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Minutes - 05/02/2013 ND MINUTES FROM THE HUNTSVILLE CITY COUNCIL MEETING HELD ON THE 2 DAY OF MAY 2013, IN THE CITY HALL, LOCATED AT 1212 AVENUE M IN THE CITY OF HUNTSVILLE, COUNTY OF WALKER, TEXAS, AT 5:00 PM. The Council met in a regular session with the following: COUNCILMEMBERS PRESENT: Mac Woodward, James Fitch, Don H. Johnson, Keith Olson, Joe Emmett, Tish Humphrey, Ronald Allen, Clyde Loll COUNCILMEMBERS ABSENT: Lydia Montgomery OFFICERS PRESENT: Leonard Schneider, City Attorney, Lee Woodward, City Secretary__________________________________ SPECIAL SESSION [5:00 PM] 1. CALL TO ORDER – In the presence of a quorum, Mayor Woodward called the meeting to order at 5:00 pm. 2. INVOCATION AND PLEDGES - Councilmember Johnson gave the invocation. 3. PUBLIC COMMENT There was no public comment. 4. EXECUTIVE SESSION a. City Council will convene in closed session as authorized by Texas Government Code 551.071 to receive legal advice on the grievance hearing process for the grievance hearing requested by Chris Myers. [Leonard Schneider, City Attorney] The Mayor adjourned the Council into Executive Session at 5:02 p.m. 5. RECONVENE a. Consideration and possible action on request by Chris Myers that the hearing be held in private. The Council reconvened at 5:48 p.m. The City Attorney recommended the request for private hearing be denied and felt the Attorney General opinions concerning the presence of adverse parties in executive session, saying he also thought it was in the best interest of transparency. Councilmember Olson moved to deny Mr. Myers’ request and was seconded by Councilmember Humphrey. The motion was unanimously approved, 8-0. 6. EMPLOYEE GRIEVANCE APPEAL HEARING – (SHOULD CITY COUNCIL CONDUCT OPEN SESSION) a. Appeal and hearing as requested by Chris Myer on his termination. Procedure to be set by City Council. [Leonard Schneider, City Attorney] The Mayor called the hearing to order at 5:50 pm, certified that more than six City Council members were present, along with Chris Myers and his attorney Greg Cagle. The Mayor introduced attorney George Hyde for the City and noted the City Attorney was present and outlined hearing protocol. Witnesses Chief of Police Kevin Lunsford, and Lieutenants James Barnes, and Curt Landrum were sworn in by the City Secretary. Mr. Cagle invoked the “witness rule” and Lts. Barnes and Landrum left the hearing. Mr. Hyde asked that his documents be entered as evidence, which was accepted by the Mayor, along with the video, and Mr. Cagle said he was in agreement. Hyde made his opening statement, providing three bases for just cause: 1. A violation of established rules. 2. Actions on the part of the employee which impairs the effectiveness, efficiency, or reputation of the City. 3. An employee’s on or off-the-job behavior which impairs the effectiveness, efficiency, or reputation of the City. Hyde stated that he felt the Huntsville Police Department could meet all three of these bases, thereby transferring the burden of proof to Myers. With respect to the first base, Hyde said there had been nine rules violated by Officer Myers’ behavior, including unnecessary force, failure to document the use of force, and showing disrespect to a civilian. He also noted seven actions by Myers which impaired the effectiveness, efficiency or reputation of the City. Finally, he noted eight elements which satisfied the third base, employee behavior which impairs the effectiveness, efficiency or reputation of the City. Hyde stated that the two basic allegations against Officer Myers by the father of the arrestee, Eldon Joe Fuller, were unnecessary use of force and unprofessional conduct. In addition, Hyde provided a brief overview of the internal investigation of early 2013 and other background to the investigation. With respect to video evidence, Hyde said there would be four segments shown to the Council, and the Mayor suggested moving the video to the testimonial portion of the hearing. Hyde said the evidence on the Huntsville Police Department side was overwhelming and that just cause existed for the termination of Officer Myers. Mr. Cagle reserved his opening time for Mr. Myers’ case-in-chief. Chief Lunsford was called as a witness and recounted receiving the initial complaint from Mr. Eldon Joe Fuller, contacting the Texas Rangers for investigation, and testified that Mr. Hyde’s notebook contained the information pertinent to the events. Mr. Hyde asked to show the video. Mr. Schneider warned the Council that the video contained possibly offensive material that would not air on Channel 7. There was no objection from the City Council or the attorneys. After viewing the material, Chief Lunsford confirmed he felt Officer Myers had acted in a manner that escalated the events. He said that he did take Myers’ statement into consideration, finding that dismissal was still the best course of action, citing Myers’ self-admitted “us versus them” attitude. The Chief addressed follow ups conducted by HPD supervisors for Officer Myers. He said he had met with Officer Myers on March 7 and March 8 and Myers’ pleas for actions other than termination, but that all inquiry supported his decision to terminate. My. Hyde referred again to his presentation on the three bases for termination by just cause. Mr. Hyde discussed with the Chief about a “Brady file” at the District Attorney’s office, noting what he felt the impact of that would have been and that the other officer the Chief had had with such a file had been terminated. (The Council took a short recess.) Mr. Cagle asked to show the video again and television feed was disconnected for that time. Mr. Cagle questioned Chief Lunsford about other officers in the video and disciplinary actions taken regarding their participation. Chief Lunsford confirmed that Jacob Fuller’s January 2013 complaint was received by the Police Department in February 2013, when the Texas Ranger had completed his investigation. Mr. Cagle asked about the Ranger’s opinion when he first met with the Chief in January and was told the Ranger Jeter felt there should be an investigation. The Chief acknowledged he noted additional policy violations from the City’s personnel policy to those found by the Internal Affairs review. Chief Lunsford told Mr. Cagle he had only dealt with one such similar situation but that the officer resigned before being terminated. Mr. Cagle confirmed the District Attorney told Chief Lunsford he would be opening a “Brady file” on Officer Myers. The Chief was asked about the City’s policy on use of force in comparison with the state law. Mr. Cagle confirmed the other officers did not make mention of Officer Myers’ use of holds and the Chief noted the Police Department did have its own additional use of force training. Mr. Cagle reviewed The Huntsville Item article and questioned why the Chief spoke with them, to which he said he had hoped to mitigate public impact from the article. Mr. Cagle looked over memos from officers and noted counseling and retraining was done in-house but that Myers’ was not ordered to do pursue other retraining or assistance programs. The Chief confirmed about four other officers were on the scene the night in question but that none reported a policy violation or violation of law, nor were they reprimanded for not doing so. Mr. Cagle passed the witness back to Mr. Hyde, who covered the use of force policy and again reviewed the video. Mr. Hyde and Chief Lunsford reviewed the actions in the video, assessing that Officer Myers escalated use of force without apparent justification. They also looked over Myers’ written account of the evening in question, the termination packet, and Myers’ appeal of his dismissal. Mr. Cagle regained the witness, noting that he felt Officer Myers’ had been joking about threatening the suspect with a charge of Public Intoxication. The Chief said he was more concerned about Myers’ intent than his actions and agreed that Officer Myers would not have been terminated if not for the excessive use of force. Mr. Cagle said police officers develop an “us versus them” mentality. (The Council stood at ease and then recessed for a few minutes.) Mr. Cagle questioned the Chief about use of force expertise, cases, and reviewing actions in hindsight. Mr. Cagle indicated that Mr. Fuller had kicked at Officer Myers and tensed up while in custody. Mr. Cagle discussed necessary force as a range and said that what one might view as more than necessary might not be unreasonable. Mr. Cagle asked about Myers’ commendations and evaluations, noting the officer had not received overall below-average ratings. Mr. Cagle noted Officer Myers’ had received an honorable discharge from the Navy. The Chief said neither the Police Department nor the Texas Ranger interviewed Jacob Fuller in the termination investigation, adding that the Department had Mr. Fuller’s (suspect’s) father prior complaints and the video, and did interview the father. Mr. Cagle and Mr. Hyde rested their cases-in-chief. To close, Mr. Hyde said Officer Myers admitting to being angry and noted Myers came to the scene unasked and engaged the suspect. Mr. Hyde suggested Myers incited the suspect and sought to administer “street justice.” The counselor added that unnecessary force was applied by Officer Myers and had a history of violation of policy, meeting the requirements of termination for just cause. Mr. Cagle thanked the Council and acknowledged the service of officers every night, noting, however, that the hearing’s situation was much different than being on the scene. He asked that 20/20 hindsight not be used to evaluate the behavior in question, noting no trained officer or citizens on the scene came forward at the time to report Officer Myers and that no officers were reprimanded in any way for failing to report a policy violation. Mr. Cagle reminded the Council that the suspect was not interviewed in the termination investigations. The counselor suggested that the City case emphasis on Officer Myers’ assumed anger did not result in any additional charges from Myers and that further video would show better interactions between the subject and Myers. Mr. Cagle said most of the suspect’s poor behavior was due to his intoxication. Myers’ attorney asked the Council to consider “what was fair.” Mr. Hyde finished by saying that the only person with control over Officer Myers’ career was the man himself and asking if this was the manner in which the Council wanted the community treated or if they wanted it curbed by the Police Department’s command staff. Mr. Hyde asked for consideration of the standard of conduct with citizens. Mayor Woodward closed the hearing at 8:44 pm. b. Consideration and possible action pertaining to the appeal by Chris Myers on his termination. - City Council reserves the right to go into Executive Session pursuant to Section 551.074 to deliberate the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of employee Chris Myers by Chief Kevin Lunsford, Director of Public Safety. The Mayor adjourned the Council into Executive Session at 8:46 p.m. The Mayor noted the Council had ten days to issue its decision. c. Reconvene - Take action, if necessary, on items addressed during Executive Session. Mayor Woodward reconvened the meeting at 9:25 p.m. Councilmember Olson moved to uphold the termination and was seconded by Councilmember Johnson. The motion passed unanimously, 8-0. 7. EMPLOYEE GRIEVANCE APPEAL HEARING – (SHOULD CITY COUNCIL CONDUCT CLOSED SESSION) a. City Council will convene in closed session as authorized by Texas Government Code 551.074 to deliberate the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of an employee, as requested by Chris Myers. Procedure to be set by City Council. City Council reserves the right to go into Executive Session pursuant to Section 551.071 of the Texas Government Code receive legal advice on hearing process and appeal.[Leonard Schneider, City Attorney] b. Reconvene - Take action, if necessary, on items addressed during Executive Session. 8. PUBLIC COMMENT There was no public comment. 9. MEDIA INQUIRIES RELATED TO MATTERS ON THE AGENDA There were no media inquiries. 10. ITEMS OF COMMUNITY INTEREST There were no items of community interest. 11. ADJOURNMENT Mayor Woodward adjourned the meeting at 9:27 pm. Respectfully submitted, Lee Woodward, City Secretary