California appeals court rejects arguments justifying racist remarks in East Palo Alto police department

A California district court of appeal ruled that East Palo Alto could discipline a police officer for his racist remarks, rejecting the argument that an alleged “culture of racism” in the department was sufficient to justify the officer’s discriminatory remarks to subordinates. -DB

Metropolitan News-Enterprise
November 4, 2009
By Kenneth Ofgang

A police department’s alleged culture of racist remarks by officers did not justify a supervisory officer’s use of such language in publicly referring to his subordinates, the First District Court of Appeal said yesterday.

Div. Three affirmed a San Mateo Superior Court judge’s ruling in favor of the city of East Palo Alto, which suspended Tracy Frey for 30 days and demoted him from sergeant to patrol officer.

The action was based on several sustained charges of misconduct.

He was initially accused of having “directed discourteous and discriminatory remarks to Officer Torres when you chastised him by saying that he might end up back in the kitchen with his people and/or by referring to ‘your people’ causing disturbance all night, and/or by using the knowingly discriminatory and offensive plural pronoun of ‘you people’ and ‘your people’ ”; that he “directed discourteous and discriminatory remarks to Officer Khoury, i.e., staring at him pointedly while reading bulletins about terrorism and/or by using the knowingly discriminatory and offensive plural pronoun of ‘you people’ and ‘your people’ ”; and that he “directed discourteous and discriminatory remarks to Officer Zaidi when you referred to his people pulling knives out of their turbans and cutting throats.”

Charges Sustained

The charges were sustained as to two of the three incidents. Frey was also found to have improperly displayed weapons, refused to allow subordinates to use department computers to complete their reports during their duty hours, and improperly used pepper spray during a traffic stop.

Frey has been with the department for about 20 years and was promoted to sergeant in 2002. The disciplinary charges were brought in 2004 by the then-chief, who originally notified Frey that he was to be terminated but reduced the penalty to a five-day suspension following a pre-termination Skelly hearing.

Frey appealed the suspension to the city manager. With respect to the racism findings, he argued that making “racially discourteous and discriminatory remarks are routinely made by officers in the department from the Chief to the patrol officers and in fact, has become part of the culture of East Palo Alto Police Department.”

While the matter was pending before the city manager, the police chief retired, and the city manager referred the matter to the acting chief for a new determination.

The new chief, considering the original charges plus three new ones, determined that Frey should be fired. The city manager upheld the termination, and Frey requested advisory arbitration according to the city’s policies.

The arbitrator sustained some of the charges and rejected others, including a charge—found true by the former chief but not by his successor—that Frey had been dishonest during the internal investigation. In the absence of a finding of dishonesty, the arbitrator said, he could not recommend termination but urged “the most severe discipline short of discharge,” with the understanding that “almost any proven rule violation” in the future would result in Frey’s being fired.

The city manager adopted the arbitrator’s findings and recommendation, saying that the racist remarks were “[p]articularly troubling” and “inconsistent with the expectations of a Sergeant.”

Frey petitioned the Superior Court for a writ of mandate, arguing that the misconduct findings were unsupported by the weight of the evidence, that the penalty was excessive, and that the city had violated the Public Safety Officers Procedural Bill of Rights Act by increasing the penalty in retaliation for his exercise of his right to appeal.

The judge originally upheld the retaliation claim and ordered the city to rescind the discipline and pay Frey’s attorney fees as well as $25,000 in sanctions. The Court of Appeal, however, found the retaliation finding to be unsupported by the evidence and reversed last year, in an unpublished opinion, sending the case back to the trial court for consideration of the remaining issues.

Writ Denied

On remand, the judge denied a writ of mandate, saying the weight of the evidence supported the city’s decision.

Justice Stuart Pollak, in an unpublished opinion yesterday for the Court of Appeal, agreed.

He explained:

“Frey describes the ‘culture’ of the department during [now-retired Police Chief Wesley] Bowling’s tenure as one in which it was ‘commonplace for offcers to make offensive remarks towards each other, and to verbally banter in insensitive ways, including commenting on a person’s ethnicity.’ The fact that some inappropriate comments among the officers were tolerated does not justify Frey’s discriminatory comments to his subordinate officers. Moreover, there was testimony that Frey’s comments went beyond what was customary at the time and could not be considered banter or joking.”

Pollak also rejected the contention that the penalty was excessive because there was no showing that Frey’s conduct had harmed the community. The justice explained that Frey’s actions, in particular his improper display of weapons, “had a negative impact on the community’s perception of the police.”

The case is Frey v. City of East Palo Alto, A123765.

Copyright 2009, Metropolitan News Company