SPB Overturns Discipline of Three DOJ Special Agents
Decision Ends Three Year Ordeal
According to the other agent, Sampson’s claim was erroneous. The other agent knew the actual identification was based on clothing, stature, location of arrest, and the suspect’s own admission and had relayed this information to Sampson. The agent later testified to these facts. Furthermore, the identification was verified by fingerprints and chemical stains on the suspect’s clothing.
Sampson claimed the confusion over the identification compromised his ability to prosecute the case and resulted in his accepting a plea agreement to dismiss most of the allegations against the suspect, thus greatly reducing the suspect’s criminal sentence. (Sampson later contradicted this statement by testifying he believed he had enough evidence to convict the suspect despite the confusion over the identification).
Upon receiving the complaint against Fox and Heredia, DOJ decided to expand the investigation to include the aforementioned other agent and Michael Hudson, both CAUSE members. At the time, Hudson supervised the Bureau of Narcotic Enforcement, Sacramento Regional Office, Clandestine Laboratory Team, a team to which Fox, Heredia, and the other agent were assigned. DOJ also expanded the scope of the investigation from Sampson’s initial complaint to include all of the investigations Hudson’s team conducted during the previous year.
After nearly a year, DOJ completed its investigation and served Fox, Heredia, Hudson, and the other agent with Notices of Adverse Action. Fox and Heredia received 3 day suspensions. The other agent received a 5 day suspension. Hudson was demoted to Special Agent. The suspensions were based on six (6) charges, while the demotion was based on twenty (20) charges. The charges ranged from Fox and Heredia failing to properly communicate the identification of the suspect to Sampson to Hudson not involving other agencies in his team’s investigations.
Fox, Heredia, and Hudson appealed the adverse actions to the State Personnel Board. The other agent did not. After filing the initial appeal paperwork, CAUSE transferred the appeal to Gary Messing of the law firm of Carroll, Burdick & McDonough.
In December 2003, a settlement conference was held. DOJ flatly refused to negotiate due to its belief the charges against Fox, Heredia, and Hudson were justified and would be upheld at the State Personnel Board hearing set for the following month.
Prior to the evidentiary hearing, a pre-hearing conference was held in order for Messing to present a Korman motion seeking to dismiss many of the charges based on a lack of specificity as well as being barred by the one-year statute of limitations set forth in Government Code section 3304(d) of the Public Safety Officers Procedural Bill of Rights Act (POBR).
Messing stated he would provide testimony that Hudson’s supervisors, both management level employees, were authorized to initiate investigations of misconduct and at least one of them was aware of the incidents more than one year prior to the date the adverse actions were issued. Messing therefore, argued the majority of charges against Fox, Heredia, and Hudson should be stricken from the adverse action.
DOJ immediately moved to disqualify Carroll, Burdick & McDonough and Messing from representing Fox, Heredia, and Hudson based on alleged improper ex-parte communications with DOJ managers. DOJ argued the two (2) Special Agents in Charge with whom Messing spoke were at such a level within DOJ, they are considered representatives of DOJ. Therefore, Messing did not have a right to interview them without first notifying DOJ.
Administrative Law Judge Barbara Brecher modified one of the charges and struck another in Hudson’s adverse action based on the Korman motion. Brecher also denied DOJ’s motion to disqualify Carroll, Burdick & McDonough; however she continued the hearing to allow DOJ to petition the superior court for a writ disqualifying the firm and to stay the appeal. Brecher deferred ruling on the POBR violations pending the outcome of DOJ’s petition. The following day, the superior court also declined to disqualify Carroll, Burdick & McDonough and denied DOJ’s request to stay the appeal.
Upon reconvening the hearing, documentary evidence and witness testimony was presented on the POBR violations. Because most of the allegations appeared barred by POBR, it was DOJ’s burden to prove the alleged misconduct was only discovered by someone within DOJ with the authority to initiate an investigation of the allegations during the one year limitations period. DOJ called three witnesses, including both of Hudson’s supervisors as witnesses.
DOJ’s first witness testified only the Director of the Division of Law Enforcement was authorized to initiate an internal investigation. However, both of Hudson’s supervisors testified they were authorized to initiate an investigation of subordinates at DOJ. One of the supervisors testified he was aware of the conduct regarding the incidents that gave rise to the adverse actions, well prior to the one year statue of limitations. Furthermore, this supervisor testified he did not believe Fox, Heredia, or Hudson did anything to warrant formal adverse action.
The other supervisor testified Hudson’s team was one of the most productive throughout the Bureau of Narcotic Enforcement. This supervisor testified he had even recommended Hudson for an Attorney General’s excellence in supervision award.
DOJ countered with the argument that although Hudson’s supervisors are management level employees and representatives of DOJ (the disqualification argument)they did not have authority to initiate investigations of subordinate agents.
Judge Brecher agreed with Messing’s argument striking 5 of the 6 allegations against Fox and Heredia and 13 of the remaining 19 allegations against Hudson. In light of Brecher’s ruling, DOJ offered to settle Fox’s and Heredia’s adverse action reducing the 3 day suspensions to letters of reprimand. Fox and Heredia declined the offer. DOJ still refused to negotiate a settlement with Hudson contending the remaining charges were sufficient to sustain his demotion.
The remaining charge against Fox and Heredia alleged they failed to ensure DDA Sampson understood the identification of the suspect. The remaining charges against Hudson included failing to attend the pre-trial meeting (rendering him unable to address the identification issue); not briefing an agent prior to an enforcement operation; attempting to influence an agent to book suspects into jail on questionable probable cause; failing to ensure an agent wrote an accurate police report; failing to ensure an informant was properly searched; and allowing an agent to go “undercover” without a transmitting device.
The hearing continued with DOJ calling witnesses and presenting its case. Sampson contradicted his original allegation by testifying he originally knew Fox’s and Heredia’s identification of the suspect was based on factors other than facial features. Sampson now claimed Fox and Heredia had personally told him they could not identify the suspect by any means whatsoever. Sampson’s testimony was refuted by two of DOJ’s own witnesses who testified Fox and Heredia had informed Sampson during a pre-trial meeting the manner in which they could identify the suspect. Fox and Heredia testified they informed Sampson their identification was based on clothing, stature, location of arrest, and the suspect’s own admission.
In reference to the charge Hudson failed to attend the pre-trial meeting, Sampson testified he knew Hudson would not be at the meeting due to another investigation, but would be available via telephone. Sampson furthered testified it did not matter nor would it have mattered if Hudson was present, the outcome would have been the same. Furthermore, three other DOJ witnesses, including one of Hudson’s supervisors, testified Hudson acted properly and within the scope of his position by being available by phone while attending to a more pressing investigation.
Another of DOJ’s witnesses debunked the charge against Hudson that he failed to brief a witness prior to joining an enforcement operation. The witness testified he was briefed prior to joining the operation. The witness testified he was provided with a written operation plan, briefed by the case agent, and he understood his role in the operation.
This was the same witness who alleged Hudson attempted to influence him to book suspects into jail with questionable probable cause. The witness, with Hudson’s approval, ultimately released the suspects. The suspects were in turn booked into jail by another agent on the same probable cause. Ultimately the witness conceded there was sufficient probable cause to book the suspects into jail.
In order to substantiate the allegation against Hudson, DOJ attempted to prove the probable cause was insufficient because the charges were subsequently dropped against the suspects. Messing countered with evidence establishing the probable cause was approved by a judge and charges were filed against the suspects by the district attorney’s office based on the probable cause. The dismissal of charges was only a result of a plea bargain with the five other defendants in the case, two who plead to lengthy prison terms.
As to the allegation Hudson failed to ensure an agent wrote an accurate police report, DOJ’s own witness testified it was entirely proper and within policy to have an agent write a report only articulating evidence seized. The witness testified it is not uncommon for two agencies assisting in an investigation to have one agency write reports articulating the elements of the crime and circumstances surrounding the arrest and the other to write a report documenting evidence. As a result of this testimony, Judge Brecher ordered DOJ to provide her with the reports prepared by the other agency in the investigation supervised by Hudson.
As to the charges of Hudson allowing Heredia to go “undercover” without a transmitting device and failing to ensure an informant was properly searched, DOJ did not present any documentary or testimony evidence to substantiate these charges. DOJ assumed since an informant was shorted money during a drug transaction the informant wasn’t searched properly and since Heredia wasn’t physically wearing a transmitting device this somehow violated policy. Messing countered with evidence deomonstrrating the shortage of money stemmed from a miscommunication with the suspects in the investigation. The suspects believed they were purchasing half of the pseudoephedrine which was actually supplied to them by two undercover agents, one being Heredia.
Furhter, the reason Heredia did not wear a transmitting device was because there were two undercover agents and it was unknown which one would be allowed to meet with the suspects along with the informant. Since both undercover agents could not wear a transmitting device (due to feedback), Hudson decided to place the transmitting device in the room in which the transaction was to occur. Additionally, Messing pointed out that according to DOJ policy and procedure, Hudson had the authority to authorize not utilizing a transmitting device at all. DOJ policy states, “whenever appropriate and within legal guidelines, transmitting equipment should be used in fixed installations during investigations."
At the conclusion of DOJ's case in chief, Messing moved to dismiss the adverse actions in their entirety based on DOJ’s failure to prove any of the allegations by a preponderance of the evidence. Messing also moved to dismiss the adverse actions based on an offer of proof that DOJ deprived Fox, Heredia, and Hudson of a fair hearing by intimidating and harassing several witnesses.
Judge Brecher partially granted the motion to dismiss, striking the charges of failing to ensure an informant was properly searched and allowing Heredia to go “undercover” without a transmitting device from Hudson’s adverse action. Brecher also ruled that although DOJ might have unlawfully intimidated or retaliated against several witnesses, Fox, Heredia, and Hudson were not prejudiced in the presentation of their case, as the witnesses in question testified truthfully.
Messing then presented his cases in chief for Fox, Heredia, and Hudson on the remaining allegations. Messing was able to present his entire case in less than a day and a half.
Several months later, Judge Brecher ruled to dismiss the 4 remaining charges against Hudson and the sole remaining charge against Fox and Heredia. Brecher’s decision was adopted by the State Personnel Board which ordered that Hudson be reinstated to Special Agent Supervisor and Fox’s and Heredia’s 3 day suspension be revoked. In response to the SPB decision, DOJ filed a petition for rehearing.
On January 11, 2005, the SPB denied DOJ’s petition effectively bringing this 3 year ordeal to conclusion. Carroll, Burdick & McDonough, on behalf of CAUSE, successfully vindicated 3 CAUSE members. Gary Messing should be commended for his dedication and commitment during the appeal process and most of all, his zeal to ensure that justice was served.
Decision Ends Three Year Ordeal
Source: Kasey Christopher Clark, Chief Legal Counsel
Date: 3/15/2005
According to the other agent, Sampson’s claim was erroneous. The other agent knew the actual identification was based on clothing, stature, location of arrest, and the suspect’s own admission and had relayed this information to Sampson. The agent later testified to these facts. Furthermore, the identification was verified by fingerprints and chemical stains on the suspect’s clothing.
Sampson claimed the confusion over the identification compromised his ability to prosecute the case and resulted in his accepting a plea agreement to dismiss most of the allegations against the suspect, thus greatly reducing the suspect’s criminal sentence. (Sampson later contradicted this statement by testifying he believed he had enough evidence to convict the suspect despite the confusion over the identification).
Upon receiving the complaint against Fox and Heredia, DOJ decided to expand the investigation to include the aforementioned other agent and Michael Hudson, both CAUSE members. At the time, Hudson supervised the Bureau of Narcotic Enforcement, Sacramento Regional Office, Clandestine Laboratory Team, a team to which Fox, Heredia, and the other agent were assigned. DOJ also expanded the scope of the investigation from Sampson’s initial complaint to include all of the investigations Hudson’s team conducted during the previous year.
After nearly a year, DOJ completed its investigation and served Fox, Heredia, Hudson, and the other agent with Notices of Adverse Action. Fox and Heredia received 3 day suspensions. The other agent received a 5 day suspension. Hudson was demoted to Special Agent. The suspensions were based on six (6) charges, while the demotion was based on twenty (20) charges. The charges ranged from Fox and Heredia failing to properly communicate the identification of the suspect to Sampson to Hudson not involving other agencies in his team’s investigations.
Fox, Heredia, and Hudson appealed the adverse actions to the State Personnel Board. The other agent did not. After filing the initial appeal paperwork, CAUSE transferred the appeal to Gary Messing of the law firm of Carroll, Burdick & McDonough.
In December 2003, a settlement conference was held. DOJ flatly refused to negotiate due to its belief the charges against Fox, Heredia, and Hudson were justified and would be upheld at the State Personnel Board hearing set for the following month.
Prior to the evidentiary hearing, a pre-hearing conference was held in order for Messing to present a Korman motion seeking to dismiss many of the charges based on a lack of specificity as well as being barred by the one-year statute of limitations set forth in Government Code section 3304(d) of the Public Safety Officers Procedural Bill of Rights Act (POBR).
Messing stated he would provide testimony that Hudson’s supervisors, both management level employees, were authorized to initiate investigations of misconduct and at least one of them was aware of the incidents more than one year prior to the date the adverse actions were issued. Messing therefore, argued the majority of charges against Fox, Heredia, and Hudson should be stricken from the adverse action.
DOJ immediately moved to disqualify Carroll, Burdick & McDonough and Messing from representing Fox, Heredia, and Hudson based on alleged improper ex-parte communications with DOJ managers. DOJ argued the two (2) Special Agents in Charge with whom Messing spoke were at such a level within DOJ, they are considered representatives of DOJ. Therefore, Messing did not have a right to interview them without first notifying DOJ.
Administrative Law Judge Barbara Brecher modified one of the charges and struck another in Hudson’s adverse action based on the Korman motion. Brecher also denied DOJ’s motion to disqualify Carroll, Burdick & McDonough; however she continued the hearing to allow DOJ to petition the superior court for a writ disqualifying the firm and to stay the appeal. Brecher deferred ruling on the POBR violations pending the outcome of DOJ’s petition. The following day, the superior court also declined to disqualify Carroll, Burdick & McDonough and denied DOJ’s request to stay the appeal.
Upon reconvening the hearing, documentary evidence and witness testimony was presented on the POBR violations. Because most of the allegations appeared barred by POBR, it was DOJ’s burden to prove the alleged misconduct was only discovered by someone within DOJ with the authority to initiate an investigation of the allegations during the one year limitations period. DOJ called three witnesses, including both of Hudson’s supervisors as witnesses.
DOJ’s first witness testified only the Director of the Division of Law Enforcement was authorized to initiate an internal investigation. However, both of Hudson’s supervisors testified they were authorized to initiate an investigation of subordinates at DOJ. One of the supervisors testified he was aware of the conduct regarding the incidents that gave rise to the adverse actions, well prior to the one year statue of limitations. Furthermore, this supervisor testified he did not believe Fox, Heredia, or Hudson did anything to warrant formal adverse action.
The other supervisor testified Hudson’s team was one of the most productive throughout the Bureau of Narcotic Enforcement. This supervisor testified he had even recommended Hudson for an Attorney General’s excellence in supervision award.
DOJ countered with the argument that although Hudson’s supervisors are management level employees and representatives of DOJ (the disqualification argument)they did not have authority to initiate investigations of subordinate agents.
Judge Brecher agreed with Messing’s argument striking 5 of the 6 allegations against Fox and Heredia and 13 of the remaining 19 allegations against Hudson. In light of Brecher’s ruling, DOJ offered to settle Fox’s and Heredia’s adverse action reducing the 3 day suspensions to letters of reprimand. Fox and Heredia declined the offer. DOJ still refused to negotiate a settlement with Hudson contending the remaining charges were sufficient to sustain his demotion.
The remaining charge against Fox and Heredia alleged they failed to ensure DDA Sampson understood the identification of the suspect. The remaining charges against Hudson included failing to attend the pre-trial meeting (rendering him unable to address the identification issue); not briefing an agent prior to an enforcement operation; attempting to influence an agent to book suspects into jail on questionable probable cause; failing to ensure an agent wrote an accurate police report; failing to ensure an informant was properly searched; and allowing an agent to go “undercover” without a transmitting device.
The hearing continued with DOJ calling witnesses and presenting its case. Sampson contradicted his original allegation by testifying he originally knew Fox’s and Heredia’s identification of the suspect was based on factors other than facial features. Sampson now claimed Fox and Heredia had personally told him they could not identify the suspect by any means whatsoever. Sampson’s testimony was refuted by two of DOJ’s own witnesses who testified Fox and Heredia had informed Sampson during a pre-trial meeting the manner in which they could identify the suspect. Fox and Heredia testified they informed Sampson their identification was based on clothing, stature, location of arrest, and the suspect’s own admission.
In reference to the charge Hudson failed to attend the pre-trial meeting, Sampson testified he knew Hudson would not be at the meeting due to another investigation, but would be available via telephone. Sampson furthered testified it did not matter nor would it have mattered if Hudson was present, the outcome would have been the same. Furthermore, three other DOJ witnesses, including one of Hudson’s supervisors, testified Hudson acted properly and within the scope of his position by being available by phone while attending to a more pressing investigation.
Another of DOJ’s witnesses debunked the charge against Hudson that he failed to brief a witness prior to joining an enforcement operation. The witness testified he was briefed prior to joining the operation. The witness testified he was provided with a written operation plan, briefed by the case agent, and he understood his role in the operation.
This was the same witness who alleged Hudson attempted to influence him to book suspects into jail with questionable probable cause. The witness, with Hudson’s approval, ultimately released the suspects. The suspects were in turn booked into jail by another agent on the same probable cause. Ultimately the witness conceded there was sufficient probable cause to book the suspects into jail.
In order to substantiate the allegation against Hudson, DOJ attempted to prove the probable cause was insufficient because the charges were subsequently dropped against the suspects. Messing countered with evidence establishing the probable cause was approved by a judge and charges were filed against the suspects by the district attorney’s office based on the probable cause. The dismissal of charges was only a result of a plea bargain with the five other defendants in the case, two who plead to lengthy prison terms.
As to the allegation Hudson failed to ensure an agent wrote an accurate police report, DOJ’s own witness testified it was entirely proper and within policy to have an agent write a report only articulating evidence seized. The witness testified it is not uncommon for two agencies assisting in an investigation to have one agency write reports articulating the elements of the crime and circumstances surrounding the arrest and the other to write a report documenting evidence. As a result of this testimony, Judge Brecher ordered DOJ to provide her with the reports prepared by the other agency in the investigation supervised by Hudson.
As to the charges of Hudson allowing Heredia to go “undercover” without a transmitting device and failing to ensure an informant was properly searched, DOJ did not present any documentary or testimony evidence to substantiate these charges. DOJ assumed since an informant was shorted money during a drug transaction the informant wasn’t searched properly and since Heredia wasn’t physically wearing a transmitting device this somehow violated policy. Messing countered with evidence deomonstrrating the shortage of money stemmed from a miscommunication with the suspects in the investigation. The suspects believed they were purchasing half of the pseudoephedrine which was actually supplied to them by two undercover agents, one being Heredia.
Furhter, the reason Heredia did not wear a transmitting device was because there were two undercover agents and it was unknown which one would be allowed to meet with the suspects along with the informant. Since both undercover agents could not wear a transmitting device (due to feedback), Hudson decided to place the transmitting device in the room in which the transaction was to occur. Additionally, Messing pointed out that according to DOJ policy and procedure, Hudson had the authority to authorize not utilizing a transmitting device at all. DOJ policy states, “whenever appropriate and within legal guidelines, transmitting equipment should be used in fixed installations during investigations."
At the conclusion of DOJ's case in chief, Messing moved to dismiss the adverse actions in their entirety based on DOJ’s failure to prove any of the allegations by a preponderance of the evidence. Messing also moved to dismiss the adverse actions based on an offer of proof that DOJ deprived Fox, Heredia, and Hudson of a fair hearing by intimidating and harassing several witnesses.
Judge Brecher partially granted the motion to dismiss, striking the charges of failing to ensure an informant was properly searched and allowing Heredia to go “undercover” without a transmitting device from Hudson’s adverse action. Brecher also ruled that although DOJ might have unlawfully intimidated or retaliated against several witnesses, Fox, Heredia, and Hudson were not prejudiced in the presentation of their case, as the witnesses in question testified truthfully.
Messing then presented his cases in chief for Fox, Heredia, and Hudson on the remaining allegations. Messing was able to present his entire case in less than a day and a half.
Several months later, Judge Brecher ruled to dismiss the 4 remaining charges against Hudson and the sole remaining charge against Fox and Heredia. Brecher’s decision was adopted by the State Personnel Board which ordered that Hudson be reinstated to Special Agent Supervisor and Fox’s and Heredia’s 3 day suspension be revoked. In response to the SPB decision, DOJ filed a petition for rehearing.
On January 11, 2005, the SPB denied DOJ’s petition effectively bringing this 3 year ordeal to conclusion. Carroll, Burdick & McDonough, on behalf of CAUSE, successfully vindicated 3 CAUSE members. Gary Messing should be commended for his dedication and commitment during the appeal process and most of all, his zeal to ensure that justice was served.
| contactus@cslea.com | (800) 551-1414 | 2029 H Street • Sacramento, CA 95811 |