San Diego County Sheriff Bill Gore occasionally has to sue to keep fired deputies from returning to the job. In some cases, even that doesn’t work.

In June, Gore filed a lawsuit against the county’s Civil Service Commission – an independent review board to which county employees can appeal disciplinary actions – alleging the commission had abused its discretion by reinstating Jeffrey Hornacek, a deputy fired earlier this year because Gore decided he was incompetent and unfit for public service.

The case provides a rare look at officer discipline proceedings in a state that keeps such information under lock and key. Though Sheriff’s Department data from the past nine years shows it’s relatively rare for fired deputies to be reinstated, it does happen.

After about 18 months on the job, during which he was assigned to jails and courthouses, Hornacek moved over to patrol and began the three phases of field training he was required to complete.

According to details included the lawsuit filed in San Diego County Superior Court, Hornacek struggled from the very beginning.

Six different times in the first week of his training, Hornacek failed to properly search individuals he questioned or detained. He once used multiple sets of handcuffs on the same person – but somehow still failed to secure the person’s hands. Sent by his supervisor to inspect a suspicious vehicle, Hornacek overlooked hypodermic needles and drug paraphernalia sitting in plain sight. After one woman refused to leave a business, Hornacek tried to falsely arrest her for public drunkenness, even though there was no evidence she’d been actually drinking.


We Stand Up for You. Will You Stand Up for Us?

The three phases of field training take deputies on average 60 days to complete. Because Hornacek repeatedly floundered, and supervisors allowed him to restart the training multiple times, his field training last more than 100 days.

One training officer who worked with Hornacek testified at the Civil Service hearing that he’d never seen another trainee struggle as much that late in field training. By that point, the training officer said, “a trainee should be handling most things with little to no assistance from the training officer.”

Hornacek was unfit for public service, the department determined when it fired him in January:

“Hornacek demonstrated throughout his phase 3 training that he was not capable of working independently, and that if he were sent out on patrol without direct supervision, he would likely make mistakes that would cause either himself, his fellow deputies, or the public to be placed in greater danger,” the department wrote in the lawsuit.

Because Hornacek had been on the job longer than 18 months when he was fired, he was entitled to appeal his termination to the Civil Service Commission.

In March, he went before the commission for a hearing. Hornacek did not dispute the evidence presented against him, but his attorney argued that his performance as a whole didn’t demonstrate incompetence because he’d been graded as satisfactory in “public safety” and “acceptance of criticism” throughout most of his training.

It was enough to sway the commission at the hearing. The commission agreed that Hornacek showed more problems than a typical trainee and did not demonstrate knowledge of the laws he was taught and should have known.

But he also showed signs of improvement, the commission determined, and was guilty of “inefficiency,” – not incompetency. The commission then changed his termination to a two-day suspension and reinstated him as a deputy.

Sheriff Bill Gore in June appealed that decision in a lawsuit, arguing the Civil Service Commission abused its discretion when it reinstated Hornacek. The appeal is pending.

“The Commission’s decision glossed over the enormous harm to the public service caused by this employee, as well as the likely enormous harm to the public service that will occur by the Sheriff having to keep a deputy sheriff who, by his own actions and admissions, is deficient. It is difficult to conceive of a greater harm to the public service than allowing an unsafe deputy sheriff to be responsible for the safety of the public and his partners. Such harm is magnified exponentially by the fact that a deputy sheriff is likely to face dangerous situations every day on patrol,” the department argued in the suit.

It’s not the only time the San Diego County Sheriff’s Department fired a deputy, only to have that decision overturned by the Civil Service Commission.

Since 2008, three of the 48 sworn deputies the Sheriff’s Department fired were later reinstated after they appealed their terminations to the Civil Service Commission, according to numbers the department provided. Those numbers don’t include cadets who were fired before they reached sworn status or deputies who resigned in in lieu of termination.

Todd Adams, executive officer for the Civil Service Commission, said departments bear the burden of proof in disciplinary cases and must prove the case by a preponderance of evidence –meaning, it’s more likely than not that the allegations are true. The commission remains a neutral party during the review, he said.

“I don’t think there’s ever really been a credible accusation that we favor one side or the other. I think if you talk even to employees whose discipline we upheld, they would say that we were a fair and neutral party in the decision, and we take great pride in that,” Adams said.

The nation’s largest law enforcement agencies fired at least 1,881 officers for misconduct since 2006, the Washington Post reported earlier this month. Those departments, however, were forced to reinstate at least 450 deputies after they appealed those decisions to a review panel – including a police officer who challenged a handcuffed man to fight him for the chance to be released and another officer convicted of sexually abusing a young woman in his patrol car.

Absent from the Washington Post story, however, were any examples from California. That’s at least partly because the state has some of the most restrictive laws in the country when it comes to the release of information on law enforcement agencies and the officers they employ.

In fact, the only reason the information has been made public in Hornacek’s case is because Gore took the rare step of suing the county to keep him off the force.

Through the early 2000s, Civil Service Commission hearings in which deputies appealed disciplinary decisions were open to the public. But after 2006, as a result of the landmark Copley Press v. Superior Court case, those meetings were closed. That means instances of police and deputy misconduct remain largely hidden from public view.

A review of Civil Service Commission meeting minutes between 2015 and July 2017 shows the commission does uphold terminations in some of the most egregious cases.

In September 2015, the commission upheld the termination of a deputy who had witnessed two colleagues handcuff a fellow deputy to a secured ladder, put duct tape over his eyes and mouth, and leave him there for about two hours.

The deputy was fired, and appealed his termination to the Civil Service Commission. At the hearing, he pointed to seven years of exemplary service at the department and vowed it would never happen again. But because he was the senior deputy on staff at the time, responsible for training other officers, the commission upheld the termination. The two other deputies involved in the incident were also let go.

It was a similar story for a drunken sheriff’s deputy who slapped a wheelchair-bound woman at least twice without provocation. When a family of tourists visiting from Arizona tried to intervene on the woman’s behalf, the deputy pulled his badge and identified himself as a cop.

When San Diego police officers tried to arrest the deputy, he resisted, kicking at the windows and doors of the squad car. He demanded “professional courtesy” from the arresting officers and told them they were lucky he wasn’t carrying his gun.

The deputy later admitted all the charges were true. Nevertheless, he appealed to the Civil Service Commission, arguing that was the only instance of bad behavior in 23 years of military and police service and he didn’t deserve to be fired. In February 2016, the commission upheld the termination.

The minutes from the Civil Service Commission meetings provide basic summaries of why deputies were fired or disciplined, but they don’t include names of those involved. Only in the rare instance of a lawsuit are details revealed that shed light on the department’s attempts to hold deputies accountable.

That’s how we know what happened when Sheriff’s Deputy Sam Knight used a chokehold to restrain an inmate in 2014.

Knight was working an overnight shift in a jail at the George Bailey Detention Facility when he put a handcuffed inmate in a chokehold, took him to the ground and slapped his face (Knight would later claim it was a gentle “tap”).

Knight didn’t mention to his supervisors what had happened, and never filed a report on the incident. But surveillance cameras had recorded the incident.

After supervisors viewed the footage, a lieutenant recommended Knight be fired – not because he used a chokehold, but because he hadn’t properly reported what had happened.

“The recommendation was not based on how Knight administered the use of force, but rather
on the impropriety of using any force in this instance — coupled with what the lieutenant
described as ‘a truthfulness issue’ triggered by Knight’s failure to report the incident,” according to court records.

The department fired Knight in December 2014, and he quickly appealed the decision the Civil Service Commission. In early 2015, the commission reinstated Knight and changed his punishment to a three-day suspension – in line with discipline other officers received when they failed to document use of force. The commission awarded Knight back pay and benefits for the time he missed waiting for the review hearing.

In that case, too, Gore accused the Civil Service Commission of abusing its discretion and filed a lawsuit to keep Knight off the job. But the outcome of the case shows that even when Gore takes the rare step of filing a lawsuit, he can’t necessarily keep a problem deputy off the force.

In September 2015, a Superior Court judge upheld the commission’s decision. Knight remains employed by the San Diego County Sheriff’s Department.

“While we may disagree with the outcomes of civil service hearings and court orders to reinstate terminated employees, we are bound by the law to adhere to the process,” the Sheriff’s Department told VOSD in a statement.

    This article relates to: Must Reads, Police, Police Misconduct, Public Safety

    Written by Mario Koran

    Mario is an investigative reporter focused on immigration, border and related criminal justice issues. Reach him directly at 619.325.0531, or by email: mario@vosd.org.

    14 comments
    Glenn Younger
    Glenn Younger subscribermember

    The Civil Service Commission seems like it exists to save employees at all costs. 

    A useful employee representitive group, like a union, should police it's own members.  Public sector unions are looked down upon because they do not protect their "brand".  Every bad deputy sheriff, bad teacher, bad city or county employee reflects poorly on it's union.  Untill labor leaders learn that, in this social media age, their unions will be judged on the worst of their memebers they will continue to lose the PR battle for why they exist.  

    This specific situation shows that the Civil Service Commission and the unions are also failing at their jobs.  

    DavidM
    DavidM subscriber

    So, in less than six months, he:

    -   Failed to properly search detainees;

    -   Failed to property secure arrestees;

    -   Failed to notice contraband in plain sight;

    -   Once attempted to arrest someone when no crime had been committed.


    But the Commission puts him back on the job because he takes criticism well???

    Nathan Wollmann
    Nathan Wollmann

    Unfortunately, supervision and management all too often fail to properly document issues with problem employees. Maybe he should be fired, but management also has a responsibility to properly document why. That's not unreasonable.

    Al Allen
    Al Allen

    A small change in the law could fix the problem of the county’s Civil Service Commission over riding the Sheriff's decisions. Simply put, law would state anytime the Sheriff recommends a deputy be fired due to their being unfit for service and the county’s Civil Service Commission says no. The county’s Civil Service Commission members would now be legally liable for anything the deputy does. 


    As in if the deputy assaults someone for no reason, shoots and kills an innocent person, a lawsuit is filed, the county’s Civil Service Commission members would personally be on the hook for legal and penalty fees. Sheriff's office would not be part of the lawsuit as they tried to take him out of the job.


    Once legal liability falls directly on the county’s Civil Service Commission, watch them start agreeing with the sheriff on firing incompetent deputies. All about accountability.


    Sad to say the county’s Civil Service Commission willfully fails to under stand not everyone is qualified to be a member of law enforcement.

    Michael Robertson
    Michael Robertson subscribermember

    Since we all can acknowledge its virtually impossible to fire unionized workers (teachers, cops, guard, baseball umps) can we agree unions are detrimental to society?

    Alan Underwood
    Alan Underwood

    @Michael Robertson false, it is not "virtually impossible" to fire a teacher. Teachers are only guaranteed due process. It is up to the administrator to do his due diligence to document poor performance from a teacher. Not being able to fire a underperforming teacher is an administrative issue not a union issue.

    Michael Robertson
    Michael Robertson subscribermember

    @Alan Underwood @Michael Robertson I agree it's theoretically possible to fire a teacher, but since it virtually never happens and can cost more than 1 million dollars, I think it's reasonable to say they can't be fired. I'm reminded of the teacher in LA who took his own semen and was spreading it on cookies and feeding it to students. Remember that guy? He got prosecuted for crimes but could NOT be fired. They had to pay him a huge sum to resign. 


    The average profession sees 5-10% turnover a year. CA has about 300,000 teachers which should mean 15,000-30,000 teachers should leave each year with a large percentage being fired. There are years in CA where ZERO teachers are fired. Other years we might see 1-3. For anyone looking at objectively, teachers are immune from firing. 

    Alan Underwood
    Alan Underwood

    @Michael Robertson @Alan Underwood so you use anecdotal evidence to try and prove a point? 


    https://nces.ed.gov/pubs2014/2014077.pdf 


    That is a study that states that 8% of teachers do not come back to the profession the next year in the year 2011-2012. That fits well within your 5-10%. 


    Where is your evidence that it takes 1 million dollars to fire a teacher? Can you site studies that point to that as a normal occurrence?


    According to the Daily Mail "Berndt was fired and the LAUSD paid then paid him $40,000 to drop his appeal, which officials said was the most immediate way to ensure he wouldn't be a threat to other children."


    Lastly, if you did any research on the topic, you would know that CA has already started to address the issues with lengthy terminations for teachers accused/convicted of misconduct:


    https://www.documentcloud.org/documents/1199491-ab215-teacher-dismisal-legislative-analysis.html


    So, I say again...It is not impossible, does not cost 1 million dollars, and teachers leave the profession at the same rates as you claim people should leave/be fired from the average profession.  Unions are not the problem. Ineffective administration is the problem when it comes to monitoring teaching outcomes and the dismissal process.

    Michael Robertson
    Michael Robertson subscribermember

    @Alan Underwood @Michael Robertson It seems like we're making progress. You now agree there is a problem? 

    Why would the teacher who fed semen to his students be a threat to other children if he could be fired? Because he can't of course! 

    Yes, I'm using the anecdotal evidence because it's SO EGREGIOUS AND APPALLING that it distubingly illustrates the problem. It shows to readers of VOSD that people like you would rather protect the system instead of the kids. 


    Back to the data. 19 teachers over 10 years in CA were fired due to bad performance. Not 19,000, 19. Don't use grand data from DC. Use CA data. 
    https://townhall.com/tipsheet/cortneyobrien/2014/04/21/number-of-tenured-teachers-in-ca-fired-for-poor-performance-in-last-decade-19-n1826813


    If you search Google you'll find many many articles about how bad teachers are too expensive to be fired so they just go to rubber rooms and do crosswords all day. SD has them too. It's because people like you defend the system no matter what. You defend paying a guy $40,000 who abused kids. It's reprehensible and shows how sick the system is and how twisted it's defenders are. 

    Coleen Cusack
    Coleen Cusack

    @Michael Robertson @Alan Underwood Your beef isn't with unions, but with due process.  Once we get rid of due process so we can fire those who deserve to be fired more expediently, then those who don't deserve to be fired can also be fired without reason.  That's not a system I would support.

    Michael Robertson
    Michael Robertson subscribermember

    I reject your effort to co-opt the term due process. Due process applies to when the government goes after citizens.

    What we're talking about is employer/employee relationship. That should be at will with either party free to make a change at anytime.

    Government unions are monopolies. They have no corporation to battle against so the worst abuse happens there.

    You can't seem to decide if we have an issue or not. You seem inconsistent.

    DavidM
    DavidM subscriber

    @Michael Robertson  " . . . can we agree unions are detrimental to society?"


    Absolutely not!  What we can agree on, and almost anyone who follows public sector union issues would agree, is that the public unions have moved well beyond their classic role of ensuring competence and into a protective role where there is clear incompetence.


    There is a huge grey area between these unions and no unions.  You don't even have to look hard to find it.

    rhylton
    rhylton subscriber

    Window dressing. The definition of incompetence; unfitness for public service is far too narrow.