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In the Mader of fhe ArlbiiratJiol!l!.

OPINION AND AWARD

OF THE

Police Officer Leonardo Quintana

ARBITRATOR

and!

American Arbitration Assodation Case No. 703900037910

Appea] of Indefinite Suspension

The City of Ausmn, TX

BEFORE:

Louise B. Wolitz, Arbitrator

Place of Hearing:

Learning and Research Center

2800 Spirit of Texas Drive, Austin, TX September 2 and 3, 2010

September 24, 2010

October 19,2010

Date(s) of Hearing:

Record Closed:

Date of Award:

APPEARANCES:

FOR THE CITY OF AUSTIN:

Michael L. Cronig, Esq. Justin Newsom

Stephen Fleming Jessica Robledo Michael E. Nyert

Patti Robinson

David Carter

Hubert Arturo Acevedo

Attorney

Sergeant, Internal Affairs

Sergeant, Nuisance Abatement Unit

Lieutenant, Centralized Property Crimes Division Commander, Centralized Property Crimes Division Assistant Chief, Headquarters Bureau

Assistant Chief, Chief of Staff

Chief of Police

FOR POLICE OFFICER LEONARDO QUINTANA

Tom Stribling

Erin Zumwalt Leonardo Qunitana

Attorney, CLEAT Sergeant

Police Officer; Grievant

RELEVANT PROVISIONS:

TEXASLOCALGOT~RNMENTCODE

SUBCHAPTER D. DISCIPLINARY ACTIONS

143.051. Cause for Removal or Suspension

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A commission rule prescribing cause for removal or suspension of a fire fighter or police officer is not valid unless it involves one or more of/he following grounds:

(1) conviction of a felony or other crime involving moral turpitude; (2) violations of a municipal charter provision;

(3) acts of incompetency;

(4) neglect of duty;

(5) discourtesy to the public or to a fellow employee while the fire fighter or

police officer is in the line of duty;

(6) acts showing lack of good moral character;

(7) drinking intoxicants while on duty or intoxication while off duty; (8) conduct prejudicial to good order;

(9) refusal or neglect to pay just debts;

(10) absence without leave;

(11) shirking duty or cowardice at fires, if applicable; or

(12) violation of an applicable fire or police department rule or special order.

143.052 Disciplinary Suspensions

(b) TIle head of the fire 01' police department may suspend afire .fighter or police officer under the department head's supervision or jurisdiction for the violation of a civil service rule. TIle suspension may be for a reasonable period not to exceed 15 calendar days orfor an indefinite period. An indefinite suspension is equivalent to dismissalfrom the department.

(c) If the department head suspends a .... police officer, the department head shall, within 120 hours after the suspension, file a written statement with the commission giving the reasons for the suspension. The department head shall immediately deliver a copy of the statement in person to the suspended .. police officer.

(e) The written statementfiled by the department head with the commission must point out each civil service rule alleged to have been violated by the suspended ... police officer and must describe the alleged acts of the person that the department head contends are in violation of the civil service rules. It is not sufficient for the department head merely to refer to the provisions of the rules alleged to have been violated

(f) If the department head does not specifically point out in the written statement the act or acts of the ... police officer that allegedly violated the civil service rules, the commission shall promptly reinstate the person.

(g) If offered by the department head, the ... police officer may agree in writing to voluntarily accept, with no right of appeal, a suspension of l 6 to 90 calendar days for the violation 0/ a civil service rule ....

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143.053 Appeal of Disciplinary Suspension

(b) If a suspended. .. police officer appeals the suspension to the commission, the commission shall hold a hearing and render a decision in writing within 30 days after the date it receives notice of appeal ...

(c) In a hearing conducted under this section, the department head is restricted to the department head's original written statement and charges, which may not be amended

(d) The commission may deliberate the decision in closed session but may not consider evidence that was not presented at the hearing. The commission shall vote in open session.

(e) In its decision, the commission shall state whether the suspended .. police officer is:

(1) permanently dismissed from the ... police department; (2) temporarily suspended from the department;

or

(3) restored to the person's former position or status in the department's classified service.

(/) If the commission finds that the period of disciplinary suspension should be reduced, the commission may order a reduction in the period of suspension. .,.

(g) The commission may suspend or dismiss a ... police officer only for violation of civil service rule and only after a finding by the commission of the truth of specific charges against the ... police officer.

143.057 Hearing Examiners

(a) In addition to the other notice requirements prescribed by this chapter, the .. .letter of disciplinary action, as applicable, issued to a ... police officer must state that in an appeal of an indefinite suspension, a suspension, ... the appealing firefighter or police officer may elect to appeal to an independent third party hearing examiner instead of to the commission. The letter must also state that if the .. .police officer elects

to appeal to a hearing examiner, the person waives all rights to appeal to a district court except as provided by Subsection (j).

(c) The hearing examiner 's decision is final and binding on all parties. If the ... police officer decides to appeal to an independent third party hearing examiner, the person automatically waives all rights to appeal to a district court except as provided by Subsection (j).

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(f) In each hearing conducted under this section, the hearing examiner has the same duties and powers as the commission, including the right to issue subpoenas.

(h) In an appeal that does not involve an expedited hearing procedure, the hearing examiner shall make a reasonable effort to render a decision on the appeal within 30 days after the date the hearing ends or the briefs are filed. The hearing examiner's inability to meet the time requirements imposed by this section does not affect the hearing examiner's jurisdiction, the validity of the disciplinary action, or the hearing examiner's final decision.

(i) The hearing examiner's fees and expenses are shared equally by the appealing ... police officer and by the department. The costs of a witness are paid by the party who calls the witness.

(j) A district court may hear an appeal of a hearing examiner's award only on the grounds that the arbitration panel was without jurisdiction or exceeded its jurisdiction or that the order was procured by fraud, collusion, or other unlawful means. An appeal must be brought in the district court having jurisdiction in the municipality in which the ... police department is located.

THE HEARING:

The hearing on tills matter was held at the Learning and Research Center, 2800

Spirit of Texas Drive, Austin, TX on September 2 and 3, 2010. Each party had a full opportunity to present its witnesses, evidence, testimony and arguments and to cross examine each other's witnesses. All witnesses were sworn. The parties placed into evidence Joint Exhibits 1 -38; City Exhibits 1 -5; Appellant's Exhibits 1-4; and Agreed Stipulated Facts 1 - 33. A transcript was provided by a licensed court reporter. The parties each presented an oral closing statement. The City filed a Legal Brief on the Relevance of City of Waco v. Kelly, to which was attached the case Supreme Court of Texas, CITY OF WACO, Texas, Petitioner, v. Larry KELLEY, Respondent, No. 07-0485, Argued April 2, 2008, Decided Feb. 19, 2010 (309 S. W. 3d 536,2010 WL 571974 (Tex.), 30IER Cases 679,53 Tex. Sup. CL J 338) and Supreme Court of Texas, YSLETA INDEPENDENT SCHOOL DISTRICT, Petitioner v. Gustavo !vlONARREZ & Jose Rodriguez, Respondents, No. 02-1185, Aug. 26, 2005. Rehearing Denied Nov. 18,2005 (177 S. W. 3d 915,96 Fair Empl. Prac. Cas. (RNA) 1032,204 Ed. LawRep. 886, 48 Tex. Sup. Ct. J. 1014). Officer Quintana filed a Reply Brief, Officer Leonardo Quintana's Response to City of Austin's Brief, on September 17,2010. The arbitrator received the transcript on September 24, 2010, at which time the record was closed. The arbitrator has carefully studied the documentary evidence in the Joint Exhibits, City Exhibits and Appellant Exhibits, the Agreed Stipulated Facts, the Legal Brief and Reply Brief, the transcript, and her notes.

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THE ISSUE:

The parties agree, in Agreed Stipulated Fact 1, that the Hearing Examiner (arbitrator) has jurisdiction to hear this matter. The parties agree. in Agreed Stipulated Fact 2, that the issue before the Hearing Examiner (arbitrator) is: Was indefinite suspension the appropriate disciplinary action? Included in the Agreed Stipulated Facts is an acknowledgement by Officer Quintana of the truth of the charges. Stipulated Fact 31

says: For purposes of this appeal and based solely upon the results of the Garrity protected Administrative Order for Blood and Breath Specimen issued by the Austin Police Department Internal Affairs on behalf a/Chief Art Acevedo, Appellant stipulates that the allegation that he violated General Order A20Ia.OJ (A) (1): Compliance Required: Texas Penal Code Section 49.04, is "True. " Stipulated Fact 32 says: For purposes of this appeal, the Appellant stipulated that the allegation that he violated General Order A201a.02(B)(1): Acts Bringing Discredit upon the Department, is

"True. " Stipulated Fact 33 says: The parties agree that these stipulations are entered into and applicable only to this administrative appeal. The parties agree that these stipulations are not an admission of guilt by the Appellant with respect to any criminal prosecution.

Moreover, the parties further agree that under the Texas Supreme Court ruling in CITY OF WACO, Texas, Petitioner, v. Larry KELLEY, the Court held that a Hearing Examiner has three options in an indefinite suspension appeal if the charges are found to be true: 1) dismissal from the Department, i.e., affirming the indefinite suspension, 2) impose a temporary suspension for a "reasonable" period not to exceed fifteen (15) calendar days, or 3) restore the officer to his former position with wages and benefits lost as a result of the suspension. In this case, the AppeUant has stipulated that both charges are true. In this award, therefore. we do not need to assess the truth of the charges, because they have already been ~stipulated as true. Since the charges are true, discipline is clearly

appropriate. The question before us is reduced to whether Officer Quintana was properly indefinitely suspended (dismissed) or whether Officer Quintana should receive a suspension of fifteen (15) calendar days or less. We will review and assess, therefore,

only the evidence that led Chief Acevedo to the decision to indefinitely suspend Officer Quintana.

THE CHARGES:

On May 6, 2010, Police Officer Leonardo Quintana was issued a letter of Indefinite Suspension. The letter read:

Pursuant to the provisions of Chapter 143 of the Texas Local Government Code, Section 143.052, and Rule 10, Rules of Procedure for the Firefighter'S and Police Officer's Civil Service Commission, I have indefinitely suspended Police Officer Leonardo Quintana # 4426Fom duty as a police officer of the City of Austin, Texas, effective May 6, 2010.

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I took this action because Officer Quintana violated Civil Service Commission Rule 10.03, which sets forth the grounds for disciplinary suspensions of employees in the classified service, and states:

No employee of the classified service of the City of Austin shall engage in, or be involved in, any of the following acts or conduct, and the same shall constitute cause for suspension of an employee from the classified service of the City:

L. Violation of any of the rules and regulations of the Fire Department or Police Department or of special orders, as applicable.

The following are the specific acts committed by Officer Quintana in violation of Rule 10:

On January 11, 2010, while off-duty, Officer Quintana went out with friends

to several different locations where he drank alcoholic beverages. First he went to a Sushi bar and then l-t'ent to a Gentlemen's Club. Despite knowing that he had consumed several alcoholic beverages and should not be driving, Officer Quintana then drove from the Gentlemen's Club to a residence in Leander,

Texas, about a 45 minute drive, where he consumed more alcoholic beverages. Despite knowing that he was intoxicated and should not be operating a motor vehicle, Officer Quintana chose to disregard an offer to sleep at the residence

and instead decided to drive home with afemale he met that night. .

At approximately 4:51 am on the morning of January 12,2010, while driving to his residence with the female passenger, Officer QUintana's vehicle struck a traffic control circle at the intersection of Osage and Saddle Blanket, in Leander. Officer Quintana attempted to extricate the vehicle from the traffic control circle but could not do so. The Leander Police Department responded to a 911 call and conducted field sobriety tests on Officer Quintana. The officers determined that Officer Quintana was intoxicated and he was arrested for the offense 0/ Driving While Intoxicated. Officer Quintana was baa/red into the Williamson County Jail. Officer Quintana refused to provide the Leander Police with a sample of his breath or bloodfor analysis and as a result, on April 1, 2010, his driving privileges were suspended/or 180 days. Officer Quintana was issued an occupational driver's license by the Court on April 8, 2010 that is valid for the period that his driving privileges are suspended

The Austin Police Department's Internal Affairs Unit was notified of the arrest and checked Officer Quintana out of the jail at 9:55 am in order to have a blood alcohol analysis test performed. The blood was drawn at 10:45 am and the test results showed a blood alcohol content of.088. Extrapolating the BAC, Officer Quintana's BAC at the time of the crash was .192.

Officer Quintana admitted to Internal Affairs and to me during his Dismissal

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Review Hearing on May 3, 2010, that he drank alcohol at several different locations the night of January 11th and the morning of January 1 r: He admitted that he was intoxicated and should not have been driving. He admitted to me at his DRH that he was well m1Jare of the Department's efforts to eradicate drunk driving, including our no refusal blood draw initiative. Had Officer Quintana been able to extricate his vehicle, and had it been drivable, he would have continued driving in an intoxicated state with potentially tragic consequences. Officer Quintana was also in possession of a firearm while intoxicated Most disturbing is the fact that Officer Quintana admitted to me that his drinking to excess and his decision to drive intoxicated the morning in question was not a result of stress but rather a conscious decision made with the intent and desire to engage in a sexual liaison with his female passenger. By doing so, not only did Officer Quintana abandon all sense of goodjudgment, he also violated the ethics he subscribed to when he took his oath of office. Officer Quintana'sactions have brought discredit upon himself, the Austin Police Department, and the City of Austin.

By these actions, Officer Quintana violated Rule 10.03(L) of the Civil Service Rules by violating the following rules and regulations of the Austin Police Department:

Austin Police Department General Orders, Policies and Procedures A201a.01(A)(l): Compliance Required

.01 Compliance Required

A. Responsibility to Know and Comply

1. Employees will maintain a working knowledge and comply with the laws, ordinances, statutes, regulations, and written directives which pertain to their assigned duties.

To Wit:

Texas Penal Code Section: 49.04: DRIVING WHILE INTOXICATED

Sec. 49.04 DRIVING WHILE INTOXICATED. (a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.

(b) Except as provided by Subsection (c) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of72 hours.

Austin Police Department General Orders, Policies and Procedures A201a.02(B)(l): Acts Bringing Discredit upon the Department

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.02 Individual Responsibilities

B. Acts Bringing Discredit upon the Department

Since the conduct of personnel, on-duty or off-duty, may reflect directly upon the Department, employees must at all times conduct themselves in a manner which does not bring reproach, discredit or embarrassment to the Department or to the City.

1. Employees, whether on-duty or off-duty, shall not commit any act which tends to destroy public confidence in, and respect for, the Department, or which is prejudicial to the good order, efficiency, or discipline of the Department.

In deciding on the appropriate discipline, I considered Officer QUintana's prior disciplinary history. On August 10, 2006, Officer Quintana was suspended for 15 days for his involvement ina domestic dispute with his girlfriend Although the suspension was modified prior to the appeal taking place as a mechanism to resolve a potential claim, a charge of Acts Bringing Discredit upon the Department was sustained On November 4, 2009, Officer Quintana was suspended/or 15 days for a violation of the Department's MVR policy. Officer Quintana acknowledged during his DRH that he knew I did not want to see him before me again for disciplinary action, yet he was unable to avoid yet another instance of exercising poor judgment. Officer QUintana's arrest for DWI and his admission that he was driving while intoxicated creates a credibility issue for him in front of a judge and jury in light of the requirement that the prosecutor disclose potentially exculpatory information to the defense.

In light of the fact that Officer Quintana had recently been suspended, he should have conducted himself in a manner above reproach. He knew that his actions were being highly scrutinized and anyfurther misconduct on his part would reflect poorly upon him, the Department, and the City. Instead, Officer Quintana exercised extremely poor judgment and chose to drink to excess and operate a motor vehicle thereby endangering his lifo and the lives of others motorists, pedestrians, and the lifo of his passenger. Should Officer Quintana be convicted of DWI or accept some form of deferred adjudication/prosecution, that fact 'will bring further discredit upon himself, the Department, and the City, and will likely result in the temporary or permanent revocation of his peace officer license.

Finally, Officer Quintana has engaged in other behavior that demonstrates an ongoing pattern of poor judgment. On or about December 8, 2009, after being suspended/or fifieen (15) days, he posted a picture a/him on the Facebook social media network in uniform and was counseled and ordered to remove the posting. He also was counseled and issued a direct order on December 9, 2009 to have no further contact with the female officer who was involved in the 2006 incident that led to his initial fifteen (J 5) day suspension When

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taking into consideration the totality of the circumstances, including the

filet that I do not believe there is a position within the Austin Police Department that I can place Officer Quintana where his judgment will not be an issue, I have concluded that indefinite suspension is appropriate.

The rule violation, under Texas Local Government Code 143.052, under which Chief Acevedo issued discipline to Officer Quintana was A201a.Ol(A)(l) which required compliance with Texas Penal Code Section 49.04: DRIVING WHILE INTOXICATED. That charge also underlies the charge of the violation of A2Ola.02(B) (1): Acts Bringing Discredit upon the Department, that act being DRIVING WHILE INTOXICATED. We have already established that by stipulation Officer Quintana has acknowledged that these administrative charges are true.

DISCIPLINE OF OTHER OFFICERS INVOLVED IN DWI CASES:

In assessing the appropriateness of a disciplinary action, it is necessary to consider the discipline given to other employees for similar infractions. In Elkouri & Elkouri, How Arbitration Works, Sixth Edition (Committee on ADR in Labor & Employment Law, American Bar Association, Section of Labor and Employment Law, The Bureau of National Affairs, Inc., Washington, D. C.), a well respected authority on what arbitrators must consider in assessing the appropriateness of a disciplinary action, the authors state:

It generally is accepted that enforcement a/rules and assessment of discipline must be exercised in a consistent manner; all employees 'who engage in the same type of misconduct must be treated essentially the same, unless a reasonable basis exists for variations in the assessment of punishment (such as different degrees of 'fault, or mitigating or aggravating circumstances effecting some but not all of the employees). For further explanation of this point, see the discussion in Elkouri and Elkouri, pp. 995-997. Elkouri & Elkouri also quote from the reasoning expressed by Arbitrator McCoy in Stockham Pipe Fittings Co. (l LA 160) (Elkouri & Elkouri p. 960): When an employee has violated a rule or engaged in conduct meriting disciplinary action, it is primarily the function of management to decide upon the proper penalty. If management acts in good faith upon afair investigation and fixes a penalty not inconsistent with that imposed in other like cases, an arbitrator should not disturb it .... The only circumstances under which a penalty imposed by management can be rightfully set aside by an arbitrator are those where discrimination, unfairness, or capricious and arbitrary action are proved - in other words, where there has been an abuse of discretion. (Elkouri and Elkourr, p. 961)

With this in mind, we must note that while other officers have been offered significant agreed upon suspensions of 25 to 90 days for DVVI, there is no evidence in this record of any other officer who has been indefinitely suspended for D WI.

Under Police Chief Art Acevedo, we have the following DWI cases and actions in this record (Jt. Exhibit 38), summarized briefly here:

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1. On January 23, 2009, Police Officer Nathan Sexton, was temporarily suspended for thirty (30) days in an agreed temporary suspension. Officer Sexton had attended a wedding of another officer in Mission, Texas. At the wedding reception, and later at a local bar, Officer Sexton drank alcoholic beverages to the point of becoming intoxicated. He drove his vehicle to different locations during the evening with other officers and citizens in his vehicle. Officer Sexton was charged with the same violations as Officer Quintana. He was

also required to submit to an evaluation by a qualified professional to determine ifhe has an alcohol abuse problem and to attend and successfully complete any program of counseling and/or rehabilitation recommended. He was required to submit to random mandatory alcohol testing for a period of

at least one year. He was put on notice that if he has another sustained violation involving alcohol outside of the one year probationary period, he will be indefmitely suspended.

2. On December 8, 2008, Police Detective Joseph Lucas was temporarily suspended for twenty-five (25) days in an agreed temporary suspension. Detective Lucas was stopped by the Bartlett Police Department for speeding. It was determined that he was intoxicated and he was arrested for D WI. He agreed to takea breathalyzer, which showed his BAC was slightly below

the legal limit more than three hours after the initial traffic stop. Scientific methodology lead to the conclusion that his BAC was above the legal limit of .08 at the time he was stopped. He was also placed on probation for one

year, during which he will be indefinitely suspended if he commits an offense involving alcohol. Alcohol violations outside of the one year probationary period will also result in indefinite suspension. He was further required to participate in training for APD cadets, in-service personnel, or community groups related to the dangers of drinking and driving. Detective Lucas had a disciplinary history. He was suspended for five days on May 14, 1993 for improper handling of a juvenile taken into custody and on July g, 1992 for 45 days for entering a closed property and taking a motorcycle tire and rim.

3. On November 25, 2008; Police Officer Vernon Stevenson was temporarily suspended for forty-five (45) days in an agreed temporary suspension.

Officer Stevenson was arrested by the Austin Police Department for DWI

after being involved in a single vehicle crash. He was ordered by Internal

Affairs to provide a blood sample. Two samples obtained confirmed his

BAC was .224 and .226 respectively. He was charged with violating Texas

Penal Code 49.04, DWI. He was also ordered to be evaluated by a qualified professional to determine if he has an alcohol abuse problem and to successfully complete any program of counseling andlor rehabilitation recommended. He was placed on probation for one year with the understanding that any misconduct involving alcohol will result in his indefinite suspension and any future violations involving alcohol outside the one year probationary period will also result in

his indefinite suspension. He will submit to random alcohol testing for two years. An on-duty, positive test for alcohol, will result in his indefinite suspension, as

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will refusal to provide a sample when ordered to do so. Officer Stevenson also had a disciplinary history. He was suspended for six (6) days on May 25, 2005 by Police Chief Stanley Knee for his "burn baby burn" posting to another officer's computer during a nightclub fire, which was picked up and broadcast by the media. He also made similar comments to a dispatcher on a recorded telephone line. He was disciplined for bringing discredit upon himself and the Department.

4. On October 24, 2008, Police Sergeant Daniel Armstrong was suspended for a period of ninety (90) days in an agreed temporary suspension. Sergeant Armstrong came to the attention of the Cedar Park Police Department in connection with a report that he may be driving while intoxicated. While he was not arrested, the Chief concluded that he was more likely than not intoxicated earlier in the evening. The Chief considered the following factors in making his decision of the

appropriate discipline: Sergeant Armstrong continues to produce a high quality of work; Sergeant Armstrong's chain of command spoke very highly a/his leadership abilities; Sergeant Armstrong has made many positive contributions to the Department during this fifteen year career; Sergeant Armstrong was cooperative during this investigation and acceptedfull responsibility for his actions. Sergeant Armstrong has displayed a sincere commitment to sobriety; Sergeant Armstrong voluntarily sought treatment for his addiction after this incident occurred; Sergeant Armstrong's chain of command unanimously believes that he will remain a productive member of the Department in not only a leadership role but also as a role model and example to others who might suffer from this affliction. Sergeant Armstrong proferred to voluntarily submit to random alcohol testing and to participate in employee peer support programs as outlined below. Sergeant Armstrong agreed to attend a qualified after-care program of counseling and/or rehabilitation for as long as recommended; provide authorization to his chain of command to monitor; be placed on probation for one year with the understanding that any misconduct involving alcohol will result in indefinite suspension; any future alcohol related violations outside the one year probationary period will result in indefinite suspension; submit to random alcohol testing, in which any positive test will result in indefinite suspension as will refusal to submit a sample; participate in Department presentations concerning alcohol abuse; and be bypassed for promotion three times, removing his name from the eligibility list.

POSITION OF THE CITY:

City witnesses Sergeant Stephen Fleming, Lieutenant Jessica Robledo, and Commander Michael E. Nyert all testified that they came into the Disciplinary Review Hearing, having read the Internal Affairs file, thinking that the discipline that should be given to Officer Quintana was at the upper end of the range of an agreed suspension of 16 to 90 days. They emerged from the Disciplinary Review Hearing convinced that it should be an indefinite suspension. Only Assistant Chief Patti Robinson testified that she came into the Disciplinary Review Hearing thinking that he should be indefinitely suspended. What happened at the Disciplinary Review Hearing to change their mind?

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They each testified that they were especially distressed to hear Officer Quintana say, in person, that the reason that he did not stay at the Leander home at which he was drinking, a safe place, but decided to drive to his OVv11 home, was his hope that the relationship between himself and the female with whom he was getting along well would progress to a sexual one. While this information was already in the Internal Affairs file, which they all had read before they entered the hearing, they all were especially distressed to hear it stated in person. Officer Quintana explicitly said that he did not make the decision to get in his car and drive home with the female because of the stress of the day, in which he had given. a deposition in the lawsuit against the City and himself, but because of his hope that he would "get lucky." This explanation led them to find a pattern of poor judgment, not just in this decision, but in other decisions that he had made.

Lieutenant Robledo said that the reason that Officer Quintana made the decision to drink and drive that night was a huge turning point for her (Tr., p. 118) She thought, You know what? You're in a safe place. You've been drinking too much. Stay there. Get lucky some other time. (Tr., p. 118)

Commander Nyert also said that this was a significant factor for him in making his recommendation: Because ... he wasn't thinking about the stress at that point. And I'm just trying to be delicate. He was thinking about sex. That was his motivating factor in our opinion after our discussion. .. The decision to drive because of the sexual thought at the destination, that's the main factor in my mind That's a poor decision. He should have stayed where he was and had another date. (Tr., p. 146) Commander Nyert further explained that although he already knew that from the Internal Affairs report, ... it was

the hardfact of actually hearing that that was, in/act, the real reason why he left ... to talk about specifically and-in more specific terms during that DRH made it crystal clear and also made it clear that ifhe had remained at the house that would have been the best decision to make ... and not drive home. (Tr., p. 153} ... what really brought it home was

the fact that it was mentioned what his relationship was to turn into once he got to his house, the sexual act, and that was stated at the DRJi or that he would get lucky .... He used the words, that he was hoping that- - as he said in his statement that the relationship would continue. Chief Acevedo talked about the lust and what he was really thinking about when he got to his house to which Lenny did acknowledge. (Tr., p. 154) Assistant Chief Robinson said, ... that's a heck of a reason to lose your job and get arrested and to risk someone 's life (Ir., p 174)

Chief Acevedo said that: He had a female passenger that he was hoping to have intimate relations with that evening, and although he knew he was under the influence, he knew he shouldn't be driving, he allowed his desire for that intimacy to cloud his judgment; and he made the conscious decision to drive when he knew he was under the influence of alcohol.i.It's a huge problem for me. (Tr., p. 221). ... it 's an individual that's putting their own needs above the needs of the thousands of people that are driving the highways of Austin. And then this isn 't just any officer. This is an officer that just did a is-day suspension who is a ... through no fault of his own or for whatever reasons has

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become a lightening rod, and he knows that because we've had that discussion and that he then--he knows he's the subject of litigation and everything else, and he goes and makes these decisions. It was a very selfish decision that not only endangered himself, his passenger and all the other people in that neighborhood, but really damaged this organization. And I think that it was an unconscionable decision that was made in a VelY conscientious manner. Therefore, that is why he's no longer a member of this department. (Tr., p. 222, 223)

A consensus emerged that Officer Quintana had exhibited a pattern of poor judgment, not limited to this DWI. On May 11, 2009, at 5:00 am, Officer Quintana was involved in an officer-involved shooting incident, during which a suspect, Nathaniel Sanders, and another suspect were shot during a struggle over control of Mr. Sanders' weapon. Mr. Sanders suffered fatal injuries. During this incident, which began when Officer Quintana observed a car parked at the Auto Zone at 6400 Springdale Road which matched the description of a car that was related to a series of aggravated robberies, Officer Quintana failed to activate his Mobile Video/Audio Recorder (MVR) as required by Austin Police Department rules and regulations (A306b.Ol(E)(I)(2). After extensive Departmental investigation, Officer Quintana was not disciplined for his role in the shooting, but was issued a fifteen (15) day temporary suspension on November 4,2009, effective beginning on November 5, 2009 and continuing through November 19, 2009 for failing to activate his camera as required. The Memorandum of discipline from Chief Acevedo says: In determining the appropriate discipline, I took into consideration numerous factors, including the fact that Officer QUintana's actions were not malicious, but rather, he continued to perform police work even though it was close to the end of his shift and he chose to remain in thefield lookingfor armed suspects who were committing serious felonies against the community. I also considered the statements from his chain of command that he is a dedicated officer who can and will remain a productive member of the Department. After taking into consideration the recommendations of Officer QUintana's chain ofcommand, my executive staff, and the Citizen Review panel, 1 have determined that a fifteen (15) day suspension is appropriate. Officer Quintana did not contest this suspension. Officer Quintana had been home on leave for most of the period between May 11,2009 and November 19, 2009, while the incident was being investigated. When Officer Quintana returned to work, after participating in some mandatory retraining, he was assigned to the Nuisance Abatement Unit of the Property Crimes Division, under Lieutenant Jessica Robledo. Lieutenant Robledo testified at the arbitration hearing that she has known Officer Quintana for a long time, knew his work product, and he came highly recommended. She was trying to provide a growing work environment for him during the civil trial that was going to take place because of a suit filed against the City and Officer Quintana by Nathaniel Sanders' family. Officer Quintana began working in the Property Crimes Division on December 6,2009. It came to Lieutenant Robledo's attention that Officer Quintana had posted, on his first day back, a picture on his Facebook page of himself with an AR-15 assault rifle and a caption saying "back to work." Lieutenant Robledo immediately called him in, chewed him out, and told Sergeant Fleming to order him to take it down immediately, which he did. She testified on cross examination that her concern was: This is a no-brainer to me. You have been involved in a critical incident, high profile. People know you probably in a Seven

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Eleven when you walk in. You've been all over the media. You know, keep a low profile. It's- -you don't put yourself out there like that and think that it's okay. That's not a good decision. You know, going through a civil litigation, that's not smart. Think; common sense and goodjudgment. That's what they teach us in the academy, common sense and goodjudgment. (Tr., pp. 123-124)This incident was also considered by the chain of command at the Disciplinary Review Hearing as another instance of bad judgment. Moreover, at the same time, Officer Quintana's former girlfriend, to whom he was formerly engaged, who was also a police officer, spoke to her chain of command saying that now that Officer Quintana was back to work, she wanted her chain of command to inform his chain of command that she wanted to have no further contact with him. Sergeant Fleming issued a formal order on December 9 to Officer Quintana directing him to cease all communication with the woman. Again, the chain of command felt that whatever circumstances led up to his girlfriend communicating this through her chain of command to his chain of command indicated that Officer Quintana was using bad judgment. They also considered a fifteen (15) day Temporary Suspension of Police Officer Quintana that had been issued on August 10, 2006 resulting from a domestic dispute with this same girlfriend during which Officer Quintana allegedly used physical force to enter her residence without her consent while trying to retrieve his cruise ticket. This fifteen (15) day suspension had been reduced by Chief Acevedo to a written reprimand on January 7, 2008. TIle City maintains, however, that the events described still occurred, and again showed Officer Quintana's bad judgment.

Lieutenant Robledo was asked on cross examination if, based upon her testimony,

it would be fair to say that the decision she made to recommend indefinite suspension was not based upon the DWl, but was based upon other factors. She answered, Everything, the totality of everything in my mind .. 1f it was just the DWI without a history, without anything else, taking everything around then it probably would have been days off rr-, p.120)

Chief Acevedo testified that in making a decision on what the appropriate discipline is for an officer for driving while intoxicated, ... each case is a separate case. You have to look at the totality of the circumstances involving the case in chief which is the ease that the Department is considering. You have to look at the employee's total employment history to include disciplinary history, work performance, and you have to look at the discipline history in terms of previous discipline, the type of discipline and the recency of the discipline. And when you take a look at all those issues, then I as the Chief of Police take into consideration the recommendations of the chain of command, and you look at the total record ... no two cases are ever exactly alike. (Tr, pp. 208-210)The Chief testified that he did not retain him because ... it was just his judgment just was not where it needs to be in my opinion to be a police officer in the City of Austin. .. because of that recent pattern in the last three years, you know, that's why we fired him. (Tr. p. 230) Chief Acevedo said that he was not questioning Officer Quintana's work, he was questioning his judgment. (Tr., p. 237) Chief Acevedo further said .. He 's conducting himself whether on or off duty in a manner that's not consistent with the ethics and expectations that this department, and I think the community, has of peace officers. And he's displayed

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judgment .. from a negligent retention standpoint that if I keep - - this guy keeps coming to the well and I keep him that I'm going to have a negligent retention issue. CTr. p. 255) Chief Acevedo was also concerned that Officer Quintana had promised him both when he reduced the 15 day suspension to a written warning in 2008 and when he issued the 15 day suspension for not having his camera running in 2009 that he would not be back before him on disciplinary charges, but that he did not keep this promise. Chief Acevedo further said, on cross examination: The problem is that we're not talking about sobriety. We're talking about a pattern of judgment. We're talking about progressive discipline, and we're talking about the importance of you can't have an officer do 15 days which is basically - - anything above 15 days is indefinite suspension or an agreed-upon and

... when you've got a i5-day suspension, you're basically on notice that you came that close to being fired and so ... Ijust don't see how we can retain him, and in this case when you look at those three incidents that are velY close together, I just don 't see any other recourse. (Tr., p. 262) Chief Acevedo stressed that after the Disciplinary Review Hearing, Officer Quintana'S entire chain of command agreed with the decision to indefinitely suspend him.

In closing, the City argued that Officer Quintana was under a microscope. He was the defendant in a civil lawsuit, and he knew that everything that he did was going to be subject to scrutiny. He had told the Chief twice that he wouldn't be back. He promised he wouldn't get in trouble again, but be could not keep that commitment. And despite knowing that he's under a microscope, he goes out and he drinks and he drives and he gets arrested. He posts this picture of himself on Facebook without even thinking that somebody who I don't intend to see this might see it. He did not consider the feelings of the community and the Sanders family if they saw this picture ofhim holding a rifle in uniform saying "back to work." His intent is irrelevant. The issue is, be didn't consider how that perception could be for the family and the community. That's one of the issues of poor judgment. He was not disciplined for these instances of poor judgment, but they are relevant to the chain of command's disciplinary decision. We have the issues of judgment from the 2006 incident. We have the issues of the camera which were significant, the distrust created in the community because of that poor judgment. Then

we have the Facebook. We have the order not to see his former girlfriend. We have the OWl arrest. The Chief says in the disciplinary hearing, "At what paint do we cut our losses? How many times - - how man y mistakes do you get to make." And this was his third suspension. Yes, the first one was reduced to a reprimand, but it wasn't reduced because he didn't commit the violations as the Chief and the chain testified. The underlying conduct didn't change. He gave him 15 days back because the Chief felt bad that he was out $1,500 for a cruise. Thus, as the chain said, a history of poor judgment over a period of years. The entire chain of command said that they have lost confidence in his ability to make good decisions. They all question that if he was retained that he would continue to have poor judgment. The Chief is the one who has to stand up in front of the community and our city council and the news media when this officer does something else using poor judgment and explain why he did not fire this person or why he was reinstated. The entire chain of command, especially the Chief, said they do not want him back.

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With respect to the other cases, in which officers got agreed suspensions, everyone of those cases is fact-specific. The disciplinary matrix of the department says that discipline for criminal acts is fact specific. Every single officer had a different set of circumstances, a different chain of command, a different disciplinary history, different attitude during the investigation and during the disciplinary hearing, and the Chief looks at each one individually. The significant deciding factor is that in every one of those other cases, the chains of command recommended and agreed with an agreed suspension. Not one person in the chain of command in this case, after they reviewed the file, after they listened to Officer Quintana and after they discussed it and thought about it for three days, not one of them felt an agreed suspension was appropriate.

Since the arbitrator is essentially deciding between upholding the indefinite suspension or a 15 day suspension, no officer under this chief has ever received 15 days for drunk driving. Therefore, 15 days is not reasonable. The reasonable discipline is indefinite suspension, given the facts and history of this case. The indefinite suspension should be sustained.

POSITION OF OFFICER QUINTANA:

Officer Quintana's first witness was Sergeant Erin Zumwalt. Sergeant Zumwalt testified that Officer Quintana worked for her when she worked on night shift for about a year and a half to two years. She moved to day shift. Officer Quintana stayed on night shift. About a year or year and half later, Officer Quintana came to work for her again on day shift, and worked for her until November of2009. She was his sergeant during the officer-involved shooting. When she took over the night shift, she had been a sergeant for four or five months. Officer Quintana was already a new officer on that shift. He had graduated in May of 2001. Officer Quintana was introduced to her by the sergeant she was taking over from as an exceptional new officer. She was very impressed by his police work, his ethic, his commitment, a hundred percent every single day. (Tr., p. 269).

She and Lieutenant Robledo wrote a letter recommending him to the 100 Club for Officer of the Year. He actually got the award in 2002. He had a knack for being at the right place at the right time. He had good decision-making. He was able to develop very good probable cause. He followed policy. He followed the law. He used really good officer safety, and daily he was making two to three felony arrests, good, solid arrests that later on were good convictions. (Tr., p, 270) He used good judgment. There were times where he could have used deadly force and chose not to, including a case where a child that was mentally ill chased him around with a knife. Instead of tasing the kid or shooting, he ran from the kid. (p. 270-271) In his self-initiated stops, his calls for service, he did a darn good job. He made good decisions. He had good judgment. The times that he needed to call her as a supervisor and ask for permission, he did. Her assessment of him every year was, he makes good decisions. Sergeant Zumwalt testified that she was his supervisor during the 2006 incident with his girlfriend. He passed a polygraph; his girlfriend did not. Nevertheless, Chief Ellison decided that Officer Quintana had committed an assault. Sergeant Zumwalt said that she did not agree with this decision. Sergeant Zumwalt was also his sergeant during the IS-day suspension for not having his camera running at the time of the officer-involved shooting. She was a member of the Disciplinary Review

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Hearing for that incident. She recommended sustaining the camera charge and a one or two day suspension. Officer Quintana used his camera more than most officers. She believes that, in that incident, Officer Quintana made a mistake because his adrenaline was pumping. He should have turned the camera on. It was a policy violation not to turn it on when he approached the car. It was not a matter of judgment; it was a mistake. Sergeant Zumwalt said that regarding the Facebook picture, only his friends and family were supposed to see it. Officer Quintana had been under a whole lot of emotional stress when he was stuck at home with nothing to do. In this case, she was not part of the Disciplinary Review Hearing. She did not have access to the Internal Affairs file. No one in Officer Quintana's chain of command at that time contacted her to get any information about him. She does not think that they wanted her opinion. The Chief, at this arbitration hearing, said that she was Officer Quintana's advocate. She does know a lot more about him than the people who made the decision in the Disciplinary Review Hearing. Sergeant Zumwalt said that she feels that the camera incident was a mistake. It is not something he's going to do again. All the facts regarding the 2006 incident were not known to the members of the Disciplinary Review Hearing. She does feel that Officer Quintana made some bad judgments in his love life, but we have all done that. The only real bad judgment, said Sergeant Zumwalt, was choosing to drink and drive. She did not see a pattern of bad judgment. (Tr., p. 283). Sergeant Zumwalt said that she would have no concern with Officer Quintana returning to a shift that she was supervising. Sergeant Zumwalt said, on cross examination, that any working cop is going to make mistakes. In this case, they are holding a man to a promise that he could potentially go and make a small mistake that he's going to get fired for because he promised, "I'Il never do it again." When the Chief of Police asks you for a promise, you are going to tell him what he wants to know.

Officer Quintana testified that he graduated from the Police Academy on May 25, 2001. He was assigned as a patrol officer to the Northeast Area Command night shift, after his period with a training officer. He has worked some special assignments. After the officer involved shooting, there was a change in his duty assignment. He was immediately put on administrative leave. He worked with the bomb squad for a couple of weeks, and then was assigned to his house. It was about six and a half months before he returned to duty. He was investigated by Internal Affairs. There were four allegations: the use of deadly force; the tactics; fail to identify; and the mobile video camera violation. He was exonerated on all the allegations except for the camera violation. He did not turn his camera on when he started watching the vehicle because the bright orange light that turns on when the camera is activated would have alerted the suspects to police presence. That was a tactical decision. He was waiting for backup. However, the driver got out of his car quickly and so Officer Quintana had to exit his car quickly. At that point, he forgot to turn the camera on. The disciplinary matrix shows a zero to three day suspension for failure to activate the camera, but Officer Quintana received a fifteen (15) day

suspension. Nevertheless, he did not appeal this suspension. He took responsibility for doing something wrong. He came back to work on November 20lh and was assigned to the police academy for two weeks to catch up and requalify and go over refresher

courses. Then he was assigned to the Nuisance Abatement Unit, under Sergeant Fleming. The picture he posted on Facebook was taken during the two weeks at the academy, with

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an instructor's AR-15. His sou is really into military online games and knows all about these different types of weapons. He took a picture with the weapon, sitting down, smiling. The picture was on his cell phone. Then he had a conversation with some friends, who wanted him to post more recent pictures on Facebook. So he posted four pictures, including that one, which he captioned "back at work". His intention on posting it was to show all his friends and family that he was proudly back in uniform, back at work again. He was intending no underlying statement. He posted it at 1 or 2 in the morning. At 8 or 9 the next morning, Sergeant Fleming called him and told him that he needed to take it down immediately. He did so. A few days later, he was called into Lieutenant Robledo's office. He never found out how they knew about the picture. He heard something about Risk Management looking at his Facebook account. Lieutenant Robledo said that she does not remember where she got the information from. Lieutenant Robledo spoke to him really harshly, in a way that he's never been talked to. She took it very personally. She made it seem like he was a major problem person. He has never given any of ills supervisors any problems where he had to be counseled or scolded. He was able to understand the Department's view on the picture, that itcould be perceived differently by different people. It could be on the front page of the paper and be really bad for the City with the civil litigation going on. In his mind, it was just a picture of himself in uniform. After being spoken to by Lieutenant Robledo, he went to the IT Department and had them delete his complete Facebook account. He also received an order not to have contact with a female officer with APD. This is someone he was engaged to, with whom he bought a house, had a wedding date. This order was really hard for him. He did not know where the order came from. He still had a lot of property

at the house, but he never contacted her again. He was upset about the situation. He has not had contact with her since he received the order. He appealed the IS-day suspension in 2006 involving the same woman because he did not do the things that he was sustained on doing, particularly criminal trespass. It was a rocky relationship.

Officer Quintana said that prior to the officer-involved shooting, he drank moderately, socially, on weekends. He moved out ofthe house in November of 2008 to his own apartment. He started drinking pretty heavily after that. After the shooting incident, he started drinking more, every day or every other day. On the day of the DWI incident, he had a deposition regarding the civil trial from the officer involved shooting. It was pretty grueling and went on all day. He was emotionally drained. He did not have an appetite when he got home. He texted a friend that he felt like he had been hit by a car. He ultimately agreed to meet some friends. He was completely honest with Internal Affairs from the beginning and gave them everything that he had. Officer Quintana said that he would have agreed to any suspension that the Chief had offered him of between 16 and 90 days. He did talk to the Chief, pleading with him to keep his job. It was implied that he would have taken whatever punishment the Chief felt necessary. Officer Quintana testified that he does not believe that he has a pattern of poor decision-making. He has had an exemplary career at the APD. It was not until after the officer involved shooting where they are talking about a lack of judgment. In the 2006 incident, the Chief decided to reduce the 15 day suspension to a written reprimand. He was a finalist for Employee of the Year the following year. It did not slow him down. He does not have a pattern of making bad decisions. He remembers after the Chief reduced that suspension

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having a conversation that he would not be back in his office again. How else could you respond to that statement, that the Chief does not want to see you back in his office again. We all are human and make mistakes. It would be impossible to make a promise like that

Officer Quintana testified that he did go to counseling right after the DWl incident. He got into an eight-week program. It was intensive out-care. He got screened to get into it. He began to understand that he did have a problem with alcohol. He completed the program and has not had a drop of alcohol since. He had been seeing a professional before the incident, for personal problems. Alcohol came up. He was having a hard time sleeping after the shooting. He was drinking to self medicate. The counselor he was seeing thought that he had a problem with alcohol that they needed to address. They were going through some steps just before the DWI. When he went back to work, his drinking decreased. He thought that he would be able to get it under control because he was back at work. There was not time to drink. So he wasn't drinking. After the DWI, he was helping out the Austin Police Department with their peer support program. He completed the Right Step Program and got out. He has kept in contact with the sergeant of the peer support program and is assisting him. It is a lifestyle now. God willing, he does not ever want to drink again. He wants to remain sober. (Tr II, p. 45).

Officer Quintana said that he stipulated to the charges, but does not believe that there has ever been an officer that has been terminated for DWI, their first DWI. The peer sergeant he is working with has had two DWIs and is still a member of the police department and is in charge of the peer support program and a good friend and mentor. Officer Quintana said that he thinks that he has been a positive member of the department and can continue to be if given the opportunity.

In closing, Officer Quintana's attorney said that the question is was an indefinite suspension appropriate, called for by the facts, and in line with discipline of similar cases? If it is not, under the Supreme Court decision, the arbitrator's only option is a fifteen (15) day suspension. The City has not established a true reason for singling out Officer Quintana for an indefinite suspension when this Chief has never indefinitely suspended another officer for DWL

The chain of command had the entire Internal Affairs package. They knew all the facts. They knew about the Facebook picture. They knew about the order 110t to have contact with the female officer. Yet, they came to that Disciplinary Review Hearing prepared to do what had been done in the past, which was to recommend offering an agreed suspension. Nothing new came out at the disciplinary review hearing. Their opinions were changed, but we do not know what changed it.

The issue of wrapping everything up into a neat package and calling it poor judgment is an interesting argument. Almost any mistake where an officer violates a general order is poor judgment. Under Civil Service law 143.051, the statute provides cause for removal or suspension, and it lists a number of factors. The iz" factor listed is a violation of an applicable fire or police department rule or special order. It is agreed that Officer Quintana violated the police department's rule that you have to obey all1aws. It is agreed

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that Officer Quintana violated the department rule about acts bringing discredit, but that's really not why Officer Quintana was indefinitely suspended. The Chief said it himself. It was for poor judgment, poor judgment in cases that aren't even something that he could discipline for. The Chief is using poor judgment in situations that he cannot discipline the officer for to justify indefinitely suspending him here. The Department is trying to use non-administrative violations, something that they don't have a rule against, to justify the discipline that is being given out. That is not appropriate.

With regard to the charge of the DWI which has been stipulated to, it is never good judgment when someone drinks and drives. The other officers who were suspended for DWI's also displayed poor judgment. No one forced them to drive; no one forced them to drink. These acts are the same. It really doesn't matter why you are choosing to do it. The point is, they made a conscious decision to drink and drive. That violates the law. Therefore, there should be discipline. So was there poor judgment used? No question about it. Should there be discipline? No question about it.

There are mitigating factors here. Officer Quintana had a difficult year. The situation with regard to the officer involved shooting, the situation with regard to his personal life, the situation on that day of the deposition of having to relive all of that in eight hours, these were the context in which this DWI happened. They are factors in why he chose to go out that night. Once someone begins to drink, judgment starts to go out the window. This is not an excuse, but a mitigating factor.

If you compare this case to that of Sergeant Armstrong, we fmd some troubling issues. Sergeant Armstrong was a self-admitted alcoholic and attended his first outpatient treatment program at the age of 20. This was Sergeant Armstrong's second suspension for DWI. He had received a 42 day suspension in December of2005. Yet, Chief Acevedo considered that Sergeant Armstrong continues to produce a high quality of work. In this case, the Chief said "There's nothing that we're questioning about Lenny Quintana's work." Sergeant Armstrong's chain of command spoke highly of his leadership abilities. The chain of command here didn't know anything about Officer QUintana's leadership qualities other than what they were told from previous supervisors. They did not question his work and had heard good things about him. Sergeant Armstrong has made many positive contributions to the Department. Sergeant Zumwalt testified about the numerous arrests that Officer Quintana had made. Sergeant Armstrong was cooperative during the investigation and accepted full responsibility for his action. Sergeant Newsom testified that Officer Quintana was very cooperative throughout the entire investigation. Sergeant Armstrong has displayed a sincere commitment to sobriety. Officer Quintana has shown the same commitment to sobriety. Sergeant Armstrong voluntarily sought treatment for his addiction after the incident. So did Officer Quintana. Sergeant Armstrong's chain of command unanimously believed that he will remain a productive member of the Department in a leadership role and as a role model and example to other officers. Officer Quintana'S chain of command had known him for 30 days and changed its mind sometime between the time of the Disciplinary Review Hearing and when the Chief indefinitely suspended him. The sergeant that he worked for during a long period of his career would have recommended that he be retained had she sat on the Disciplinary

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Review Hearing. Is this the luck of the draw as to who is in the chain of command at the time of the discipline? Sergeant Armstrong proffered to voluntarily submit to random alcohol testing and to participate in employee peer support programs. Officer Quintana testified that he continues to work with the peer program even though he is under indefinite suspension.

The Chief thought differently about Officer Quintana than in the other cases. Officer Quintana had been in a high profile situation, had been in an officer involved shooting that was contentious with the Austin community. Chief Acevedo departed from his normal way of approaching these cases and for other factors decided that he was not going to retain Officer Quintana. Other factors, including media attention, do not justify the indefinite suspension in this case.

DISCUSSION:

Based on the record in this case, fully discussed above, we must conclude that the indefinite suspension issued to Officer Quintana was not the appropriate discipline. We so conclude for the following reasons:

1. Discipline has to be issued here because of the stipulations of the truth, for administrative purposes, of the charges alleged. Under Texas Local Government Code 143.051, discipline is valid only if it involves one of the twelve grounds listed (see page 2, above). In this case, the discipline was issued for ground (12) violation of an applicable fire or police department rule or special order.

Officer Quintana stipulated that he violated the two police department rules alleged: General Order A201a.Ol(A)(l) and General Order A201a.02(B)(I). The first rule was violated because of the administrative violation of Texas Penal Code Section 49.04(a)(b): Driving While Intoxicated (see exact wording, p. 5 above).The second rule was violated because the act brought discredit upon the Department. These were the charges that were alleged and were stipulated to be true for purposes of this administrative appeal. Yet, in assessing the indefinite suspension, Officer Quintana was also disciplined for a pattern of poor judgment. He was not charged with a pattern of poor judgment. The discipline cannot be enhanced for charges not made in the letter of charges. Under Texas Local Government Code143.053 (c), the department head is restricted to his original written statement and charges, which may not be amended. Yet, here, the discipline was admittedly assessed for a charge not in the original written statement and charges, a pattern of poor judgment.

2. The participants in the Disciplinary Review Hearing, and especially Chief Acevedo, acknowledged that Officer Quintana was being disciplined not solely for the DWl, but for an alleged pattern of poor judgment. However, this alleged pattern of poor judgment was not proven. While the decision to drink and drive was clearly poor judgment that decision is always poor judgment, no matter what the reason. Certainly, the other officers who were disciplined for DWl also

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showed poor judgment in doing so. It is not clear that any poor judgment was involved in the failure to turn on the video camera under the circumstances of that morning, although surely it was a rule violation and a mistake. Officer Quintana was disciplined with a fifteen (15) day suspension for that mistake. We do not know that any poor judgment was involved on Officer Quintana's part

that caused his former girlfriend to contact her chain of command to communicate with his chain of command that she does not wish to be contacted by him. While the Facebook picture could certainly be misinterpreted, Officer Quintana removed it immediately when told to do so. The picture did not violate any Department rule or regulation; the picture was never produced as evidence; no discipline was issued for the picture. We do not know how it compared to pictures other officers have posted on Facebook. It is certainly a thin reed on which to hang a diagnosis of a pattern of poor judgment. We have no showing of a pattern of poor judgment in Officer Quintana's police work before the officer involved shooting incident. In fact, Sergeant Zumwalt testified to just the opposite pattern, a pattern of making good judgments.

3. Most importantly, this indefinite suspension was completely inconsistent with all the other discipline issued to officers involved in DWl incidents. There is no case in the record where an officer was indefinitely suspended for DWI. They all were issued agreed suspensions of between 25 and 90 days. Officer Quintana was not offered such a suspension. There is nothing that properly differentiates the DWI situation Officer Quintana was involved in from

any of the other DWI situations in the record. To be appropriate, discipline must be consistent with that assessed in other similar cases for the same offense.

4. The officers at the Disciplinary Review Hearing improperly reacted to the reason Officer Quintana chose to drink and drive that evening, the hope that the evening might end in a sexual liaison. This reason is no better or worse than the reasons any other officer chose to drink and drive. The disciplinary event is the DWl charge, not Officer Quintana's sexual hopes. Yet, it is clear that his aclmowledgement that this was his reason was an aggravating factor for the decision makers.

5. The discipline was enhanced by evaluating improperly Officer Quintana's disciplinary record. Officer Quintana's disciplinary record at the time this decision was made consisted of one fifteen (15) day suspension for failing to activate his Mobile Video/Audio Recorder during the incident of the officer involved shooting, issued on November 4,2009. A previous 15 day suspension issued in 2006 had been reduced to a written warning and should no longer have been considered a 15 day suspension. Once it is reduced to a written warning, it is a written warning, and no more.

6. The discipline was enhanced by improperly considering matters for which no discipline was issued and in which no rule or regulation was violated.

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The posting on the Facebook page and the contact ofthe chain of command by his former girlfriend were considered as disciplinary events, but no discipline was issued and no rule violations were cited. The offending photo on Facebook was not even offered in evidence. We are not sure

if a copy was made before it was removed. We have no information

on why his former girlfriend contacted the chain of command and no information that any wrongdoing on the part of Officer Quintana provoked that contact. Again, no discipline was issued and no rule violations were cited. Officer Quintana immediately removed the photo and cancelled his Facebook account in response to the concerns expressed by the Department. He testified, without contradiction, that he has obeyed the Department order not to contact the former girlfiiend.

7. On November 4,2009, when Officer Quintana was suspended for 15 days for the video camera violation, the Chief noted in the disciplinary letter that in determining the appropriate discipline, he considered the statements from his chain of command that he is a dedicated officer who can and

will remain a productive member of the Department. Yet, on May 6, 2010, in response to a DWI incident on January 11,2010, Officer Quintana had suddenly become an officer with a pattern of making poor judgments. Officer Quintana had a new assignment when he returned to work in December, 2009, and a new chain of command, most of whom did not know him or his previous work. There is no evidence in this record that his previous work and record and the evaluation of his previous chain of command was considered at all. Sergeant Zumwalt testified that she was not consulted by any participant in the Disciplinary Review Hearing. Officer Quintana's acknowledged excellent work performance, including being named Officer of the Year one year and nominated for that title

a second year, were not considered at all, according to this record. Although work performance was positively credited in other DWI cases, particularly the case of Sergeant Armstrong, Chief Acevedo said that

it was irrelevant in this case

8. While in previous cases of DWI, officers were given credit for assuming responsibility for entering a rehab program, there is no evidence in this record that consideration was given to the fact that Officer Quintana

had already taken steps to be evaluated, had completed the Right Step program, and continued to be engaged in peer support programs.

9. The point by point comparison between the factors considered and credited as mitigating in Sergeant Armstrong's case and the same factors not credited as mitigating in Officer Quintana's case makes the

indefinite suspension issued to Officer Quintana arbitrary and

capricious.

10. The fact that Officer Quintana cooperated with the investigation at all

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stages and answered all questions truthfully and completely was not considered a mitigating factor.

11. The discipline was enhanced by improperly considering the failure to keep an unenforceable promise Officer Quintana made to Chief Acevedo that he would not be involved in further disciplinary incidents. Similarly, we have no way to know how Officer Quintana or anyone else will conduct himself in future circumstances.

We must find that the discipline of indefinite suspension imposed on Officer Quintana for his acknowledged rule violations and administrative DWI is not consistent with the discipline given to other officers who engaged in the same type of misconduct, who were all given agreed upon suspensions of25 to 90 days. Some of those other officers were on their second DWl. All of them were given a chance to go through treatment and

show that they did not commit the same offense again. While this was Officer Quintana's first DWI, he was disciplined with the industrial equivalent of capital punishment, indefinite suspension, and not given a chance to show that he will not commit the same offense again. We could find no reasonable basis for this variation in the assessment of punishment. An of the officers who were disciplined for DWI showed equally bad judgment in getting themselves into that situation. We have no basis on which to conclude that Officer Quintana's judgment was any worse than that of the others who were guilty of the same violation of Department rules and regulations. Therefore, we must find that the indefinite suspension was not appropriate.

DECISION AND AWARD:

Since we have found that the indefinite suspension was not appropriate, we must reduce this discipline to a fifteen (I5) day suspension. We hereby render null and void the indefinite suspension and reduce it to a fifteen (15) day suspension, our only option given the Texas Supreme Court decision in City of Waco vs. Larry Kelley. Officer Quintana is reminded that he now has two fifteen (15) day suspensions on his record. Any further disciplinary violations may again lead to an indefinite suspension. Officer Quintana is also urged to agree to any program determined by the Chief to monitor and encourage his continued sobriety. Officer Quintana is to be made whole for any pay and benefits lost as a result of the indefinite suspension and to lose only pay and benefits that would be lost for a fifteen (15) day suspension. Officer Quintana is to be

promptly returned to his position as an Austin Police officer.

~£~~

Louise B. Wolitz, Arbitrator /olb'.kYo Travis County, Texas

October 19, 2010