IN THE MATTER OF

ARBITRATION BETWEEN

CITY OF SAN ANTONIO, TEXAS

City,

#FC2012-009

v.

POLICE LIEUTENANT LEE RAKUN

Appellant. Arbitrator: William L. McKee, Ph.D.

A hearing in this matter took place in San Antonio, Texas, on March 19-21, 2013.

Additional testimony was presented via a phone conference on March 28, 2013. A pre-hearing

conference call was held on January 14, 2013, to discuss Appellant's motion in limine. Upon

receipt of post-hearing briefs the hearing closed.

REPRESENTATIVES

For the City:

James Kopp

Assistant City Attorney

For the Appellant:

Karl Brehm

C.L.E.A.T. Staff Attorney

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ISSUE

The parties agreed that the Arbitrator could frame the issue. After reviewing the relevant

provisions of the applicable Collective Bargaining Agreement and the Texas Local Government

Code, I find that the issue to be decided in this hearing is as follows:

Did the City of San Antonio have cause to indefinitely suspend Appellant Lee

Rakun from the Police Department? If not, what is the appropriate remedy?

BACKGROUND/FACTS

Appellant Lee Rakun was employed by the San Antonio Police Department (SAPD or

Department) beginning in September 1993. He was promoted to the rank of Lieutenant in 2007.

This case arises out of an incident that occurred on January 14, 2012, when Lt. Rakun, his

sister and brother-in-law, and four of their female friends were out for a night on the town in San

Antonio to celebrate birthdays and a wedding anniversary. They hired a limousine, chauffeured by

Rocque Jacquez, which picked up the first riders around 7:00 p.m. on that Saturday evening. The

Appellant and Mr. Jacquez exchanged business cards, which included their cell phone numbers.

As will be considered later, Rakun's card also reflected his rank at the San Antonio Police

Department.

The limo then took the Appellant and his friends to several nightclubs around the city. The

party consumed alcoholic beverages in the limo and had additional drinks inside the clubs. They

were engaged in a scavenger hunt, whereby they collected items specified on a list during the

course of the evening. Silo, an upscale local restaurant/bar frequented by some members of the

group, had offered a $50 gift certificate as the prize for the winner of the scavenger hunt if the

group would make Silo their final stop that night.

The limo carrying the Appellants party arrived at Silo shortly after 11 p.m. on January 14,

2012. The group departed the limo and walked through a series of ramps to arrive at the front door

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where the bar was located. The Appellant was carrying a bottle of Bacardi Rum, presumably for

the purpose of providing the label as an item for the scavenger hunt. Standing at or near the front

door was Bexar County Deputy Constable Christopher Ahumada. Deputy Ahumada works

security at Silo on Friday and Saturday nights.

Most of the Appellants party entered Silo and immediately headed to the restrooms.

Before the Appellant entered the building, Deputy Ahumada noticed that Lt. Rakun was carrying a

bottle of liquor and told him he could not enter with the bottle. At this point, the Appellant

indicated to the Deputy that he was SAPD. The parties dispute the tone and purpose of this

comment. The City urges that the Appellant said this in order to pull rank or intimidate the

Deputy, while the Appellant contends that he said he was a police officer merely to indicate that

he understood the law about taking alcohol into a bar. In any event, the Appellant walked away to

return the bottle of rum to the limo. After the Appellant turned away, Deputy Ahumada sent a text

message to bar manager Matthew Perry which said, front door!

Limo driver Rocque Jacquez testified that, when Lt. Rakun returned to the limo, he handed

him the bottle of Bacardi and said, That fucking Mexican wouldnt let me in. The Appellant

denies saying this. After depositing the bottle in the limo, the Appellant returned to the bar. The

Deputy testified that he observed the Appellant stumbling and believed that Rakun was highly

intoxicated. When the Appellant tried again to enter the building, the Deputy told him that he

could not come in because he was drunk. This initial exchange took place at, or just inside, of the

first level front door to the building, although they quickly moved outside.

At this point an exchange took place between the Appellant and Deputy Ahumada. The

Deputy, who is Hispanic, testified that the Appellant made racial slurs to him including Fucking

Mexican, Spic, Beaner, and Wetback. He also said that Lt. Rakun claimed to be a captain

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in the SAPD, and Rakun threatened he would have his (Ahumada's) badge and gun. The

Appellant denies saying these things and testified that it was the Deputy who was confrontational

and inappropriate when he called Rakun drunk.

According to the testimony of the Appellants girlfriend at the time, Suzann Haces, she was

standing next to the Appellant when both encounters occurred with Deputy Ahumada. She

corroborated Lt. Rakuns testimony. The Appellants sister and brother-in- law testified that they

witnessed some of the confrontation, at least visually, and came over to intervene. They denied

hearing the Appellant make any racist or obscene statements. Silo Manager Matthew Perry

testified that he responded to the Deputys text by coming to the front door and that he also

witnessed part of the exchange between the Deputy and Lt. Rakun. He attempted to support the

Deputys version of events but testified that he did not hear everything.

An audio recording of a police statement made by bar patron named Christopher Johnson

was also presented. Johnson testified that he was standing near the door and witnessed the

encounter, but Johnson did not state that he heard racial statements. His accounts were based on

his visual, not auditory, observations.

The Appellants brother-in-law, Royal Trey King, testified that he knew by Rakun's

body language that something was wrong, so he put his hand on Lt. Rakun and told him they

should leave. Other female members of the party made comments to the Deputy, although the

parties dispute what those comments were. The City contends that the Appellant and his friends

told Ahumada that he did not know who he was dealing with because Lt. Rakun was a commander

or captain in the SAPD. Further, the Appellant and his witnesses insist that Mrs. King and her

friends were simply distraught about what was happening because they were good customers of

the restaurant/bar and felt the Deputy was treating them inappropriately.

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Lt. Rakun, Ms. Haces, and Mr. King went back up the ramp towards the parking lot where

the limo was waiting. Mrs. King returned to the bar to tell the rest of the party that they were

leaving. Deputy Ahumada testified that he followed the party towards the limo. He said that the

Appellant got into the limo but then started to come back out and continued yelling at the Deputy,

this time calling him Mother Fucker and saying that he would have your career. Limo driver

Rocque Jacquez also recalled that the Appellant attempted to get out of the limo and had to be

nudged or pushed back inside. Lt. Rakun and the members of his party denied this and said that

the Appellant was seated away from the door inside the limo, which would have made such an

attempt very difficult.

As soon as Tabitha King got into the limo, Mr. Jacquez took off. He testified that he drove

off without a member of the party, Lisa Baine, who had actually arranged the limo service that

night. He explained that, based on the Appellants behavior, he believed it was important to get

away from Silo immediately, even if he had to make a trip back to pick up the rest of the party.

Ms. Baine testified that she did not come out of the bar or try to get into the limo before it departed

Silo. She said that she told Tabitha King that she and her friends would stay at the bar and have

the limo come back for them.

After the Appellant was gone, Deputy Ahumada testified that he decided he should report

this incident to his lieutenant. He called his on-call supervisor, Salvador Rodriguez, who

instructed him to contact dispatch with his radio and have an SAPD supervisor come to the

location. The Deputy said that an SAPD sergeant, captain, and lieutenant all reported to Silo. The

Sergeant was Sgt. Javier Salazar from Internal Affairs. Sgt. Salazar interviewed Deputy Ahumada

and Matthew Perry (both interviews were recorded and introduced into evidence) and also spoke

to Lisa Baine, the member of the Appellants party who had remained at the bar. Ms. Baine

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refused to identify the Appellants last name (Deputy Ahumada had heard him referred to only as

Lee).

Sgt. Salazar was subsequently assigned (via the normal rotation) to conduct the internal

investigation into this matter. He continued the investigation by interviewing limo driver Rocque

Jacquez, bar patron Chris Johnson, Trey and Tabitha King, and Suzann Haces. These interviews

were also recorded and introduced at the hearing. Lisa Baine did not respond to multiple requests

to be interviewed but testified at the arbitration hearing. She testified that Tabitha King told her

there was no need for her to speak to the investigator because she had not witnessed anything.

Sgt. Salazar questioned the Appellant via written interrogatories, which were provided to

Lt. Rakun electronically. The Appellant had four days to complete his written answers. Lt. Salazar

completed his report, which summarized the witness statements, and submitted it to the Chiefs

Advisory Action Board for review and recommendation. Salazar also made a live presentation to

the Board. The Appellant and his attorney appeared at the May 16, 2012, Board meeting where

this complaint was reviewed,.

The Board consisted of five officers and five civilian members. During the meeting the

members considered four allegations arising from the January 14, 2012, incident: two counts of

Rule 3.02-C Truthfulness of Members (one for misrepresenting his rank as Captain, one for

denying the substantive allegations of the complaint), one count of Rule 3.04 Conduct and

Behavior, and one count of Rule 3.11-B Use of Intoxicants Intoxication. The Board split on

three of the charges but unanimously sustained the second charge of untruthfulness (denial of the

allegations) and voted 9 to 1 to recommend indefinite suspension for that violation. The Board

was presented with evidence of the Appellants prior discipline for untruthfulness, which will be

discussed below.

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SAPD Chief of Police William McManus issued Lt. Rakun a notice of Contemplated

Disciplinary Suspension on June 7, 2012. The notice indicated that the suspension would be

indefinite. The Appellant was given a Loudermill hearing. On July 10, 2012, the Chief

indefinitely suspended Lt. Rakun by letter, which stated in relevant part:

Lieutenant Lee R. Rakun has violated Subsection C of Rule XIII of the City of

San Antonio Fire Fighters and Police Officers Civil Service Commission Rules,

said rules having been adopted on February 23, 1998, and thereafter from time to

time amended, by the Fire Fighters and Police Officers Civil Service

Commission as the Civil Service Rules for the Fire and Police Departments of

San Antonio. The particular civil service rule violated by Lieutenant Lee R.

Rakun and ground for suspension is as follows:

(12) Violation of an applicable fire or police department rule or

special order.

The Rules and Regulations of the San Antonio Police Department which

Lieutenant Lee R. Rakun has violated are as follows:

RULE 3.02 TRUTHFULNESS OF MEMBERS: Members shall speak

the truth at all times. Reports and written communications from any

member shall also reflect the truth.

RULE 3.04 RESPONSIBILITY TO SERVE THE PUBLIC: Members

shall serve the public through direction, counseling, assistance and

protection of life and property. Members shall also respect the rights of

individuals and perform their services with honesty, sincerity, courage

and sound judgment. (C) CONDUCT AND BEHAVIOR: Members,

whether on-duty or off-duty, shall be governed by the ordinary and

reasonable rules of good conduct and behavior, and shall not commit any

act tending to bring reproach and discredit on themselves or the

department.

RULE 3.11 USE OF INTOXICANTS (B) INTOXICATION: Members

shall not at any time be intoxicated while on-duty. Members shall not be

intoxicated while in public view. No member while off-duty shall drink

intoxicating beverages to an extent which renders him unfit to report for

duty.

The factual basis for the instant disciplinary suspension is as follows:

On or about January 14, 2012, at about 11:15 p.m., Lieutenant Lee R.

Rakun, while off duty, was refused entry to Silo Bar/Restaurant, located

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at 1133 Austin Highway. Lieutenant Rakun had attempted to enter the

location while intoxicated and carrying a bottle of liquor. When the

officer in charge of security, Deputy Constable Christopher Ahumada,

told Lieutenant Rakun that he could not enter the bar, Lieutenant Rakun

approached the deputy in a threatening manner and launched a barrage of

obscenities and racial slurs at the deputy in the presence of several

witnesses, calling him out loud Bitch, Spic," Beaner, Wet-Back,

and Fucking Mexican. Lieutenant Rakun also personally threatened

Deputy Ahumada, stating that he would use his rank and office within

SAPD to negatively affect the deputys career and saying he would return

later in the evening, yelling, Im coming back, Mother Fucker! and,

Im a Captain with SAPD, and Ill have your career tomorrow!

Since Rakun is in fact not a Captain, his statement was untruthful and

Lieutenant Rakun was also subsequently untruthful during the

investigation into this incident when he denied having made any

threatening and racist statements to Deputy Ahumada. Additionally,

when Lieutenant Rakun appeared at Silo Bar/Restaurant extremely

intoxicated, he violated the SAPD rule against drinking intoxicating

beverages to an extent which rendered him unfit to report for duty.

In issuing this contemplated suspension, I have taken into consideration

the fact that Lieutenant Rakun received a 125-day suspension for

untruthfulness within the preceding two years.

PRIOR DISCIPLINE

On September 9, 2010, Chief McManus indefinitely suspended Lt. Rakun based on

charges that he violated Civil Service Rule 12 (violation of an applicable departmental rule or

special order) and four specific Rules and Regulations of the Department, including Rule 3.02

Truthfulness of Members. These charges stemmed in part from statements the Appellant made

to SAPD Detective Bruce Wilson during a video interview on May 28, 2010, which Lt. Rakun

subsequently admitted were false.

Lt. Rakun appealed this earlier suspension to arbitration. On May 26, 2011, Rakun and

Chief McManus entered into a Release and Settlement Agreement, whereby the indefinite

suspension was reduced to a 125-day suspension without pay. The Chief agreed to withdraw all

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charges except the untruthfulness charge in violation of Rule 3.02, which related to the May 28,

2010, statement to Detective Wilson.

The CBA between the City and the San Antonio Police Officers Association contains

restrictive provisions regarding the use of prior discipline. Citing those provisions, the Union

submitted a pre-hearing Motion in Limine, seeking to prevent the City from introducing

evidence of the Appellants prior discipline. After reviewing written briefs from both parties and

hearing additional argument during a pre-hearing teleconference, I held that the evidence of the

September 2010 indefinite suspension was admissible under Article XXVII, Section 19.D,

which states:

Where the Chiefs original written charges allege a violation of any other Civil

Service Rule, the Chief and the City may introduce prior discipline for a

violation(s) of the same rule within two (2) years immediately preceding the date

of said written charges, so long as adequate records are maintained in accordance

with Section 21 below, at the time of the act for which discipline was assessed.

(Emphasis added).

My interlocutory decision regarding prior discipline was made in response to a motion in

limine for a pre-hearing decision on the Unions contention that the prior discipline fell outside

of the two-year time limitation contained in Section 19.D. I interpreted the CBA to mean that

the two-year limitation was calculated from the time the discipline was issued, not from the time

that the incident occurred. As such, I held that the City could introduce evidence of the prior

discipline for the charge of untruthfulness because this case similarly alleged violations of

Departmental Rule 3.02. The later expert testimony of Mr. Ben Foster, the City's lead contract

negotiator when the language in question was added to the Collective Bargaining Agreement,

directly supported my interpretation.

Although I allowed evidence of the prior suspension, I believe it is only appropriate for

me to consider that prior discipline in the event that I uphold the at least one of the charges of

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violation of Rule 3.02 in this case. For reasons set forth more fully below, I am not sustaining

either of those charges. Briefly, the evidence is weak that it was Lt. Rakun and not another

member of his party who referred to him as a captain in the SAPD. At the very beginning of

the limo ride Rakun and the limo driver exchanged business cards, with Rakun's reflecting his

rank of lieutenant. Furthermore, no one corroborated Constable Ahumada's complaint about

such a statement.

Similarly, and regardless of whether the charges of misconduct on January 14, 2012, are

true or not, I do not believe that the Appellants denial of charges is sufficient to sustain a charge

of untruthfulness for disciplinary purposes. Police officers disciplined under the terms of the

Texas Local Government Code often deny the charges filed against them in order to perfect an

appeal. Based on the evidence presented at the hearing and the restrictions set forth in the CBA,

I find that it is not appropriate to consider the September 9, 2010, suspension, as modified by the

May 26, 2011, Release and Settlement Agreement, in determining whether indefinite suspension

was an appropriate penalty in this particular case. Further elaboration on this topic will follow.

ARGUMENTS

Citys Argument

The City argues that the evidence supports the factual allegations against Lt. Rakun. It

contends that the Appellant and his party consumed large amounts of alcohol during their

scavenger hunt on January 14, 2012, before arriving at Silo. Based on the testimony of Rocque

Jacquez, who described the champagne and liquor bottles he saw in the car, Lt. Rakun was

intoxicated. Due to his inebriated state, the Appellant became enraged when Deputy Ahumada

said he could not enter the building, and he launched into a racially-tinged, abusive tirade. Mr.

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Jacquez also corroborated the Deputys account that, upon returning to the limo for the second

time, the Appellant attempted to get out to make threatening statements to Ahumada.

According to the City, Deputy Ahumada has consistently described the events of January

14, 2012, as corroborated by bar manager Matthew Perry and witness Christopher Johnson.

Rocque Jacquezs testimony about the Appellants use of the term fucking Mexican when he

returned to the limo further corroborates that the Appellant engaged in a barrage of racial

slurs. The Appellants friends and family members should not be believed, the City urges,

because Tabitha King and Lisa Baine attempted to suppress evidence by refusing to disclose the

names of the other people in the party. Also, Ms. Baine did not respond to Sgt. Salazar's

attempts to contact her.

Further, the City contends that the Appellants proposed motive for Deputy Ahumada to

fabricate these allegations is preposterous. The Appellant has not proved that the Deputy

violated any rule or regulation of the Constables Office. The other items by which the

Appellant attempted to impeach the Deputy failure to check a box on his job permit and

statements made in an affidavit related to a dispute between members of the Constables Office

are irrelevant and should not be given any weight by the Arbitrator. Texas Rules of Evidence

Rule 608(b) makes such evidence inadmissible in Texas courts.

The City argues that Lt. Rakun was untruthful in two separate instances. First, he

deliberately misrepresented his rank within the SAPD to Deputy Ahumada. Second, he denied

the charges at issue in this case and has never taken responsibility for his actions.

According to the City, the observations of Deputy Ahumada and Rocque Jacquez

establish that Lt. Rakun was intoxicated to the point that he was unfit to report for duty. Mr.

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Jacquezs testimony regarding the number of liquor bottles in the limousine corroborates this

evidence.

The City maintains that the Appellants misconduct was unacceptable and is particularly

untenable in a city such as San Antonio that has a large Hispanic population. Indefinite

suspension was the only reasonable penalty in light of the seriousness of the Appellants

conduct and the position of trust that police officers hold with the public. Reinstating Lt. Rakun

would establish an intolerable standard of behavior and would impede the Departments ability

to protect the public, including damage to Rakun's ability to present credible testimony in court.

The Appellants history of untruthfulness has ruined his credibility as a witness. There are no

mitigating factors that support lesser discipline.

With regard to the issue of disparate treatment, the City contends that the Chief treated

Lt. Rakun fairly in light of all of the circumstances. The fact that the Appellant had prior

discipline for one of the charged offenses distinguishes his case from the others introduced by

the Appellant. Further, the City argues that the actions committed by the other officers were not

similar in nature or character to Lt. Rakuns conduct.

Appellants Argument

The Appellant focuses most of his argument on the credibility of Deputy Constable

Ahumada. According to the Appellant, Ahumada was exceeding the scope of his security work

permit and the rules and regulations of the Bexar County Constables Office that governed his

second job at Silo on the night in question. He was acting as a bouncer rather than providing

security for the parking lot. The Appellant submits that Ahumada fabricated or exaggerated the

allegations at issue because he was concerned that Rakun and/or his friends might report this

alleged violation to the Constables Office after he denied Rakun entry to the bar. Further, the

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Appellant suggests that the Deputy might not be properly qualified to hold a Texas Peace

Officers License because there is no record of a psychological evaluation of the Deputy on file

at the first law enforcement agency that employed him.

With respect to the other civilian witnesses called by the City bar manager Matthew

Perry and limo driver Rocque Jacquez the Appellant points to many inconsistencies in their

accounts: inconsistencies within the statements themselves; inconsistencies between their

statements to Sgt. Salazar and their testimony at the hearing; and inconsistencies between their

accounts and that of other witnesses (specifically, that of the Appellant and his friends). The

Appellant goes so far as to allege that Matthew Perry misrepresented that he witnessed anything

at all since he could not pick Lt. Rakun out of a six-man lineup and because he claimed to have

seen Rakun, who is not a smoker, light a cigarette during the confrontation with Deputy

Ahumada. He urges that the testimony of Tabitha and Trey King, Lisa Baine, and Suzanne

Haces is more credible because it has been consistent.

The Appellant argues that Sgt. Salazars investigation was severely flawed because he

did not approach the investigation with an open mind. Instead, he immediately believed the first

witnesses to whom he spoke Deputy Ahumada and Matthew Perry. In particular, he did not

question the motives of those witnesses to fabricate or exaggerate their accounts. The Appellant

complains that Sgt. Salazar prepared summaries of witness statements for his report and for the

Advisory Action Board in which Salazar omitted the witnesss inconsistencies and thereby made

them seem more credible than they actually were. His report stressed the incriminating evidence

and omitted or downplayed exculpatory evidence, such as the fact that the Appellants own

children have a mother of Mexican descent. According to the Appellant, Sgt. Salazars

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investigation was not fair or thorough and violated the concept of investigative due process, a

component of just cause.

The Appellant contends that the allegation that he was too intoxicated to be fit for duty is

so vague that it cannot be sustained. There is no objective standard for being unfit for duty. Lt.

Rakun was not scheduled to work until late the following afternoon and was not called in on an

emergency. The evidence is insufficient to show that the Appellant was legally intoxicated. He

was not subjected to a blood alcohol or field sobriety test. Instead, Rankin was off-duty and had

hired a limousine so he would not have to drive. The City is overreaching into the Lieutenant's

off-duty conduct.

Finally, the Appellant cites a number of other instances in which other members of the

SAPD were found to have committed violations as serious, or more serious, than those alleged

against Lt. Rakun but in which lesser discipline than indefinite suspension was issued. He

contends the Department has treated him too harshly in comparison to these other cases.

FINDINGS

The CBA sets forth specific requirements regarding what the Arbitrator must include in his

or her decision in a case such as this. First, I must state which factual allegations I find to be true

and whether those facts support sustaining the charges set forth in the charging instrument.

The facts of this case are highly disputed. There are credibility concerns with respect to

every single fact witness. The Citys fact witnesses were particularly prone to inconsistencies.

Many of these inconsistencies can be attributed to the fact that the relevant events occurred late at

night, at a nightclub, and in a somewhat stressful situation. Additionally, Sgt. Salazar might not

have been as objective as he should have been while conducting the investigation.

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On the other hand, I do not give a great deal of weight to the testimony of the Appellant's

friends and family. For his part, Lt. Rakun has an obvious motive to deny Deputy Ahumadas

allegations. The evidence also indicates that some of his associates took steps to play-down certain

evidence. Almost every fact witness involved in this matter exhibited some sort of bias.

In reference to the Appellants arguments about Deputy Ahumada and his motivations to

misrepresent the facts in this case, I am not persuaded that any issue about the scope of his duties

at Silo is relevant to this case. As a threshold matter, there is no evidence that the Constables

Office has a clear policy prohibiting its peace officers from doing the sorts of things Deputy

Ahumada was doing on the night in question. The Appellant called Deputy Constable Alejandro

Quintanilla, who testified that such a policy exists but is not written or posted it is just

something that everybody knows. This type of evidence is not particularly compelling,

especially in light of Deputy Quintanillas obvious dislike of Ahumada. More importantly, it

seems to me that it is highly unlikely that Deputy Ahumada would have drawn this kind of

attention to himself (he is the one who reported this incident, after all) if he were concerned about

his employer finding out about his activities at Silo.

Nor am I convinced that the other ancillary issues raised by the Appellant about Deputy

Ahumada preclude reliance on his testimony or establish a motive for him to lie. What is

concerning about the Deputys testimony is that he reacted in an antagonistic way towards Lt.

Rakun on the night in question, despite his protestations to the contrary. Ahumada testified that he

followed the party back towards the limousine, saying Have a nice night and Ill be here until

3:00. If anything raises an inference that the Deputy might be exaggerating, it would be this

evidence of his attitude towards the Appellant.

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With regard to the most serious of the factual allegations the charge that Lt. Rakun called

Deputy Ahumada a fucking Mexican, beaner, Spic or wetback to his face I find that

there is no credible evidence that anyone other than the Appellant and the Deputy witnessed (both

visually and audibly) their encounter. However, there is evidence from both sides that corroborates

at least some of the Deputys account,.

Matthew Perry testified that he heard Ahumada say to Lt. Rakun Did you just call me a

beaner? This is sufficiently consistent with the Deputys testimony that he said to the Appellant

Did you just call me a fucking Mexican? to corroborate that Rakun uttered a race-based slur.

Despite the Appellants contention that Perry was not actually present to witness the encounter,

the evidence establishes that he received a text message from Deputy Ahumada that said front

door! It seems very likely that Mr. Perry, who had responsibility for the entire restaurant/bar at

that time, would have responded to that kind of a message. However, Perry's testimony also

indicates that, once he saw what was happening at the door, he left to go back inside since he was

more concerned with finding out whether there was more trouble going on inside the bar. He did

not return, which is puzzling.

The actions of members of the Appellants party also lend credibility to Deputy

Ahumadas version of events. The fact that Lisa Baine refused to tell Sgt. Salazar what Lees

last name was on the night of the incident suggests that she was trying to cover for him. If, as the

Appellant and his witnesses testified at the hearing, it was the Deputy who was acting

inappropriately, there would have been no reason for Ms. Bain to refuse to cooperate with Sgt.

Salazar. Although there is no evidence that Ms. Baine witnessed the altercation, it is clear that

Tabitha King went back into the bar and spoke with Ms. Baine to explain why they needed to

leave.

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The most credible and persuasive evidence to corroborate the Deputys account was the

testimony of limo driver Rocque Jacquez. It is true that Mr. Jacquez had his share of

inconsistencies, particularly with respect to where the limo was located in proximity to the front

door of Silo when Lt. Rakun returned the Bacardi bottle and, according to Jacquez, the Appellant

said that the fucking Mexican wouldnt let him come in. Perhaps more so than for any other

witness to the incident, I am aware that the situation placed a good deal of stress on Mr. Jacquez,

considering that he clearly felt responsible to make sure his customers (including a SAPD officer)

got home without incident. There is simply no evidence to suggest that Mr. Jacquez had any

incentive to fabricate or exaggerate evidence in a way that would be detrimental to customers such

as Lt. Rakun and his associates.

Therefore, I find Mr. Jacquezs testimony that the Appellant referred to that fucking

Mexican when he returned the Bacardi bottle to the limousine, to be credible. Lt. Rakun did not

say this loud enough for anyone else to hear, especially since Mr. Jacquez testified that the limo

was across the street at the Valero station when the Appellant made the statement. The fact that Lt.

Rakun used language like fucking Mexican about Ahumada when speaking to the limo driver

lends some credibility to the allegation that he also used that kind of language when speaking to

the Deputy himself.

In light of the Appellants contention that he would not have used racist language because

his own children are partially of Mexican descent, I want to make clear that this finding should not

be interpreted to suggest that Lt. Rakun is racist. The evidence shows that the Appellant was

somewhat intoxicated and that he was angry. It seems equally or more likely that Lt. Rakun chose

his words to be hurtful to their target rather than to voice his personal feelings about Mexicans or

Hispanics in general.

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After considering all of the evidence, I find that, on balance, it is sufficient to establish that

the Appellant used inappropriate, abusive and intimidating language about and towards Deputy

Ahumada on the night of January 14, 2012. This was inappropriate conduct which demonstrates a

lack of sound judgment. It is sufficient to sustain the charge of violation of Rule 3.04(C).

The evidence also indicates that the Appellant was intoxicated on the night in question.

This is established by observations made by certain witnesses, primarily Deputy Ahumada and the

limo driver, and simply by the undisputed events of the night Lt. Rakun and his party hired a

limousine to drive them around to several bars and nightclubs (so that they would not have to

drive), they were drinking in the limo and at each stop, and the Appellant wound up in a heated

altercation with Deputy Ahumada. In light of these facts, it is possible to conclude that Lt. Rakun

was intoxicated in a general sense of the word.

However, there is no evidence of a particular level of intoxication. I agree with Rakun's

position that the standard of unfit to report for duty is untenably vague. If being fit to report for

duty were meant to include the ability to perform the full range of police duties, including the use

of weapons on an emergency basis, the Department would have to prohibit entirely its officers'

consumption of alcohol and, perhaps, certain medications. There is no evidence that the Appellant

was unable to appear for his next scheduled shift. However, he was intoxicated in public view,

in violation of Rule 3.11. Mitigating this charge are the facts that (1) there is some distinction

between being intoxicated at a nightclub or in the back of a limo and being intoxicated in a more

public environment, (2) he took reasonable steps to limit the public's exposure (and risk) to his

condition by hiring a limo and driver, and (3) he apparently informed a police supervisor in

advance about what he planned to do that evening. Although the Appellant made a scene by

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engaging in certain conduct towards Deputy Ahumada which I concede was likely related to his

alcohol consumption that conduct is subject to discipline under a separate rule.

There are two charges of violation of Rule 3.02 Truthfulness. The first relates to the

allegation that Lt. Rakun misrepresented his rank as captain rather than lieutenant. The evidence

that it was the Appellant who made this representation, as opposed to another member of his party,

rests entirely upon the testimony of Deputy Ahumada. While I have credited the Deputys

testimony on the charge of improper conduct, largely on the basis of the corroborating evidence,

there is no corroboration for this part of the Deputys complaint. Earlier in the evening Rakun

gave the limo driver a business card that reflected his proper police rank. Thus, the evidence on

this point is so weak as to be non-conclusive. As with the intoxication charge, to the extent the

allegation is that the Appellant misrepresented his rank in order to be abusive or intimidating to

Deputy Ahumada, that conduct would also be subject to discipline as part of the violation of Rule

3.04(C).

The second charge of untruthfulness is based on the allegation that the Appellant lied when

he denied the allegations at issue in this case. In a very technical sense, any factual determination

that the complainants version of events is more credible than the officer/appellants could also be

construed as a determination that the officer/appellant was untruthful. However, many arbitrators,

including myself, are reluctant to sustain a charge of untruthfulness based solely on the fact that an

appellant denied the charges and put a city and department to its proof. I recognize the Citys

position that officers are required to be truthful at all times, but I am also aware that there is a

distinction between making an affirmative misrepresentation, which sends an investigation off on

a wild goose chase or incurs unnecessary investigative costs, and simply declining to admit the

wrongdoing of which the officer is accused.

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It is common in Texas Local Government Code disciplinary suspensions for officers to

respond with a blanket denial of charges. Further, a strictly literal interpretation of the standard

could conceivably have the unintended consequence of raising issues about situations in which a

department head's charges are determined to be "untrue" by an arbitrator or hearing examiner. A

level of perspective is necessary when considering the requirements of the Texas Local

Government Code, the parties' Collective Bargaining Agreement, and the Department General

Manual. In dealing with their employment issues, police officers do not enjoy the protections

against self-incrimination afforded by the Fifth Amendment to the Constitution. Police and fire

department heads, alternatively, are restricted to the original charges filed against an officer and

have the burden of proof, according to the standard of preponderance of the evidence.

There may be other reasons for an officer who has been charged with serious violations to

deny those charges, not the least of which is the possibility that further investigation will produce

different facts than were known originally. It also seems somewhat contradictory for the

Department to allege that this officer was in a state of stumbling, almost-falling-down

drunkenness that made him unfit to report for duty and, on the other hand, to expect him to have

an accurate and detailed recall about specific events and words said in the heat of argument.

An appellants willingness, or lack thereof, to take responsibility for his actions is not a

rule but, rather, something that can better be considered as a mitigating or aggravating factor when

assessing the appropriate level of discipline for the substantive charges. In reference to the charges

relating to intoxication and fitness to report for duty, I sustain only the charge that Lt. Rakun was

intoxicated in public view, a violation of Rule 3.11 and will take into consideration his denial of

wrongdoing when assessing discipline.

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Having sustained two of the charges violations of Rules 3.04(C) and 3.11 the CBA

requires that I determine whether indefinite suspension was the appropriate level of discipline and,

if not, whether a lesser penalty should be substituted. I find that it should.

The Agreement offers arbitrators no bright-line test or even the power to demote or require

a fitness for duty examination. As such, I rely on the guidance provided by prior disciplinary cases

involving San Antonio police officers. No two cases are alike, but on the basis of the disciplinary

cases made available to me I detect a general tendency for the Chief of Police to award

suspensions ranging from 30 to 45 day to officers who make serious but non-career ending

violations. Officer Rakun did little or nothing to mitigate his discipline during or after the

confrontation with Deputy Constable Ahumada, but indefinite suspension is not appropriate for

the violations he committed.

AWARD

The appeal is upheld in part. Having found that the City of San Antonio did not have cause

to indefinitely suspend Appellant Lee Rakun, the indefinite suspension is reduced to a 45-day

suspension without pay. He is to be restored to his former position or status in the City of San

Antonio Police Department and made whole for all remaining losses, consistent with the applicable

provisions of the Collective Bargaining Agreement and the Texas Local Government Code. I

retain jurisdiction for the specific purpose of resolving any disputes that may arise between the

parties about the application or interpretation of this awarded remedy.

________________________ June 18, 2013

William L. McKee, Ph.D.

Arbitrator