Finding: City ‘fabricated procedure’
By FRANCISCO E. JIMENEZ
Staff Writer
reporter@sbnewspaper.com
San Benito Police Officer David Ortega is shown during April's grievance hearing. (File photo)
The results from a grievance hearing held on April 13 between San Benito Police Officer David Ortega and the City of San Benito have been released.
Daniel J. Pagnano, the arbitrator in the hearing, ruled in favor of Ortega, the grievant.
It all began when Ortega was issued a three-day suspension for allegedly refusing a direct order from San Benito Police Sergeant Rene Garcia to complete a questionnaire pertaining to an internal investigation. Specifically, Ortega was accused of defacing a picture of fellow officer Lupi Andrade.
During questioning by Sgt. Garcia, however, Ortega alleged that he was denied his right to seek legal counsel before completing a questionnaire (a question and answer statement).
The issues observed by the arbitrator focused primarily on whether or not Ortega acted insubordinately when he requested a union representative before answering the questionnaire, as the City of San Benito argued, and if so, was Ortega’s three-day suspension that followed appropriate.
“The right at issue is whether an employee had the right – upon request – to representation by a labor organization during an internal investigatory interview where the employee reasonably believes that disciplinary action may result,” read the arbitrator’s report.
At the April 13 grievance hearing, Senior Staff Attorney John J. Curtis, who was representing Ortega, said his client sought to have the suspension “set aside.”
The arbitrator stated in his report that Sgt. Garcia was “disingenuous” when stating during the hearing that he was not investigating Ortega’s claim that the allegations against him were retaliatory. The arbitrator further reported that the city appeared to have felt itself “hamstrung and constrained to show some result” into Ortega’s internal investigation.
The report then went on to read, “Why Appellant (Ortega) was being pushed to admit his responsibility in this manner is not clear. If there was direct or circumstantial evidence of Appellant’s responsibility, he was never confronted with it nor was it ever suggested. This of course, begs the question whether a three-day suspension would have been appropriate in any circumstance.”
During the April hearing, Rick Navarro, who represented the city, said it was being determined whether or not officers have legal rights to stop a questioning process.
The arbitrator concluded that the city “chose to fabricate a procedural issue over the question and answer statement.” It was under those circumstances that the arbitrator was unable to conclude that Ortega’s reluctance to answer the questionnaire was insubordinate, he reported.
“I conclude that the Appellant (Ortega) was not insubordinate when he requested a union or legal representation before answering written questions from the San Benito Police Department Internal Affairs division,” read the report. “Therefore, the three-day suspension was not appropriate and should be rescinded. Appellant should be restored the three days of lost pay and any related benefits.”
It remained unclear as of presstime exactly how much Ortega will receive. In the meantime, the News was referred to San Benito City Attorney Ricardo Morado by Human Resource Director Arturo Rodriguez. When asked to comment on the arbitrator’s findings, specifically on the claims that the city fabricated a procedural issue and acted inappropriately, Morado said, “I don’t know what he’s talking about. I have no personal knowledge of that.”
Ortega was unavailable for comment.
To see this story in print, pick up a copy of the July 3 edition of the San Benito News. Or view our E-Edition by clicking here.
1 comment
Great news. This could all have been avoided had the officer requested a legal rep prior to questioning. The next step for him is to sue the Dept for violation of officers rights, which are covered under state law.