Procedural Due Process Comes to San Benito! When You Ask to Consult With One of Us, We’ll Protect Your Right to Do So!

A fellow San Benito officer complained that someone had defaced a photo of him and his wife placed on a bulletin board in his cubicle.  This officer did not know who did this, but complained to Internal Affairs that Officer David Ortega was responsible for the damage to the photo.  David responded to IA by denying the allegations and expressing his concern that this other officer was retaliating against him for reporting a previous incident of neglect of duty.  He turned in his written response to the complaint, but when the IA investigator wanted him to respond to a follow-up questionnaire immediately, without the assistance of an attorney, David refused to do so.  The Chief issued a three-day suspension for insubordination.

Upon appeal, the arbitrator chastised the Department for initially concluding there was no evidence to find Officer Ortega had engaged in the conduct, yet then attempted to fabricate a procedural issue over the follow-up questionnaire, in order to justify a disciplinary action.  For this reason the arbitrator concluded Officer Ortega was not insubordinate when he requested a union or legal representative before answering follow-up IA questions.