Suspensión temporal del oficial Thomas Tuminelli

OF
RECEIVED
FOUNDED
1839
CITY OF AUSTIN
CIVIL SERVICE OFFICE
MEMORANDUM
11-10-20
5:42 PM
Austin Police Department
Office of the Chief of Police
TO:
Joya Hayes, Director of Civil Service
FROM:
Brian Manley, Chief of Police
DATE:
November 10, 2020
SUBJECT:
Agreed Temporary Suspension of Police Officer Thomas Tuminelli #8226
Internal Affairs Control Numbers 2020-0699
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 Thomas Tuminelli #8226 from duty as a City of Austin, Texas
police officer for a period of sixty (60) days. The agreed temporary suspension is effective
beginning on November 11, 2020 and continuing through January 9, 2021.
I took this action because Officer Tuminelli 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.
I
The following are the specific acts committed by Officer Tuminelli in violation of Rule 10:
On May 23, 2020, at 1:57 p.m., a person called Austin 9-1-1 to report an incident. The
caller reported to 9-1-1 that the driver of another vehicle, with whom he was involved in a
collision, had pulled a gun on him at the intersection of Red River St. and E. Martin Luther
King Jr. Blvd. Austin Police Department (APD) officers arrived on the scene and made
contact with the 9-1-1 caller and Officer Thomas Tuminelli. Officer Tuminelli was off-
duty, not in uniform, and driving his personally owned vehicle.
The responding officers conducted a collision investigation and learned that the 9-1-1 caller
had rear-ended Officer Tuminelli. Immediately after the collision occurred, a plain-clothed
Officer Tuminelli exited his vehicle with his personally owned pistol in his hand.
Ultimately, Corporal Michael Whitener responded to the scene and provided the 9-1-1
caller with information on how to file a complaint with the Office of Police Oversight
(OPO). Corporal Whitener also completed a Complainant Contact Form (CCF) to
document the complaint.
Internal Affairs (IA) subsequently received a Notice of Formal Complaint (NFC) from the
Office of Police Oversight (OPO), which alleged the following:
[C]omplainant, alleges that officer employee #8226 [Officer Tuminelli] drove
erratically and break [sic] checked the complainant. The complainant rear ended
the officer. The complainant further alleges that the officer got out of his personal
vehicle and pulled his gun out.
Dash Camera Footage
Both Officer Tuminelli's and the complainant's personally owned vehicles were
equipped with dash cameras. IA received copies of the footage from the May 23, 2020
incident from both parties. The footage reveal that Officer Tuminelli was driving
recklessly in the vicinity of numerous motorists, and that he violated numerous traffic
laws as he was trying to arrive at APD for his 2:00 p.m. shift. Officer Tuminelli violated
the following Texas Transportation Code (TTC) laws:
Reckless driving - driving at a high rate of speed while violating several traffic
laws. TTC § 545.401 (Reckless Driving)
Tailgating - following the complainant too closely while driving. TTC § 545.062
(Following Distance)
Speeding - while on N. IH-35 southbound, speeding at multiple junctures in a
posted 60 mile per hour (mph) zone, including approaching the upper/lower deck
traveling at times at an average speed of 96 mph. TTC § 545.351 (Maximum
Speed Requirement)
Brake checking - passing the complainant on the right and cutting in front of him
and braking. TTC § 545.053 (Passing to the Left; Return; Being Passed).
Unsafe movement left/right - observed moving in/out of traffic at a high rate of
speed. TTC § 545.057(b) (Passing to the Right).
2
Crossing solid white line - crossing several solid white lines while driving at a high
rate of speed. TTC § 545.058 (Driving on Improved Shoulder); TTC §
545.060(a)(2) (Driving on Roadway Laned for Traffic)
Failure to stop at a designated point-white line- At a red light, failed to stop at the
designated point and then made a right turn. TTC § 554.007(d) (Traffic-Control
Signals in General).
TTC $504.945(a)(7) (Wrong, Fictitious, Altered, or Obscured License Plate).
The complainant's and Officer Tuminelli's respective dash camera footage show the
culmination of this incident. As Officer Tuminelli sped towards a stop sign and abruptly
stopped, immediately followed by the complainant rear-ending his vehicle. The dashcam
footage then shows Officer Tuminelli jumping out of his vehicle, in an already intense
situation, and brandishing his firearm. The complainant and Officer Tuminelli can be seen
and heard engaging in a profanity-laced argument, during which Officer Tuminelli
identified himself as a police officer. The complainant then contacted 9-1-1, and officers
were dispatched to the scene.
Officer Tuminelli explained that his reasoning for brandishing his firearm was because he
had concerns for his safety after the collision:
"I had immediately got outta my vehicle, um, with my firearm.
"[T]his individual had possibly rear-ended me on purpose and I'm - I was unsure of his
intentions or actions at that point." "
While Officer Tuminelli stated to IA that most of his traffic violations were in an effort to
get away from the complainant, he later acknowledged during his Disciplinary Review
Hearing (DRH) that some of his violations were not a byproduct of trying to elude the
complainant, particularly brake checking the complainant. Moreover, Officer Tuminelli
acknowledged during his DRH that he was driving recklessly prior to the complainant
following him, and in doing so he not only placed himself and the complainant at risk of
injury, but he also endangered other motorists on the highway. Officer Tuminelli further
conceded to his chain of command during his DRH that his emotions got the better of him,
and he did not meet the expectations of an APD officer.
By these actions, Officer Tuminelli 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 900.1.1: 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;
3
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
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 900.3.2(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
prejudicial to the good order, efficiency, or discipline of the
Department.
In addition to this agreed temporary suspension, Officer Tuminelli agrees to the following
terms and conditions:
1.
Officer Tuminelli shall be evaluated by the Austin Police Department
Psychologist or a qualified professional designated by the Chief.
2.
If the Psychologist or qualified professional recommends a program of
counseling, Officer Tuminelli must successfully complete that program of
counseling.
3.
If a program of counseling is recommended, said program will be completed
on Officer Tuminelli's off duty time, unless the Chief approves the use of
accrued vacation leave.
4.
Officer Tuminelli shall be responsible for paying all costs of the program of
counseling that are not covered by his health insurance plan.
5.
If Officer Tuminelli fails to successfully complete the program of
counseling, the Chief may, at his sole discretion, indefinitely suspend him
without right of appeal to the Civil Service Commission, to an Independent
Third Party Hearing Examiner, to District Court, and Officer Tuminelli may
not file a grievance under Article 20 of the Meet and Confer Agreement.
4
6.
If this evaluation and/or the program of counseling raises a question whether
Officer Tuminelli is sufficiently mentally or physically fit to continue his
duties as a police officer, it could trigger the fitness for duty process set
forth in Texas Local Government Code Chapter 143.081.
7.
Officer Tuminelli shall attend any training specified by his chain of
command.
8.
Officer Tuminelli agrees to a probationary period of one (1) year, with the
additional requirement that if, during the probationary period, he commits
the same or a similar act of misconduct for which he 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), he 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 Officer Tuminelli returns to duty after completing his agreed
suspension. Should Officer Tuminelli commit the same or similar violation
outside the one year period, he will be indefinitely suspended but retains the
right to appeal that suspension.
9.
Officer Tuminelli understands that this temporary suspension may be taken
into consideration in the Chief's determination whether a valid reason exists
to bypass him for a future promotion in accordance with APD General
Order 919.11.
10.
Officer Tuminelli agrees that he, and all others claiming under him 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 he 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
Americans with Disabilities Act of 1990, as amended, 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.
Officer Tuminelli acknowledges that he had the opportunity to discuss this
agreed suspension and additional terms and conditions set forth herein with
a representative of his choosing prior to signing his acceptance where
indicated below.
By signing this Agreed Discipline, Officer Tuminelli understands and agrees that I am
forgoing my right to indefinitely suspend him for the conduct described above and that by
agreeing to the suspension, Officer Tuminelli waives all right to appeal this agreed
5
suspension and the additional terms and conditions to the Civil Service Commission, to an
Independent Third Party Hearing Examiner, and to District Court.
Bell
11-10-2020
BRIAN MANLEY Chief of Police
Date
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.
and
11-10-20
Police Officer Thomas Tuminelli #8226
Date
6