” and
therefore the officer was in anticipatory breach of the agreement. Under the doctrine of anticipatory breach, when one party to a contract repudiates the contract, the other party has two options. First, the City could have ignored the letter and waited until the officer failed to perform his side of the bargain. The City’s second option was to terminate the contract. The City chose to treat the letter as a repudiation of the agreement, thereby terminating the separation agreement. It then announced it was proceeding with the discipline case and terminating the officer. The officer, through a new attorney, attempted to argued the letter was not a repudiation of the settlement and attempted to withdraw the letter. The Court, however, rejected the officer’s “11th-hour argument” and upheld the termination, noting the agreement was void once the City’s chose to treat the letter as a repudiation of the agreement. The Court also noted that the City did not deprive the officer Due Process by failing to hold a second Skelly meeting after choosing to proceed with termination. Although the City attempted to schedule a second Skelly, the Court stated “Due Process is a flexible concept...a second Skelly meeting was not required.” This case is a cautionary tale for all parties to a settlement agreement. Management in particular should be mindful of the language used in a settlement agreement in order to avoid ambiguities subject to multiple interpretations. Likewise, conduct contrary to the settlement agreement can be misconstrued resulting in repudiation. Even the appearance of repudiation may result in the contract being declared null and void. r
California Peace Officer | Fall 2011 | 23
general counsel’s message
Due Process Requirements for Public Employees Reinforced by Ninth Circuit Decisions By Martin J. Mayer
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he need to continuously train managers and supervisors on rights of employees has been recently reinforced by the issuance of two cases from the Ninth Circuit U.S. Court of Appeals dealing with public sector employees and due process rights. In each instance, the issue focused on the constitutional property interest held by public employees who hold permanent positions. One case deals with the right of the employee to have a hearing before discipline can be imposed and, in the second case, the issue is the right to due process after discipline is imposed.
Pre-Disciplinary Due Process
Martin J. Mayer is a name partner with the public sector law firm of Jones & Mayer and has served as General Counsel to CPOA for the past 25 years.
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On August 3, 2011, the Court ruled, in Walls v. Central Contra Costa Transit Authority (CCCTA), 2011 DAR 11681, that public employees who have a property interest in their jobs can be dismissed only for good cause. The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution protects a public employee’s right to a property interest in employment and the California Constitution also provides a similar protection. The California Supreme Court, in Skelly v. State Personnel Bd., 15 Cal. 3d 194 (1975), stated that “when a person has a legally enforceable right to receive a government benefit, provided certain facts exist, this right constitutes a property interest protected by due process.” Hence, under the court’s interpretation, the job is actually characterized as the employee’s property, if the employee can only be disciplined for good cause. One would have such a “legally enforceable right” when, for example, he or she has successfully completed any required probationary period. However, the employee would not have such a “legally enforceable right” if he or she served at the will or pleasure of the appointing authority. As the Walls court stated, “[i]n California, at-will employees are those who can be fired with or without cause, subject only to limits imposed by public policy.” Walls had been a bus driver for CCCTA and was terminated for cause. He was reinstated on March 2, 2006, pursuant to a settlement which included what is known as a Last Chance Agreement. The day after entering into the settlement, March 3, 2006, he had an unexcused absence from work, which violated the Agreement and
| Fall 2011 | California Peace Officer
he was terminated based on his breach of the Agreement. He was not afforded a pre-termination hearing and CCCTA claimed he waived his due process rights when he signed the Agreement. The Court of Appeal held that the Last Chance Agreement did not change his status to “at-will” and, therefore, “he remained a public employee who could be fired only for cause, that is, an employee with a property interest in his continued employment.” Furthermore, held the Court, “a public employee with a property interest in his continued employment must be provided with oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story. [T]he root of this requirement is that an individual have the opportunity to be heard before he is deprived of his property interest.” (Emphasis in original.) Rights can be waived and an employee can give up his or her right to a pre-disciplinary hearing but it must be a knowing and intelligent waiver. The Last Chance Agreement contained a waiver of a post-termination hearing but, said the Court, it “contains no express waiver of a pre-termination hearing or of the right to due process pursuant to a termination decision.”
Post Disciplinary Due Process Shortly thereafter, on August 12, 2011, the Ninth Circuit ruled that a public employer must provide a postsuspension hearing to employees, even if they resigned or retired before any such hearing was provided. In Association for Los Angeles Deputy Sheriffs (ALADS) v. County of Los Angeles, the Court found that LA County had, in fact, adopted a policy of denying post disciplinary hearings to employees who resigned after discipline was imposed but before a hearing was completed. In ALADS v. LA County, four deputies were suspended without pay following their being formally charged with multiple felonies. Pursuant to a decision from the United States Supreme Court, Gilbert v. Homar, 520 U.S. 924 (1997), “employees who occupy positions of great public trust and high public visibility, such as police officers, can be temporarily suspended without any pre-suspension due process if felony charges are filed against them.”
IS THE SUPERVISORY LEADERSHIP INSTITUTE FOR YOU? continued from page 19
The Court goes on to point out that, “the constitutionality of a suspension without any pre-suspension procedural due process depends on the availability of a post-suspension hearing.” (Emphasis in original.) “[D]ue process requires that an employee suspended solely on the basis that felony charges were filed against him must be granted a post-suspension hearing.” Ultimately, the criminal charges against two of the deputies were dropped and the other two deputies were acquitted at trial. All four were reinstated but they continued to demand hearing before the Commission to challenge the propriety of their suspensions. Many months later, all four were terminated based on violations of personnel rules arising out of the underlying criminal charges. They all demanded hearings on the terminations and those hearings were consolidated with the still pending post-suspension hearings. Prior to the hearing taking place, two of the deputies, Wilkinson and Sherr, were granted disability retirements retroactively to the day after their discharge. That effectively changed their status from terminated employees to retirees. The Commission denied them a hearing on the basis that the Commission had no jurisdiction over appeals of retired employees. The trial court had held that the Civil Service Commission, in fact, lacked jurisdiction to hear cases of retired employees. Nonetheless, the Court of Appeal held that fact “does not remove the County’s constitutional obligation to provide some form of post-suspension hearing.” The Court stated that “the issue is not whether the Commission had jurisdiction, but whether Wilkinson and Sherr received sufficient post-suspension (due) process to satisfy constitutional requirements.” In addition, the Court found that the denial of such due process was the result of the County’s policy or custom and, therefore, violated Monell v. Department of Social Services, 436 U.S. 658 (1978). However, based on the case of Zuniga v. Los Angeles County Civil Service Commission, 40 Cal. Rptr. 3d 863 (Ct.App. 2006), “a reasonable official would have believed that denying jurisdiction over the appeals of retired deputies was lawful. We agree with the district court as to the individually named Civil Service Commissioners…,” that qualified immunity applied.” However, said the Court, “Zuniga does not protect the County Supervisors and the Sheriff…” from such immunity. Since the County took from
the Commission the authority to hear appeals by retired employees, “[t]he onus would be on County officials to address this constitutional defect, for example by providing an alternative hearing for the retired employees.”
Conclusion The learning process never ends and it is imperative to continuously stay current on court decisions. It is incumbent on employers to insure that their managers and supervisors are adequately, and continuously, trained on all due process protections afforded the public employee. Litigation is far too expensive a way to learn those lessons. Although the due process rights of public employees are constantly being raised in litigation, these two cases present arguments which are somewhat different that those raised in the past. The concept of “Last Chance Agreements” is frequently misunderstood—it does not mean that new charges of misconduct need not be proven by the employer, unless the employee explicitly waives his or her right to a post-termination hearing. Even then, one should be aware that such a waiver might be subject to challenge. As the Court stated, in Wells, although the Agreement said that “non compliance with the stipulations [of the Last Chance Agreement] will result in your immediate and final termination,” that language may be “insufficient to overcome the presumption against waiver of constitutional rights.” In any event, said the Court, a waiver of posttermination due process, does not mean he waived his rights to pre-termination due process. A “waiver of a constitutional right must be knowing and voluntary.” In both cases, cited above, the Ninth Circuit emphasizes the protections afforded permanent public employees. In ALADS v. LA County, the Court states that “[i]t is not disputed by Defendants that Plaintiffs have a constitutionally protected property interest in continued employment. Plaintiffs may not be deprived of that employment without due process. Temporary suspensions, like terminations, are deprivations of employment that can implicate the protections of due process.” It is not just termination of employment which will trigger due process protections— it is the taking of any property, including money, due to a suspension without pay. r
complete the program with a much greater understanding of yourself and your organization. Your growth is paramount! Along the way, the journey is guided by the facilitation team and fellow classmates. Ask any graduate, and they can still tell you about their specific experiences with their classes. Each session is filled with 24 students who walk into the room on day one with no previous history with each other. At the conclusion of the program, they leave with 24 life-long friends. All attempts are made to make the classes as diverse as possible by balancing the ratio of large and small agencies, and northern and southern California police organizations. Classes are taught in various locations throughout the state. In an effort to continuously make it available to those who have travel issues, the locations do fluctuate from time to time. Currently the courses are offered in Sacramento, San Diego and Newport Beach. As with the varying locations, the number of yearly offerings can also fluctuate. The goal is to always offer 18 classes per fiscal year, but this can change based upon budgetary issues. The classes are usually scheduled well in advance. Most recently, POST has already begun filling seats for Class 316, which begins in May 2012.
Facilitation Team Your SLI facilitation team is as diverse as the classes themselves. Several of the facilitators have strong leadership roles in their own organizations. They bring a vast amount of experience to the classroom and work in tandem with another tenured professional. The facilitators are required to attend quarterly training in order to hone their skills and ensure that the curriculum is being delivered uniformly across the State. They are guided by a facilitation coach who monitors the skills and abilities of each SLI facilitator. These instructors put in a lot of time and effort themselves, in order to become part of the Institute. POST always ensures that they are only hiring the best and brightest for the program while ensuring they are receiving a 110 percent commitment from all members.
Still wondering if this is for you? Up until now, I’ve said it is hard to get accepted and you are expected to put in a lot of work. Not much of a selling feature! This is because the benefits this course can provide far outweigh anything else you will receive in your career. The tools given to you will do nothing but make you a successful supervisor, friend and leader in your family. The truth is, can you afford not to attend? For additional information, go to post.ca.gov. r
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resource guide COMMUNICATION SYSTEMS Nixle, LLC (877) 649-5373 • www.nixle.com Please see our ad on page...........................11 SHORTEL Please see our ad on page.............................2 CREDIT UNION San Francisco Police Credit Union (415) 242-6488 • www.sfpcu.org Please see our ad on page...........................22 CUSTOM DUI TRAILERS/MOBILE COMMAND CENTER TRAILERS TPD Trailers, Inc. (916) 381-0532 • www.tpdttrailers.com Please see our ad on page...........................27 DEPENDABLE VEHICLE POWER MANAGEMENT Copeland Engineering, Inc. (619) 575-4600 • www.cope.eng.com Please see our ad on page.................. 13 & 18
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| Fall 2011 | California Peace Officer
DRIVER LICENSE READERS E-Seek, Inc. (714) 545-3316 • www.e-seek.com Please see our ad on page...........................26
UNIVERSITY American Military University (877) 777-9081 • www.PublicSafetyatAMU.com Please see our ad on page..............Back Cover
LEGAL SERVICES Mastagni, Holstedt, Amick, Miller, Johnsen (916) 446-4692 • www.mastagni.com Please see our ad on page...........................22
AD INDEX American Military University...........Back Cover
POLICE FLEET AND ACCESSORIES Folsom Lake Dodge (916) 355-9999 • www.folsomdodge.com Please see our ad on page.............................7 SIMULATION TRAINING FAAC Inc. (734) 761-5836 • www.FAAC.com Please see our ad on page...........................12 TRAFFIC ENFORCEMENT Laser Technology (303) 649-1000 • www.lasertech.com Please see our ad on page...........................27
Copeland Engineering, Inc.................. 13 & 18 E-Seek, Inc..................................................26 FAAC Inc.....................................................12 Folsom Lake Dodge.......................................7 Laser Technology.........................................27 Mastagni, Holstedt, Amick, Miller, Johnsen...........................................22 Nixle, LLC...................................................11 San Francisco Police Credit Union...............22 SHORTEL......................................................2 TPD Trailers, Inc..........................................27
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California Peace Officer | Fall 2011 | 27