The Town of Quartzsite released a 322 page document, including 50+ pages of the investigation report with 48 Exhibits. With blogs already spinning the outcome, it is only right to include the investigator's analysis and recommendations for all to read for themselves.
The following is the actual Legal Analysis and Recommendations provided the Town of Quartzsite, Arizona from Sonya K. Boun of JACKSON LEWIS LLP. Town officials tell me they anticipate the whole document will be online on Friday. The Quartzsite Library has a copy of the full document available for review.
July 7, 2011
Legal Analysis and Recommendations
Based on the totality of circumstances, there is clearly reason to question the motives behind several of the allegations that have been asserted. Indeed, it appears that some of the witnesses were untruthful in interviews and fabricated information in an effort to bolster claims alleged in the Anonymous Letter. Furthermore, when asked for specific examples of conduct that the witnesses believe support their allegations, many of the incidents about which they complained occurred as many as five years ago. Moreover, the majority of witnesses could not even point to conduct that they personally observed, but rather attempted to provide information obtained through rumors or hearsay. As such, the evidence suggests that many of the witnesses discussed their allegations with each other prior to or during the investigation, even though they were directed not to do so.
At the same time, Chief Gilbert did admit to some of the alleged inappropriate conduct and comments attributed to him. For example, Chief Gilbert admits that he made an inappropriate comment about Witness A “wiping his ass hairs off of the toilet” during a Department-wide meeting, though the comment occurred nearly two years ago. He also believes that he has, at times, used profanity and participated in referring to one of his squads as the “gay squad.” Chief Gilbert also admits that, at an awards ceremony attended by many community members, he distributed dark-skinned “bobblehead dolls” to Hispanic officers and light-skinned dolls to Caucasian officers. Though he did not intend for the gesture to be offensive, the Chief acknowledges that he could “see how someone could misconstrue” the gesture, which many witnesses contend raised the inference that Chief Gilbert was singling out officers based on the color of their skin. However, this incident also occurred more than two years ago, at which time no one complained. It is also clear that a few stray actions and comments made over a five year period clearly does not rise to the level of “severe and pervasive” conduct necessary to support a harassment claim.
It also appears that, while Chief Gilbert has participate in making “lighthearted” comments that reference officers’ Hispanic origin, the Hispanic officers themselves routinely participate in pranks and jokes with each other, including making comments about Witness A stealing items from the Department so that he can “sell them in Mexico or on EBay.” In short, that the Hispanic officers instigated many of these conversations and routinely participated in such conduct belies the inference that the conduct and comments offended them.
Moreover, Chief Gilbert’s history of hiring and promoting Hispanic officers undermines any claim that he would intentionally discriminate or single out these same officers. Indeed, if he had a problem with their Hispanic origin, Chief Gilbert arguably would not have hired the officers in the first place and would likely have avoided putting them in supervisory positions. At the same time, even Chief Gilbert acknowledges that it might be time to rein in the bantering and jokes, as he is now experience a backlash related to his efforts to provide a “light and fun” atmosphere in the Department. This is highly recommended so as to avoid future harassment claims or the appearance that Chief Gilbert condones conduct that arguably creates a hostile work environment for some officers.
However, there is no credible evidence to suggest that Chief Gilbert has been inconsistent in the way that he handles officer sick leave issues, or that he has ever improperly denied reasonable accommodations to any officer. Nor is there any reason to believe that Chief Gilbert has targeted community members he dislikes. Rather there is ample evidence to suggest that the citizens in question have gone out of their way to humiliate and discredit Chief Gilbert, and have even jeopardized the safety of Chief Gilbert and his family. The citizens in question have also participated in a litany of conduct that has led to criminal investigations and even convictions. Even so, it appears that Chief Gilbert has conducted himself in a professional manner when conducting legitimate police business related to these citizens.
It also does not appear that Chief Gilbert has been targeting Witness A for termination. Rather, based on Witness A’s myriad performance issues, it appears that Witness A’s supervisors have issued him appropriate discipline under the circumstances. Indeed, as already noted, though many of the officers claim that Witness A has been unfairly targeted for discipline, those same witnesses opine that Witness A is an incompetent officer who consistently performs in a substandard manner. These assertions make this allegation particularly incredible.
Based on the foregoing, and in light of the fact that many of the claims asserted are stale and involve conduct remote in time, I do not believe formal discipline is warranted in this manner. However, I recommend that Chief Gilbert attend a training course on harassment and discrimination issues in the workplace. In addition, Chief Gilbert would also benefit from management and sensitivity training, which will help him learn how to effectively deal with “jokes and pranks” in the workplace, and help the chief in his efforts to create a more professional work environment in the Police Department.
In addition, it appears that many of the issues raised during this investigation stem from the Police Department’s outdated and confusing Policies and Rules, which are often vague and do not clearly delineate procedures that the officers must follow. This, in turn, leads to the perception that officers are subjected to inconsistent discipline and directives. For these reasons, I recommend that QPD Rules and Procedures be updated so as to provide clear guidance to Department personnel.
Because it exceeds the scope of this investigation, I note without making any particular recommendation that Witness A apparently lied several times throughout the course of the investigation. To the extent that the Town wishes to separately investigate Witness A’s possible dishonesty during the investigation, the Town should make sure that any such investigation is handled by a neutral party or agency is feasible, so as to avoid an appearance that Chief Gilbert is retaliating against Witness A for participating in this investigation and making allegations against him.
I hope this written report is helpful. If you have any questions at all, please do not hesitate to give me a call.
Very truly yours,
JACKSON LEWIS LLP
Sonya K. Boun