Suspensión temporal del oficial James Ayers

RECEIVED
JULY 27, 2022
3:11 P.M.
OF
COUNTY
MEMORANDUM
Austin Police Department
Office of the Chief of Police
TO:
Joya Hayes, Interim Director of Civil Service
FROM:
Joseph Chacon, Chief of Police
DATE:
July 27, 2022 1
SUBJECT:
Temporary Suspension of Police Officer James Ayers #6755
Internal Affairs Control Number 20221-0499
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 James Ayers #6755 from duty as a City of Austin, Texas police
officer for a period of ten (10) days. The temporary suspension is effective beginning on
July 28, 2022 and continuing through August 6, 2022.
I took this action because Ofc. Ayers 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:
1 Although this suspension is effective more than 180 days after the date of the underlying incident(s), its
imposition complies with the mandates of LGC 143.052 and 9 agreed to extensions (requested/agreed to by
Ofc. Ayers/and his representatives, due to his ongoing "No Duty" status) of the 180-day deadline pursuant
to Article 18, Section 8 of the 2018-2022 Meet and Confer Agreement. APD has/had until July 28, 2022, to
impose discipline. APD sought additional extensions from Ofc. Ayers, however, he declined to agree to
additional extensions. This also hindered Internal Affairs from interviewing him in this investigation.
1
L.
Violation of any of the rules and regulations of the Fire
Department or Police Department or of special orders, as
applicable.
The following are the specific acts committed by Ofc. Ayers in violation of Rule 10:
On March 2, 2021, Ofc. James Ayers was placed on Light Duty/No Duty Status through
the Austin Police Department (APD) Worker's Compensation Unit. On May 4, 2021, Ofc.
Ayers had telephone conversations with a Sedgwick Nurse, the insurance carrier for APD's
Worker's Compensation, as well as a subsequent conversation with an APD Worker's
Compensation Specialist. It was alleged Ofc. Ayers used unprofessional, profane, and/or
abusive language during these two conversations.
On May 7, 2021, APD Internal Affairs (IA) received an internal complainant memorandum
from Ofc. Ayers' Lieutenant requesting an administrative investigation in order to
determine if Ofc. Ayers' conduct complied with department policy, Civil Service rules,
Municipal Civil Service rules, and state law.
Sedgwick Nurse's (June 28, 2021) IA interview
During her interview the Sedgwick Nurse indicated on May 4, 2021:
"...I had contacted [Ofc. Ayers], left a message. He called me back and he had
some questions regarding an and I was trying to get through my file and-I
guess it wasn't fast enough. I'm not sure. I just imagined something triggered him
because he said, "You know what? I'm kinda getting angry." I said, -Let me look
here," and it wasn't any time after that he goes, "You know, I'm very angry. I think
I'm gonna get my boxing gloves out. And he goes, "I need this
done to my
face, and then I said, "You know what?" I said, "Why don't I just call you back?"
He goes, "I'm not happy and I'm angry." In other words, sort of like I'm
responsible for the behavior. I'm responsible for the feelings and it just made me a
little uneasy and I said, "-I'll just try to call ya back," so-I just disconnected the
phone call.'
The Sedgwick Nurse indicated she had numerous lengthy calls with Ofc. Ayers, dating
back to March 18, 2021. She described his behavior as escalating from her first call to this
last call:
I don't know if he didn't have confidence in me 'cause I was the new nurse on the
file. I don't know what was happening. I can only just imagine what's going on but
it just seemed like it might have been a possibility of this escalating because he
didn't like to-he doesn't like to wait He wants everything done like now, now,
now, now, now and-if you don't give him what he wants he gets mad and-angry
2
and-it kind of came to a head on that last day I had him and it made me
uncomfortable enough I asked to be taken off the file.
IA further asked about some of Ofc. Ayers' specific statements:
IA:
When he made that statement to you, that he was going to take his
boxing gloves out, how did you take that?
Sedgwick Nurse: Very threatening. Very threatening even though I'm in Albuquerque,
New Mexico-I was just like, WOW. Ya know-I was extremely concerned.
-I just thought as a police officer they'r supposed to be not threatening
but reassuring and, ya know, if nothing else maybe say, "I guess you're
even if he is frustrated. -I have to work with people like that. I've been
doing this since 1979. I understand people have unmet needs that they
just cannot get answers so I understand that but I don't understand
threatening after I have been on the phone for hours with him trying to
accommodate all of his complaints-It did not feel good 'cause it made
me feel like I was responsible for his behavior and I didn't know where
his behavior was gonna go after this phone call.
APD Worker's Compensation Specialist's (June 10, 2021) IA interview
The APD Worker's Compensation Specialist indicated on May 4, 2021:
"I received a phone call from the [Sedgwick Nurse]. [Ofc. Ayers] called her
requesting information about an and why was it not approved. She said that
she didn't find anything in the record that an
had been requested. She
explained that to him and that he was upset about it. So I said, "I will call him. I
then called Mr. (Ayers) and I [introduced myself as the one following up on his
conversation with the [Sedgwick Nurse] And he immediately he started yelling and
cursing at me. It was immediate. And I tried to calm him down just telling him,
"Calm down. It's okay. We can talk through this.' And he continued to scream at
the top of his lungs cursing and yelling. And I knew that he wasn't angry with me
personally because I had not done anything. He was just already obviously upset
about something else. He continued to yell and scream and I just listened and a few
times chimed in. Then he mentioned something about physical therapy. At that point
I was able to speak for just a few moments. And-I explained to him that physical
therapy has to go through pre-authorization- the treatment guidelines that can be
requested. It would just have to be reviewed. He immediately started screaming and
yelling at me again. At one point I wrote down a few things that he was saying
because it was so - obnoxious- I don't know why I stayed on the line so long. I really
just wanted to calm him down. I didn't have any intentions of getting him into any
trouble. But he was yelling at screaming. At one point he must have put the phone
down and walked away because he sounded like he was in the distance to still
screaming and yelling. I then finally hung up the call."
3
IA asked the Worker's Compensation Specialist's recollection of the specific statements:
IA:
Do you recall any of the things he actually said?
WC Specialist:
He said, "This is fucking bullshit." You know, why isn't anybody
fucking helping him. He at one point said, "I hope you all fucking
suffer" "Fuck you all." That was- the gist of basically everything.
That was his-word choices throughout the eight-minute ordeal.
IA:
Okay and when he-made those comments-did you feel that there was
any kind of threat or anything like that?
WC Specialist:
I didn't feel threatened. I knew he wasn't angry specifically at me.
But I was taken aback that he would - he's always been super nice
to me and it was completely opposite of any other conversations.
And I've had multiple conversations with him.
IA:
Okay.
WC Specialist:
So, I didn't necessarily feel threatened, but I felt some kinda way. It
made me feel uneasy.
IA asked the Worker's Compensation Specialist if she was offended by Ofc. Ayers yelling
and cursing, garnering the following response:
"Not initially, I really wasn't quite frankly. But as it went on, I did feel offended
because I've just never been spoken to like that in my life. It was, just uncalled for
and just out of line."
The Worker's Compensation Specialist wrapped up her IA interview by stating:
"I would just like to say that I don't feel necessarily traumatized like something
major like a major mood change or anything like that. But it does actually just come
into my head that this happened every so often and I even worried at one point what
if he came knocking on my door. Because I told my daughter about this what
happened to me. And she was like, "You have a police officer who has a gun. And
I was like, "Oh that's true. "I don't know that I'm necessarily specifically worried
but I think it's notable for me to say that it is something that worried me a little bit.
Because it was such an unstable conversation out of nowhere. So-I don't need any,
like, medical treatment or anything like that and I'm able to function. But it does
just come to me sometimes that that happened. I don't know why that is. But
sometimes it 'll just occur to me and-Iju wanna make that point. That it-did affect
me in some kinda way just minimally."
4
Conclusion
I agree with the Chain-of-Command's recommendation to me that Ofc. Ayers violated
APD General Order 900.3.2(a) Acts Bringing Discredit Upon the Department for his
conduct in this case, particularly in his conversation with the Sedgwick Nurse. Specifically,
that "[his] statements within the context and tone of the conversation with the [Sedgwick
Nurse] were perceived as threatening to [her]. As an APD employee, making statements
that cause another to feel threatened towards or about members of the public is not
acceptable and destroys the public's confidence in the Department."
Additionally, I agree with the Chain-of-Command's recommendation to me that Ofc. Ayers
violated APD General Order 900.5(a)1 Responsibility to Coworkers in his conversation
with the APD Worker's Compensation Specialist. Specifically, that "during the
conversation [Ofc. Ayers] used loud and profane language directed towards her. As she
attempted to de-escalate the situation, [Ofc. Ayers] continued to curse at her The use
of
these abusive comments caused her to feel threatened or offended. Directing this type of
language towards or about anyone, particularly a fellow employee is counter to our
responsibility to treat each other with respect."
In determining the level of discipline, I considered the aforementioned facts listed in this
suspension memorandum, along with additional guidance from APD General Order
902.9.3, "Factors to Consider in Determining Discipline" to include, but not limited to, his
prior disciplinary history2 and the fact that his conduct brought discredit upon APD. Lastly,
while the Chain-of-Command and I considered and empathize the fact that Ofc. Ayers
was/is going through a difficult time in his life, particularly due to his medical condition,
this in no way excuses the way that he conducted himself in these conversations.
By these actions, Ofc. Ayers 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 900.3.2(a): General Conduct and
Responsibilities: Acts Bringing Discredit Upon the Department
900.3.2(a) Acts Bringing Discredit Upon the Department
Since the conduct of personnel both on-duty or off-duty may reflect directly upon
the Department, employees must conduct themselves at all times in a manner which
does not bring reproach, discredit, or embarrassment to the Department or to the
City.
(a)
Employees will not commit any act which tends to destroy public
confidence in, and respect for, the Department or which is
2 Ofc. Ayers was disciplined in 2015, in IAD case number 2015-0738, where he directed profanity at two
APD supervisors, who attempted to re-counsel him about his repeated tardiness.
5
prejudicial to the good order, efficiency, or discipline of the
Department.
Austin Police Department Policy 900.5(a)1: General Conduct and
Responsibilities: Responsibility to Coworkers
900.5(a)1 Responsibility to Coworkers
Cooperation among employees of the Department is essential to effective law
enforcement.
(a)
Employees are expected to treat each other with respect.
1.
Employees will be courteous and civil at all times in their
relationships, perform their duties in a cooperative and
supportive manner, and not threaten, display physical
aggression toward, or use insolent or abusive language with
one another.
Ofc. Ayers 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, Ofc. Ayers 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, Ofc. Ayers 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.
for Chacon
7-27-21
JOSEPH CHACON, Chief of Police
Date
6
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) 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.
James Ayes by Joe Swenn 4863
7.27.22
Police Officer James Ayers #6755
Date
7
Leave Request Form
ASTIN
On 7/27/2022, a DM
For Article 18:
was held. At that time
Hardship Exception
a suspension of
H
POLICE
10 days was issued.
TEXAS
I.A.D. Case # 2021-0499
Pursuant to the Agreement between the City of Austin and the Austin Police Association dated December 15,
2018
as stated: Disciplinary Actions, Demotions & Appeals Article 18
I hereby request the above described hardship exception, and understand the following:
1.
If the hardship exception is agreed upon, I may not appeal the suspension.
2.
Hardship exceptions apply to suspensions of four (4) to ninety (90) days (see page 2).
3.
Approval of the hardship exception is at the Chief's sole discretion.
4.
Hardship approval or denial may not be admissible in future appeal hearings.
5.
Acceptance of the hardship exception does not set a precedent for any officer in any appeal.
6.
The use of vacation days for suspension will be considered equal punishment and will be listed as a
suspension in the employee's records.
7.
Sick time may not be substituted for vacation leave.
I request the hardship exception as described in Article 18 for the following reasons:
Type of leave requested:
J. Ayers #6755
Officer & Employee No.
4863
J R Ayers by Bet JoeSwann
7-27-22
Officer Signature
Date Signed
The Hardship Exception is hereby:
Denied
Granted for 3 days and /
or
hours
Chief of Police or Designee Approving Exception
Sak Brown
7-27-22
Date
Comments:
Rev. 072012
Hardship Exception Form IA Case 2021-0499
Page 2
ARTICLE 18
DISCIPLINARY ACTIONS AND APPEALS
Section 2. Suspensions of Fifteen (15) Days or Less.
If the Chief determines to suspend an officer for fifteen (15) days or less, the Chief may, at his sole discretion in
hardship cases, authorize use of the officer's accumulated vacation leave to cover all or part of the suspension.
It is also understood and agreed that if the Chief permits the use of vacation days for suspension, such days off
shall be considered as equal punishment to traditional unpaid days of suspension. In no case will sick leave be
substituted for unpaid days of suspension.
Section 3. Mutually Agreed Suspensions of Sixteen (16) to Ninety (90) Days.
Either the Police Chief or the officer facing discipline may offer to impose or accept a suspension without pay
for a period from sixteen (16) to ninety (90) days. If the officer accepts the mutually agreed suspension, there
shall be no appeal either to the Police Civil Service Commission, to the District Court or to a Hearing Examiner.
It is also understood and agreed that if the Chief permits the use of vacation days for suspension, such days off
shall be considered as equal punishment to traditional unpaid days of suspension. In no case will sick leave be
substituted for unpaid days of suspension.
Rev. 072012