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San Diego County Sheriff Bill Gore occasionally has to sue to keep fired deputies from returning to the job. In some cases, even that doesn’t work.
In June, Gore filed a lawsuit against the county’s Civil Service Commission – an independent review board to which county employees can appeal disciplinary actions – alleging the commission had abused its discretion by reinstating Jeffrey Hornacek, a deputy fired earlier this year because Gore decided he was incompetent and unfit for public service.
The case provides a rare look at officer discipline proceedings in a state that keeps such information under lock and key. Though Sheriff’s Department data from the past nine years shows it’s relatively rare for fired deputies to be reinstated, it does happen.
After about 18 months on the job, during which he was assigned to jails and courthouses, Hornacek moved over to patrol and began the three phases of field training he was required to complete.
According to details included the lawsuit filed in San Diego County Superior Court, Hornacek struggled from the very beginning.
Six different times in the first week of his training, Hornacek failed to properly search individuals he questioned or detained. He once used multiple sets of handcuffs on the same person – but somehow still failed to secure the person’s hands. Sent by his supervisor to inspect a suspicious vehicle, Hornacek overlooked hypodermic needles and drug paraphernalia sitting in plain sight. After one woman refused to leave a business, Hornacek tried to falsely arrest her for public drunkenness, even though there was no evidence she’d been actually drinking.
The three phases of field training take deputies on average 60 days to complete. Because Hornacek repeatedly floundered, and supervisors allowed him to restart the training multiple times, his field training last more than 100 days.
One training officer who worked with Hornacek testified at the Civil Service hearing that he’d never seen another trainee struggle as much that late in field training. By that point, the training officer said, “a trainee should be handling most things with little to no assistance from the training officer.”
Hornacek was unfit for public service, the department determined when it fired him in January:
“Hornacek demonstrated throughout his phase 3 training that he was not capable of working independently, and that if he were sent out on patrol without direct supervision, he would likely make mistakes that would cause either himself, his fellow deputies, or the public to be placed in greater danger,” the department wrote in the lawsuit.
Because Hornacek had been on the job longer than 18 months when he was fired, he was entitled to appeal his termination to the Civil Service Commission.
In March, he went before the commission for a hearing. Hornacek did not dispute the evidence presented against him, but his attorney argued that his performance as a whole didn’t demonstrate incompetence because he’d been graded as satisfactory in “public safety” and “acceptance of criticism” throughout most of his training.
It was enough to sway the commission at the hearing. The commission agreed that Hornacek showed more problems than a typical trainee and did not demonstrate knowledge of the laws he was taught and should have known.
But he also showed signs of improvement, the commission determined, and was guilty of “inefficiency,” – not incompetency. The commission then changed his termination to a two-day suspension and reinstated him as a deputy.
Sheriff Bill Gore in June appealed that decision in a lawsuit, arguing the Civil Service Commission abused its discretion when it reinstated Hornacek. The appeal is pending.
“The Commission’s decision glossed over the enormous harm to the public service caused by this employee, as well as the likely enormous harm to the public service that will occur by the Sheriff having to keep a deputy sheriff who, by his own actions and admissions, is deficient. It is difficult to conceive of a greater harm to the public service than allowing an unsafe deputy sheriff to be responsible for the safety of the public and his partners. Such harm is magnified exponentially by the fact that a deputy sheriff is likely to face dangerous situations every day on patrol,” the department argued in the suit.
It’s not the only time the San Diego County Sheriff’s Department fired a deputy, only to have that decision overturned by the Civil Service Commission.
Since 2008, three of the 48 sworn deputies the Sheriff’s Department fired were later reinstated after they appealed their terminations to the Civil Service Commission, according to numbers the department provided. Those numbers don’t include cadets who were fired before they reached sworn status or deputies who resigned in in lieu of termination.
Todd Adams, executive officer for the Civil Service Commission, said departments bear the burden of proof in disciplinary cases and must prove the case by a preponderance of evidence –meaning, it’s more likely than not that the allegations are true. The commission remains a neutral party during the review, he said.
“I don’t think there’s ever really been a credible accusation that we favor one side or the other. I think if you talk even to employees whose discipline we upheld, they would say that we were a fair and neutral party in the decision, and we take great pride in that,” Adams said.
The nation’s largest law enforcement agencies fired at least 1,881 officers for misconduct since 2006, the Washington Post reported earlier this month. Those departments, however, were forced to reinstate at least 450 deputies after they appealed those decisions to a review panel – including a police officer who challenged a handcuffed man to fight him for the chance to be released and another officer convicted of sexually abusing a young woman in his patrol car.
Absent from the Washington Post story, however, were any examples from California. That’s at least partly because the state has some of the most restrictive laws in the country when it comes to the release of information on law enforcement agencies and the officers they employ.
In fact, the only reason the information has been made public in Hornacek’s case is because Gore took the rare step of suing the county to keep him off the force.
Through the early 2000s, Civil Service Commission hearings in which deputies appealed disciplinary decisions were open to the public. But after 2006, as a result of the landmark Copley Press v. Superior Court case, those meetings were closed. That means instances of police and deputy misconduct remain largely hidden from public view.
A review of Civil Service Commission meeting minutes between 2015 and July 2017 shows the commission does uphold terminations in some of the most egregious cases.
In September 2015, the commission upheld the termination of a deputy who had witnessed two colleagues handcuff a fellow deputy to a secured ladder, put duct tape over his eyes and mouth, and leave him there for about two hours.
The deputy was fired, and appealed his termination to the Civil Service Commission. At the hearing, he pointed to seven years of exemplary service at the department and vowed it would never happen again. But because he was the senior deputy on staff at the time, responsible for training other officers, the commission upheld the termination. The two other deputies involved in the incident were also let go.
It was a similar story for a drunken sheriff’s deputy who slapped a wheelchair-bound woman at least twice without provocation. When a family of tourists visiting from Arizona tried to intervene on the woman’s behalf, the deputy pulled his badge and identified himself as a cop.
When San Diego police officers tried to arrest the deputy, he resisted, kicking at the windows and doors of the squad car. He demanded “professional courtesy” from the arresting officers and told them they were lucky he wasn’t carrying his gun.
The deputy later admitted all the charges were true. Nevertheless, he appealed to the Civil Service Commission, arguing that was the only instance of bad behavior in 23 years of military and police service and he didn’t deserve to be fired. In February 2016, the commission upheld the termination.
The minutes from the Civil Service Commission meetings provide basic summaries of why deputies were fired or disciplined, but they don’t include names of those involved. Only in the rare instance of a lawsuit are details revealed that shed light on the department’s attempts to hold deputies accountable.
That’s how we know what happened when Sheriff’s Deputy Sam Knight used a chokehold to restrain an inmate in 2014.
Knight was working an overnight shift in a jail at the George Bailey Detention Facility when he put a handcuffed inmate in a chokehold, took him to the ground and slapped his face (Knight would later claim it was a gentle “tap”).
Knight didn’t mention to his supervisors what had happened, and never filed a report on the incident. But surveillance cameras had recorded the incident.
After supervisors viewed the footage, a lieutenant recommended Knight be fired – not because he used a chokehold, but because he hadn’t properly reported what had happened.
“The recommendation was not based on how Knight administered the use of force, but rather
on the impropriety of using any force in this instance — coupled with what the lieutenant
described as ‘a truthfulness issue’ triggered by Knight’s failure to report the incident,” according to court records.
The department fired Knight in December 2014, and he quickly appealed the decision the Civil Service Commission. In early 2015, the commission reinstated Knight and changed his punishment to a three-day suspension – in line with discipline other officers received when they failed to document use of force. The commission awarded Knight back pay and benefits for the time he missed waiting for the review hearing.
In that case, too, Gore accused the Civil Service Commission of abusing its discretion and filed a lawsuit to keep Knight off the job. But the outcome of the case shows that even when Gore takes the rare step of filing a lawsuit, he can’t necessarily keep a problem deputy off the force.
In September 2015, a Superior Court judge upheld the commission’s decision. Knight remains employed by the San Diego County Sheriff’s Department.
“While we may disagree with the outcomes of civil service hearings and court orders to reinstate terminated employees, we are bound by the law to adhere to the process,” the Sheriff’s Department told VOSD in a statement.