Rule 12 — a dry-as-dust legal ramble that governs discipline for Denver police officers — could soon get an update that some say would ensure that decisions to terminate an officer aren’t routinely, and mistakenly, overturned by hearing officers.
Officers can appeal discipline ordered by the manager of safety to hearing officers, who are lawyers that the Civil Service Commission contracts to hear the cases. But a string of recent decisions overturning manager rulings has eroded public trust in the process, City Attorney Douglas Friednash said.
“What we are trying to do is restore public trust and confidence,” Friednash said of the push to change the rules.
Friednash and Manager of Safety Alex Martinez want to change the way hearing officers now conduct appeals. The hearings resemble trials, with a line of witnesses for both sides.
The process ignores the fact that before deciding a case, the manager reviews the Internal Affairs investigation. Although an accounting of the investigation is submitted as evidence, hearing officers do not consider that record in making decisions, Martinez said.
The process also puts the burden of proving that discipline is warranted on the manager when it should be up to the officer to show that it is not justified, Martinez said. Currently, “the manager’s decision is an accusation that is in effect tried by the hearing officers.”
The police union is in favor of changes that would speed up the discipline process, which dragged on for years in some cases, said Police Protective Association president Nick Rogers.
“But one substantive change we are opposed to is shifting the burden of proof from the manager of safety to the officer. That is a fundamental reversal of what due process is,” he said. “We offer all persons accused in the criminal justice system due process to prove their innocence. We are just asking for the same.”
Friednash points to a decision in the case of Ricky Nixon and Kevin Devine, who were dismissed by former Manager of Safety Charles Garcia after an arrest outside Denver Diner. Garcia said they lied during the internal-affairs investigation of their actions, which were caught on camera.
A three-member hearing panel overturned the terminations, finding that the officers’ misstatements were not intended to deceive investigators. The city appealed the panel’s decision to the commission.
Commissioners decided the panel was in a better position to decide whether inconsistencies in the officers’ reports were intended to deceive.
Hearing officers are overturning manager’s decisions based on their own interpretation of the facts, said Earl E. Peterson, the commission executive director.
Hearing officers shouldn’t have the discretion to decide the facts of a case — that power lies with the manager, said Friednash.
“What they should be doing is deciding whether or not the manager abused his discretion,” he said.
The commission developed the rule, and it has the power to modify it, Martinez said.
The five-member commission will hold a series of workshops with Martinez and other interested parties where proposed changes will be discussed, said Peterson. There will also be a public hearing before the commission votes on the matter.
“I want this done by January or February,” Peterson said.
