ARBITRATION HEARING

BEFORE
ARBITRATOR LEROY R. BARTMAN

IN THE MATTER OF ARBITRATION § Case No. FC-2012-117

§
Between § Hearing Dates: January 20, 21, 22, 23, 2015
§
MICHAEL GARZA § Briefs Received: March 20, 2015
§
And § Hearing Closed: March 20, 2015
§
CITY OF SAN ANTONIO § Award Date: June 22, 2015
____________________________________________________________________________

On the 20th day of January 2015, the following proceedings came on to be heard in the
above-entitled and numbered cause before LeRoy R. Bartman, Arbitrator, held at Safety
Headquarters, 315 South Santa Rosa, San Antonio, Texas.
Proceedings reported by stenographic and computer-aided transcription,

APPEARANCES

ON BEHALF OF THE GRIEVANT:

Robert Leonard
Michael Rickman
CLEAT South Texas Regional Office
1939 N.E. Loop 410, Suite 210
San Antonio TX 78217

ON BEHALF OF THE CITY:

James Kopp, Assistant City Attorney

City of San Antonio
P. O. Box 839966
San Antonio TX 78205

ALSO PRESENT:

Michael Garza
Flo Rosas
Michael Riggs
Julie Verastegui, CCR
 WITNESSES

CITY:

Joel Nelson
Richard Sanchez
Olinda Cardenas
Angela Salvatierra
Robert Ross
Abigail Hernandez
Matthew Quintanilla
Marshall Campbell
Randall Hines
Richard Richardson
Michael Riggs
William McManus

UNION:

Joe Salvaggio
Valente Garcia
John Schiller
Scott Foulke
Kyle Williamson
Mike Helle
Dr. James Greenstone
Michael Garza

EXHIBITS

UNION:

A-1 Dr. James Greenstone's Curriculum Vitae

A-2 Professional Psychological Writings

CITY: See Joint 4

JOINT:

J-1 San Antonio Police General Manual

J-2 Local Government Code
J-3 Collective Bargaining Agreement
J-4 Investigative File
J-5 Civil Service File
J-6 Photos -- Site of Incident
J-7 Photos -- Site of Incident
J-8 Photos -- Not of Incident Site
J-9 Diagrams
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 J-10 Diagrams
J-11 Diagrams
J-12 Diagrams
J-13 Transcription of Dispatches
J-14 Transcription of Dispatches
J-15 CD of Audio Files SAPD Dispatcher
J-16 Record of Dispatches
J-17 CD Labeled SWRCFCU 2:52:02 - 2:54:26

I. INTRODUCTION
Hearing(s) on the referenced matter were held on January 20 - 23, 2015, at 315 S. Santa
Rosa, San Antonio, Texas. The parties were all present and ably represented and acknowledged
that the stated issue was properly before the undersigned Arbitrator. Mr. Michael Garza
(Grievant) was also present.
Each side had a full opportunity to present sworn oral testimony and were given a broad
opportunity to cross-examine and raise objections. They also had a full opportunity to present
their proofs and the record.
The parties elected to close (on oral argument) by the submission of post-hearing briefs
due thirty (30) days after receiving the official court reporter's transcripts. The Arbitrator received
his copy of the official record on February 11, 2015. The post-hearing closing briefs were received
on March 20, 2015 and the hearing was declared officially closed. The Arbitrator underwent knee
replacement surgery and with the parties' mutual agreement, the award date will be June 2015.
II. ISSUE
Did the San Antonio Police Department have just cause to issue Police Officer Michael
Garza an indefinite suspension? If the answer is no, what shall be the appropriate remedy?
III. BACKGROUND
Police Officer Michael Garza was employed by the San Antonio Police Department
(SAPD) on April 25, 2002. His personnel record is discipline free. He currently holds an Advance
Peace Officer License.
He has, according to his personnel file, received sixteen (16) merits at Central and Gang
Unit as a uniform officer. He has also received two (2) Victorious Conduct Medals -- one of which
was for his conduct in which two officers were shot, and another for his undercover work. The
record also shows that Garza was selected on two occasions to be Police Officer of the Year by
Advanced Security International.

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 The Texas Court of Appeals Justice Paul Green addressed a letter of thanks to SAPD
retired Chief Ortiz for the fine work Officers Garza and Baldwin did in stopping a scram in
progress.
CAUSE OF ACTION
Chief McManus alleged that Officer Garza has violated Subsection C of Rule XIII of the
City of San Antonio Fire Fighters' and Police Officers' Civil Service Commission Rules; said rules
having been adopted on February 23, 1998 and thereafter from time to time amended by the Fire
Fighters' and Police Officers' Civil Service Commission as the Civil Service Rules for the Fire and
Police Departments of the City of San Antonio. The particular civil service rule violated by Officer
Garza and ground for suspension is as follows:
(12) Violation of an applicable fire or police department rule or special order.
The Rules and Regulations of the San Antonio Police Department which Officer Garza has
violated are as follows:
RULE 3.02 -- TRUTHFULNESS OF MEMBERS: Members shall speak the truth
at all times. Reports and written communications from any member shall also
reflect the truth.

RULE 3.04 -- RESPONSIBILITY TO SERVE THE PUBLIC: Members shall serve

the public through direction, counseling, assistance, and protection of life and
property. Members shall also respect the rights of individuals and perform their
services with honest, sincerity, courage, and sound judgment. (C) CONDUCT
AND BEHAVIOR -- Members, on-duty or off-duty, shall be governed by the
ordinary and reasonable rules of good conduct and behavior, and shall not commit
any act tending to bring reproach or discredit on themselves or the department.

RULE 3.11 -- USE OF INTOXICANTS; (A) DRINKING ON DUTY: Members shall

not drink intoxicating beverages while on duty. No member shall report for duty
exhibiting the odor of intoxicants, or any of the elements or appearance of
intoxication. The exception shall be for a member to accomplish a specific police
assignment or mission, when approved by a supervisor.

RULE 3.18 -- CITY EQUIPMENT/PROPERTY: (E) WASTE OR CONVERSION:

Members shall not willfully waste or convert to their own use any city owned
supplies, equipment, or services.

PROCEDURE 313 -- USE OF CITY VEHICLES (.04) AUTHORIZED USE (A)

Member operate only those city vehicles assigned to them and only for the
accomplishment of assigned duties. (B) Members transport only authorized
persons in a city vehicle. (2) Approval to transport off-duty members or non-
members must be received from the unit supervisor.

The factual basis for the instant disciplinary suspension is as follows:

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On or about the evening of July 26, 2012, Officer Michael Garza was working his
regular 7:00 pm to 3:00 am assignment as a plain clothes patrol officer assigned
to the Gang Unit. As part of his assignment, Officer Garza drove an unmarked
city-owned 2008 Dodge Ram truck.

During his shift, Officer Garza exchanged numerous text messages with Abigail
Hernandez, a female friend with whom Officer Garza had an ongoing sexual
relationship. He also consumed alcoholic beverages during the shift without
approval of his direct supervisor. At around 10:30 pm, Officer Garza transported
Ms. Hernandez from her apartment located at 8205 Micron to the "Thirsty Horse
Saloon," a nightclub located at 2335 Northwest Military Highway. Later, during the
same shift at about 2:00 am, Officer Garza picked up Ms. Hernandez at the Thirsty
Horse Saloon and drove her back to her apartment.

When they arrived at Ms. Hernandez's apartment, Officer Garza and Ms.
Hernandez were confronted by Alfredo Aragon, who was Ms. Hernandez's former
boyfriend and the father of her child. A verbal confrontation began between Ms.
Hernandez and Mr. Aragon, stemming from multiple phone calls and text
messages between them earlier that evening. Mr. Aragon produced a 9mm
handgun and began firing at the Ram truck being driven by Officer Garza with Ms.
Hernandez in the front passenger seat.

Officer Garza fled the apartment complex, pursued by Mr. Aragon, who was driving
a white Chevy HHR. Mr. Aragon continued firing at the Ram truck, hitting it with
twelve rounds, and wounding Ms. Hernandez in the right arm and abdomen. As
shown by radio transmissions, witness statements, and a bank surveillance video,
Officer Garza began to follow Mr. Aragon's vehicle for a distance of about 1.7 miles
until both vehicles stopped in front of Mr. Aragon's home located at 2350 Field
Wood.

According to Officer Garza, Mr. Aragon made aggressive movements toward him
and would not follow Officer Garza's commands to stop and show his hands. Mr.
Aragon then began moving toward the front door of his home. Officer Garza fired
nine rounds from his city-issued Glock handgun at Mr. Aragon, striking him in the
right foot, right arm and back. Mr. Aragon was pronounced dead at the scene near
the front door of his home.
The shooting of Mr. Aragon is under separate investigation by SAPD's
Homicide Unit. The following Administrative violations (listed in chronological
order) were identified during the Department's Internal Affairs investigation:

1. Procedure Violations -- Use of City Vehicles.

On or about the evening of July 26, 2012, and into the morning of July 27, 2012,
SAPD Officer Michael Garza used his assigned city vehicle for a purpose other
than for the accomplishment of his assigned duties: Officer Garza picked up Ms.
Abigail Hernandez from her apartment located at 8205 Micron and transported her
at around 10:30 p.m. to the "Thirsty Horse Saloon", a nightclub located at 2335
Northwest Military Highway. Officer Garza then picked up Ms. Hernandez from
the Thirsty Horse Saloon and transported her to her apartment located at 8205

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Micron at around 2:00 a.m. This was all done without approval from his unit
supervisor.

2. Responsibility to Serve the Public -- Conduct and Behavior.

On July 27, 2012, at approximately 1:30 a.m., on-duty Officer Michael Garza
brought discredit and reproach on himself when he texted to Ms. Abigail
Hernandez before going to pick her up at the Thirsty Horse Saloon, "OK ma. I got
half of crown n seven. Guna chug. B der in bout 13 mins and 27 seconds."

3. Use of Intoxicants -- Drinking on Duty.

Officer Michael Garza consumed intoxicating beverage(s) during his assigned duty
hours of 7:00 p.m. and 3:00 a.m. on July 26-27, 2012, without approval of his direct
supervisor. On July 27, 2012, while Officer Garza was on duty, he had the odor of
intoxicants on his breath, as observed by Sergeant Marshal Campbell at
approximately 3:30 a.m.

4. Truthfulness of Members.
On July 30, 2012, Officer Michael Garza was untruthful when he provided a sworn
statement to Homicide Detective Richard Richardson regarding the events that led
up to the Officer Involved Shooting that took place at 2350 Field Wood on July 27,
2012. In his statement, Officer Garza reported, "At approximately 0125 hours (1:25
a.m.) Ms. Hernandez contacted me asking if I could pick her up from the 'Thirsty
Horse'. I texted her back telling her that I was working on something and that it
could be a while. If I took too long I believed she would get a ride from someone
else." Officer Garza's statement is in conflict with his text messages regarding the
same conversation obtained from Ms. Hernandez's cell phone.

5. Responsibility to Serve the Public -- Sound Judgment.

On July 27, 2012, at approximately 2:52 a.m., Officer Michael Garza failed to use
sound judgment when, after being fired upon and having a wounded civilian (Ms.
Hernandez) in his city vehicle, Officer Garza engaged in a vehicle pursuit of the
actor (whose identity was known) rather than disengaging the threat and waiting
for on-duty officers and medical assistance to arrive or driving to a nearby
fire/police station (located two blocks away).

6. Truthfulness of Members.
On July 30, 2012, Officer Michael Garza was untruthful when he provided a sworn
statement to Homicide Detective Richard Richardson regarding the events that led
up to the Officer Involved Shooting that took place at 2350 Field Wood on July 27,
2012. In his statement, Officer Garza reported that he was being pursued by Mr.
Aragon from the 7200 block of Culebra to a point just before arrival at Mr. Aragon's
home located at 2350 Field Wood. This statement is in direct conflict with the
Homicide audio interview of Abigail Hernandez, a bank surveillance video, and
San Antonio Police Department radio transmissions which detail, by Officer
Garza's own words, that he was following (pursuing) Mr. Aragon from the 7200
block of Culebra to Mr. Aragon's home at 2350 Field Wood.

7. City Equipment/Property.

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 On July 26th and 27th, 2012, during his eight (8) hour tour-of-duty, Officer Michael
Garza used his city-issued cellular phone for his own personal use. Officer Garza
exchanged over one hundred thirty (130) cellular phone text messages during the
hours of 7:00 p.m. on July 26th and 3:00 a.m. on July 27th that do not appear to
be police related. Officer Garza was also found to be using his city-issued cellular
phone as his home phone number, as shown on his information page of the San
Antonio Police Department mainframe computer.

The City of San Antonio has in place a Chief's Action Advisory Board (CAAB) consisting
of fourteen (14) members made up of seven (7) citizens selected by City Council and seven (7)
sworn police officers of varying ranks appointed by the Chief. The CAAB is chaired by a Deputy
Chief of Police. The Chief presented all of the investigative reports compiled by lead investigator
Sgt. Riggs of Internal Affairs and all other material pertinent and relevant to the case for their
review and recommendation(s).
The Chief is not obligated to follow the findings of the CAAB. In this case, the Board
reached and presented their conclusions after a vote of the eleven (11) board members present1
on each allegation as follows:
1. USE OF VEHICLES; AUTHORIZED USE
Sustained -- Officers Vote 6; Civilian Vote 5
Officers Recommendation -- Counseling 1, Written Reprimand 1, 3 Days 2, 5 Days
1, 30 Days 1
Civilian Recommendation -- Counseling 3, 3 Days 1, 5 Days 1

2. USE OF VEHICLES; AUTHORIZED USE; MEMBERS TRANSPORT ONLY

AUTHORIZED PERSONS IN A CITY VEHICLE.
Approval to transport off-duty members or non-members must be received by the
unit supervisor.
Sustained -- Officers Vote 6; Civilians Vote 5
Officers Recommendation -- Counseling 1, Written Reprimand 1, 3 Days 2, 5 Days
1, 30 Days 3
Civilians Recommendation -- Counseling 3, 3 Days 1, 5 Days 1

3. USE OF VEHICLES; AUTHORIZED USE

Sustained -- Officers Vote 6, Civilians Vote 5
Officers Recommendation -- Counseling 1, Written Reprimand 1, 3 Days 2, 5 Days
1, 30 Days 1
Civilians Recommendation -- Counseling 3, 3 Days 1, 5 Days 1

4. USE OF VEHICLES; AUTHORIZED USE, MEMBERS TRANSPORT ONLY

AUTHORIZED PERSONS IN A CITY VEHICLE.
Approval to transport off-duty members of non-members must be received by the
unit supervisor.

1
Constituted a quorum.
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Sustained -- Officers Vote 6; Civilians Vote 5
Officers Recommendation -- Counseling 1, Written Reprimand 1, 3 Days 2, 5 Days
1, 30 Days 1

5. RESPONSIBILITY TO SERVE THE PUBLIC; CONDUCT AND BEHAVIOR

Sustained -- Officers Vote 1; Civilians Vote 2
Unfounded -- Officers Vote 2; Civilians Vote 3
Inconclusive -- Officers Vote 3

6. USE OF INTOXICANTS; DRINKING ON DUTY

Sustained -- Officers Vote 4; Civilians Vote 5
Unfounded -- Officers Vote 2
Officers Recommendation -- Written Reprimand 3, 2, 1; 3 Days 1, 3, 4; 30 Days 1,
1, 1
Civilians Recommendation -- Counseling 3; 3 Days 1; 5 Days 1

7. TRUTHFULNESS OF MEMBERS
Sustained -- Officers Vote 4; Civilians Vote 5
Inconclusive -- Officers Vote 2
Officers Recommendation -- Counseling 1; Written Reprimand 1; 5 Days 1; 10
Days 1; 15 Days 1; 45 Days 1
Civilians Recommendation -- Counseling 2; 3 Days 1; 5 Days 1; 10 Days 2

8. MEMBERS SHALL SERVE THE PUBLIC THROUGH DIRECTION,

COUNSELING, ASSISTANCE, AND PROTECTION OF LIFE AND
PROPERTY.
Members shall also respect the rights of individuals and perform their services with
honesty, sincerity, courage, and sound judgment.
Sustained -- Officers Vote 6; Civilians Vote 4
Inconclusive -- Civilians Vote 1
Officers Recommendations -- 45 Days 1; 15 Days 2; indefinite suspension 3
Civilians Recommendation -- Written Reprimand 1, 10 Days 1, 30 Days 1; 45 Days
2

9. TRUTHFULNESS OF MEMBERS
Sustained -- Officers Vote 6; Civilians Vote 5
Officers Recommendation -- 10 Days 1; 30 Days 3; 45 Days 1, indefinite
suspension 1
Civilians Recommendations -- 10 Days 1; 25 Days 1; 30 Days 1, 45 Days 1,
indefinite suspension 1

10. CITY EQUIPMENT PROPERTY; WASTE OR CONVERSION

Sustained -- Officers Vote 5; Civilians Vote 4
Inconclusive - Officers Vote 1; Civilians Vote 1
Officers Recommendation -- Written Reprimand 4; 3 Days 1; 10 Days 1
Civilians Recommendation -- Counseling 1; Written Reprimand 3

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The parties mutually agreed that the instant matter is properly before the agreed to undersigned
Arbitrator as found in the Collective Bargaining Agreement and the Texas Local Government
Code.
POSITION OF PARTIES
CITY:
Chief McManus has a wealth of knowledge and experience through his almost forty years
as a police officer. His career began with the Washington, D.C. Metropolitan Police Department,
where he served for 27 years, leaving in 2002 as an Assistant Chief. He then served as Chief of
Police in Dayton, Ohio and then Minneapolis, Minnesota before coming to San Antonio in 2006
to be Chief of Police. (Tr. 2, pp. 76-77). It was clear from Chief McManus' testimony that he gave
this decision serious consideration and deliberation. As part of this consideration, Chief McManus
met repeatedly on this case with Michael Helle, President of the San Antonio Police Officers'
Association. According to Helle, he met with the Chief "a dozen times, if not more than that, trying
to get him to reconsider his opinion on this particular officer. I just could not get him to . . . give it
a second look". (Tr. 3, pp. 46-47). Helle further testified that the Chief "would tell me that was
one of the files that he would continually read. And I don't know how many times he told me that
he had read it, but that was something that he was very-well versed on." (Tr. 3, p. 45). The Chief
was thus well aware of the entire facts of this case from Helle, the file and others, including Garza's
achievements as an officer. "I was familiar with Officer Garza's reputation. I'm -- I was completely
familiar with his aggressiveness on the street. In my opinion, this incident overshadowed those
commendations, letters of appreciation and what have you." (Tr. 3, p. 101). The Chief further
stated he gave consideration to Garza being named Officer of the Year twice. "I did give
consideration to it, a lot of consideration. Last thing I want to do is fire anybody." (Tr. 3, p. 101).
Chief McManus succinctly stated the basis for his decision as follows:
Because -- if I can, just let me philosophical for . . . a short minute. It -- It's almost
dumb for me to say this; but, I mean, this is a police -- being a police officer is a
serious job, and there are a lot of things that can go wrong. There are serious
consequences that can occur if things don't -- if you don't do things right. The night
of this incident was a big freaking joke -- from what I read in the investigation, big
freaking joke to Officer Garza -- drinking, texting back and forth with his -- girlfriend,
lover, whoever she was. There -- there was not one bit of seriousness that I saw
that was in Officer Garza's mind the evening of this event until the shooting started.
At that point it was too late. (Tr. 3, pp. 81-82).

The City submits that Chief McManus acted reasonably in discharging Garza and the role
of the Arbitrator is not to supplant the decision of this very experienced Chief, who in the course
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of his long career, has been faced with many important and difficult decisions. Chief McManus
considered the appropriate discipline to impose regarding Garza's inappropriate conduct on the
night of July 26th and there is no basis to believe there was any improper motive or basis for the
decision, such as any bias or prejudice. There is a reasonable basis for Chief McManus'
considered opinion; so, it should be upheld.
UNION:
Michael Garza was said to have violated Civil Service rules and regulation(s): Subsection
C of Rule XIII (12) Violation of an applicable fire or police department rule or special order. Rules
and Regulations of the San Antonio Police Department as follows: RULE 3.02 TRUTHFULNESS
OF MEMBERS: Members shall speak the truth at all times. Reports and written communications
from any member shall also reflect the truth. RULE 3.04 RESPONSIBILITY TO SERVE THE
PUBLIC: Members shall serve the public through direction, counseling, assistance, and protection
of life and property. Members shall also respect the rights of individuals and perform their services
with honest, sincerity, courage, and sound judgment. (C) CONDUCT AND BEHAVIOR --
Members, on-duty or off-duty, shall be governed by the ordinary and reasonable rules of good
conduct and behavior, and shall not commit any act tending to bring reproach or discredit on
themselves or the department. RULE 3.11: USE OF INTOXICANTS: (A) DRINKING ON DUTY:
Members shall not drink intoxicating beverages while on duty. No member shall report for duty
exhibiting the odor of intoxicants, or any of the elements or appearance of intoxication. The
exception shall be for a member to accomplish a specific police assignment or mission, when
approved by a supervisor. RULE 3.18 CITY EQUIPMENT/PROPERTY: (E) WASTE OR
CONVERSION: Members shall not willfully waste or convert to their own use any city owned
supplies, equipment, or services. PROCEDURE 313 -- USE OF CITY VEHICLES (.04)
AUTHORIZED USE (A) Member operate only those city vehicles assigned to them and only for
the accomplishment of assigned duties. (B) Members transport only authorized persons in a city
vehicle. (2) Approval to transport off-duty members or non-members must be received from the
unit supervisor.
In arbitration conducted under the guidelines of a Collective Bargaining Agreement, such
as this one, the burden of proof lies with the employer to show that the discipline imposed met
the contractual standards for discipline. The Association carries no burden whatsoever. In
essence, like a criminal trial, the employee is innocent until proven guilty by the employer. Under
a "just cause" standard, which governs this proceeding, the basic question is whether the
employer's disciplinary decision is fair under all the circumstances of the case. This involves a
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review of not only whether the officer engaged in misconduct which warrants discipline; but, also
of whether the level of discipline imposed was fair given the officer's offense.
In arbitration under the "just cause" standard, one issue is whether the employer's decision
was supported by proven facts and whether the particular discipline imposed was fair considering
these facts. Where an employer lodges specific factual charges against an officer, it must prove
all the elements of the charges it brings. Appellant asserts that the City failed to carry their burden
because the City failed the just cause standard as it related to the disciplinary action that was
imposed.
Under a "just cause" standard, the basic question is whether the employer's disciplinary
decision is fair under all circumstances in this case. Such a standard involves a review not only
of whether the officer engaged in misconduct which warrants discipline; but, also of whether the
level of discipline imposed was fair given the officer's offense.
In applying the "just cause" standard in the instant case, the following is submitted to the
Honorable Hearing Examiner based upon the testimony and evidence, or lack of testimony and
evidence, at the January 20-23, 2015 appeal hearing in the instant case.
However, when one looks closely at the facts and evidence gathered during both the
criminal investigation and the internal affairs investigation, nothing presented by the City in its
case supports the sustaining of the remaining charges or the Chief's decision in this case.
Appellant asserts the evidence has clearly shown the City and Chief McManus were wrong
in concluding Appellant failed to exercise sound judgment or was untruthful in his statements to
investigators. Absent any evidence to the contrary, the mere fact that the Chief did not believe
Michael is not sufficient on its own to meet the City's burden of proof. The termination of Appellant
is unfounded and arbitrary and capricious. There is no foundation on which the City may rely,
with the testimony and evidence as presented at this hearing, to uphold the termination of the
Appellant.
Wherefore, premises considered, Appellant requests that this Honorable Hearing
Examiner grant the Appellant's appeal/grievance and, in all respects, reinstate the Appellant to
his job as police officer with the San Antonio Police Department; Assign Appellant to his previous
position in the SAPD prior to termination; the records of Appellant shall show no break in service
as a peace officer with the San Antonio Police Department; award Appellant all back pay, vacation
time, sick time and all other attendant benefits and emoluments of his position as a police officer
that he would have enjoyed had he not been terminated, including health benefits. Order the City
to remove from his personnel files with the City of San Antonio and the San Antonio Police
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Department, including files in the Internal Affairs Division (IAD), all documents relating in any
manner to the incident giving rise to the arbitration concerning Appellant. The City should be
ordered to submit the required documentation to TCOLE showing Appellant has had continuous
service from November 20, 2012 with no break in service and all other relief, at law or equity,
which Arbitrator has shown to be justly entitled.
If the Honorable Hearing Examiner determines that there were violations of Civil Service
Rules and/or Department Police, and that discipline is warranted; Appellant still maintains the City
failed to show by a preponderance of the evidence that Appellant was deserving of an indefinite
suspension and therefore, Appellant requests that the indefinite suspension be overturned and in
lieu of the indefinite suspension, a more reasonable and fair discipline be issued based on the
facts as presented in this hearing.
DISCUSSION AND OPINION
The CBA sets forth specific requirements regarding what the Arbitrator must include in his
or her decision. First, the undersigned must state which factual allegations are found to be true
and whether those facts support sustaining the charging instrument.
The facts in this case are highly disputed. Ms. Abigail Hernandez, a City fact witness, by
her inconsistent and false statements discovered by Homicide Det. Richardson, makes her a non-
creditable witness. Additionally, Sgt. Riggs of Internal Affairs Department was not objective as
he should have been while conducting the investigation. Officer Garza's statements and
testimony, given his admissions of rule violations and his consistency in testimony, are given a
great deal of weight by the Arbitrator.
Prior to his testifying at the hearing the Appellant admitted to violating the following
rules and procedures, he also did so in his written and sworn statements to Homicide Detective
Richard Richardson on July 30, 2012, and in his response to the seventy-two (72) interrogatory
questions asked of him by Internal Affairs Sgt. Michael Riggs on September 19, 2012.
RULE 3.11 USE OF INTOXICANTS:
(A) Drinking on Duty

RULE 3.18 CITY EQUIPMENT/PROPERTY

(E) Wastes or Conversion

PROCEDURE 313 USE OF CITY VEHICLES (consists of (1) giving a ride, and (2)
picking up a civilian)
(.04) Authorized Use

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 The remaining alleged violations are as follows: RULE 302 -- TRUTHFULNESS OF
MEMBERS, the City references two (2) incidents which they cite in support of their allegation(s).
In the FIRST INSTANCE the City looks to Officer Garza's statement made to Det. Richardson in
which he said in reference to a text he sent Hernandez in pertinent part, " . . . If I took too long
I believed she would get a ride from someone else . . . ." Garza's statement to Richardson is a
matter of fact.
Sgt. Riggs in his IA interrogatories, found the Appellant's answer to him did not (emphasis
added) agree with the text messages entered into evidence. While Sgt. Riggs is correct in that
the two statements do not agree; he did not (emphasis added) consider the fact that there were
ten (10) text messages not recovered (emphasis added).
The text messages that were downloaded from Ms. Hernandez's cell phone and entered
into evidence were depended upon by Sgt. Riggs to support his theory that Garza intentionally
lied in his statement to Det. Richardson. In the Arbitrator's opinion Garza had nothing to gain in
giving a false statement. As he testified, his statement to Richardson was as he recollected it to
be. It is disturbing that the City has admitted that while there are, according to phone company
records, ten (10) text messages (emphasis added) missing from the time period between July
26th, 8:05 to July 26th, 11:30 (emphasis added) they did not acknowledge that their investigation
was not complete. Sgt. Riggs has admitted that the text messages introduced and depended on
are not (emphasis added) all of the text messages exchanged between the parties. Internal
Affairs investigators also did not fairly (emphasis added) judge the possibility that the missing text
messages could have contained the call to Hernandez about her possibly getting a ride home
from somebody. Sgt. Riggs' agenda was driven by his attempting to prove Garza was giving a
ride to Hernandez in exchange for "sex" after picking her up at "the bar". The Chief's allegations
do not (emphasis added) make any mention of an exchange for sex for the ride to or from
Hernandez's apartment. Yet, Sgt. Riggs throughout his investigation persisted in raising the
matter of "sex" without any viable evidence to support his speculative (emphasis added)
interpretation of a one sided remark made in Hernandez's text message.
Adding to the above, Sgt. Riggs and/or no one in the SAPD according to testimony,
requested Garza's cell phone for download.. In this case a thorough investigation would call for
a download of Garza's phone .
In the opinion of the Arbitrator, the investigation conducted by Internal Affairs did not meet
the standards of just cause (emphasis added) relied upon by arbitrators which requires that an
investigation be fairly and objectively conducted (emphasis added). With ten (10) text messages
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missing (emphasis added) and reliance on only those text messages downloaded from Ms.
Hernandez's cell phone, in the Arbitrator's opinion, does not cast doubt on Garza's statement to
Det. Richardson. What he testified to was that his statement was to the best of his recollection.
At the time of his statement to Richardson he did not (emphasis added) have any text messages
downloaded by the SAPD for reference.
For the above reasons the Arbitrator DENIES (emphasis added) the allegation that Officer
Garza knowingly was not being truthful when he gave his statement to Richardson and Riggs.
RULE 3.02 -- TRUTHFULNESS OF MEMBERS by the City in pertinent part alleges that
when Garza gave his statement to Det. Richardson he stated that he was being pursued
(emphasis added) by Aragon from the 7200 block of Culebra to Aragon's home at 2350 Field
Wood, according to Garza's creditable detailed statement regarding leaving Culebra, he
described how Aragon and he changed positions. At one point Aragon was beside Garza. At
another, he was behind Garza. Reliance on the 20 second video to assume that Garza
maintained his behind position and pursued Aragon is a theory not borne by fact.
Sgt. Riggs in testimony, and in the allegation he crafted, uses the term he was pursing
(emphasis added) Aragon. The SAPD dispatch tape clearly indicates that Garza informed
dispatch that at 2:52:16 "he was north on Ingram from Culebra . . . . I'm behind him (emphasis
added) . . . ." Sgt. Riggs again is not forthrightly quoting the facts regarding Garza's dispatch call.
Garza's statement to Det. Richardson stated in pertinent part, " . . . he advised the
dispatcher that he was being shot at. At the intersection of Culebra and Ingram Aragon caught
up to Garza and began shooting again; this time hitting Abigail . . . . Aragon did a U-turn and drove
in the opposite direction and Garza followed . . . Garza stated he turned on Reed Rd. and Aragon
was still driving behind him aggressively. Garza turned left into Field Wood and Aragon passed
Garza's vehicle . . . ." From the dispatch calls it is apparent that Garza did not know the area and
did not know from his testimony where Aragon lived.
The allegation is based, as stated, upon it being in direct conflict with the audio hospital
interview given by Ms. Abigail Hernandez. the bank surveillance video, and the SAPD radio
transmissions. Homicide Det. Richardson, in testimony, creditably stated that (emphasis added)
". . . there were several discrepancies in Hernandez's statement (emphasis added) regarding
actions taken by Alfred Aragon . . . . She told investigators that Alfred got off (sic) his vehicle in
front of the credit union and fired his weapon at her and Michael Garza. The security video clearly
shows she was not telling the truth. She also falsely told investigators (emphasis added) . . . that
while at the house, Aragon . . . pointed and fired a weapon at her and Garza . . . . This too proved
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to be a false statement (emphasis added) . . . ." For whatever reason, Ms. Hernandez who
appeared as a City fact witness gave inconsistent statements and testimony; making her
creditability in doubt.
The Arbitrator agrees that what was captured on the security video at the First Mark Credit
Union places Garza behind Aragon. What happened thereafter was, in the Arbitrator's opinion,
was truthfully explained in detail by Garza.
Officer Garza has been consistent (emphasis added) throughout all of his statements and
in testimony in describing what occurred after leaving (emphasis added) 7200 Culebra. The facts
are he did get behind Aragon and at times, as he convincingly explained, he and Aragon were
engaged in a cat and mouse routine; there being times when Aragon was driving beside him and
then falling back. The dispatch messages beginning at 2:45:26 indicate that he cannot
immediately remember what make of vehicle he is driving. At 2:53:55 clearly he is not familiar
with the area when he states, " . . . something wood . . . ."
Sgt. Riggs in his interrogatory questions continued to refer to Garza pursuing (emphasis
added) Aragon after leaving the Southwest Research Center located at 7215 Culebra. There are
no matters of fact (emphasis added) to verify Riggs' opinion and use of the word "pursue". Garza
did tell SAPD Dispatch "he was behind" Aragon "headed northbound on Culebra."
Dr. James Greenstone (emphasis added), a behavioral health expert of fifty years
(emphasis added) practice and an expert in (emphasis added) the field of police officers involved
in shootings and Post Traumatic Stress Syndrome, testified that the research of (emphasis added)
Dr. Alexis Artwohl found " . . . that under extreme duress human perception alters radically . . . ."
he further described that because of this altering of perception that officers' memories of the event
are sometimes different or completely wrong on facts after an emergency. In this case, Garza
had been shot at numerous times and had a wounded passenger. He also heard on Hernandez's
speaker cell phone Aragon threatening Hernandez.
Dr. Greenstone explained that " . . . perception for each individual is their reality coming
from their particular vantage point and various things can affect perception . . . ." He also testified
that ". . . when survival or physical survival becomes an issue (Arbitrator's emphasis), it certainly
alters how we see things . . . ."
When asked, " . . . How does our ability to perceive what's going on around us affect our
memory of an event . . . .?", Dr. Greenstone responded, " . . . It can distort our memory of the
event. Can even cause us to maybe not be able to remember the event, to remember it differently
than it actually happened . . . ."
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 The Union is on point in that Garza told investigators the details of what happened exactly
as he remembered (emphasis added). He told the truth as he perceived (emphasis added) it to
be. And, while Michael's recollection of the events leading back to 2350 Micron are different than
what the City says actually occurred, the City failed to provide any proof (emphasis added) to
support their allegation that Garza was being knowingly, intentionally, or willingly untruthful
(emphasis added). Absent a motive to lie, the only thing the City was able to say on the subject
was Michael's version of the events did not match their findings.
For the above reasons the Arbitrator DENIES the charge of Untruthfulness.
RULE 3.04 -- RESPONSIBILITY TO SERVE THE PUBLIC, C. CONDUCT AND BEHAVIOR
(See background)
The Chief in his November 20, 2012, Notice of Indefinite Suspension considered the
Appellant had violated Rule 3.04 when he texted Hernandez the following:
"OK ma. I got half a crown 'n seven. Guna chug. B der in bout 13 mins & 27 seconds"
The allegation was reached because the above "brought discredit and reproach upon
himself." There is no dispute that Garza (he also admitted) did send the text.
In his creditable testimony Garza articulated that his text was meant as a joke. Sgt. Garcia,
Garza's supervisor, described in testimony Garza's particular sense of humor. There was no
charge that he was drinking. The sobriety test taken on July 27, 2012 attested to that fact. The
text however was, as were other texts, unfortunate but unintentional.
The Arbitrator SUSTAINS the above for the reasons given.
RULE 3.04 -- PROCEDURAL VIOLATION
Paragraph five of the Chief's Notice of Indefinite Suspension alleges as follows:
" . . . Officer Michael Garza failed to use sound judgment (Arbitrator's emphasis)
when, after being fired upon and having a wounded civilian (Hernandez) in his city
vehicle, . . . engaged in a vehicle pursuit (Arbitrator's emphasis) of the actor . . .
rather than disengaging threat and waiting for on-duty officers and medical
assistance to arrive or driving to a nearby fire/police station (located two blocks
away).

The fact(s) are that the Appellant ended up behind (emphasis added) as captured on the
security video, not in pursuit, after Aragon shot Ms. Hernandez. The allegation stated he failed
(emphasis added) to use sound judgment (emphasis added) as required.
Chief McManus when asked in cross-examination if it was possible to handle a situation
the way it happened, somebody ambushes you, they try to murder you and you react to what is

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going on; responded, " . . . True (emphasis added) . . ." The Chief interjected, " . . . that's why we
have sound judgment . . . ."
The term "sound judgment" as found in the introductory paragraph of Rule 3.04 is not
defined. Judgment (emphasis added) as defined in Webster's Collegiate Dictionary, 1981 Ed. Is
as follows:
(4) The result of judging; opinion; decision
(5) The mental act of judging; the operation of the mind, involving comparison and
discrimination by which knowledge of values and relations is mentally formulated.
(6) Showing good judgment or good sense; as sound advice
Black's Law Dictionary, 10th Edition, defines sound as:
Sound: (3) (of discretion) exercised equitably under circumstances
Roget's New Thesaurus defines judgment as:
(1) the ability to make sensible decisions (common sense)
(2) Based on good judgment, reasoning, or evidence
As seen above, the term sound judgment is ambiguous and wide open to interpretation.
During the ride back to her apartment on July 27, 2012 between 0130 and 0200 hours Ms.
Hernandez, according to testimony, had told Garza about Aragon's frequent calls made to her
during her stay at the bar.
Aragon, during the course of events the morning of July 27th, made threats (emphasis
added) against Ms. Hernandez, her son Avery, and whoever was with her on her cell phone
speaker.2 His threats were that he would "kill you, kill himself, kill everyone including his three
children and her son, Avery. . . . (emphasis added)."
In her testimony she told Garza, " . . . He's going -- he's -- he's going to his house. He's
going to get the kids. He's going to take Avery . . . ." At that point, she had already been shot but
she stated, " . . . she wanted him (Garza) to beat Alfred (Aragon) to prevent him from getting
inside where the children were at . . . ." At 2:52:16 Garza reported his location and stated he
needed EMS to take care of Ms. Hernandez's gunshot wounds.
Both the Appellant and Ms. Hernandez testified that she did not give Garza any indication
of how serious her injuries were. Garza's creditable testimony was that he did not see any signs
that her injuries were severe. Hernandez was conscious and yelling her concerns for her son,
Avery. She did not ask the Appellant to take her to a hospital according to testimony.

2
Garza and Hernandez had already been shot at while trying to get away from the apartment complex.
Aragon was in pursuit of them.
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 The Chief when asked on cross-examination " . . . if Garza was aware of a threat to the
lives of the children of Abigail Hernandez and his duties to serve the public (emphasis added)
doesn't he have an obligation to protect the lives of those children? The Chief's response, " . . .
Yes (emphasis added) . . ." The Chief's response supports Garza's decision contrary to the
allegation.
As Dr. Greenstone testified, " . . . when survival or physical survival becomes an issue, it
certainly alters how we see things . . . ." The Association is on point that the facts are that, over
the course of a short span of time, Aragon had fired his 9mm handgun multiple times with an
intent to do bodily harm to him and Hernandez.
The Chief, as noted above, agreed that the Appellant's obligation to protect the lives of
the children, who were threatened by Aragon, is a duty contained in Rule 3.04.
For the above reasons the charge that the Appellant violated Rule 3.04 Procedure is
DENIED.
MITIGATING CIRCUMSTANCES
In addition to his ten (10) year discipline free record along with various commendations
(see background), the following officers have testified when asked of their opinions of Officer
Garza's plain clothes work in the gang unit as follows:
Sgt. Ken Williamson: Exceptional. I mean, he's just -- he's got -- he's got a gift. You
know, it's not something -- Doing the undercover work, it's -- it's not something everybody can do,
it's not something everybody can be trained to do. It's just one of those things that -- At the level
that he was doing it, it's just one of those things that very few people can do that, you know, the
type of work that he did, and do it to the level he did.
And the work -- kind of work that he did was -- was exceptional. With the number of people
-- the number of different gangs that, you know, he did that type of work with, it's just - it's unreal.

Captain Joseph Salvaggio (former supervisor):

Described Garza as carrying the gang unit -- instrumental in generating huge warrant
roundups -- Gang Units success rate was directly attributable to him -- a lot of guns taken off the
streets because of him.
Sgt. Valente Garcia (Garza's supervisor):
I'd have to say he's probably the best undercover officer that I've seen or worked with in
my career."
Q. What was his success rate while you were his supervisor?
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 A. While I was his supervisor, every investigation that we generated or started and he
participated in as an undercover officer was always successful. We both -- we did stuff both at
the federal and state level, and I can't even count the number of indictments that we secured, and
they were all successful.
Detective John Schiller:
I've seen a lot of plainclothes guys, but he probably was -- was the best one I've ever seen
about purchasing the stuff that he was asked to go buy.
Q. And in his capacity as a plainclothes officer, an undercover officer, did he have good
success while working with you?
A. Oh, yes, sir. Yes, sir. Very good success.
Q. And since Michael left the Gang Unit, has there ever -- has there been anybody else
that has done the same things that Michael has? Has somebody replaced his abilities since he
left the unit?
A. No sir. After Mike left, we no longer have an undercover officer that goes and
purchases narcotics.
DISPARATE TREATMENT
Detective Investigator Mike Halle , Association President, testified that from his twenty-
five (25) years of experience with the SAPD he "most definitely" knew of officers faced with
indefinite suspensions with circumstances worse than Garza's being brought back by the Chief
(emphasis added). He also, when asked in unrefuted testimony, stated:
" . . . we've had a lot worse cases than this particular case . . . . We've had many,
many officers where they were willing to return back to work . . . you know, get a
second chance agreement . . . ."

When asked if officers with charges similar or the same as Garza's have been able to get
the department to return them to duty if they received an indefinite suspension, Halle responded,
"yes." He also when asked ". . . those charges (Garza's) on their own shouldn't be precluding
Michael from returning to duty". Halle response was ". . . that's correct . . . ."

CONCLUSION
The City's case to indefinitely suspend the Appellant does not meet the standard of "just
cause" (emphasis added). The Internal Affairs investigation was not objectively and fairly
conducted . The Internal Affairs investigation speculated and arrived at conclusions not based
on fact, i.e. "sex" for the ride. In measuring distances from point A to B in the comfort of an office
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raises a prime example of 20/20 hindsight. No one was shooting at them after stating, "everyone
will die". Officer Garza has been forthright throughout in his admissions of violating certain rules
of the SAPD and has been consistent during his testimony.
Officer Garza's outstanding record and recognition over his ten (10) year service were
tacitly reviewed by Chief McManus who testified he considered the Appellant's good work history
and he knew of his " . . . reputation . . . ." and of his ” . . . aggressiveness on the streets . . . ." In
the opinion of the Arbitrator, his evaluation of his work history is grossly understated.
In this case the City has chosen to inflict the industrial counterpart of "capital punishment"
on an officer who has a ten (10) year discipline free record with numerous decorations and awards
(see background) including officer of the year twice. As noted above, his supervisor, previous
supervisor, and others have rated him a gifted asset in his Gang Unit assignment.
The testimony of Detective Mike Helle, Association President, as noted above, spoke to
"disparate treatment" of the SAPD and knew of officers allowed a second chance for violations
equal to or worse than Garza's.
There is no question that the Appellant violated certain rules as charged. Given his record
and other mitigating circumstances, he is deserving of "progressive discipline" rather than "capital
punishment". It is reasonable to assume that he will correct the behavioral errors he committed
in this case and remain a productive officer of the SAPD.

AWARD
The appeal/grievance is sustained in part and denied in part. For the charges of violating
Rule 3.11, Rule 3.18, Rule 3.13(4) and Rule 3.04(c) the grievance is denied.
For Rule 3.02, Truthfulness of Members, and Rule 3.04, Responsibility to Serve the Public,
the grievance is sustained.
REMEDY
The Appellant is suspended for a period of fifteen (15) days, time served. He will be made
whole for all wages and benefits (emphasis added) lost minus the 15 day suspension. Any and
all wages earned while suspended will be deducted from the back pay for the period November
20, 2012 - December 31, 2014. If possible the Appellant will be returned to his former assignment.
The parties are directed to agree to a method of calculation for the period of January 1, 2015
through the date of his reinstatement. A copy of his income tax statement will be furnished the
SAPD to verify the wages earned.

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 His seniority date will be retained and the City will furnish TCOLE documentation to show
continuous service from November 20, 2012.
The Arbitrator will retain jurisdiction for a period of thirty (30) days.
It is so directed this 22nd day of June, 2015.

X
LeRoy R. Bartman, Ed.D

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