2.11.2008

Legal defense Fund on Gundersen

ADELANTO SHOWDOWN: OFFICERS VS COUNCIL

Adelanto is a small community along Highway 395 in southern California's high desert. In April 1996, a recall election of Adelanto's City Council created a new majority of council members who were not happy with the way the police department was being managed.

The newly constituted council met in closed session immediately after having been sworn in to discuss the fate of its police department managers. It decided to get rid of Chief of Police Robert Gardner, and his captain, David Gundersen.

Soon after the meeting, Chief Gardner and Captain Gundersen were placed on administrative leave. Also put on leave were Gundersen's wife, who was a police dispatcher at the time, and Detective Doug Hubbard, a close friend of Gardner and the Gundersens.

Mrs. Gundersen and Detective Hubbard were apparently placed on administrative leave out of concern that they would impede the investigation, although they were never officially told of the reasons for their placement on administrative leave.

The city embarked on what could charitably be described as a "fishing expectation" by soliciting complaints from dissident employees. However, no investigation took place - at least not in the traditional sense.

No effort was made to follow up on any of the information provided by the employees. In one instance, where Gundersen was accused of stealing something from a seized vehicle, no effort was made to locate the police report involved, the owner of the truck, or identify the property in question.

Later it was determined that the incident never occurred. Similar allegations with no factual basis were alleged against the other suspended employees.

Later, most of the witnesses who had repeated the rumors to the city attorneys recanted their stories, stating that they were under pressure by the Interim chief of police to cooperate so as to "guarantee the employees' termination ' " In the meantime, the City Attorney's Office thought it might be a good idea to interrogate the three employees to learn their side of the story.

Interrogations were set to be conducted at the law offices of the employees' attorney, Michael D. Lackie. Upon arrival, the city’s representatives announced that they wanted to settle the case and a settlement was reached.

However, and for reasons that are not clear, the City Council rejected the settlement and ordered the city attorney to terminate the employees notwithstanding the complete lack of evidence to do so.

At this stage, the allegations against Captain Gundersen ranged from theft of a department weapon (although a description of the weapon, its serial number, and date of misappropriation were not alleged), to failure to supervise employees (although those employees were, of course, his wife and Hubbard).

The allegations against Hubbard included using a department vehicle to tow his boat to the river (although there were no witnesses to this), to parking in a handicap zone and refusing to move the vehicle when so ordered (even though the witnesses to this incident indicated that he promptly moved his vehicle when asked).

The only allegations against Margaret Gundersen were that she was occasionally rude to other employees when they had "badmouthed" her husband. Essentially, she was being punished for being married to the captain.

In the meantime, the city, in realizing that they no case against these employees, decided to put together a criminal case against Captain Gundersen.

The interim chief ordered one of his lieutenants to prepare a search warrant for Gundersen's residence on the basis that he had a suspicious looking vehicle in his backyard.

The theory was that this vehicle was believed to have been seized during a search warrant and was not properly in Gundersen's possession. However, the lieutenant knew that he might be liable for an unlawful search, so he ordered one of his officers, whose credibility was very high in the community, to write the search warrant.

That officer initially refused to do so but, under threat of insubordination, prepared the search warrant. When the search warrant was executed, Gundersen's house was thoroughly searched with very little time being spent investigating the suspicious vehicle.

Documents, computers, boxes of paperwork and letters between Lackie and Gundersen were seized from his residence. All kinds of property completely unrelated to the search warrant and involving no crime whatsoever were collected.

The officers at the scene decided, in light of the fact there was no evidence of criminal misconduct at the time of the search, to not place Gundersen under arrest and instead further investigate the matter.

They wanted to have the District Attorney's Office review the matter before making an arrest. However, they were ordered to arrest Gundersen.

When it was time to transport Gundersen to the police station, an officer radioed to the station that he was en route. The local media was notified to get over to the station because David Gundersen would arrive in handcuffs.

When the unit arrived at the station, the officer parked directly in front of the station, pulled Gundersen out and the strobe lights started flashing. He was kept outside the police department for the exclusive photo opportunity.

While inside the station, he was chained to a railing in the holding cell. One photographer wanted a photo of that scene and the department obliged by allowing the photographer into the holding cell so that a photo of Gundersen could be taken. Page One headlines and photos were common-place for nearly a month.

Lackie immediately petitioned the court for appointment of a special master to review the evidence claimed to be protected by the attorney-client privilege. The special master determined that Gundersen's computer contained documents protected by the attorney-client privilege and ordered that the materials be secured until they could be jointly reviewed by Lackie and the Deputy District Attorney.

Eventually the computer was released to Gundersen as being completely unrelated to the investigation.

The matter was eventually referred to the District Attorneys Office. The Deputy District Attorney assigned to the case quickly rejected all of the allegations, except for one involving the suspicious-looking vehicle in Gundersen's backyard. An ensuing investigation by San Bernardino County IA investigators resulted in uncovering no evidence of wrongdoing and the complaint request was rejected.

NEVERTHELESS THE CITY decided to go forward with the termination of the employees, primarily for insubordination on the basis of their refusal to answer questions until Lackie arrived during a botched interrogation. Keep in mind that the employees appeared on three separate occasions to be interrogated and each completed a full and far-reaching interrogation one month after the sham interrogation.

The city also chose to allege other misconduct against each of the employees, none of which had any evidentiary support and were, in fact, false.

In Adelanto, the city council hears post-discipline appeals. However, this particular city council had already made plain its bias and prejudice against the employees, which in large part was established when the city council gave direction to the investigators that the only acceptable discipline would be termination of employment.

Lackie appeared before the city council and successfully argued that independent hearing officers must be appointed to hear the employees' post-termination appeals. Three sets of evidentiary hearings were scheduled.

Margaret Gundersen's appeal hearing consisted primarily of allegations that she was discourteous to superior officers. However, the defense evidence strongly suggested that her only mistake was being married to the police captain.

During the second day of testimony, the city offered to end the dispute by suspending Mrs. Gundersen for eight hours and reinstating her with full back pay and benefits. The offer was accepted with the misconduct being that she accused a lieutenant of lying.

Doug Hubbard's hearing went the full course, resulting in a written decision. The defense argued that Hubbard's situation was nothing less than political retribution. His misfortune was being an ardent supporter of then-Chief Gardner and Captain Gundersen.

The hearing officer found that none of the allegations were sustainable except for a single misuse of a city vehicle in which he allowed a civilian friend to accompany him on a trip that otherwise would have been permissible under then-city policy. For that transgression, Hubbard received a brief suspension. However, he was reinstated to his prior position with full back pay and benefits.

Gundersen's hearing was a lengthy and tumultuous affair. After several days of hearing, Mr. Corrado was removed as city attorney and Richard Ewanszyck was installed as the new city attorney.

Ewanszyck reviewed the case against Gundersen and concluded that there was no purpose in going forward on any of the allegations.

Under pressure from Hearing Officer Doug Collins, the parties negotiated a settlement covering both the administrative proceedings and a threatened lawsuit.

Gundersen's attorney then applied to the city and the District Attorney's Office for a determination of factual innocence, which was granted and favorably acted upon by the Department of Justice. The terms of Gundersen's settlement agreement are, for the most part, confidential.

However, he is permitted to reveal to prospective employers certain documents which demonstrate that he did nothing wrong, in addition to being able to establish that he was factually innocent of criminal wrong-doing. In addition, Gundersen received a six figure settlement for back wages and to end the pending litigation.

With respect to the insubordination issue, the hearing officer for Hubbard's evidentiary hearing remarked in her opinion that "the principle that noncompliance with an employer's orders may constitute insubordination amounting to misconduct [is applicable] only if those orders are both lawful and reasonable ... It is a puzzlement why the city insisted on proceeding with the interrogation, particularly when informed that Lackie was on his way ...

The arbitrator agrees ... that the city should not have proceeded with the [interrogation]. Hubbard was entitled to counsel, and therefore the order to answer questions was in violation of section 3303 of the Government Code as well as relevant case law.

Michael D. Lackie is a Legal Defense Fund panel attorney with the law firm of Lackie & Dammeier LLP located in Rancho Cucamonga, California, where he specializes in representing low enforcement officers and their associations.

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http://www.porac.org/ldf/articles/february%201%201998.html