San Francisco Police Department : August 15, 2012

AUGUST 15, 2012 REGULAR MEETING

The Police Commission of the City and County of San Francisco met in Room 400, City Hall, #1 Dr. Carlton B. Goodlett Place, San Francisco, at 5:45 p.m.

PRESENT: Commissioners Marshall, Chan, Kingsley, Turman, Loftus,

ABSENT: Commissioners Mazzucco, DeJesus

PUBLIC COMMENT

None

REPORTS AND ANNOUNCEMENTS

a. Chief’s Report

- Review of recent activities

Chief Suhr updated the Commission on recent activities in the Department including National Night Out, visit of the Philippine delegates, closing of the Summer Internship Program, Outside Lands concert, and recent officer-involved shooting. The Chief also talked about recent article in regards to statistical information on arrests. The Chief stated that a presentation will be presented on September 5

th.

b. OCC Director’s Report

- Review of recent activities

- Presentation of the 2

nd Quarter Statistical Report

- Presentation of the Monthly Comprehensive Statistical Reports & Companion Reports for the periods January 1, 2012 through July 31, 2012 & January 1, 2011 through July 31, 2011 & Report on Adjudication of Sustained Complaints

- Presentation of the Monthly Comprehensive Statistical Reports for the Periods January 1, 2012 through June 30, 2012 and January 1, 2011 through June 30, 2011 & Report on Adjudication of Sustain Complaints

Director Hicks introduced Amy Young, OCC Intern, from USF.

Director Hicks presented the OCC’s Comprehensive Statistical Reports and then went on to present the 2

nd Quarter Statistical Report.

c. Commission Reports

- Commission President’s Report

- Commissioners’ Reports

No report.

Commissioner Kingsley reported that she went to the Central Station venue for National Night Out.

Commissioner Chan reported that she went to the Taraval Station venue for National Night Out.

Commissioner Chan also reported that she has been receiving calls from the Asian press regarding recent newspaper article regarding arrest statistics.

d. Commission Announcements and scheduling of items identified for consideration at future Commission meetings

Inspector Monroe announced that on the 29

th of August, the Commission will meet in the Central District, Gordon J. Law Elementary School, 950 Clay Street, starting at 6 p.m.

PUBLIC COMMENT

Clyde spoke in regards to newspaper article regarding reporting of Asian and Latino arrests.

PUBLIC COMMENT ON ALL MATTER PERTAINING TO CLOSED SESSION

Taken out of order.

VOTE ON WHETHER TO HOLD CLOSED SESSION

Motion by Commissioner Marshall, second by Commissioner Chan. Approved 5-0.

CLOSED SESSION

(6:35 p.m. – 8:20 p.m.)

a. PERSONNEL EXCEPTION: Decision to return disciplinary charges filed in Case No. RMW C08-111 to the Chief’s level per disposition agreed to by the Chief and the parties

(Present: Commissioners Marshall, Chan, Kingsley, Loftus, Turman, Chief Suhr, Commander Tomioka, Deputy City Attorney Blits, Captain McEachern, Director Hicks, Inspector Monroe, Risa Tom, Attorney Fraenkel, Attorney Lassart, member involved)

Motion by Commissioner Chan to recuse Commissioner Loftus, second by Commissioner Chan. Approved 4-0.

(Taken in shorthand form by Ms. Anna Greenley, CSR., Roomian & Associates)

Put over for a later date when Commissioner DeJesus is available.

b. PUBLIC EMPLOYEE PERFORMANCE EVALUATION: Chief of Police

Review of findings and decision to return officer to duty following officer-involved shooting (OIS Case No. 12-003)

(Present: Commissioners Marshall, Chan, Kingsley, Loftus, Turman, Chief Suhr, Commander Tomioka, Captain McEachern, Deputy City Attorney Porter, Deputy City Attorney Blits, Inspector Monroe, Risa Tom, Lt. Yick, Sgt. McDonald, Sgt. Kim)

c. PUBLIC EMPLOYEE PERFORMANCE EVALUATION: Chief of Police

Review of findings and decision to return officer to duty following officer-involved shooting (OIS Case No. 12-004)

(Present: Commissioners Marshall, Chan, Kingsley, Loftus, Turman, Chief Suhr, Commander Tomioka, Deputy City Attorney Porter, Inspector Monroe, Risa Tom, Lt. Yick, Sgt. McDonald, Sgt. Kim)

d. CONFERENCE WITH LEGAL COUNSEL – Existing Litigation

Morgado vs. City and County of San Francisco, et al., San Francisco Superior Court Case No. 12-518287, filed February 16, 2012

Conference with legal counsel regarding existing litigation

(Present: Commissioners Marshall, Chan, Kingsley, Loftus, Turman, Chief Suhr, Commander Tomioka, Captain McEachern, Director Hicks, Deputy City Attorney Porter, Deputy City Attorney Blits, Attorney Fraenkel, Inspector Monroe, Risa Tom)

c. PERSONNEL EXCEPTION: Status and calendaring of pending disciplinary cases

(Present: Commissioners Mazzucco, Marshall, Chan, Kingsley, Loftus, Deputy Chief Cashman, Commander Tomioka, Deputy City Attorney Porter, Inspector Monroe, Risa Tom)

OPEN SESSION

VOTE TO ELECT WHETHER TO DISCLOSED ANY OR ALL DISCUSSION HELD IN CLOSED SESSION

Motion by Commissioner Turman, second by Commissioner Loftus for non disclosure. Approved 5-0.

HEARING ON MOTIONS AND DISPOSITION OF DISCIPLINARY CHARGES FILED AGAINST INSPECTOR FRANK LEE (FILE NO. KMO C10-032); POSSIBLE DISCUSSION AND ACTION TO SUSTAIN OR NOT SUSTAIN DISCIPLINARY CHARGES; POSSIBLE DISCUSSION AND ACTION TO DECIDE PENALTY, IF NECESSARY

Attorney Alden appeared on behalf of the Department.

Inspector Frank Lee was present and represented himself.

HEARING ON MOTIONS AND DISPOSITION OF DISCIPLINARY CHARGES FILED AGAINST INSPECTOR FRANK LEE, STAR NO. 1907 (FILE NO. KMO C10-032)

The hearing of Inspector Frank Lee, Star No. 1907, was called it having been set for this date. I was charged in a properly verified complaint by George Gascón, former Chief of Police of the San Francisco Police Department, with violating the Rules and Procedures, as follows:

SPECIFICATION NO. 1

Repeated Failure to Serve a Search Warrant as Ordered by a Superior (a violation of Rule 10 of Department General Order 2.01 of the San Francisco Police Department);

SPECIFICATION NO. 2

Being Untruthful in the Course of an Investigation (a violation of Rule 21 of Department General Order 2.01 of the San Francisco Police Department);

SPECIFICATON NO. 3

Unprofessional Behavior and Neglect of Duty that Reflect Discredit upon the Department (a violation of Rule 9 of Department General Order 2.01 of the San Francisco Police Department);

SPECIFICATION NO. 4

Being Untruthful in the Course of an Investigation (a violation of Rule 21 of Department General Order 2.01 of the San Francisco Police Department);

SPECIFICATION NO. 5

Requesting Overtime Compensation of Two Hours for Working less than Five Minutes (a violation of Department General Order 11.01 I.B.4.b of the San Francisco Police Department).

Mr. John Alden, Attorney at Law, appeared on behalf of the Internal Affairs Division and the San Francisco Police Department.

Inspector Frank Lee appeared in person and represented himself.

The Commission took the matter under submission and the following resolution was adopted:

RESOLUTION NO. 12-46

DENIAL OF MOTIONS AND DISPOSITION OF DISCIPLINARY CHARGES FILED AGAINST INSPECTOR FRANK LEE, STAR NO. 1907 (FILE NO. KMO C10-032)

WHEREAS, on September 29, 2010, George Gascón, former Chief of Police of the San Francisco Police Department, made and served charges against Inspector Frank Lee, Star No. 1907, as follows:

GENERAL ALLEGATIONS:

(1) At all times herein mentioned Frank Lee, star number 1907, (hereinafter referred to as the "Accused") was a sworn police officer holding the rank of Inspector employed by the San Francisco Police Department (hereinafter referred to as the "Department"), and assigned to the Homicide Division, unless specifically noted otherwise. The Accused is now assigned to Southern Station.

(2) As a member of the Department, the Accused was and is responsible for knowing and obeying the rules, orders and procedures of the San Francisco Police Department.

SPECIFICATION NO. 1

Repeated Failure to Serve a Search Warrant as Ordered by a Superior (a violation of Rule 10 of Department General Order 2.01 of the San Francisco Police Department);

(3) The foregoing paragraphs are all incorporated by reference as though fully set forth herein.

(4) On or about April 17, 2009, the Accused was new to the Homicide Division, and was assigned as Lead Investigator of the murder of Mr. Norris Bennett (the "Bennett Investigation"). This was the first time in his career that the Accused was ever assigned to be the Lead Investigator of a homicide.

(5) In the course of the Bennett Investigation, the Accused determined that Mr. Alex Welsh, a journalism student, might have possessed photographic evidence of the incident. Welsh refused to produce this material to the Accused, arguing that it was the work of a journalist and therefore privileged and confidential. Two Lieutenants in the Homicide Unit felt the best way to obtain this evidence was by search warrant; the Accused disagreed, concluding that Welsh would eventually change his mind and produce the material.

(6) Another Investigator in the Homicide Division prepared a series of search warrants in the Bennett Investigation, including a search warrant for Welsh’s photographic evidence. These warrants were signed by a Judge on April 21, 2009. The Accused, however, was reluctant to serve the warrant on Mr. Welsh and therefore held the warrant, rather than serve it.

(7) The Homicide Division routinely holds "roundtable meetings" at which Investigators and their supervisors discuss each other’s cases, and make suggestions to each other about next steps in those investigations. Members of affiliated units, like the Crime Lab and the District Attorney’s Office, also attend roundtable meetings. The Accused attended such a roundtable meeting on April 24, 2009, at which meeting his work on the Bennett Investigation was discussed among the members of the Homicide Division.

(8) During the April 24, 2009 roundtable meeting, the Accused explained his reluctance to serve the warrant on Welsh. The consensus of those at the meeting was that the warrant should be served despite the Accused’s reservations. At the end of the meeting, Lieutenant Stasko, the Accused’s commanding officer, ordered him to serve the warrant on Welsh and conduct the search. So did the Homicide Division’s Acting Captain Ferrando. The Accused continued to hold the warrant, and did not serve it.

(9) By April 27, 2009, the accused had still not served the warrant. Deputy Chief David Shinn was the Deputy Chief over the Homicide Unit at that time. On April 27, 2009, Chief Shinn directed Lieutenant Stasko and Acting Captain Ferrando to again order the Accused to serve the warrant on Welsh. Acting Captain Ferrando then told the Accused that Chief Shinn had ordered him to serve the warrant immediately.

(10) Later that same day, after receiving Chief Shinn’s order, the Accused traveled to Welsh’s home, where he was supposed to serve the warrant. The Accused entered Welsh’s apartment with two other Inspectors. The Accused made contact with two of Welsh’s roommates, and began searching without serving the warrant or notifying the roommates that he was executing the warrant. These acts are in violation of the Penal Code and Department practice, both of which required the Accused to serve a copy of the warrant on the residents upon entry, and to inform them of the fact that he was conducting a search.

(11) Lt. Stasko ordered Inspector Brian Delahunty to supervise the Accused’s service of the search warrant, but Inspector Delahunty arrived shortly after the Accused had already entered the residence. When he arrived, the residents asked Delahunty if the police had a warrant, indicating that they had not already been served with the warrant as required.

(12) During the search, the Accused spoke to Welsh and his attorney over the phone, both of who objected to the search and stated that Welsh would move to suppress the evidence gathered based on Welsh’s status as a journalist. The Accused was upset by this conversation, complained to Delahunty that he had not wanted to serve the warrant in the first place, and went home.

(13) As the Accused left the scene of the search, he told Delahunty that Lt. Stasko had told him that he was working too much overtime, and therefore needed to stop working. He also claimed that Lt. Stasko and tasked Delahunty with completing the search, writing a report about the search, and booking the evidence seized. Lt. Stasko is adamant that he did not tell the Accused any such thing, and instead had explicitly instructed the Accused to write the report as training tool since this was his first assignment as Lead Investigator. Lt. Stasko states that the only task he told the Accused to give to Delahunty was to provide assistance to the Accused in booking the evidence seized.

(14) In his MCD interview in this matter, the Accused repeated his claim that Lt. Stasko had told him he was working too much overtime, and should go home without writing a report. Lt. Stasko repeated his claim in his MCD interview that the Accused falsely represented the instructions given to him by Lt. Stasko.

(15) The Accused’s failure to serve the warrant from April 24 to April 27, his failure to actually physically serve the warrant when he arrived at the scene of the search, and his failure to complete a report regarding the execution of the warrant were all violations of direct orders from his superiors. Failing to obey an order from a superior officer is a violation of Rule 10 of Department General Order 2.01, which state:

"WRITTEN ORDERS. Members shall obey all written orders, policies and procedures of the Department, and promptly obey all lawful written or verbal directives of superiors."

SPECIFICATION NO. 2

Being Untruthful in the Course of an Investigation (a violation of Rule 21 of Department General Order 2.01 of the San Francisco Police Department);

(16) The foregoing paragraphs are all incorporated by reference as though fully set forth herein.

(17) The Accused’s statements to Inspector Delahunty that Lt. Stasko told him he was working too much overtime and should go home was false. The Accused then repeated this false statement in his MCD interview. This falsehood was a violation of Rule 21 of Department General Order 2.01, which states:

"COOPERATION WITH INVESTIGATIONS. Members shall, when questioned on matters relating to their employment with the Department by a superior officer or by one designated by a superior officer, or by a member of the Office of Citizen Complaints, answer all questions truthfully and without evasion. Prior to being questioned, the member shall be advised of and accorded all his or her rights mandated by law or Memorandum of Understanding (see DGO 2.08, Peace Officers Rights)"

SPECIFICATON NO. 3

Unprofessional Behavior and Neglect of Duty that Reflect Discredit upon the Department (a violation of Rule 9 of Department General Order 2.01 of the San Francisco Police Department);

(18) The foregoing paragraphs are all incorporated by reference as though fully set forth herein.

(19) All of the Accused’s conduct above was unprofessional, particularly for an officer of his rank. Lying to a fellow Inspector about the directions provided by their Lieutenant shows disrespect for the chain of command, a lack of good moral character, and a failure to work collaboratively with others that is inconsistent with the expectations of sworn officers, especially for a member of the Accused’s rank and assignment. The Accused’s disregard for the instructions of his superior would also reflect poorly on the Department were it known to the public. That disregard also shows a willingness to place personal issues ahead of instructions from the chain of command, which in turn endangers investigations.

(20) All of these constitute neglect of duty and conduct unbecoming which subvert the order, efficiency, and discipline of the Department, and reflect discredit upon the Department. Such misconduct is a violation of Rule 9 of Department General Order 2.01, which states:

"GENERAL RULES OF CONDUCT. Any breach of peace, neglect of duty, misconduct or any conduct by an officer either within or without the state that tends to subvert the order, efficiency or discipline of the Department or reflects discredit upon the Department or any member, or is prejudicial to the efficiency and discipline of the Department, although not specifically defined or set forth in Department policies and procedures, shall be considered unofficer-like conduct subject to disciplinary action."

SPECIFICATION NO. 4

Being Untruthful in the Course of an Investigation (a violation of Rule 21 of Department General Order 2.01 of the San Francisco Police Department);

(21) The foregoing paragraphs are all incorporated by reference as though fully set forth herein.

(22) In 2008 and 2009, Lieutenant Spillane was the Commanding Officer of the night watch of the Homicide Detail. For this reason, in 2009 he directly supervised the Accused.

(23) During that time, Lieutenant Spillane recognized that some of the job functions of Inspectors in the unit needed to be completed before the usual starting time of 1600 hours, such as working with the District Attorney’s office on rebookings. He therefore maintained a policy that Inspectors who needed to start before 1600 hours could do so, provided that they ended their shift ten (10) hours after their start time. This policy allowed Inspectors to complete all their job functions without incurring overtime on a regular basis. As a result, the unit was able to complete its work in a timely fashion while still capturing a savings in overtime costs for the Department. Lieutenant Spillane explained this policy to those under his command on a regular basis, including the accused.

(24) During this same time, Lieutenant Spillane also allowed Inspectors in the unit to incur overtime if needed for a specific, articulable task. In light of the above policy relating to start times, Lieutenant Spillane ordered that all overtime had to be completed at the end of the shift, not at the beginning. The unit also used the Department’s standard overtime cards and overtime justification forms to document and audit overtime claimed.

(25) On October 7, 2009, both Lieutenant Spillane and the Accused were on duty at the Homicide Detail. Lieutenant Spillane asked the accused to explain a set of overtime cards and overtime justification forms he had previously submitted for work he claimed to have performed on September 22 and 23, 2009. These forms both reflected overtime worked at the start of two shifts, specifically, assisting a fellow Inspector with a rebooking in the afternoon, in addition to miscellaneous work on his own cases.

(26) During the October 7, 2009 conversation, Lieutenant Spillane explained to the Accused that overtime could only be taken at the end of the shift, and only if the member could explain what tasks had been completed during that time. Therefore, he instructed the Accused to re-complete the overtime cards and justification forms reflecting what work he did at the end of the shift that would justify overtime.

(27) Subsequently, the Accused re-completed the overtime cards and justification forms. Lieutenant Spillane concluded these forms reflected a very small amount of work compared to the time claimed. He discussed this matter with his Captain, who instructed Lieutenant Spillane to order the Accused to create a more detailed memorandum regarding his overtime claim.

(28) Lieutenant Spillane instructed the Accused to complete that memorandum. He also suggested to the Accused that he may wish to have the advice of a representative in completing that memorandum, as described in Department General Order 2.01, Rule 21. Inspector Delahunty of the Homicide Detail happened to be just outside the office in which Lieutenant Spillane and the Accused had this conversation, and overhead the conversation.

(29) The Accused completed the memorandum on October 8, 2009. That memorandum claimed that Lieutenant Spillane had authorized the Accused to work overtime on September 22 and 23 in advance of the start of those two shifts. The Accused submitted the memorandum to his Captain, bypassing Lieutenant Spillane.

(30) Lieutenant Spillane received the Accused’s October 8, 2009, memorandum from his Captain, and reviewed it. He concluded that the memorandum contained the following two falsehoods:

a. The Accused claimed that Lieutenant Spillane authorized his overtime on September 22 and 23 in advance. In reality, Lieutenant Spillane never authorized any overtime for the

Accused on those dates, neither in advance of that work nor after.

b. The Accused claimed that when Lieutenant Spillane instructed the Accused to complete the memorandum, the Lieutenant also described ways in which day watch Homicide Inspectors were permitted to improperly shift their work hours to justify otherwise impermissible overtime requests for routine tasks, like court appearances. In reality, Lieutenant Spillane never described such practices, nor did he talk about the day watch Inspectors. In other words, this portion of the conversation simply never occurred.

c. The Accused also claimed that he told Lieutenant Spillane that the above-noted time-shifting activities were a violation of Department policy, after which Lieutenant Spillane threatened him with discipline. In reality, Lieutenant Spillane did not describe any improper time-shifting practices, nor did he threaten discipline or any other kind of retaliation.

(31) When interviewed by the Internal Affairs Division, Inspector Delahunty confirmed that he heard the conversation between the Accused and Lieutenant Spillane which the Accused recounted in the above memorandum. Inspector Delahunty confirmed Lieutenant Spillane’s version of the conversation, and concurred that the Accused’s memorandum falsified portions of the conversation, as noted above.

(32) Several of the accused’s statements in his memorandum of October 8, 2009, describing his conversation with Lieutenant Spillane about justifying his overtime were false, as described above. The Accused then repeated this false statement in his Internal Affairs interview. This falsehood was a violation of Rule 21 of Department General Order 2.01, which states:

"COOPERATION WITH INVESTIGATIONS. Members shall, when questioned on matters relating to their employment with the Department by a superior officer or by one designated by a superior officer, or by a member of the Office of Citizen Complaints, answer all questions truthfully and without evasion. Prior to being questioned, the member shall be advised of and accorded all his or her rights mandated by law or Memorandum of Understanding (see DGO 2.08, Peace Officers Rights)."

SPECIFICATION NO. 5

Requesting Overtime Compensation of Two Hours for Working less than Five Minutes (a violation of Department General Order 11.01 I.B.4.b of the San Francisco Police Department).

(33) The foregoing paragraphs are all incorporated by reference as though fully set forth herein.

(34) On or about January 2, 2010, the Accused was transferred from the Homicide Detail to Southern Station. On or about January 15, 2010, Sergeant McEachern of the Homicide Detail called the Accused while the Accused was off duty and asked him about a statement from a witness in one of the Accused’s former homicide cases. The Accused and Sergeant McEachern both agree that the call lasted less than 5 minutes.

(35) After the above call, the accused submitted an overtime card (SFPD Form 289) claiming two hours of overtime for this short call alone.

(36) Any reasonable officer must know that submitting a two-hour overtime card for a 5-minute call is a violation of DGO 11.01 I.B.4.b, which reads:

"Compensation Requests (SFPD 289) must reflect the actual date and number of overtime hours rounded to the nearest half hour as follows:

•

Under 15 minutes = no compensation

•

15-44 minutes = one half hour

•

45-114 minutes = one hour

STATUTE OF LIMITATIONS:

(37) Specifications One through Three of these First Amended Specifications were previously filed and served in a timely fashion, as reflected in the records of the Police Commission.

(38) The false statements underlying Specification Four were first committed on October 8, 2009, when the Accused drafted the memorandum described in that Specification. The falsity of those statements was then discovered and reported by Lieutenant Spillane on October 13, 2009.

(39) The false time card described in Specification Five was submitted by the Accused on February 20, 2010.

PENALTIES:

(40) If the Specifications are sustained after trial by the Police Commission, the penalty Is up to and including termination.

(41) It is, in fact, the intention of the Department to seek termination in this matter.

WHEREAS, a hearing on said charges were held before the Police Commission pursuant to section 8.343 of the Charter of the City and County of San Francisco on December 19, 2011, December 21, 2011, January 4, 2012, February 6, 2012, February 29, 2012, and on August 15, 2012, the matter was submitted to the Police Commission for decision; and

RESOLVED, that the Police Commission hereby denies the following Motions:

- Inspector Lee’s Motion to request 13 investigative interviews conducted by Sgt. Devlin be included as exhibits in this case

- Inspector Lee’s Motion to review and correct hearing transcripts. The Commission has received Errata Sheets and was taken into consideration

- Inspector Lee’s Motion to Dismiss Specifications for Insufficient Evidence

AYES: Commissioners Chan, Turman, Kingsley, Loftus, Marshall

ABSENT: Commissioners Mazzucco, DeJesus

FURTHER RESOLVED, that the Police Commission finds the following:

SPECIFICATION NO. 1 - Sustained

AYES: Commissioners Loftus, Marshall, Kingsley, Turman

NAYS: Commissioner Chan