Graham v. City of Neb.
| Decision Date | 05 January 2016 |
| Docket Number | No. A-14-990.,A-14-990. |
| Parties | TRACY GRAHAM, APPELLANT, v. CITY OF LINCOLN PERSONNEL BOARD AND THE CITY OF LINCOLN, NEBRASKA, A MUNICIPAL CORPORATION, APPELLEES. |
| Court | Court of Appeals of Nebraska |
(Memorandum Web Opinion)
Appeal from the District Court for Lancaster County: JODI NELSON, Judge. Affirmed.
Sean J. Brennan, of Brennan & Nielsen Law Offices, P.C., for appellant.
Tonya Peters, Assistant Lincoln City Attorney, for appellees.
Tracy Graham appeals from an order of the district court for Lancaster County affirming the decision of the City of Lincoln Personnel Board (Board) to uphold the termination of Graham's employment with the Lincoln Police Department (LPD). Because we find no error by the district court, we affirm.
Graham served as a Patrol Sergeant with the LPD prior to her termination. While serving in this position, Graham responded to a call on January 26, 2013 at approximately 6:20 p.m. from Officer Michael Wambold regarding his involvement while on duty in a two-car accident where his LPD cruiser rear-ended another vehicle that was stopped at a stop sign.
Upon arrival at the scene, Graham observed Wambold and the other driver, Jared Betten, seated in their respective vehicles. The front end of Wambold's cruiser was in contact with the rear end of Betten's pickup truck. When Graham initially spoke with Betten, she noticed a faint odor of alcohol coming from him, but did not observe any signs of impairment. Betten admitted to having consumed a few drinks earlier in the day.
There is a factual dispute regarding the conversation that occurred between Graham and Wambold following Graham's arrival on the scene. Graham testified that she asked Wambold if he had smelled alcohol on Betten and Graham's recollection was that Wambold said no. Wambold did not testify at the Board hearing, however, during his interview with the Internal Affairs investigator, Mark Domangue, Wambold indicated that he told Graham he did smell alcohol on Betten. Wambold also told Domangue that he suggested that Graham call another officer to do a DUI investigation on Betten since Graham had not done a DUI investigation in a while and felt that she was out of practice. Graham denied that Wambold suggested she contact another officer to conduct a DUI investigation, although Graham felt it was necessary to address the alcohol issue at the scene and admitted that she had not done a DUI investigation in a long time and probably was not proficient at doing it.
Graham asked Betten to get out of his truck and performed a horizontal gaze nystagmus (HGN) field sobriety test. Graham testified that Betten passed this test. However, Wambold indicated during the investigation that he believed Betten failed the HGN test. Graham also administered a preliminary breath test (PBT), however, she did not comply with the requirements of administering the test. Specifically, Graham did not read Betten the required advisory form or adhere to the 15-minute observation period required to make the PBT admissible as evidence during a court hearing. The result of Betten's PBT was .086, above the legal limit of .08. No other field sobriety tests were administered. Rather than conducting a full DUI investigation, Graham allowed Betten to be taken home by one of his roommates who had not been drinking.
Upon returning to police headquarters, Graham contacted the duty commander, Captain Danny Reitan, to inform him of the accident, including the fact that Betten was over the legal limit. Reitan directed Graham to inform her supervisor, Captain Marty Fehringer, who was off duty at the time of the accident. Graham sent Fehringer a text message, telling him Wambold had been in an accident; he was wearing his seatbelt at the time; nobody was injured; and the other driver was a "little intoxicated." Importantly, Graham did not inform either Reitan or Fehringer of her failure to properly administer the PBT while investigating the accident.
LPD's General Order No. 1930 requires officers to complete and submit a State of Nebraska Motor Vehicle Accident Report (MVAR) by the end of his or her shift unless a supervisor approves a late submission. Graham was required to complete a MVAR as part of her investigation in order to comply with this General Order. Following the accident, Graham worked until her shift ended at 12:47 a.m. She completed a property report regarding pictures of the accident scene, but she did not complete the MVAR by the end of her shift. Graham testified that completion of a MVAR takes approximately 20 minutes. There is no evidence in the record that Graham requested or was granted permission to submit the MVAR late.
The next day, January 27, 2013, Graham became involved in two lengthy investigations and worked five hours past her normal end time without completing the MVAR for Wambold'saccident. Graham worked another officer-involved accident on the 27th and completed the MVAR and two additional case reports for that accident.
On January 28, 2013, Sergeant Santacroce approached Fehringer requesting the January 26 MVAR so that he could check for seatbelt usage in Wambold's cruiser as required by department policy. Fehringer then sent an e-mail to Graham, who was off work at the time, requesting the MVAR. Graham arrived early to work on the 28th, completed the MVAR, turned it in to Reitan, sent a copy to Santacroce, and put a copy in Fehringer's box. Due to differing schedules, Fehringer did not see the report until January 29.
There are two specific boxes on the MVAR Graham completed that are at issue in this case. On the second page of the MVAR, the form requires the investigating officer to report if a driver's alcohol level was tested, and if it was, the form requires the investigating officer to record the BAC level. In this alcohol testing box, Graham marked "n" for no alcohol testing for both drivers involved in the accident and did not record the BAC level for Betten from the PBT. Also on the second page of the MVAR, the form requires the investigating officer to report if alcohol or drugs were suspected. In this box, Graham marked "l" for "neither drugs nor alcohol suspected" for both Wambold and Betten.
On February 1, 2013, after reviewing Graham's completed MVAR, Wambold contacted Fehringer to discuss Wambold's concerns with the information contained on the MVAR, specifically that Graham did not mention the alcohol odor on Betten or the PBT result. Fehringer had noticed these omissions as well, and following this discussion with Wambold, Fehringer sent an e-mail to Lincoln Chief of Police James Peschong and Assistant Chief Brian Jackson outlining his concerns with the information contained in the MVAR.
At the direction of Peschong and Jackson, Fehringer met with Graham on February 4, 2013 to discuss the MVAR and address his concerns with the information contained in the report. During this meeting, Graham explained she had not performed all of the field sobriety tests and did not feel an affirmative response to the question regarding alcohol testing was appropriate. When Fehringer asked her why she indicated that alcohol was not suspected of either driver, Graham said "she didn't have any excuse on why it was marked that way." Graham later testified that she told Fehringer she filled out the MVAR Fehringer then explained to Graham how she should have filled out the MVAR; specifically, that she should have marked "yes" to both questions relating to alcohol and listed the BAC level since the PBT had been given.
Fehringer prepared a memorandum to Peschong explaining the events of the accident and Fehringer's conversations with Wambold and Graham. At the end of the memorandum, Fehringer advised Peschong that he felt there were critical errors made in allowing Betten to walk away from the accident without a DUI investigation and in the "inaccurate, false information" which was documented in the MVAR.
Shortly after receiving the memorandum from Fehringer, Peschong ordered a Chief's Investigation into the events of January 26 and Graham's completion of the MVAR. The written notification of the Chief's Investigation informed Graham that Domangue would be conducting the investigation which would be "centered on your involvement in processing a potential intoxicated driver and whether there [was] a departure from the truth in the official police report."During the course of his investigation, Domangue interviewed Betten, Wambold, Graham, and Reitan and researched dispatch records and other reports authored by Graham regarding events on January 26 and 27. Based upon those interviews and other information gathered through the course of his investigation, Domangue concluded that Graham was not truthful with regard to her responses to him and her explanation concerning the inaccuracies on the MVAR, and that Graham violated various LPD general orders and Lincoln municipal code sections. On March 26, 2013, Graham was placed on investigative suspension pending a predisciplinary hearing. On April 11, Peschong notified Graham in writing that the Chief's Investigation had been completed and advised her of the allegations brought against her.
On April 18, 2013, Peschong conducted a predisciplinary hearing for Graham's alleged violations of LPD General Orders 1930, 1420, and 1425 and Lincoln Municipal Code §2.76,445. The relevant text of these sections is as follows:
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