Temporary suspension of Officer Kristy Astran

of
MEMORANDUM
Austin Police Department
Office of the Chief of Police
TO:
Joya Hayes, Director of Civil Service
FROM:
Joseph Chacon, Chief of Police
DATE:
November 9, 2022
SUBJECT:
Agreed Temporary Suspension of Police Officer Kristy Astran #4729
Internal Affairs Control Number 2022-0457
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 Kristy Astran #4729 from duty as a City of Austin, Texas police
officer for a period of seventy-five (75) days. The agreed temporary suspension is effective
beginning on November 10, 2022 and continuing through January 23, 2023.
I
took this action because Ofc. Astran 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.
1
The following are the specific acts committed by Ofc. Astran in violation of Rule 10:
On February 12, 2021, Ofc. Astran was involved in an on-duty collision resulting in
Ofc. Astran was predominantly on no-duty status and to a lesser extent limited-
duty status for approximately 15 months before being medically released to return to work.
Ofc. Astran returned to full-duty status on May 13, 2022.
On the day leading up to the February 12, 2021, collision, Ofc. Astran had a total of less
than 29 hours of available accrued leave (14.74 vacation hours and 12.25 sick hours). For
context, an APD officer earns 6.25 hours of vacation a pay period and 6.08 hours of sick
time per pay period. There are 24 pay periods in which this is earned for any City of Austin
Employee, including APD officers. Therefore, Ofc. Astran has been earning 150 vacation
hours a year and 145.92 sick hours a year for the last 16 years. Moreover, in 2020, as a
result of her deficiency in her leave balances, Ofc. Astran applied for and was approved
for the APD Sworn Donated Leave program, where she received a total of 440 donated
leave hours, which she exhausted during that calendar year.
It is also important to note that Ofc. Astran's deficiency in her leave balances (sick time,
vacation time, compensatory time, and exception vacation time) had virtually nothing to
do with her 2021 on-duty collision and her inability to work in a full-duty capacity during
the time that she spent recovering. She did not have to use her own leave balances,
whenever she was out due to the work-related injury as she was able to use a special leave
balance for injured officers in the line of duty, established by state law (Local Government
Code 143.073) for members of law enforcement designated as Police Injury Pay (PIN).
Ofc. Astran Failed to Report to Work and Follow Leave Policies
On May 11, 2022, A new Sergeant took over as the supervisor for the Edward 700s. Within
a few days, the Sergeant noticed that Ofc. Astran was having attendance issues. On May
17, 2022, Ofc. Astran did not call in sick nor did she show up for duty. Ofc. Astran then
called in sick the following day on May 18, 2022, but she did not have any sick time
available to use.
On May 20, 2022, the Sergeant met with Ofc. Astran and spoke to her about his
expectations. He also sent her a follow-up email summarizing those expectations. On May
23, 2022, Ofc. Astran confirmed, via email, that she understood the Sergeant's
expectations, which included abiding by department general orders and policies for use of
leave.
Nonetheless, on May 24, 2022, Ofc. Astran not only called in sick, but she failed to contact
her Sergeant at least one hour before her shift started, per APD policy and her Sergeant's
expressed expectations.
As a result, on May 27, 2022, Ofc. Astan's Sergeant and Lieutenant held a meeting with
her regarding her leave balance and to advise her of the Internal Affairs (IA) complaint
2
they planned to submit concerning her time and attendance issues. A complaint was filed
on June 3, 2022, under IA case number 2022-0457.
Additional Complaints
While reviewing Ofc. Astran's first complaint (2022-0457), IA began receiving new
complaints from her Chain-of-Command (COC). The new IA complaints, 2022-0555 and
2022-0556, were also in reference to Ofc. Astran not following directives from various
APD supervisors, not showing up for work at all or on time, not calling in for work at least
an hour prior to the start of her shift and taking time off without having available leave.
Moreover, Ofc. Astran continued her conduct even after IA received the aforementioned
complaints.
IA received complaints for a total of thirteen (13) incidents that occurred between May 24,
2022, and September 29, 2022. Due to their similarity, IA agreed to combine all of Ofc.
Astran's IA complaints under 2022-0457. In sum, IA investigated complaints on the
following dates:
May 24, 2022
June 26, 2022
June 30, 2022
August 31, 2022
September 9, 2022
September 12, 2022
September 15, 2022
September 19, 2022
September 23, 2022
September 26, 2022
September 27, 2022
September 28, 2022
September 29, 2022
Similar to Ofc. Astran's Chain-of-Command, IA also ran into issues during their
investigation when it came to getting Ofc. Astran to appear at the times when she was
directed to appear. It is important to note that APD policy states that an IA sergeant's
directives/orders are by proxy a directive from myself, APD Chief Joseph Chacon.
Notice of Sustained Allegations
Following the IA investigation, Ofc. Astran's Chain-of-Command advised her that they
would be recommending to me, Chief Chacon, that she should be sustained for the
following GO violations:
900.4.3 Neglect of Duty
110.4.4 Insubordination
3
900.1.1 Responsibility To Know and Comply
955.2 General Attendance Guidelines
955.7.1 Employee Responsibilities When Using Sick Leave
In sum I agreed with the Chain-of-Command's recommendation to me that Ofc. Astran
violated the above-mentioned multiple GOs. I also agreed with the specific reasoning
explained in her Notice of Sustained Allegations. I would have indefinitely suspended Ofc.
Astran but for consideration of the fact that Ofc. Astran accepted responsibility during her
Disciplinary Review Hearing, the fact that she has not been disciplined for this type of
behavior in the past, and most notably because of the impact the collision had on her and
the nature of her injuries from her on-duty collision. I, however, am imposing nearly the
maximum discipline, short of indefinite suspension, and fully expect Ofc. Astran to keep
her promise to adhere to every condition contained in this memorandum, otherwise she
will face an indefinite suspension, with no right to appeal.
By these actions, Ofc. Astran 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 110.4.4: Organizational Structure and
Responsibility: Insubordination
110.4.4 Insubordination
Employees will not be insubordinate. The willful disobedience of, or deliberate
refusal to obey any lawful order of a supervisor is insubordination. Defying the
authority of any supervisor by obvious disrespect, arrogant or disrespectful
conduct, ridicule, or challenge to orders issued is considered insubordination
whether done in or out of the supervisor's presence.
Austin Police Department Policy 900.1.1: General Conduct and
Responsibilities: Responsibility to Know and Comply
900.1.1 Responsibility to Know and Comply
The rules of conduct set forth in this order do not serve as an all-inclusive list of
requirements, limitations, or prohibitions on employee conduct and activities;
employees are required to know and comply with all Department policies,
procedures, and written directives.
(a)
Employees will maintain a working knowledge and comply with the
laws, ordinances, statutes, regulations, and APD written directives
which pertain to their assigned duties.
(b)
Employees who do not understand their assigned duties or
responsibilities will read the relevant directives and guidelines, and
4
will consult their immediate supervisor for clarification and
explanation.
(c)
A lack of knowledge of an APD written directive is not a defense to
disciplinary action.
Austin Police Department Policy 900.4.3: General Conduct and
Responsibilities: Neglect of Duty
900.4.3 Neglect of Duty
Employees will satisfactorily perform their duties. Examples of unsatisfactory
performance include, but are not limited to:
(a)
Lack of knowledge of the application of laws required to be
enforced.
(b)
Unwillingness or inability to perform assigned tasks.
(c)
Failure to take appropriate action on the occasion of a crime,
disorder, investigation or other condition deserving police attention.
(d)
Failure to respond to any call or to perform any police duties
assigned to them by appropriate authorities.
(e)
Absence without approved leave.
(f)
Repeated poor evaluations.
(g)
Written record of repeated infractions of rules, regulations,
directives or orders of the Department.
(h)
Failure to follow department standardized training and tactics when
it was objectively reasonable to do so.
(i)
Employees are expected to be truthful at all times in the performance
of their duties. However, there may be instances where, initially, the
employee has not been truthful; but, before the investigation is
complete, the employee provides an accurate and detailed
accounting of their true culpability in a situation, and accepts full
responsibility for their actions. In those cases, the Chief may
consider each case on a fact-specific basis.
Austin Police Department Policy 955.2(a)(1): Attendance and Leave: General
Attendance Guidelines
955.2(a)(1) General Attendance Guidelines
(a)
Employees will not be absent from work without prior
approval from an immediate supervisor.
1.
Unless a different notification is required by a Unit
SOP, employees have the responsibility of notifying
an immediate supervisor at least one (1) hour prior to
5
the scheduled work start time if they are going to be
absent.
Austin Police Department Policy 955.7.1(a)(1): Attendance and Leave:
Employees Responsibilities When Using Sick Leave
9557.1(a)(1) Employees Responsibilities When Using Sick Leave
(a)
Employees shall notify their immediate supervisor:
1.
Unless otherwise specified in the employee's Unit SOP, at
least one (1) hour prior to the employee's work start time if
the employee is going to be out sick;
In addition to this agreed temporary suspension, Ofc. Astran agrees to the following terms
and conditions:
1.
Ofc. Astran shall attend any training specified by her Chain-of-Command.
2.
Ofc. Astran agrees that she will be required to participate in a fitness for
duty evaluation under the following terms and conditions:
a. Within seven (7) calendar days of the start of this suspension, Ofc.
Astran must provide her personal physician with a copy of this
memorandum and the attached document entitled essential functions of
a police officer.
b. Ofc. Astran must be evaluated by her physician, who in turn must
complete the essential functions document (referred to hereafter as the
"report"), including completing the question on the first page asking
whether she is or is not fit to continue her duties as of the date the
physician completes this report. The cost of this evaluation shall be
borne by Ofc. Astran.
C. The report must be received by Commander Jeremy Compton no later
than 5:00 pm on Monday December 9, 2022. Ofc. Astran may provide
a copy of the report to Commander Compton, or her doctor may send
it by hand delivery directly to Commander Compton, or via Facsimile
@ (512)-475-2994, or via email @ Veremy.Compton@austintexas.gov
d. Ofc. Astran agrees that if the report is not received by me by the
December 9, 2022, deadline, it will be considered an act of
insubordination for which she will be indefinitely suspended without
the right of appeal to the Commission, to an Independent Third-Party
Hearing Examiner, or to District Court, and she may not utilize the
Grievance Process in the Meet and Confer Agreement to challenge this
suspension. It is Ofc. Astran's responsibility to ensure that the report is
completed and received by me on time.
e. Ofc. Astran agrees that if her personal physician's report states that she
is not medically fit for duty, she will resign her employment with the
Austin Police Department effective forty-eight (48) hours after the
date the report is received by me.
6
f. Ofc. Astran agrees that if her personal physician's report states she is
medically fit for duty, I have the right to question that report and
request that the Civil Service Commission name a Commission
approved physician to conduct an independent evaluation of her fitness
for duty. Ofc. Astran agrees that she is required to cooperate with the
appointed physician, including agreeing to an in-person evaluation and
providing medical documents requested or a medical release allowing
the appointed physician to obtain her medical records. The cost of this
independent evaluation will be borne by the City of Austin.
g. Ofc. Astran agrees that if the appointed physician concludes she is not
medically fit for duty, she will resign her employment with the Austin
Police Department effective forty-eight (48) hours after the report is
received by me.
h. Ofc. Astran agrees that if the report from her personal physician and
the appointed physician conflict, she agrees that the report from the
appointed physician shall be determinative on the issue of her fitness
for duty.
i.
Ofc. Astran agrees that if she refuses to resign her employment as
provided for in sections (e) or (g), she will be indefinitely suspended
without the right to appeal that suspension to the Commission, to an
Independent Third-Party Hearing Examiner, to District Court, and she
may not utilize the Grievance process in the Meet and Confer
Agreement to challenge her suspension.
j.
If Ofc. Astran is found not fit for duty, she agrees that the City may
but is not required to determine if a reasonable accommodation exists.
k. Ofc. Astran agrees that her failure or her medical provider's failure to
comply with any of these conditions or within the agreed to time
frame(s) will result in her indefinite suspension, without the right to
appeal that suspension to the Commission, to an Independent Third-
Party Hearing Examiner, to District Court, and she may not utilize the
Grievance process in the Meet and Confer Agreement to challenge her
suspension.
3.
Ofc. Astran shall be evaluated by a qualified mental health professional
designated by the Chief of Police.
4.
If the qualified mental professional recommends a program of counseling,
Ofc. Astran must successfully complete that program of counseling.
5.
If a program of counseling is recommended, said program will be completed
on Ofc. Astran's off-duty time, unless the Chief approves the use of accrued
vacation leave.
6.
Ofc. Astran shall be responsible for paying all costs of the program of
counseling that are not covered by her health insurance plan.
7.
If Ofc. Astran fails to successfully complete the program of counseling, the
Chief may, at his sole discretion, indefinitely suspend her without right of
appeal to the Civil Service Commission, to an Independent Third-Party
Hearing Examiner, or to District Court, and Ofc. Astran may not file a
grievance under Article 20 of the Meet and Confer Agreement.
7
8.
Ofc. Astran agrees to a probationary period of one (1) year, with the
additional requirement that if, during the probationary period, she commits
the same or a similar act of misconduct for which she is being suspended
(the determination whether an act is the same or similar is solely within the
purview of the Chief of Police and is not subject to review by the Civil
Service Commission, an Independent Third Party Hearing Examiner, or
District Court), she will be indefinitely suspended without the right to
appeal that suspension to the Civil Service Commission, an Independent
Third Party Hearing Examiner, and to District Court. The one-year period
begins on the day Ofc. Astran returns to duty after completing her agreed
suspension. Should Ofc. Astran commit the same or a similar violation
outside the one-year period, she will be indefinitely suspended but retains
the right to appeal that suspension.
9.
Ofc. Astran understands that this temporary suspension may be taken
into consideration in the Chief's determination whether a valid reason exists
to bypass her for a future promotion in accordance with APD Policy 919.11.
10.
Ofc. Astran agrees that she, and all others claiming under her named herein
or not, fully discharge, release and waive any and all known or unknown
claims or demands of any kind or nature whatsoever that she now has, or
may have in the future, including without limitations, claims arising
under any federal, state or other governmental statute, regulation, or
ordinance relating to employment discrimination, termination of
employment, payment of wages or provision of benefits, Title VII of the
Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991, the
Family and Medical Leave Act, the Fair Labor Standards Act, and the Texas
Commission on Human Rights Act, against the City of Austin, the Austin
Police Department, or their respective agents, servants and employees,
arising from the above-referenced incident, and any actions taken as a result
of that incident, including but not limited to, the negotiation and execution
of this agreed temporary suspension.
11.
Ofc. Astran acknowledges that she had the opportunity to discuss this
agreed suspension and additional terms and conditions set forth herein with
a representative of her choosing prior to signing her acceptance where
indicated below.
By signing this Agreed Discipline, Ofc. Astran understands and agrees that I am forgoing
my right to indefinitely suspend her for the conduct described above and that by agreeing
to the suspension, Ofc. Astran waives all right to appeal this agreed suspension and the
additional terms and conditions to the Civil Service Commission, to an Independent Third-
Party Hearing Examiner, and to District Court.
He
11/9/2022
JOSEPH CHACON, Chief of Police
Date
8
TO WHOM IT MAY CONCERN:
I acknowledge receipt of the above and foregoing memorandum of agreed temporary
suspension and I understand that by entering into this disciplinary agreement the Chief
forgoes his right to indefinitely suspend me for the conduct described above and that by
agreeing to the suspension, I have no right to appeal this disciplinary action, as well as the
additional terms and conditions, to the Civil Service Commission, to an Independent Third
Party Hearing Examiner, and to District Court.
Asthantine
11-9-22
Police Officer Kristy Astran #4729
Date
9