The unfiring of a Menlo Park police officer

How police officer Jeffrey Vasquez got his job back, and why shrouding binding arbitration in secrecy serves neither the public nor law enforcement

Questions linger months after the Almanac broke the story about the arrest, firing and reinstatement of veteran Menlo Park police officer Jeffrey Vasquez: How, exactly, does a police officer keep his job after being caught naked with a prostitute in a Sunnyvale motel room? How does he not only get reinstated after his firing, but awarded $188,000 in back pay, despite reportedly admitting that wasn't the first time he'd solicited a hooker for sex?

A commentary written by the police union lawyer who represented Officer Vasquez throughout the binding arbitration that led to his reinstatement finally gives the public some possible answers.

Attorney Sean D. Howell, with Mastagni, Holstedt, Amick, Miller & Johnson, didn't detail the 2011 motel incident in his commentary, but said the Menlo Park police department violated his client's rights during the internal affairs investigation and the subsequent disciplinary hearing, called a Skelly hearing.

"They shouldn't have fired him in the first place. I pointed out the violations at the Skelly hearing; I told them up front," Mr. Howell told the Almanac after his article was published by the Peace Officers Research Association of California.

Former police commander Lacey Burt, now retired, supervised the internal affairs investigation and said the police department's attorney confirmed it was handled properly. "We take these investigations very seriously, and take great strides to make sure that we do not violate anyone's rights," she said. "We stand by the case."

The law prohibits the city from commenting on personnel discipline.

Mr. Howell said his commentary was a response to media coverage of the Vasquez matter triggered by an overheard conversation between City Manager Alex McIntyre and his predecessor, Glen Rojas, at a Menlo Park bar.

The attorney asserted that arbitrator James Margolin found several errors in how the Menlo Park police department conducted its review of Officer Vasquez, including:

* That then-chief Bryan Roberts and Cmdr. Burt improperly participated in a Skelly hearing after actively directing the investigation.

* That the lead investigator secretly recorded two witness interviews and disclosed confidential personnel information to one witness.

Also, according to Mr. Howell, the arbitrator decided that Officer Vasquez committed no crime.

"He didn't get off on a technicality. He didn't commit a crime. On the merits itself, he was exonerated," said Mr. Howell.

Both the Sunnyvale police department and Santa Clara County District Attorney's Office thought the officer had broken the law, and charged him with misdemeanor solicitation. Officer Vasquez pleaded not guilty. The case was later dismissed in court after the prosecution's time ran out while the investigating officer was on emergency family leave.

Mr. Howell's commentary alleges that the Sunnyvale police officer investigating the prostitution case testified during the arbitration that he wasn't planning to complete a crime report, but that his supervisor ordered him to do so nearly two weeks after the bust at the request of Chief Roberts.

Police reports show, however, that the investigating officer conducted follow-up interviews with the prostitute within a week of the incident. Chief Roberts did contact the department at some point, but the investigation was ongoing regardless, Sunnyvale police told the Almanac.

The city of Menlo Park eventually fired Officer Vasquez, who then appealed through binding arbitration.

The arbitrator issued his ruling on Aug. 30, 2012. According to Mr. Howell, he decided the Menlo Park police department violated Officer Vasquez's rights and failed to prove the misconduct by a "clear and convincing" standard, as well as by a "preponderance of evidence." He ordered the officer reinstated with back pay.

That decision is final under the terms of binding arbitration.

Mr. Margolin declined to comment on the case, on whether the commentary accurately reflected his findings, and on his background as an arbitrator.

The attorney who represented Menlo Park -- Cynthia O'Neill of Liebert Cassidy Whitmore -- also declined to comment.

The hearing process

A Skelly hearing takes place once a supervisor notifies a public employee of the intended discipline and the justification. Not a formal hearing with witnesses or cross examinations, according to labor attorneys, it's a chance for the employee to respond with mitigating information or explanations.

Afterward, should the discipline be levied, the employee may appeal. In Menlo Park, where the police union's contract allows binding arbitration, the case goes before a third party. The union and city first try to agree on an arbitrator. If they can't, the state supplies a list of five names, and both sides take turns eliminating names until one remains; that person then serves as arbitrator. Most arbitrators are attorneys with years of experience working on both the employer and the employee side.

"It's the first opportunity the police officer has to present evidence, call witnesses, and cross-examine the city's witnesses," Mr. Howell said. "The city has the burden, on a preponderance standard, to show just cause for the discipline that was imposed."

To avoid due process violations, Mr. Howell said, the internal affairs investigator should present a report after conducting an autonomous fact-finding investigation instead of taking direction about how to proceed from the chief or his administrators, who eventually conduct the Skelly hearing.

But labor attorneys with decades of experience representing public agencies during arbitration questioned that interpretation of case law, saying that as long as the supervising officer maintains an open mind, that person may be involved with both the investigation and the Skelly hearing.

"In smaller departments, you can't go out and necessarily get a neutral person. It's not practical, and not legally required," said Arthur Hartinger, an attorney with Meyers & Nave who specializes in representing public employers. "I do not think it is improper for a chief to have some oversight in an internal affairs investigation, where the internal affairs officer at some juncture says, 'Am I done? What else should I do?'"

According to Mr. Hartinger, based only on the information in Mr. Howell's article, the arbitrator may have taken an overly broad view of the Skelly process, rather than assessing whether the hearing met the requirement of having a reasonably disinterested party evaluate the situation and the officer's response.

"There are a lot of good arbitrators and there are a lot of weak arbitrators. The arbitrator can be legally and factually wrong and it's still binding," Mr. Hartinger said.

No data

At least 16 jurisdictions in California rely on binding arbitration in police disciplinary cases. The lack of a centralized database of arbitration decisions, or even statistics on how many cases are upheld, turns evaluating the effectiveness of the system -- or individual arbitrators -- into a monumental challenge.

The Almanac obtained 17 redacted decisions in police misconduct cases involving San Jose, Stockton, Richmond, Alameda, Sierra Madre, Oroville, Merced County and Oakland. Out of 17 cases, arbitrators reinstated the officers nine times, and reduced a suspension once -- a reversal rate of about 59 percent. They upheld terminations in the remaining seven cases.

"That's the kind of data that we would love to have," Mr. Hartinger acknowledged. "We've been trying to get at that for years."

The state doesn't require arbitrators to publish their decisions, and due to confidentiality laws, both parties must give permission should an arbitrator choose to release a case ruling.

"It's very non-transparent," Mr. Hartinger said. "If you call up and say, 'Can I get your resume and a sample decision,' and you're with city management, you get a decision that supported management. There's always been a concern that they're cherry-picking their decisions."

California could require arbitrators to list their last 10 decisions, similar to a rule used in federal cases, he said. Another alternative is dispensing with binding arbitration, typically negotiated as part of union contracts, in favor of a civilian review board. In the wake of the Vasquez case, Menlo Park council members told the Almanac they were considering the value of binding arbitration as they entered into negotiations with the police union this spring.

Labor attorney Monna Radulovich of Wiley Price & Radulovich noted that the process, while not perfect, does offer advantages to public agencies -- arbitration tends to be faster and less expensive than pursuing a case through the courts, and the arbitrators usually know employment law, unlike judges who may handle mostly criminal or personal injury cases.

"The person who's deciding the case is a human being, the same as with a judge or a jury. So it's not foolproof," Ms. Radulovich said.

Attorneys compare experiences with specific arbitrators, according to Ms. Radulovich, so the process isn't entirely blind. "The attorneys will research the backgrounds of the arbitrators on the list and try to pick one who knows the law, and will consider the case carefully and fairly."

Overall, the arbitration process provides a good mechanism for resolving disputes outside of court, she said. One way to perhaps improve the system would be to expand the grounds for overturning arbitration decisions, although that could lead to more expensive litigation and burden the court system.

Hidden flaws

Confidentiality laws shield personnel information from public awareness. The laws safeguard private and public employees, but public safety officers receive more rigorous protections.

Some cities, like Menlo Park, refuse to disclose information that could legally be released; the Almanac has been unable to obtain even the number of local cases or names of the arbitrators. Other jurisdictions don't take such a hard line.

The city of San Jose, for instance, releases annual reports on employee disciplinary actions, and, if the discipline was appealed, the final outcome.

Among the terminations overturned in arbitration: A police officer fired in 2011 for driving under the influence and failing to secure weapons; an officer fired in 2010 for conducting inadequate investigations; two officers fired in 2010 for not properly investigating vehicle accidents. In the last case, arbitration reduced the discipline to 11-month suspensions.

An arbitrator did uphold the firing of a police officer in 2011 for driving under the influence, failing to book a controlled substance and spending on-duty time not related to police function.

Confidentiality, in these cases, cuts both ways.

"The officer never gets to make a statement or to rebut what information anybody (releases) until the hearing before the arbitrator," Mr. Howell said. "The city is going to characterize the facts in a negative light, so if I read it, I go 'why is this guy a cop?' But then you get into the nuts and bolts of it and you can see all the facts and determine the employer has mischaracterized the actions of the officer."

He said police departments bear some responsibility for employee conduct related to performance issues. For example, if an officer gets fired for conducting inadequate investigations, it is possible the department may have failed to train the employee properly, depending on the case. "If I have inadequate skills for a position that my employer hired me for, and my department failed to train me properly, am I responsible? Partially. But they need to provide additional training. Then, if I blow it, it's on me."

Professor Mark Iris at Northwestern University has published studies of binding arbitration in jurisdictions that disclose some data. The topic caught his attention during his service as the executive director of the Chicago Police Board years ago, when a news story broke about a Minnesota police officer reinstated by an arbitrator after pleading guilty to a misdemeanor related to exposing himself and fondling his 14-year-old babysitter.

Typically only the most inflammatory cases reach public awareness, he noted in a 1998 study, but "these cases are exceptional, not because the police chiefs' decisions were overturned, but because the arbitrators' decisions became publicly known and attracted wide attention."

In Chicago, arbitrators cut police officer suspensions, on average, by half, according to his review. The same proved true in Houston. "If a police chief wins half the time, they're doing really well," he said, and added that some cities, such as Philadelphia or Cincinnati, would be thrilled to win even 50 percent of their cases.

"I'd like to put a bright spin on this, that justice triumphs in the end, but the reality is, it does not," Mr. Iris said.


One city's five-year history of disciplinary actions

Menlo Park refused to release its employee disciplinary-action data, but the city of San Jose maintains a public database on its website of employee disciplinary actions. As in Menlo Park, arbitration in police cases is binding.

City of San Jose statistics

2013 (Jan. - March): Five city employee disciplinary cases total. Two police officers suspended; neither appealed.

2012: 32 cases total. Nine police officers disciplined; two appealed to binding arbitration. Outcome pending.

2011: 41 cases total. Six police officers; four appeals. Two dismissals overturned, and one dismissal upheld. One case settled for resignation instead of termination.

2010: 51 cases total. Ten police officers; six appeals. Three dismissals overturned in arbitration. Two cases settled for suspension instead of termination.

2009: 65 cases total. Eighteen police officers; five appeals, three to civil service commission instead of arbitration. One case settled for suspension instead of termination. No reversals.

2008: 55 cases total. Seventeen police officers; three appeals -- two to a civil service commission, which reduced hours of suspension, and one to arbitration, which reduced suspension to counseling.


Like this comment
Posted by Jim Askin
a resident of Menlo Park: Central Menlo Park
on Jun 4, 2013 at 12:14 pm

Ok, so if we're not firing this cop, can we instead please fire the clowns that handled this situation and allowed him to get his job back. I need to see heads roll for this.

Like this comment
Posted by Michael G Stogner
a resident of another community
on Jun 4, 2013 at 12:52 pm

Binding Arbitration.....Get rid of it

Like this comment
Posted by Karl
a resident of Menlo Park: Park Forest
on Jun 4, 2013 at 12:57 pm

Anyone who can follow all the ins and outs of this case deserves to be a PhD.

Like this comment
Posted by James
a resident of Menlo Park: The Willows
on Jun 4, 2013 at 1:00 pm

Good investigative reporting! Thanks for the article.

Like this comment
Posted by Downtowner
a resident of Menlo Park: Central Menlo Park
on Jun 4, 2013 at 1:45 pm

So Vasquez wasn't properly trained that visiting a prostitute while on paid duty time is morally, if not legally, wrong? Blame his parents? Police officer training can't be expected to rectify lack of morals.

This officer's misjudgment & behavior is disgusting & paying him $188,000 instead of just firing him is an insult to the community which pays PD salaries and to other honest officers who might commit such transgressions on their own, not City-paid, time.

Like this comment
Posted by well I get it
a resident of another community
on Jun 4, 2013 at 2:14 pm

Its obvious. Why should he get fired for working undercover. ;-)

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Posted by Really ?!?!?...
a resident of Menlo Park: Downtown
on Jun 4, 2013 at 5:39 pm

Now there's a surprise...What is more embarrassing? The fact that it happened? Or The manner in which it was handled? or not handled?

Guess there is a different set of laws/books for them.

Feeling more confident about the MP city government now.

Thanks for breaking that story Almanac--- and keeping us all further informed.

Like this comment
Posted by Oh well
a resident of Menlo Park: other
on Jun 4, 2013 at 8:39 pm

The Post previously published that Matt Bacon was the internal affairs officer sent to the scene. He's gone now. Commander Burt and Chief Roberts are both gone. The only two left at MPPD are Vasquez and his bro Detective Tim Brackett. After being busted is the hotel room with a hooker, Vasquez was escorted home by Detective Brackett, who received a promotion shortly there after, which is all on the public record.

Like this comment
Posted by Terry
a resident of another community
on Jun 4, 2013 at 10:21 pm

I'll soon forget Vasquez's name, but if I ever encounter a Menlo Park police officer, I will assume he is Vasquez and accord the officer the lack of respect Vasquez deserves.

Like this comment
Posted by Observer
a resident of Menlo Park: other
on Jun 5, 2013 at 5:38 am

I don't see it any differently than the case of the current Menlo Park City School District superintendent, Maurice Ghysels, sleeping with one of his principals at his former job in Mountain View, while they were both married to other people. There's just rot at the top, and they are used to getting away with things. We should just be grateful that all this talent is still employed at our expense.

Like this comment
Posted by Michael G Stogner
a resident of another community
on Jun 5, 2013 at 7:46 am

Sean D. Howell wrote this piece.

Web Link

Like this comment
Posted by Antoine Dodson
a resident of another community
on Jun 5, 2013 at 8:32 am

It's simple. Was this officer wrong? Absolutely. Would I have respect for him and his judgement or observations if pulled over by him? Likely not... However the law works the same for anyone else as the disciplinary process for government employees. For example: let's say you rob a bank, but the next day are stopped in your car with hookers, blow, loaded weapons, a mask and gloves, and the money. If you were stopped and searched unlawfully, guess what? The entire basis of the stop and the findings of the stop are completely thrown out the window. You can't be charged for any of what they find during that stop.

Binding arbitration works...generally.

Like this comment
Posted by Don Bartell
a resident of Menlo Park: Downtown
on Jun 5, 2013 at 11:12 am

How disgusting from start to finish. Shame on all involved. This trash officer has no business on the streets of our fine city.

to officer Vasquez, hope bad things come your way. I hope you screw up again in the near future and you get what you deserve...

Like this comment
Posted by Don Bartell
a resident of Menlo Park: Downtown
on Jun 5, 2013 at 11:27 am

What can we do? We can complain, and share our disappointment.

Mayor of MP

Police Chief of MPPD

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Posted by Menl Park resident
a resident of Menlo Park: Downtown
on Jun 5, 2013 at 11:54 am

Everyone involved should be ashamed. Gee, do you suppose this is the case of "old boys club". Disgusting. Are our fine officers not taught to "keep it in your holster" while on duty? I thought prostitution was illegal, maybe he should have arrested her, instead of being "undercovers" with her. And to to paid for this, how lovely !!

Like this comment
Posted by Hmmm
a resident of another community
on Jun 5, 2013 at 11:58 am

Antoine Dodson is correct.

Vasquez is a good officer and I'm glad that the city's incompetence was revealed in this case. They screwed up worse than he did (pun intended), on several levels & got nailed for it (pun also intended).

Now, what's being done about the idiotic former & current City Managers who spoke about this in a bar?! Is Vasquez going to sue because his reputation is now ruined?

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Posted by Jim Askin
a resident of Menlo Park: Central Menlo Park
on Jun 5, 2013 at 1:49 pm

To "Mmmmmm",
Your definition of a "good officer" is different from most of us here.

It is not acceptable for a police offer to be committing illegal acts. They are supposed to set the gold standard for us to follow regarding adherence to the law (irrespective of what yours or his personal moral believes are of prostitution).

Unfortunately we appear to have a bunch of buffoons in the mayor's office who really mishandled this. That's a separate topic. But let's not let that make us loose sight of the fact that this officer is breaking the law by sleeping with hookers and is a disgrace to the badge he wears. A "good officer" would not break the law by his own admission on numerous occasions.

And his lawyer is playing word games when he says he "committed no crime". He may have not been convicted of the crimes, but by his own admission he committed them.

I would welcome a law suit from Vasquez on whether his reputation was ruined. That wouldn't be behind closed doors - so everyone could he him for what he really is. If it walks like a duck, and quacks like a duck, it probably is a duck.

Like this comment
Posted by Confirmed.
a resident of Menlo Park: Downtown
on Jun 5, 2013 at 2:13 pm

Affirmative. It's a duck. Can you hear the quacking?

A WAKE UP call for city government! Do the right thing.

Like this comment
Posted by B Roke
a resident of Menlo Park: Fair Oaks
on Jun 5, 2013 at 3:01 pm

Big Government at its best! And apparently Gov't not big enough according to deal leader!

Like this comment
Posted by disagree
a resident of Menlo Park: The Willows
on Jun 5, 2013 at 4:47 pm

While I agree that Vasquez could hardly be called a "good cop" I am not ready to blame the mayors office or those that investigated his misconduct for him escaping his just punishment. There was not enough information provided, not does it look like there ever will be, about what misconduct was done on the city side. Since binding arbitration does not have to follow the law it could just be the arbitrator was an idiot and did not like the way the city handled it even if it was done legally. Since we won't know I don't think we can leap to judgement against the city, at least for that. I do think the city needs to be more transparent on the topic of disciplinary actions in the police department and other areas. Between this case and the case of the fired gymnastics teacher we should all be asking what is going on and what is the city hiding from the people who elect them and pay all their salaries?

Like this comment
Posted by CrescentParkAnon.
a resident of another community
on Jun 5, 2013 at 5:58 pm

This really just makes me puke, and all the noise and chaff being thrown out there is even worse. What is wrong with all of our cities, has Tony Soprano taken over things or what? What can we do about it?

All a corrupt jerk has to do is to arrest someone knowingly not following the correct protocol and they both just shrug their shoulders and move on when the case gets tossed out - in every case the public just keeps getting screwed.

This was the jerk of a cop that gave me a fix it ticket for a break lamp that I had the replacement bulb in my car ... and on my birthday on El Camino back about 2 years. Good to know he's such a stickler for the law, and Menlo Park supports their criminal cops

Like this comment
Posted by common sense
a resident of another community
on Jun 6, 2013 at 12:37 am

If it wasn't good enough to get Bill Clinton thrown out of office, same rules should apply to Officer Vasquez.

Like this comment
Posted by Uncommon sense
a resident of another community
on Jun 6, 2013 at 7:24 am

Clinton didn't break the law. He did violate federal policy about relationships with subordinates. As an elected official, he could only be impeached, not fired, and there were not enough votes for that, which mainly fell along party lines.

Vasquez would not have been reinstated by an arbitrator had he been convicted of the crime he confessed to. That lack of conviction was obtained by a brother cop not bring able to show up to court (for months) to testify about his confession. It's all thin blue line stuff. Trying to get rid of this vile individual was the right move by the chief (who is ridiculed in the Sean Howell article) and city manager.

Like this comment
Posted by Bob
a resident of Menlo Park: Downtown
on Jun 6, 2013 at 8:22 am

This whole situation has stink on it. There's plenty of blame to go around. While Vasquez may get his job back, he would do well to move on from MP. The city should look to eliminate binding arbitration. Discipline should be handled by the city not an arbitrator.

Like this comment
Posted by Michael G Stogner
a resident of another community
on Jun 6, 2013 at 8:28 am

It would be interesting to know if that Sunnyvale police officer was able to attend any other court cases during the months he was unable to attend Vasquez's.

Remember he was ordered to complete the original report after 3 weeks of not doing it.

Like this comment
Posted by Uncommon sense
a resident of another community
on Jun 6, 2013 at 8:47 am

I had asked the Almanac, back in another thread, to issue public records requests on the Sunnyvale officers' time records to determine whether he was truly unavailable.

By the way, the one point not being made here is: why is arbitration better for the cop than the court system in matters of discipline?

It's a question that the Almanac article did not answer. Let me attempt to.

Arbitrators are paid (handsomely) for the time they spend adjudicating a case. They also need to be agreed upon by both parties to the dispute in most cases (if the parties ultimately cannot agree, the arbitrator winds up getting appointed by the arbitration association).

Does it make sense that an arbitrator who wants to keep getting selected by police unions and police lawyers, to make money in police disciplinary cases, wants to make decisions that cut the cops' way most times?

It does to me, at least.

Like this comment
Posted by Sandy Brundage, Almanac Staff Writer
a resident of Menlo Park: Downtown
on Jun 6, 2013 at 9:11 am

In Menlo Park, the arbitrator is not appointed by any association if the two parties cannot agree. Instead the state supplies a list of five arbitrators and each side takes turns eliminating names until one remains.

Like this comment
Posted by Uncommon sense
a resident of another community
on Jun 6, 2013 at 9:15 am

Well there you go. Establishes my point even more.

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Posted by Aquamarine
a resident of another community
on Jun 6, 2013 at 10:49 am

If the MP police hadn't screwed up their internal investigation, Vasquez likely would be gone. Point and vent your spleens at the proper party involved.

Like this comment
Posted by Idol Hanz
a resident of another community
on Jun 6, 2013 at 11:22 am

[Post removed; off topic]

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Posted by common sense
a resident of another community
on Jun 7, 2013 at 6:17 am

Clinton did violate the law - he lied under oath. But the public said it's okay because he was lying about having sex.

Office Vasquez's case is similar - it's all about sex, and should he fired for having sexual relations with another consenting adult?

Like this comment
Posted by Uncommon sense
a resident of another community
on Jun 7, 2013 at 7:39 am

For whatever it is worth, I believe Clinton should have been convicted of the impeachment, But, it would have been very difficult to prove beyond a reasonable doubt that he lied under oath since – if I remember correctly – his denial of sex, he claims, was based on a definition of intercourse.

Prostitution and soliciting prostitution are crimes. Maybe you don't think they should be, but they are. An on-duty police officer committing a crime should be fired. I'm not sure why there should be any controversy over that idea.

Like this comment
Posted by Lurker
a resident of another community
on Jun 7, 2013 at 8:47 am

Actually Clinton did break the law. He committed perjury under oath. As a result, his law license was yanked.

As for Officer Vasquez: did he really have to go and hire a prostitute
from My Redbook, which has been a target of the FBI for years?

Like this comment
Posted by RESIDENT/tax payer
a resident of Menlo Park: Allied Arts/Stanford Park
on Jun 7, 2013 at 1:00 pm

This definitely needs to be investigated further. He broke the law, fire him. A disgusting cover-up by his buddies. Oh, be sure to get time spent with prostitutes, while on duty, paid back to Menlo Park. So, figure it out and deduct from the $188,000.00. You have not heard the end of this. This MUST be investgated by an outside party, like one of the local TV stations. Or, fire him for illegal behavior, and pay back money. HE MUST RESPECT THE LAW.

Like this comment
Posted by b.giles
a resident of Menlo Park: Belle Haven
on Jun 19, 2013 at 1:09 pm

why are they letting this officer get by with breaking the law is beyond me.i&to give him back pay just shows you who the law are for, I know him personally [portion deleted] he will go defend himself look good for the judge&he goes back doing whatever! what can you say but that whole department needs to be under investigation

Sorry, but further commenting on this topic has been closed.

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