Temporary suspension of Officer Jonathan La Borde

RECEIVED
CITY OF AUSTIN
CIVIL SERVICE OFFICE
OF
6-17-2020
STATE
4:16 p.m.
FOUNDED
1839
MEMORANDUN
Austin Police Department
Office of the Chief of Police
TO:
Joya Hayes, Director of Civil Service
FROM:
Brian Manley, Chief of Police
DATE:
June 16, 2020
SUBJECT: Temporary Suspension of Police Officer Jonathan La Borde #5193
Internal Affairs Control Numbers 2020-0428 and 2020-0045
Pursuant to the provisions of Chapter 143 of the Texas Local Government Code, Section
143.052, and Rule 10, Rules of Procedure for the Firefighters', Police Officers' and
Emergency Medical Service Personnel's Civil Service Commission, I have temporarily
suspended Police Officer Jonathan La Borde #5193 from duty as a City of Austin, Texas
police officer for a period of ten (10) days. The temporary suspension is effective beginning
on June 17, 2020 and continuing through June 26, 2020.
I took this action because Officer La Borde 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.
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The following are the specific acts committed by Officer La Borde in violation of Rule 10:
Internal Affairs Control Number 2020-0045
On December 23, 2019, Officers Jonathan La Borde and Uri Tamez worked an overtime
assignment funded by the Downtown Austin Alliance (DAA) in a marked patrol vehicle.
During the DAA assignment, Officer La Borde was involved in a Level IV response to
resistance (R2R) and realized his Body Worn Camera (BWC) was powered off during the
R2R. He informed his responding supervisor, that his BWC was not powered on. The
audit history for the BWC assigned to Officer La Borde revealed the camera itself was
powered off the duration of the assignment. It was only turned on for the first time
during that assignment after the occurrence of the R2R.
Thereafter, Lieutenant James Nisula performed an audit of the activity that Officers La
Borde and Tamez had engaged in during the overtime assignment, including their DMAV
and BWC videos for December 23, 2019. The audit revealed the officers did not log onto
their vehicle's Mobile Data Computer (MDC) or sign into the Digital Mobile Audio Video
(DMAV) system at the beginning of their shift. Moreover, they did not have DMAV and/or
BWC videos for all of their calls for service.
On May 13, 2020, Internal Affairs conducted an interview with Officer La Borde. During
the interview, Officer La Borde admitted that he did not sign into the MDC and DMAV
system, did not test the DMAV system or his BWC at the beginning of his shift, and did
not use the DMAV and BWC as required by APD General Orders on December 23,
2019.
Internal Affairs Control Number 2020-0428
On April 7, 2020, Lieutenant Nisula conducted a DMAV audit of Officer La Borde. During
the audit he discovered Officer La Borde and Officer Daniel McCameron worked a DAA
overtime assignment on December 2, 2019. They operated a patrol vehicle during the
assignment, but they had no DMAV recordings for that date. Lieutenant Nisula discovered
that the officers did not log into the MDC or DMAV system while working this assignment.
Lieutenant Nisula subsequently reviewed the BWC system recordings for December 2,
2019, which revealed Officers La Borde and McCameron did not have a video for a
Criminal Trespass call (APD incident 19-3360348) for which a criminal trespass notice
report was completed under Versadex report #2019-3360348.
On May 13, 2020, Internal Affairs conducted an interview with Officer La Borde. Officer
La Borde acknowledged to Internal Affairs that he violated APD General Orders 303.3.1,
304.3.1, 304.3.2, and 305.2, on December 2, 2019. These are the same General Orders he
acknowledged violating in Internal Affairs Control Number 2020-0045.
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By these actions, Officer La Borde 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 Policy 303.3: Body Worn Camera Systems:
Department Issued Body Worn Camera
303.3 Department Issued Body Worn Camera
BWC equipment is to be used primarily by uniformed personnel as authorized per
assignment by the Department and must be used unless otherwise authorized by a
Commander or above.
(b)
Employees equipped with a Department issued BWC system must
be trained in the operation of the equipment prior to its use. BWC
equipment will be used in accordance with Department training and
the BWC operations manual.
(c)
Unless otherwise authorized by the Chief of Police or his/her
designee, BWC's will be worn consistent with the training and
manufacturer's recommendations, in regards to fields of view and
employee safety. Employees will adhere to the following
dimensions for placement of the BWC:
1.
From the center of the sternum, no more than four inches to
the right or left on the outermost layer of clothing such that the
camera has an unobstructed view.
2.
No higher than four inches below the top button of the uniform
shirt and no lower than six inches below the top button of the
uniform shirt.
3.
Exemptions to the placement of the BWC in accordance with
this order will be authorized by a Commander or above.
Examples for exemptions may include, but are not limited to,
SWAT, OCD, Executive Protection, and Mounted Patrol.
(d)
Employees shall ensure that their BWC equipment has adequate
battery charge and storage space to complete their regular tour of
duty.
1.
Employees assigned to the units below are required to power
on the device at the beginning of their tour of duty and not
power the device off until the end of that tour of duty.
(a) Patrol,
(b) DTAC Patrol,
(c)
George District Representatives,
(d) Mounted Patrol,
(e) Court Services,
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(f)
Park Patrol,
(g)
Lake Patrol,
(h) Commercial Vehicles,
(i) DWI,
(j) Motors,
(k) Metro Tac,
(1)
Patrol K9,
(m) Gangs,
(n) Criminal Interdiction.
2.
Employees not assigned to the units above are not considered
to be "first responders" and are therefore not required to power
on their assigned Body Worn Camera at the beginning of their
tour of duty. However, if at any time their duties and
responsibilities require any type of field work where they
could be called upon to take enforcement action, their device
will be properly attached and powered on for the entirety of
the time they are in that role.
3.
Employees not engaged in a law enforcement action shall
power the device off or remove it from their body when using
a restroom, locker room, changing room, or any other location
where the employee has an expectation of privacy.
Immediately upon exiting such a facility or room, the
employee shall ensure the BWC equipment is powered back
on and appropriately placed according to this order.
(e)
Employees shall test the BWC equipment at the commencement of
their tour of duty and shall categorize the video as '10-41'.
(f)
The BWC equipment test shall consist of employees recording the
following:
1.
Employee name;
2.
Employee number; and
3.
The current date and time.
(g)
Employees shall review the recording to verify the BWC
microphone is operational, and the date and time is accurate.
Austin Police Department Policy 303.3.1: Body Worn Camera Systems: When
Department Issued BWC System Use is Required
303.3.1 When Department Issued BWC System Use is Required
This section is not intended to describe every possible situation where the system
may be used. In some circumstances it may not be possible to capture images of an
incident due to conditions or location of the camera, however the audio portion can
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be valuable evidence and is subject to the same activation requirements. The BWC
should only be activated for law enforcement purposes.
(a)
All units responding to a scene shall activate their department issued
BWC equipment when they:
1.
Arrive on-scene to any call for service;
2.
Have detained or arrested a person;
3.
Are attempting to detain or arrest a person;
4.
By the nature of the call for service, are likely to detain or
arrest a person; or
5.
Any consensual contact in which the employee or a citizen
believes activation of the BWC would be in the best interest of
the community.
(b)
Examples of when the department issued BWC system must be
activated include, but are not limited to:
1.
Traffic stops;
2.
Foot pursuits, until completion of enforcement action;
3.
DWI investigations including field sobriety tests;
4.
Warrant service;
5.
Investigatory stops; or
6.
Any contact that becomes adversarial in an incident that would
not otherwise require recording.
7.
While interviewing an employee during a Response to
Resistance review.
(c)
Employees that are issued a BWC shall utilize the BWC when
engaging in Off-Duty LERE Overtime.
(d)
In addition to the required situations, employees may activate the
system anytime they believe its use would be appropriate and/or
valuable to document an incident.
(e)
There may be instances in which an employee is required to take
immediate action in response to an event which may not allow time
to activate their BWC. In those situations, it may be impractical or
unreasonable for employees to activate their BWC system before
taking police action. It is expected that once the immediacy of the
situation is over, employees will activate their BWC system to
record the remainder of the incident. Employees shall articulate the
reasoning for the delayed activation of their BWC in an offense
report, supplement, or other form of Department approved
documentation.
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Austin Police Department Policy 304.3.1: Digital Mobile Audio Video
Recording: Required DMAV Testing
304.3.1 Required DMAV Testing
Employees driving DMAV equipped vehicles during field duty assignments where
the required use of the DMAV is likely (e.g., patrol, metro-tactical shifts, traffic
enforcement) must be trained in the operation of the equipment prior to its use.
(a)
Employees will test the vehicles DMAV equipment:
1.
At the commencement of their tour of duty.
2.
Anytime they switch cars during a shift.
3.
When the DMAV media has been replaced for an approved
reason.
(b)
Employees will classify the video as '10-41'
(c)
The DMAV equipment test will consist of employees recording the
following:
1.
Employee name; and
2.
Employee number; and
3.
The current date and time.
(d)
Employees will review the recording to verify the in-car and body
microphone is operational, and the date and time is accurate.
Austin Police Department Policy 304.3.2: Digital Mobile Audio Video
Recording: When DMAV Use is Required
304.3.2 When DMAV Use is Required
This order is not intended to describe every possible situation where the system
may be used. In some circumstances it is not possible to capture images of the
incident due to conditions or location of the camera however the audio portion can
be valuable evidence and is subject to the same activation requirements.
(a)
All units responding to a scene shall activate their DMAV
equipment when they:
1.
Arrive on-scene to any call for service; or
2.
Are attempting to detain or arrest a person; or
3.
Have detained or arrested a person; or
4.
By nature of the incident, are likely to detain or arrest a person.
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(b)
Examples of when the DMAV system must be activated include, but
are not limited to:
1.
Traffic stops.
2.
Pursuits, until completion of enforcement action.
3.
DWI investigations including field sobriety tests.
4.
Warrant service.
5.
Investigatory stops when the subject is on foot or in a vehicle.
6.
Any contact that becomes adversarial in an incident that would
not otherwise require recording. In those situations, it may be
impractical or unreasonable for officers to activate their
DMAV system before taking police action. It is expected that
once the immediacy of the situation is over, officers will
activate their DMAV system to record the remainder of the
incident.
7.
While interviewing an employee during a Response to
Resistance review when the BWC recording system is
unavailable.
(c)
In addition to the required situations, employees may activate the
system anytime they believe its use would be appropriate and/or
valuable to document an incident.
Austin Police Department Policy 305.2: Radio and Mobile Data Computer
Use: Mobile Data Computer Use Guidelines
305.2 Mobile Data Computer Use Guidelines
(a)
The mobile data computer (MDC) shall be used for official police
communications only.
(b)
There is no expectation of privacy concerning sending or receiving
messages via the MDC system. Messages may be reviewed by
supervisors at any time without prior notification.
(c)
The MDC will remain docked and the docking switch will be in the
locked position when the vehicle is in motion or if the MDC is left
unattended unless otherwise approved by a supervisor.
(d)
Employees will not intentionally disrupt the GPS signal.
(e)
Employees driving vehicles equipped with an MDC shall:
1.
Accept all updates to the MDC prior to logging on and while
at a hot-spot; however, employees reporting to duty from a
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location that is not a hot-spot shall ensure the updates are
downloaded as soon as practicable.
2.
Log on at the start of a shift with complete and accurate
information.
3.
Log off at the end of the shift.
Officer La Borde is advised that this suspension may be considered by the Chief of Police
in a future promotional decision pursuant to General Order 919.
By copy of this memo, Officer La Borde is hereby advised of this temporary suspension
and that the suspension may be appealed to the Civil Service Commission by filing with
the Director of Civil Service, within ten (10) days after receipt of a copy of this memo, a
proper notice of appeal in accordance with Section 143.010 of the Texas Local Government
Code.
By copy of this memo and as required by Section 143.057 of the Texas Local Government
Code, Officer La Borde is hereby advised that such section and the Agreement Between
the City of Austin and the Austin Police Association provide for an appeal to an
independent third party hearing examiner, in accordance with the provisions of such
Agreement. If appeal is made to a hearing examiner, all rights of appeal to a District Court
are waived, except as provided by Subsection (j) of Section 143.057 of the Texas Local
Government Code. That section states that the State District Court may hear appeals of an
award of a hearing examiner 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. In order to appeal to a hearing examiner, the original notice of
appeal submitted to the Director of Civil Service must state that appeal is made to a hearing
examiner.
Pittle 3840 for Chief
6/16/2020
BRIAN MANLEY, Chief of Police B.Manley Date
TO WHOM IT MAY CONCERN:
I hereby acknowledge receipt of the above and foregoing memorandum of temporary
suspension and I have been advised that if I desire to appeal that I have ten (10) calendar
days from the date of this receipt to file written notice of appeal with the Director of Civil
Service in accordance with the provisions of Chapter 143 of the Texas Local Government
Code.
Police La #5193
Officer Jonathan Borde 5193
Date
10/11/20
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