What do you have to do to get fired from the Waterloo Police Department?

When I learned last summer that several Waterloo police officers who had used excessive force against black residents had not been disciplined, even after one officer threw a 17-year-old boy to the ground and filed a false report about the incident, and other officers kept their jobs despite making racist remarks at a murder scene or hitting a handcuffed, immobilized suspect on the back of the head, I wondered: what does someone have to do to get fired from the Waterloo Police Department?

Last week the answer became apparent: a lot more than I would have imagined.

One officer remains on the Waterloo force even though Chief Dan Trelka determined he had abused his authority and “displayed poor judgement, unprofessionalism, a lack of competency, a lack of knowledge, a failure to conform to work standards, [and] a failure to take appropriate action”–without showing any remorse.

OFF-DUTY “ROAD RAGE” DRAWS SCRUTINY

Lieutenant Corbin Payne wasn’t involved in any of the shooting or use of force incidents that led to expensive legal settlements for the city of Waterloo in 2016.

But on a day off last June, Payne got physical with an allegedly reckless driver. An eyewitness later testified “he first assumed it was a father-son dispute with the older man pounding on the vehicle and screaming. He decided to intervene when it appeared to be getting out of hand,” Jeff Reinitz reported for the Waterloo-Cedar Falls Courier. Payne ended up in court on a charge of assault causing bodily injury. From one of Reinitz’s stories on the trial:

Prosecutor Michael Whalen said Payne had approached 22-year-old Robert Carlisle Jr. in a Kimball Avenue parking lot moments after Carlisle allegedly narrowly missed hitting a car Payne’s wife was driving while he passed at high speeds. The state said Payne banged on Carlisle’s vehicle, yelled at him and pulled him out of the driver’s seat by the throat, leaving red marks on Carlisle’s neck. […]

Whalen argued Payne wasn’t justified because the off-duty officer started the incident when he confronted Carlisle in the parking lot and had the alternative of calling for on-duty police officers to address the driving offenses.

The state alleged Payne left the scene before officers arrived in order to duck intoxication tests.

The driver of the other car and the eyewitness testified that Payne smelled of alcohol during the “road rage” incident. Speaking to a dispatcher a short while later, Payne asked “if anyone had reported the matter” and denied assaulting the other driver when told someone had called in his actions. “He then asked which officers were assigned to the case and later called back to have the dispatcher run the delivery driver’s license plate to get his name and address.”

Supervisors put Payne on “desk duty” immediately after the incident and on paid leave once they found out he would be charged with assault. After a Black Hawk County jury acquitted the lieutenant in January, Chief Trelka resumed an internal affairs investigation of Payne’s actions.

“UNSATISFACTORY PERFORMANCE AND UNBECOMING CONDUCT”

The results of that probe became public thanks to a records request by Ryan Foley of the Associated Press. His May 18 report contained some eye-popping details:

Waterloo Police Chief Daniel Trelka wrote in his disciplinary decision that he could have fired Lt. Corbin Payne for lapses in “judgment, discipline, professionalism, and integrity.” He noted that Payne was previously suspended for assaulting a juvenile detainee in a similar fashion and that Payne admitted to improperly using police databases to research the motorist.

But Trelka ultimately demoted Payne to officer, citing Payne’s 21 years of service while acknowledging that his continued employment exposes the city to liability for “negligent retention.” […]

Payne shouldn’t have confronted the driver while he’d been drinking and had no service weapon, Trelka wrote, adding that Payne failed to identify himself as an officer until after he had used force. He said it was dangerous to approach the vehicle, that Payne’s use of force against the much-smaller driver was potentially excessive and that it was unacceptable to leave the scene without calling the police.

When he later called 911, Payne used unprofessional language, questioned what the driver reported about him and asked the dispatcher to run Carlisle’s license plate. Payne had “questionable intentions” in asking the dispatcher which officers were investigating, later calling the supervisor in a move that created the perception of a cover-up, Trelka added.

Wait: the chief of police kept Payne on the payroll after putting in writing that he had grounds to fire him, and that not doing so would expose the city to liability? He certainly did. I’ve never seen anything like this 13-page disciplinary decision:

After summarizing the case and listing a dozen applicable department rules and regulations, Trelka briefly noted past blemishes on Payne’s service record (page 5). He was suspended without pay in April 2010 “for using unnecessary physical force against a juvenile in the police department holding cell. His physical contact with the juvenile was very similar in nature to his physical contact in this most recent matter.” (The department destroyed surveillance video of that holding cell incident, probably sometime last spring. Trelka told the Associated Press “department policy requires such records be kept for six years.”)

Trelka also described a May 2010 episode, in which Payne was “rude and disrespectful” to Clear Lake police officers who responded to a “verbal altercation” at a local bar. Performance evaluations cited “deficiencies” in Payne’s attitude in 2009 and 2010. What prompted the 2009 write-up is unclear; his physical aggression toward the juvenile was a factor in the 2010 report.

The show-stopper begins on page 6 with Trelka’s “Just Cause Determination Statement.” The chief expects higher-ranking personnel to abide by “Three Pillars of Leadership; Character, Competence, and Relationships.”

In one fell swoop with his actions on June 12, 2016, and his subsequent behavior, Lt. Payne essentially destroyed all three of his pillars. This incident does not merely call into question his judgement, discipline, professionalism, and integrity for a single act. There were a series of missteps and several deliberate actions, as well as confounding inactions, by him […].”

Over the next three pages, Trelka listed 24 points, each of which indicate that Payne violated at least one department rule. Some highlights:

• Payne confronted the other driver after “consuming intoxicants.”
• He approached the other driver without having his police ID, badge, sidearm, handcuffs, or protective vest, which is “inconsistent with sound judgement, law enforcement standards, and deconfliction principles.” Trelka noted that as commander of a multi-jurisdictional, plainclothes drug unit, Payne, “of all people, should have been cognizant of deconfliction.”
• He confronted the driver rather than calling 911 or waiting for backup.
• He attempted to keep the driver in the car rather than trying to get him out of the vehicle, as would be standard practice in the situation.
• Contrary to what officers are taught in basic training, he didn’t take down the other driver’s license plate number.
• He spoke unprofessionally to the dispatcher, seeking information about what had been reported about him.
• He left the scene before on-duty officers arrived, without determining whether the other party was intoxicated or suffering from a medical condition that could have accounted for reckless driving.
• He asked the dispatcher to run the other driver’s license plate in order to obtain his name and address, in possible violation of the federal Drivers Privacy Protection Act. The Iowa Department of Public Safety “suspended Lt. Payne’s access to records under their control” after learning about this action.
• He used force beyond what might be considered “objectively reasonable” on a person “much smaller” than himself, without identifying himself as a law enforcement officer.
• He hadn’t attended department training on de-escalation and defensive tactics since May 2013.
• He revealed “questionable intentions” by asking the dispatcher which officers were responding to the incident and then calling one of them.
• He failed “to realize and comprehend that his ‘seizure’ of the reckless driver by restraining him was of a Fourth Amendment concern. […] If a citizen who is not a sworn law enforcement officer would have taken the action that Lt. Payne took, they could have faced significant criminal charges.”

Trelka went on to note several “inconsistencies” in Payne’s statements and testimony about what transpired (page 10).

At their worst, these could be viewed as a matter of untruthfulness. At a minimum they call into question Lt. Payne’s ability to recall and accurately articulate pertinent facts about a situation. Regardless, it raises concern as it relates to Lt. Payne’s credibility. Throughout Lt. Payne’s testimony and in his statements there is an obvious lack in his ability to articulate. The ability to articulate is one of the most prominent skills required for an officer.

Trelka found media accounts describing the incident as “road rage” to be “fairly accurate” and related several comments from local citizens, which convinced him that “the credibility of and trust in the entire police department has been damaged” by Payne’s actions (pages 10-11).

Based upon Lt. Payne’s statements and testimony, it is evident he takes no responsibility for his actions in this matter whatsoever and feels that he engaged in no wrongdoing. […]

On February 10, Lt. Payne was given an opportunity to meet with me to provide a defense, mitigation, or extenuation in regard to this matter. In this meeting he admitted that after he was fully aware that he was the focus of this investigation he utilized police department equipment and databases on several occasions to access information about the reckless driver. This information is not available to the public and may in fact be viewed as of a confidential nature. This was wholly inappropriate, unauthorized, and caused me grave concern.

Trelka determined that Payne violated a number of department rules, particularly and substantially those relating to “unbecoming conduct” and “unsatisfactory performance,” then laid out why “the seven steps to just cause [to fire someone] have been met.” (pages 11, 12)

All of which makes the report’s concluding paragraphs hard to fathom (emphasis in original).

By Lt. Payne’s actions and conduct, he displayed poor judgement, unprofessionalism, a lack of competency, a lack of knowledge, a failure to conform to work standards, a failure to take appropriate action, and he abused his authority. These actions support the basis for a violation of Unsatisfactory Performance. His conduct brought us into disrepute and reflected very unfavorably on the Waterloo Police Department, impairing our operations, thus establishing the basis for a violation of Unbecoming Conduct. My finding in this matter in regard to violations of Unsatisfactory Performance and Unbecoming Conduct is sustained. Taken into consideration with his past conduct and by the mere fact that he has put the city in a position of negligent retention, the threshold for termination of employment from the Waterloo Police Department has been met. However, that is tempered by his 21 years of service with the Waterloo Police Department for the citizens of Waterloo. When I collectively consider the totality of the circumstances I determine that Lt. Payne will be demoted to the rank of police officer effective February 21, 2017 due to the performance of his duties falling below acceptable levels, as well as for disciplinary purposes.

If Officer Payne is the subject of any formal disciplinary action in the future that is sustained, he will be terminated from the Waterloo Police Department. I am hopeful that with the proper supervision, guidance, training, and mentoring, Officer Payne can again become an effective, productive member of the Waterloo Police Department.

I’m stunned a police chief would lay out such a detailed case for termination, only to decide everything recounted on the preceding pages “is tempered by his 21 years of service.” Trelka didn’t even list any accomplishments or laudable acts during Payne’s tenure that might compensate for his conduct in this case. What happened to the “Three Pillars of Leadership” he supposedly uses “as a tool to guide me in my decisions to hire, promote, and evaluate,” and in “my decisions to demote or terminate”?

Arguably, Payne should have been fired after using unnecessary force on a juvenile in 2010. Soon after that happened, he was needlessly confrontational in a bar, threatening to file a complaint against Clear Lake police officers who were just doing their jobs.

Years later, Payne either failed to grasp or casually disregarded basic policing concepts. He either deliberately lied about his actions last June or was unable to “recall and accurately articulate pertinent facts” about that day’s events. He abused his authority to obtain information about the victim of his alleged assault. Even now, he “takes no responsibility for his actions,” which undermined the department’s credibility.

The Waterloo Police Department had plenty of unresolved community relations problems before Payne lost it with another driver.

Why keep someone on the force who is such a liability? Neither Trelka nor the department’s communications officer responded to my efforts to gain insight about the chief’s thought process.

I have a theory.

WHY DEMOTE INSTEAD OF TERMINATE?

Presumably Trelka had no idea his disciplinary decision would ever reach a wide audience. Until recently, most “personal information in confidential personnel records of government bodies” was exempt from disclosure.

As Trelka was putting the finishing touches on his thoroughly-documented report dated February 13, Republican lawmakers were rushing to approve a bill making sweeping changes to collective bargaining rights. That legislation took effect immediately after Governor Terry Branstad signed it on February 17, including little-noticed provisions revising the open records law (see Division III, starting on page 35).

The old Iowa Code 22.11(a)(5) stipulated that the following information from personnel files would be public records: “The fact that the individual was discharged as the result of a final disciplinary action upon the exhaustion of all applicable contractual, legal, and statutory remedies.”

The collective bargaining law rewrote that passage as follows: “The fact that the individual resigned in lieu of termination, was discharged, or was demoted as the result of a final disciplinary action upon the exhaustion of all applicable contractual, legal, and statutory remedies, and the documented reasons and rationale for the resignation in lieu of termination, the discharge, or the demotion.

Trelka demoted Payne as of February 21. If the assault trial had gone forward in November, as originally scheduled, rather than in January, the chief would have completed his review weeks before the new law took effect. Trelka’s disciplinary determination would not have been covered by the new disclosure rules if he had issued it just a few days earlier.

Even if he didn’t anticipate the public would learn the extent of Payne’s misconduct, why would Trelka keep an officer on the force, knowing his department might be accused of negligence if Payne acted out again?

The chief is sensitive to bad publicity. He has complained about what he perceives as undue attention to lawsuits over excessive uses of force. Last August, Trelka told KXEL Radio’s Bob Bruce a widespread “expectation that officers should not be making any mistakes whatsoever” makes this “a very difficult era to police in.” Trelka further asserted that media coverage of the legal settlements “inflames tensions between certain groups” in Waterloo, obscuring “what’s being accomplished” by his officers.

Last September, Trelka barely held on to his job after scrambling to show he was serious about building better relationships with black residents of Waterloo. (Experts’ recommendations toward that end had sat on the shelf for nearly a year.) The chief has since told interviewers he is working hard to repair the department’s image and better train its officers.

Payne’s trial and acquittal were big local media stories. Firing the lieutenant would likely raise more questions and generate more unflattering headlines, especially if the officer challenged his dismissal. Lowering his rank and pay might be easier for all concerned.

In an act of remarkable chutzpah, Payne is appealing his demotion, Reinitz reported for the Courier on May 18. He will have a “closed-door hearing with an arbitrator” this week. Good luck with that. I can’t see how Payne can continue to police the community with an exhaustive accounting of his anger management issues, “poor judgement, unprofessionalism, lack of competency” and so on now a matter of public record. He is a lawsuit waiting to happen if he snaps one more time.

I’ll update this post as needed with further developments. I’d welcome feedback on Trelka’s handling of this case from readers with experience in employment law or police work. A private confidential message is fine for those who prefer not to comment here.

UPDATE: Some employment attorneys have suggested that it is not unusual for a employer to decline to fire someone when there are grounds for dismissal. In a civil service environment where the employee belongs to a labor union, a termination can be difficult to carry out.

Upon reflection, I’m not sure that the new language in Iowa’s open records law applies only to documents placed in personnel files since February 17, 2017. The way the statute now reads, one could argue that documents relating to demotions or resignations in lieu of termination are now public records, regardless of when they were created. I’d like to hear from attorneys with expertise in this area.

SECOND UPDATE: The post is correct. Section 54 of the collective bargaining law states that amendments to the relevant section of open records law–Iowa Code 22.7(a)(5)–apply to “information placed in an individual’s personnel records on or after the effective date of this division of this Act”–that is, February 17, the day Branstad signed House File 291.

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