HEARING OFFICER, CAREER SERVICE BOARD CITY AND COUNTY OF DENVER, COLORADO Appeal No. 24-14 DECISION AFFIRMING 10-DAY SUSPENSION INTHE MATTER OF THE APPEAL OF: NED ST. GERMAIN, Appellant DEPARTMENT OF SAFETY, DENVER SHERIFF'S DEPARTMENT, and the City and County of Denver, a municipal corporation, Agency. |. INTRODUCTION “The Appellant, Sgt. Ned St. Germain, appeals his 10-day suspension assessed by his employer, the Denver Sherfs Department, for alleged violations of specied Career Service Rules, and Agency eguialions. & hearing concerning these appeals was conducted by Bruce A. Plakin, Hearing Officer, on ‘September 24 and 25, 2014. The Agency was represented by Rick Stubbs, Assistant City Attorney, while the Appellant was represented by Doug Jewell, Esq, Agency exhibits 1,2. 4-17, and 19 wer ‘2dmitted, Appellant exhibits AC, F, I,K, U-CC, and EE-HH weve admitted. The Agency called the following witnesses to testy during it case-n-chie. the Appellant. retired Major Mark Homer. Chief Gary Wilson, and Deputy Executive Director Jess Vigil The Appellant als testified during his casecin- Chief, and called the following additional witnesses: Deputy Frank Romero, Sgt. James Szumowsk, and Capt Frank Gale ISSUES. ‘The folowing issues were presented for appeal: A. whether the Appell policies cited below, and it breached Career Service Rule 16-60. by violating any of the Agency's rules or 8. i the Appellant violated CSR 16-60L., whether the Agency's decision to suspend him conformed to the purposes of discipine under CSR 16-20. ‘The ultimate fact to determine at hearing was whether the Appellant used excessive force by ordering subordinates to use 2 Taser on an inmate who had been exhibiting Violent behavior, but was nat physically combative atthe moment he was Tased, m1, FINDINGS ‘The Appelant, Sgt, Ned St. Germain, isa sergeant in the Denver Sherit's Department where he hhas been employed for 31 years. He was promoted to Sergeant in 1996. His primary duties are the care, custody and control of inmates. He receives yearly certification inthe use of the Taser which Consists of shooting two cartridges ala trget. (St, Germain testimony] “The facts underlying the discipline are not disputed. The only issue i the legitimacy of St CGermain's decision to order the Tasing of an inmate,‘On September 26, 2013, inmate M., was suicidal. He was placed ina cel in the medical ward of the Denver Downtown Gorrectonal faciity where he struck his head against the wall 96 times over 30. ‘minutes. Two deputies talked te him through the locked door in an attempt to convince him to cease, but Fe continued. Depuly Frank Romero, an officer with erica Ingen taining and extensive experience in lalking down violent inmates, wes summoned. He asked M. through the door, to stop hitting his head, but M replied "| don't give a fuck, no, fuck you.” M had a gash, welts on his forehead, and was bleeding, twas evident he required medical attention, St. Germain was notified of M's behavior. He assembled six officers forthe purpose of entering the cell and placing M. in a restraint chair in order to stop M. from injuring himself. St. Germain’s decision to force M into arestaint chair was an approved option under Agency rules and is pol atissue here. St Germain instructed two deputies to equip themselves with Tasers and to fire them if he used the word “taser” after entry ino the cell ‘Through the opening inthe cell door, St. Germain ordered M. to back up tothe door and extend his hands through the opening in order to be handcuffed. M. refused angtly and did not comply. ‘St. Germain ordered his team to enter M's cel M, was seated on the bench, St, Germain ordered MM. twice to tun around, kneel, nd place his hands behind his back. M. elused, stating “fuck you. | aint doing shit” (Exhibit 4), "SL. Germain told M. he would be Tased if he did not comply. Separately, Romero implored M. to comply or he would be Tased. (Romero testimony], M. remained defiant. St Germain then ordered M., to be Tased. The deputies assisted M. to his feet and into the restraint chair ‘They wheeled him, secured inthe restraint chair, to the medical unt where he was treated for his injuries. Romero went to check on M.laler. M. apologized for his actions. He told Romero “you told me ‘what would happen [f | didnt ecoperate]” and that he was stupid for not cooperating. From the time St. Germain’s team entered the cel, until he was Tased, M, was seated on the cell bench and was not physically resisting, Al officers iavolved fled use-of-orce incident repors in accordance with Agency Fegulations. (Exhibit 4]. St. Germain had used or ordered the use of a Taser only one other time in his “The Agency's Conduct Review Office (CRO) undertook an investigation into the incident. On February 18, 2014, Major Mike Horner, Commander of the CRO, issued a letter exoneraling St. Germain {rom any wrongdoing with respect tothe incident, [Exhibit A], pursuant to the CRO Manual. [Exhibit C; : 8 Horner rescinded his ltte of exoneration on March 18, 2014 and re-opened the investigation. {Exhibit 8} One week later, the Agency issued a letter in contemplation of discipine, [Exhibit 2), then held a pre-dscipinary meeting on April 3 in accordance with Career Service Rule 16-40. St. Germain attended without representation. The Agency issued its notice of suspension on April 10, 2014. SL Germain fled a timely appeal ofthe suspension on April 23, 2014 ‘Acting Division Chie! Frank Gale found St. Germain did not use excessive force. He recommended to Wilson that no dscipine be assessed, but acknowledged his determination was made “under the old rules.IV, ANALYSIS [A Jurisdiction and Review Jurisdiction is proper under CSR 18-10A.1.b., as a direct appeal of a suspension. | am required to Conduct a de novo review, meaning o consider all he evidence as though no previous action had been taken, Tuer v. Rossmillar, 632 P 24 751 (Colo, App. 1975). 8, Burden and Standard of Proof ‘The Agency retains the burden of persuasion, throughout the case, to prove the Appellant violated the CSR 16-60 L., and to prove its decision to suspend St. Germain for 10 days complied with CSR 16- 20. The must prove each vclaion by a preponderance ofthe evidence, . Alleged Rule Violations ‘The Agency alleged only one Career Service Rule Violation, CSR 16-60 L. That rule requires the ‘agency to specify which ofits rues. regulations or policies were implicated as the basis for disciplinary decision. The Agency claimed St, Germain was in violation ofthe fllowing Agency orders, rules and policies 1.0.0, 300.19.1 - Disobedience of Rule. Deputy Sheriffs and employees shall not violate any lawful departmental rule (including CSA rules), duty, procedure, policy, directive, instruction, order (including Mayor's Executive Orders), of Operations Manual section, Under this generat rule. the Agency specified two Department Orders and one RLR.: 0.0. S011.1L = Use of Force; 0.0. 5014.11 Use of Tasers; and R.R. 300.22 ~ Inappropriate Force, 2.0.0, 5011.41 - Use of Force, Reasonable and aporooriate. Under this department order, deputies are required to restrict their Use of force to that whichis “reasonable and appropriate in relation to the threal faced.” and that reflects the totality ofthe circumstances. Officers are not required "to attempt to exhaust each [force] option before moving tothe next, as long as the force option is objectively reasonable and appropriate under the circumstances. However, the Agency requires that, unike under state law, an oficer must use only the minimum force necessary to accomplish a legitimate function. (0.0. 5041, 1L 8.3; Exhibit 1-6], ‘The Agency sent a mixed message concerning what force was appropriate inthis case. In its notice of discipline, the Agency stated "it appears that there were other options availabe lo make inmate (N.} comply that didn't involve the use of force. Thal statement strongly infers a no-force option was. ‘appropriate. In the next sentence, the Agency allowed "they could have gone hands on to restrain Pi.” [Exhibit 1-11]. Then, inthe same sentence, the Agency suggested a proper option would have been to leave M. alone, even though it was apparent he required medical attention. Leaving M, alone under the circumstances was not an appropriate option as it was apparent he had significant injures that required ‘medical attention. Moreover the Agency acknowledged the failure fo intervene would have subjected the Agency and the City to lability. [Wilson testimony} In contrast tothe notice of discipine, Deputy Executive Director of Safely Vill acknowledged at hearing thatthe use of force was proper, but claimed less severe alternatives to subdue M. should have been employed, such as ict shiek, papper spray uF “ands on" restrant. SL. Germain replied those alternatives carry a high likelihood of injury tothe inmate and officers, and the Taser was the best altemative to secure compliance while avoiding injury.