Suspensión indefinida del oficial Gregory Burnett

OF
CURRENT
FOUNDED
MEMORANDUM
Austin Police Department
Office of the Chief of Police
TO:
Joya Hayes, Director of Civil Service
FROM:
Brian Manley, Chief of Police
DATE:
November 16, 2018
SUBJECT: Indefinite Suspension of Police Officer Gregory Burnett #5887
Internal Affairs Control Number 2018-0496
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 indefinitely
of Austin, Texas effective November 16, 2018.
suspended Police Officer Gregory Burnett #5887 from duty as a police officer for the City
I took this action because Officer Burnett 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.
The following are specific acts committed by Officer Burnett in violation of Rule 10:
I
I.
Officer's Burnett's Initial Injury and Worker's Compensation Reports
Officer Gregory Burnett was involved in an on-duty crash on September 15, 2017. On
September 18, 2017, Officer Burnett's chiropractor, Dr.
D.C., submitted to
the Austin Police Department (APD) a state mandated Texas Workers' Compensation Work
Status Report (DWC-73), placing Officer Burnett on a no-duty status through September 30,
2017. Thereafter on October 2, 2017, Dr. D.C. submitted a subsequent DWC-73
report, placing Officer Burnett on a no-duty status through October 31, 2017.
Dr.
D.C. did not fully complete Part II, box 13 (c) of either of the DWC-73 reports.
Part II, box 13(c) of the DWC- 73 report prompts the injured employee's provider to provide
the following information: "The following describes how this injury prevents the employee
from returning to work. "Dr.
D.C. also did not complete Part IV of the two DWC-
73 reports, which require the following information from the provider: "Treatment/Follow-
Up Appointment Information, including "Work Injury Diagnosis Information.' "
The missing information on these two DWC-73 reports precipitated APD Risk Management
(RM) to make multiple communication(s) to Officer Burnett and his doctor, imploring them
to comply with state law and general orders by submitting properly completed DWC-73
reports to explain and warrant Officer Burnett's absence from work and to ascertain his
medical status. Also, on October 11, 2017, APD RM personnel and Officer Burnett's chain
of command held an in-person two hour meeting with Officer Burnett to reiterate and clearly
explain his obligations under state law and general orders, and to answer any of his questions.
However, APD's communications with Officer Burnett and his doctor were futile. Officer
Burnett and his doctor persisted in filing incomplete DWC-73 reports to the APD throughout
the end of 2017 and into 2018. Officer Burnett and/or his doctor submitted ten incomplete
DWC-73 reports that placed him on no -duty status from September 16, 2017 until February
22, 2018, without explanation or specified reasoning. These reports resulted in Officer
Burnett not reporting to work in any capacity through the duration of 2017 and into 2018.
II.
Subsequent Medical Examinations and Bona Fide Offers of Employment
These events eventually prompted a review of Officer Burnett's medical condition in an
independent Designated Doctor Evaluation. On February 16, 2018, Dr. Dazzle B. Shrestha,
D.C., a third party doctor approved by the Texas Department of Insurance 1 Division of
Workers Compensation (TDI-DWC) conducted the evaluation and completed a DWC-73
report indicating Officer Burnett should have only been on a no-duty status from September
16-23, 2017, then he should have been on a limited-duty status from September 23, 2017
through February 16, 2018 and limited-duty status moving forward.
On March 1, 2018, APD RM sent Officer Burnett a Bona Fide Offer of Employment (BFOE)
to accommodate the limited-duty status outlined in Dr. Shrestha, D.C.'s DWC-73. Officer
Burnett declined the offer and did not report to work. Thereafter, no reports were submitted
on Officer Burnett's behalf justifying his absence from work after the expiration of the no-
duty status designation by Dr.
D.C. through February 22, 2018. In fact, the next
DWC-73 report APD received from Dr.
D.C. was not until May 14, 2018.
2
On April 4, 2018, Officer Burnett had an out-patient knee surgery for a meniscal tear. On
April 12, 2018, Officer Burnett attended a Post-Designated Doctor Required Medical
Examination with Dr. John P. Obermiller, M.D., another TDI-DWC approved doctor. Dr.
Obermiller, M.D. immediately submitted a DWC-73 report indicating Officer Burnett
should have been placed on limited-duty from September 18, 2017 to February 16, 2018,
and indicated that he should be placed on limited-duty status moving forward.
APD RM followed up by sending a second BFOE to Officer Burnett on April 25, 2018,
accommodating the restrictions set forth in the DWC-73 reports issued by the TDI-DWC
approved doctors. Officer Burnett declined the second BFOE and did not report to work.
After receiving no communication from Dr.
D.C. for several months, APD RM
finally received a DWC-73 report from Dr.
D.C. on May 14, 2018, which released
Officer Burnett to limited-duty status with restrictions, effective May 15, 2018 through July
15, 2018. The limited-duty restrictions issued by Dr.
D.C. were congruent with the
restrictions issued by both Dr. Shrestha, D.C. and Dr. Obermiller, M.D.
APD RM followed up by sending Officer Burnett a third BFOE on May 15, 2018,
accommodating the restrictions set forth in the DWC-73 reports, including the DWC-73
report submitted by Officer Burnett's doctor. Once again, Officer Burnett declined the offer
of employment. Despite being released to limited-duty status and APD's repeated offers of
employment, Officer Burnett still has not returned to work in any capacity since the
September 15, 2017 crash.
III.
Officer Burnett's Continued Refusal to Return to Work
Subsequently, Officer Burnett stopped communicating with APD RM. APD RM
Occupational Health and Safety Coordinator Christina Garza made several attempts to
communicate with Officer Burnett to discuss the multiple BFOEs and determine if he
intended to report to work on or about May 16, 2018 but she received no response.
APD Human Resource (HR) Supervisor Eliza Adcox intervened and contacted Officer
Burnett on May 16, 2018, advising him that the limited-duty designation by the three doctors,
including his treating doctor, did not justify a no-duty status. On May 17, 2018, Officer
Burnett, replied to Ms. Adcox that she is "not a medical doctor, and expressed that he did
not intend to report to work, as he concluded he should have been designated no-duty status.
Thereafter on May 22, 2018, Commander Catherine Johnson sent an email to Officer Burnett
stating in part that he has not provided sufficient medical documentation to support his
absence, including since being placed on limited-duty status by Dr.
D.C. on May
15, 2018. She also advised Officer Burnett that without medical documentation from a doctor
supporting a no-duty status, his absence would result in an administrative investigation and
possible disciplinary actions.
On May 25, 2018, Officer Burnett responded to Commander Johnson's email in part by
stating we are in disagreement, I will not be returning to work in a limited capacity until
I reach MMI (Maximum Medical Improvement)
"
3
Following this response, Commander Johnson issued an Internal Affairs (IA) Complaint
against Officer Burnett on May 25, 2018, for his continued absence without supervisory
approval and insubordination, including but not limited to his failure to follow APD general
orders and numerous directives given to him by APD RM, HR, and/or members of his chain
of command, dating back to September of 2017 to late May of 2018.
IV.
Officer Burnett's 1st IA Interview (September 5, 2018)
IA interviewed Officer Burnett for the first time on September 5, 2018. During his interview,
Officer Burnett took no responsibility for the incomplete documentation submitted by him
or on his behalf throughout 2017-2018. He placed blame upon his doctor and on APD's
personnel and/or representatives.
Officer Burnett also offered no explanation for rejecting the March 1, 2018 BFOE, and his
failure to return to work in March-after Dr. Shrestha, D.C. placed him on limited-duty status
on February 16 through April 3, 2018-the day before his meniscal surgery. He also offered
no explanation for rejecting the second BFOE on April 25, 2018-after Dr. Obermiller, M.D.
issued the post-surgery DWC-73 report placing him on limited-duty status, prior to his
failure to return to work on or before May 15, 2018-the day Dr.
D.C. also submitted
a DWC-73 report indicating Officer Burnett should return to work in a limited capacity.
Officer Burnett also reiterated to IA that he disagreed with his limited-duty designation by
Dr.
D.C. on May 15, 2018. Officer Burnett claimed he addressed his concerns about
being released to limited-duty with Dr.
D.C. However, Officer Burnett stated Dr.
D.C. did nothing to address his concerns that he was unable to perform in a limited-
duty capacity.
Conversely, during Officer Burnett's interview, he contradicted his steadfast assertion to Ms.
Adcox and to Commander Johnson that he would not return to work in a "limited capacity
until" he attained "MMI." Officer Burnett contended to IA for the first time that he would
have returned to work in a limited capacity. He offered the following disingenuous
explanation:
"It all boils down to bona fide offers. So, if I was given a bona fide offer, I'd have
returned to work and then at that point, I'd have discussed it with my treating doctor, "Hey,
guess what? I don't feel like I can do these - do these job functions that you've listed out in
the - in the 73 that you 've allowed me to do.
Officer Burnett stated the work hours listed on the BFOE matched his typical 10-hour
workday schedule, while he claimed the restrictions in the DWC-73 report submitted by Dr.
D.C. restricted him to 8-hour workdays. He disagreed that APD RM had complied
with restrictions set forth in the DWC-73 report completed by Dr.
D.C. and that he
rejected BFOE based on his belief they were invalid job offers. This was the first time that
Officer Burnett offered an explanation why he was not willing to return to work under the
limited-duty restrictions in the BFOEs. Before the IA interview, Officer Burnett's sole
response was that he disagreed with the limited-duty designation, and he had made no
mention of a purported hour restriction.
4
A review of Part III "Maximum hours per day work" of the DW-73 report issued by Dr.
D.C. on May 15, 2017, shows Dr.
D.C. did not restrict Officer Burnett from
working more than 8-hours in a day. Part III of the May 15, 2017 report only notated hour
restrictions from specific activities, and APD's BFOE adhered to those restrictions.
Moreover, even if Dr.
D.C. restricted Officer Burnett to 8-hour work days, APD
RM and his chain of command would have accommodated the restrictions by allowing him
to work an 8-hour day, while fully compensating him for 10 hours, in line with the Local
Government Code guidelines regarding a line of duty injury. However, Officer Burnett's
communicated stance to his chain of command and/or lack of communication with RM
precluded that option.
In fact, Officer Burnett's chain of command continuously accommodated Officer Burnett
from September 2017 through March 2018, by allowing him to use his accrued vacation
and/or sick time in spite of his failure to follow general orders and state workers'
compensation requirements. Therefore, when Officer Burnett stated that his failure to return
to work "boils down to invalid bona fide job offers, he mischaracterized the efforts APD
undertook to assist him.
To further accommodate Officer Burnett's return to work, APD RM sent Officer Burnett a
fourth BFOE by certified mail on October 3, 2018, which gave him the opportunity to choose
from four/10-hour workdays, or five/8-hour workdays to accommodate his newly asserted
complaint. Officer Burnett received the BFOE on October 15, 2018. The deadline to respond
to this offer was October 22, 2018. As of today (November 16, 2018) Officer Burnett had
not responded to the BFOE, undermining his assertion to IA that he would return to work if
he felt the BFOE adequately addressed his needs. Further undermining his assertion that he
had every intention to return to work, but for the problem he had with the BFOE, is that
Officer Burnett told Commander Johnson and Ms. Adcox that he would not return to work,
regardless of what accommodations APD provided him in any capacity.
Compounding matters, near the completion of his initial IA interview, Officer Burnett
revealed that he had altered and submitted two DWC-73 reports to APD on December 19,
2017 and January 4, 2018. Thereafter, IA also discovered that Officer Burnett may have
altered additional DWC-73 reports on December 5, 2017, December 7, 2017, and December
12, 2017. These discoveries on or after September 5, 2018, prompted an additional IA
Complaint by Commander Richard Guajardo for Officer Burnett's failure to comply with all
laws/general orders and for dishonesty, by submitting altered report(s) as authentic reports
prepared by and submitted by his doctor, Dr.
D.C. A second IA interview was
scheduled to discuss the altered DWC-73 reports.
V.
Officer Burnett's 2nd IA Interview (October 11, 2018)
IA interviewed Officer Burnett for a second time on October 11, 2018, to address the
criminal violation exposed at the end of his September 5, 2018 interview. During the
interview, Officer Burnett admitted that he whited out the date on the November 30, 2017
DWC-73 report completed by Dr.
D.C., and he then wrote in different date(s) and
submitted the altered forms on separate occasions to APD RM. Officer Burnett conceded
Dr.
D.C. did not give him consent to change the dates on the DWC-73 reports.
5
Officer Burnett's admission reveals that he altered a government document, to wit Workers'
Compensation DWC-73 reports, on five different occasions, without his doctor's consent
and submitted altered reports on multiple occasions in December 2017 and once in 2018, in
violation of Texas Penal Code 37.10 Tampering with Governmental Record.
Moreover, Officer Burnett's act of altering the reports and submitting them to APD was
deceptive to the recipient each time he submitted the reports and amounts to at least five
distinct acts of dishonesty. Officer Burnett even attempted to mislead IA by claiming he
alerted Deborah Kollar, APD RM HR specialist, on one of the five occasions that he altered
the report.
VI.
Ms. Kollar's IA Interview
Ms. Kollar was subsequently interviewed by IA on October 18, 2018. Ms. Kollar adamantly
denied Officer Burnett ever notified her that he was altering any DWC-73 reports. Ms. Kollar
stated if anyone had informed her Officer Burnett was altering the date at the top of the
DWC-73 reports she would have told Officer Burnett to stop and explained to Officer
Burnett he was not to fill out the date and that it was for the doctor to complete the report.
Ms.
Kollar stated in her 30 years of experience, this was the first time she thought it was a
possibility that someone other than the doctor was writing in the date at the top of a DWC-
73 report. Officer Burnett's chain of command and I find Ms. Kollar's testimony to be
compelling and credible and we find Officer Burnett's self-serving statement to be
incredulous and another violation of the Honesty general order. Moreover, even if Officer
Burnett was to be given the benefit of the doubt on the one occasion where he claimed to
notify Ms. Kollar, it does not undo the other four occasions where he did not notify her of
the alterations.
VII.
IA's Efforts to Interview or Contact Dr.
D.C.
Moreover, after initially saying he did not have his doctor's consent, Officer Burnett
attempted to advance the notion that he had notified Dr.
D.C. regarding his act of
altering the DWC-73 reports. During his second IA interview, Officer Burnett went from
telling IA that he specifically notified Dr.
D.C. about the alteration, to insolently
dodging investigators questions, to then telling IA he did not specifically tell his doctor, and
then reverting back to telling IA that he did notify his doctor.
IA agreed to reach out to Dr.
D.C. at Officer Burnett's behest at the end of his
October 11, 2018 interview, only to later be stonewalled by Officer Burnett's directive to
Dr.
D.C. that he not communicate with IA. IA assured Officer Burnett and Dr.
D.C. they would not ask any HIPPA protected questions. Nonetheless, investigators
efforts to verify Officer Burnett's assertion were futile, as Dr.
D.C. stopped
answering/returning their phone calls. Regardless of the credibility of Officer Burnett's
representation that he notified Dr.
D.C. of his alterations to the DCW-73 reports, his
inconsistent, misleading, and evasive answers on the topic are contrary to the principles of
APD's Honesty general order. Moreover, one of his assertions-either that he definitively
told Dr.
D.C. or that he did not tell him- cannot both be true.
6
Conclusion
I find that Officer Burnett should be indefinitely suspended for any one of several reasons.
First, the revelation by Officer Burnett on September 5, 2018 that he committed multiple
criminal violations alone warrants an indefinite suspension. Officer Burnett's alteration of
the reports amounts to five distinct violations of the Texas Penal Code 37.10 Tampering
with
Governmental Record(s). A single violation of this statute warrants an indefinite suspension.
Second, Officer Burnett conceded he "should not have" altered the DWC-73 reports. I
concur with that assertion. His multiple acts of altering the forms are also clear violations
of
the APD's Honesty general order. A singular violation of the Honesty general order also
calls for an indefinite suspension. Moreover, the surrounding circumstances/statements,
including but not limited Officer Burnett's statements to IA regarding Dr.
D.C. and
Ms. Kollar's knowledge, are also distinct violations of the Honesty general order, and
independently warrant an indefinite suspension. Any of his dishonest statements and/or acts
amount to Brady material and compromise him as a future witness.
Third, any one of Officer Burnett's repeated decisions to not report to work in a limited-duty
capacity also independently warrants an indefinite suspension. 1 Officer Burnett's chain of
command, RM, and HR all exercised extreme patience in the handling of Officer Burnett's
situation and ultimately relied on the decisions of three different doctors, including Officer
Burnett's own doctor before holding him accountable for his apathy to APD general orders
and state law.
While I empathize with his medical condition, Officer Burnett was obligated to follow
general orders and state law regarding the submission of complete, unaltered, accurate, and
timely medical documentation during the course of this case. However, he did not meet his
duty and obligations after being repeatedly counseled and ordered to do so. Officer Burnett
leaves me with no choice but to indefinitely suspend him, and I accept the chain of
command's unanimous recommendation to indefinitely suspend him for any one of the
independent and/or collective reasons contained within this memorandum.
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,
I
While some of Officer Burnett's failure(s) to report to work and/or his failure(s) to provide required
documentation are outside the 180-day window for suspension purposes, it is relevant because it shows a
pattern of behavior on the part of Officer Burnett, rather than an isolated incident. The basis for this suspension,
however, is for any number of reasons, including his failure to provide required documentation and/or report
to work after Dr.
, D.C., May 15, 2018 DWC-73 report, the dishonest statements to IA during this
investigation, and/or the criminal conduct discovered during the 180-day window for suspension purposes.
7
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 policy 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
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.
To Wit:
§ 37.10. TAMPERING WITH GOVERNMENTAL RECORD.
(a) A person commits an offense if he:
(1) knowingly makes a false entry in, or false alteration of, a governmental
record;
(2) makes, presents, or uses any record, document, or thing with knowledge
of its falsity and with intent that it be taken as a genuine governmental
record;
(5) makes, presents, or uses a governmental record with knowledge of its
falsity;
(c)(1) Except as provided by Subdivisions (2), (3), and (4) and by Subsection an offense
under this section is a Class A misdemeanor unless the actor's intent is to defraud
or harm another, in which event the offense is a state jail felony.
8
Austin Police Department Policy 900.3.1: General Conduct and
Responsibilities: Honesty
900.3.1 Honesty
Honesty is of the utmost importance in the police profession. Employees are
expected to be truthful at all times in the performance of their duties.
(a)
Employees will speak the truth at all times and reflect the truth in all
reports and written communications. Any statement or omission of
pertinent or material information which intentionally misrepresents
facts or misleads others through an official statement will be
considered a false official statement. The following are examples of
an "official statement":
1. Documents prepared by an officer in connection with their official
duties, including but not limited to incident reports or
supplements, sworn affidavits, and citations.
2. Verbal or written statements made by an officer in connection
with their official duties to:
(a) An investigator conducting an administrative or criminal
investigation of the officer or another person's conduct.
(b)
A supervisor conducting an inquiry into the officer's use of
force.
(c) A fact finder in an administrative, civil, or criminal
proceeding in which the officer testifies.
(c)
Employees will not attempt to conceal, divert, or mitigate their true
culpability in a situation, nor will they engage in efforts to thwart,
influence, or interfere with an internal or criminal investigation.
Austin Police Department Policy 955.2(a): General Conduct and
Responsibilities: General Attendance Guidelines
955.2(a) 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 the scheduled work start
time if they are going to be absent.
2.
Employees who fail to report to work at the assigned place and
time, or who leave work or an assignment without proper
authorization will be subject to disciplinary action.
9
Austin Police Department Policy 956.5.1(c): On-Duty Injury and Illness :
Employee Responsibilities While on Injury Leave
956.5.1(c) Employee Responsibilities While on Injury Leave
All employees placed on injury leave for a compensable injury or illness shall adhere
to the following guidelines:
(c)
Employees shall obtain a copy of the completed Texas Workers'
Compensation Work Status Report (DWC-73) for each doctor
appointment and submit it to the APD Workers' Compensation Office
within 24 hours of an appointment.
1.
It is the employee's responsibility to ensure each DWC-73 is
received by the APD Workers' Compensation Office.
2.
Completed forms can be scanned and emailed to "APD
Workers' Compensation" or faxed directly to the Workers'
Compensation Office (974-6647).
3.
No employee shall return to work or change their duty status
until the DWC-73 form has been received by the APD Workers'
Compensation Office indicating the employee can return to
work.
By copy of this memo, Officer Burnett is hereby advised of this indefinite 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 Burnett is hereby advised that such section provides for an appeal to an
independent third party hearing examiner. 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.
BRIAN MANLEY, Chief of Police
Birthday
11-16-18
Date
10
TO WHOM IT MAY CONCERN:
I hereby acknowledge receipt of the above and foregoing memorandum of indefinite
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.
Jang Butter # 5887
11/16/2018
Police Officer Gregory Burnett #5887
Date
11