Formal complaint: Responsibility to know and comply, Acts bringing discredit upon the department, Personal conduct, and other policy violations

DEAT OF
OFFICE OF
POLICE OVERSIGHT
FOUNDED
NOTICE OF FORMAL COMPLAINT
ICMS #: 2021-1011
October 5, 2021
Complaint: OPO received a complaint via email from Attorney
alleging potential
misconduct on the part of APD personnel as it relates to a complaint from
involving Detective
.
This Notice of Formal Complaint addresses the
allegations against Detective
chain of command, Internal Affairs, and witness
officers who may have engaged in the same or similar behavior at issue in the
complaint. Complaints against APD Executive Staff are addressed in ICMS #2021-0946.
Below is the complaint submitted by Attorney
:
"To whom it may concern:
This is a complaint against Austin Police Department Interim Police Chief Joseph Chacon, Chief
of Staff Troy Gay, and Assistant Chief Richard Guajardo. This complaint is based on personal
knowledge along with information received by Austin Police Department personnel who are
credible witnesses.
The Office of Police Oversight (OPO) completed a Notice of Formal Complaint against
Detective
on
based on an anonymous online complaint
alleging several serious policy violations. A second anonymous complaint was submitted to the
OPO on
. It is clearly evident that both complaints were submitted by the
same person, an Austin Police Department employee.
Sgt
with Internal Affairs conducted an investigation and interviewed twenty- one
officers and two civilians. Sgt.
concluded that none of the witnesses recalled Det.
ever saying anything they would consider racially insensitive or racist; however,
Chief Chacon, Asst. Chief Gay, and Asst. Chief Guajardo (commonly known as the fifth floor)
insisted on sustaining a violation of APD Policy 900.5(a)(1) without regard to the investigative
findings that convincingly prove Det.
did not violate this policy. Against the wishes
of Det.
entire chain of command, the "fifth floor" insisted Det.
receive
a written reprimand. This written reprimand is a textbook example of disparate discipline. After
reviewing the entire internal affairs case file, I confirmed that several other employees
admittedly used the same term as Det.
however, they did not receive a sustained
finding nor did they receive a written reprimand. In fact, one detective admitted to using the term
first when referring to the hair on the toilet. Furthermore, a meme was made of a silverback
The City of Austin is committed to compliance with the American Disabilities Act. Reasonable modifications and equal access to
communications will be provided upon request.
OF
CITY
OFFICE OF
POLICE OVERSIGHT
NOTICE OF FORMAL COMPLAINT
gorilla with Det.
face on it. At minimum, this is a violation of APD General Order
301.2 Impartial Attitude and Courtesy as the fifth floor did not treat Det.
fairly and
equally nor did they perform their duties objectively and equally.
The three fifth-floor members continued their Nonimpartial Attitude and Discourtesy by
violating APD Policy 902.2.4 Anonymous Complaint: "Employees may be investigated based on
an anonymous complaint. Anonymous complaints shall be treated as an internal complaint for
documentation purposes." This policy was in place when the complaints were filed. On
,
while this case was considered to be under investigation but six months after Det.
interview with Internal Affairs, 902.2.4 was deleted from the policy manual.
Instead, 902.2.3 was amended to state: Anonymous complaints received by the OPO will be
classified as external complaints. The chiefs unilaterally decided to make the policy retroactive
to cover Det.
complaint. Surely the chiefs know that the policy in place at the time
of the complaint is the controlling policy. A quick conversation with city legal would surely
inform them of their inappropriate behavior. On
much to the chagrin of her
chain of command, Det.
was issued a notice of sustained allegations and listed the
specific allegation: You referred to an unknown city employee as an animal in a joking manner.
The specific allegation as a policy violation is preposterous. Nonetheless, Chief Gay issued a
written reprimand to Det.
despite the evidence. On
, I confirmed
with Internal Affairs that Det.
anonymous complaint was in fact classified as
external. It is evident that members of the fifth floor believe the saying, "rules are for thee but
not for me." Just because they are in a command staff position does not mean they should not be
held accountable for adhering to policy just like every officer beneath them. As an attorney that
represents law enforcement and former APD officer, I could have never imagined filing a
complaint on another police officer; however, the unfair treatment these police officers are
receiving from their administration needs to stop. I am filing this complaint, because it is the
right thing to do and not at the request of Det.
Rest assured, should she see
retaliation for my complaint, I will take further action.
Other policies to consider:
900.4.3 Neglect of Duty
900.3.2 Acts Bringing Discredit to the Department
900.1.1 Responsibility to Know and Comply
The City of Austin is committed to compliance with the American Disabilities Act. Reasonable modifications and equal access to
communications will be provided upon request.
OF
CITY
OFFICE OF
POLICE OVERSIGHT
NOTICE OF FORMAL COMPLAINT
900.5.1 Supporting Fellow Employees
Witnesses with personal knowledge:
The entire fifth floor command staff
Det.
chain of command up to and including Commander
Sgt.
in Internal Affairs"
This notice of formal complaint is a request for Internal Affairs to initiate an investigation to
determine if the employee conduct is within compliance of APD policy, Civil Service Rules, and
Municipal Civil Service Rules.
Recommended Administrative Policies to Review (to include but not limited to):
301.2 Impartial Attitude and Courtesy
Employees shall provide equal and fair protection of all rights under local, state, and federal law
for all members of the community. Law enforcement will be conducted in an impartial and
equitable manner.
In an effort to create an organizational culture that is inclusive and nondiscriminatory, employees
shall act professionally, treat all persons fairly and equally, and strive to interact with the
community in a positive manner. Employees will perform all duties objectively and without
regard to personal feelings, animosities, friendships, financial status, occupation or employment
status, sex, disability status, housing status, mental health or ability, citizenship, language,
national origin, creed, color, race, religion, age, political beliefs, sexual orientation, gender
identity, gender expression, ethnicity, or social or ethnic background. Employees will endeavor
to understand and respect cultural, national, racial, religious, physical, mental, and other
differences.
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.
The City of Austin is committed to compliance with the American Disabilities Act. Reasonable modifications and equal access to
communications will be provided upon request.
OF
CITY
QUARTER
OFFICE OF
POLICE OVERSIGHT
NOTICE OF FORMAL COMPLAINT
(a) Employees will maintain a working knowledge and comply with the laws, ordinances,
statutes, regulations, and APD 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
900.3.2 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.
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.
900.5.1 Supporting Fellow Employees
(a) Employees will not knowingly aid, abet, or assist another Department member in
violating any Department directive or order.
Recommended Classification: The OPO is permitted to make a preliminary recommendation on
the classification of administrative cases.
The City of Austin is committed to compliance with the American Disabilities Act. Reasonable modifications and equal access to
communications will be provided upon request.
OF
CITY
LUBUR
OFFICE OF
POLICE OVERSIGHT
FOUNDED
NOTICE OF FORMAL COMPLAINT
The OPO is not recommending a classification. The OPO is recommending an independent
investigation into the alleged actions of Detective
chain of command, Internal
Affairs, and witness officers.
The City of Austin is committed to compliance with the American Disabilities Act. Reasonable modifications and equal access to
communications will be provided upon request.