The city will appeal a decision by hearing officers to reinstate two police officers fired after the videotaped beating of a man outside a Lower Downtown nightclub, Mayor Michael Hancock said Wednesday.
The city also will file a motion with the five-member Denver Civil Service Commission asking it to stay the reinstatement of Officer Devin Sparks and Cpl. Randy Murr until the board can hear the appeal. The city would then ask the commission to overturn the hearing officers’ decision.
The stay, if granted, would prevent Murr and Sparks from returning to duty while the appeal is pending.
“It is important we send a message we will never tolerate the use of excessive force,” Hancock said. “As a city, we have to work vigorously to restore trust between the public and the Police Department.”
On Tuesday, three commission hearing officers ruled on Sparks’ and Murr’s request for summary judgment in their termination by former Safety Manager Charles Garcia.
The hearing officers’ 13-page decision states that Garcia’s predecessor, Ron Perea, did not have jurisdiction to overturn his initial order of three days’ discipline, a decision that reopened the investigation and led to the firings, said Earl Peterson, the commission’s executive director.
“This is not a decision regarding the behavior or conduct of the officers. They weren’t trying the behavior of the officers,” Peterson said of the decision by hearing officers Susan J. Eckert, Lawrence B. Leff and Rhonda Rhodes.
The three are licensed attorneys specializing in employment issues who are under contract with the city. They were selected by the commission, and the manager of safety and unions representing Denver’s police officers and firefighters had a say in picking them, said commission spokesman Brian Kellogg.
the five civil service commissioners, appointed by the mayor and the City Council, can affirm or reject the hearing officers’ decision after the city appeals. At that point, the case could wind up in court.
Sparks and Murr were fired for lying during an investigation into the arrest of 24-year-old Michael DeHerrera, who was badly beaten in 2009.
Perea ordered three days of suspension without pay for the officers on July 19, 2010, and neither appealed the decision in the 10 days allowed for objections.
“Therefore, on July 30, 2010, the respective disciplinary orders became final and binding on the officers,” said the hearing officers’ order, signed Tuesday. “No explicit grant of authority exists allowing the Manager of Safety to rescind a final order. Once the time to appeal the disciplinary orders passed on July 30, 2010, petitioners’ disciplinary orders became final.”
The hearing officers ordered reinstatement of Perea’s order of three days’ suspension and a return to the force with appropriate back pay, seniority and other benefits.
Kellogg said the commission must determine what back pay would be ordered and other matters before the order is made final.
Rather than wait, the city will file its appeal and motion to stop reinstatement within a week, said City Attorney Doug las Friednash.
“The city feels strongly that Manager of Safety Garcia’s decision (to overturn his initial order) was proper and appropriate,” Friednash said. He believes that the reinstatement process, in which Sparks and Murr would undergo fitness-for-duty examinations that include medical and psychological tests, could put the officers back on the job in a week or so once it begins.
“We just want to make sure they don’t move forward with the reinstatement process,” Friednash said.
It could take several months before the commission decides the city’s appeal, Kellogg said. Either side could then appeal to the courts.
DeHerrera couldn’t be reached for comment. His father, Pueblo County sheriff’s Deputy Anthony DeHerrera, said the hearing officers’ decision is upsetting.
“Two and a half years fighting for justice, and we were getting to the point where we had some justice and now we are back at square one,” he said.
Police union president Nick Rogers said he is sure the officers will get their jobs back. “I have stood by the officers since Day One, and I will not waver from that position because they have done nothing wrong,” he said.
