MAURY BOWEN EMAIL: MBOWEN@EPRA-LAW.COM DIRECT DIAL: 912.231.2732 WWW.EPRA-LAW.

COM

March 7, 2014 Beth Robinson Director of Human Resources City of Savannah Broughton Municipal Building Savannah, Georgia RE Investigation of Complaints Brought by Officer Frank Retequiz Individuals Accused: Stephanie Cutter and Lt. Andre Oliver

Dear Ms. Robinson: Please allow this letter to serve as a report of the investigation of a complaint brought by Officer Frank Reteguiz. I. Background/Summary.

This firm was retained by the City of Savannah to perform an independent investigation of a complaint brought by Officer Reteguiz. Sean Brandons office facilitated the scheduling of witness interviews and the procurement of pertinent documentation. Mr. Brandon was present during the witness interviews as a representative of the City of Savannah. I received a copy of Officer Reteguizs complaint and supporting materials on October 30, 2013, a copy of which is attached as Exhibit A. In his complaint, Officer Reteguiz, alleges that he is working in a hostile work environment because he fears that he may be under more scrutiny due to the traffic stop of the City Managers husband. Officer Reteguiz complains that Lt. Andre Oliver used a hostile and harsh tone with him during an interview, and also claims that his reputation was soiled by Lt. Oliver when he announced that Officer Reteguiz had anger management issues. Further, Officer Reteguiz complains that he lost off-duty wages during the time he was placed on administrative leave and returned to full duty between August 23 and October 16, 2013 At the heart of Officer Reteguizs complaint is a traffic stop for a seat belt violation during which Officer Reteguiz pulled his weapon. The driver of the stopped vehicle happened to be Robert Cutter, the husband of Savannah City Manager Stephanie Cutter. Subsequently, Mr. Cutter filed a complaint with the SCMPD Office of Professional Standards (OPS).

A T T O R NE Y S A T L A W O F FI C E : 2 E A S T B R Y A N S TR E E T , T E N T H F LO O R , S A V A N N A H , G E O R G IA 31401 M A I L I N G A D D R E S S : P OS T O F F IC E B O X 9946, S AV A N N A H , G E O R G IA 31412 T E L E PH O NE : 912-233-9700 - F AC S I M I L E : 912-233-2281

II.

Investigation.

In the presence of Mr. Brandon, I conducted interviews and reviewed relevant written materials as part of my investigation. During each interview, I instructed the participants of their duty to participate in the investigation, and informed them of the Citys policy prohibiting retaliation against anyone who makes a good faith complaint or participates in an investigation. I also asked the participants to keep the mater confidential while the investigation was pending. Below is a description of pertinent details from the interviews. Officer Frank Reteguizs Testimony: On November 14, 2013, I commenced the investigation by meeting at length with Officer Reteguiz at my office. I informed Officer Reteguiz of the Citys policy prohibiting retaliation, and provided him with several avenues of reporting any retaliation. I also asked him to keep this matter confidential while the investigation was pending. Officer Reteguiz is a Patrol Officer in Precinct 4 and has been with SMCPD for approximately two years. His chain of command is as follows: Sgt. Owens; Lt. Flood; Capt. Shoop; and Major Fagerstrom [currently Major Zapal since Major Fagerstrom has moved]. Officer Reteguiz stated that he believed everyone in his chain of command had been supportive and fair, and that he had not suffered any retaliation from them. Officer Reteguiz repeated verbally the events that he described in his written complaint. Exhibit A. Of chief concern to Officer Reteguiz was his treatment by Lt. Oliver during his interview; his being referred to anger management class by Lt. Oliver; and the alleged statement by Gary Taylor during the Training Unit review that he was there because of Stephanie Cutter. Officer Reteguiz admitted that he did not receive any formal disciplinary action as a result of the traffic stop incident with Mr. Cutter. Officer Reteguiz stated his belief that City Manager Stephanie Cutter retaliated against him for pulling over her husband, but provided no detail to support his belief. When asked what he was seeking through his complaint, Officer Reteguiz stated that he wanted the following: - An official apology because he was treated unfairly - For this incident with Mr. Cutter not to impact his chances for advancement - To be judged based on criteria alone, and not this incident. Chief [then Major] J. Tolberts Testimony: In August of 2013, Major [now Chief] Tolbert was serving as the acting chief because Chief Lovett was out of the office on medical leave. As acting chief, Major Tolbert received a copy of the draft OPS report regarding Mr. Cutters complaint against Officer Reteguiz.

Major Tolbert stated that any case in which an officer pulls a weapon during a routine traffic stop is important because it is irregular for an officer to pull a weapon during a non-felony traffic stop. She confirmed that the fact that Mrs. Cutters husband was involved had nothing to do with the way Officer Reteguiz was treated. After reading the draft Reteguiz OPS report, Major Tolbert identified certain areas of the report that required more investigation. Around the same time that Major Tolbert was reviewing the draft Reteguiz OPS report, Lt. Oliver (who worked in OPS at the time) was reviewing the draft Reteguiz OPS report and came to the same conclusion that more investigation was needed. Lt. Oliver called Major Tolbert and the decision was made to re-interview both Officer Baker and Officer Reteguiz. Those interviews took place in Major Tolberts office on August 6, 2013. During the interview of Officer Baker, he said that he never saw a threat in Mr. Cutters actions, and did not understand why Officer Reteguiz pulled his weapon. During the interview of Officer Reteguiz, he started to respond to Lt. Olivers questions in a short and smart tone. When this happened, Lt. Oliver stayed firm and continued questioning until he could get to the root of an issue. Major Tolbert reported that Lt. Olivers behavior during the interview was not out of line, but Officer Reteguizs behavior during the interview was bordering on insubordinate. Major Tolbert stated that Lt. Oliver was trying to get Officer Reteguiz to understand the difference between a direct threat and what Officer Reteguiz perceived as a threat. Officer Reteguiz said he watched a lot of YouTube videos and, based on that, he did not think he had done anything wrong. Chief Tolbert was not aware of who recommended that Officer Reteguiz be referred for a fitness for duty exam, but speculated that the decision could have been made by Chief Lovett (retired). Chief Tolbert explained that, anytime a SCMPD supervisor feels that a sworn officers behavior is out of the norm to the extent that his ability to safely perform his duties would be affected, the supervisor can request that the officer be sent for a fitness for duty examination. Lt. Andre Olivers Testimony: In 2013, Lt. Oliver was serving in the OPS office. The initial investigation of Mr. Cutters complaint against Officer Reteguiz was performed by Sgt. Joey Wright and Capt. H. Wiley. When asked how he ended up interviewing Officer Reteguiz, Lt. Oliver explained the following: As a member of the OPS department, Lt. Oliver reviews all draft investigation reports. He contacted Major Tolbert [as acting chief during Chief Lovetts absence] who had also reviewed the draft OPS investigation report, and they both agreed that more information was needed and that both Officer Reteguiz and Officer Baker should be interviewed again. She asked Lt. Oliver to perform the interviews in her office. Lt. Oliver and Major Tolbert interviewed both Officer Baker and Officer Reteguiz on August 6, 2013. Lt. Oliver recalls discussion back and forth with Officer Reteguiz about the difference between a direct threat and the perception of feeling threatened. Officer Reteguiz stated that he 3

always perceived someone getting out of their car on a traffic stop as a threat. Lt. Oliver recalls trying to make Officer Reteguiz understand the difference between an actual threat and a perceived threat. In response, Officer Reteguiz referenced watching a lot of YouTube videos, and that he thought his reaction was reasonable based on what he had seen. Lt. Oliver wrote up his portion of the investigation and forwarded it to Capt. Wiley. Once the OPS investigation was completed, the result was that the allegations that Officer Reteguiz had drawn a weapon on Mr. Cutter were sustained. OPS served only as the fact-finder and did not make any determination about disciplinary action or take any action with regard to Officer Reteguiz. Lt. Oliver was present at the Training Review meeting with Officer Reteguiz on September 20, 2013, but he was not a member of the Training Review committee. Lt. Oliver recalls that Gary Taylor had invited him to the Training Review meeting because of his involvement in the investigation. Lt. Oliver recalls that the line of questioning of Officer Reteguiz was hard because Officer Reteguiz had drawn a weapon on a citizen and Officer Reteguizs answers to questions seemed evasive. Lt. Oliver denied ordering Officer Reteguiz to be subjected to a Fitness for Duty assessment. He stated that someone of a higher rank would have ordered that. Lt. Oliver also does not recall saying anything about anger management training for Officer Reteguiz. Gary Taylors Testimony: Gary Taylor is the SCMPD Director of Training and was part of the Training Review committee that reviewed Officer Reteguiz on September 20, 2013. A copy of Director Taylors report of the Training Review session is attached as Exhibit C. The following served on the Training Review Committee: Gary Taylor, Sgt. Cortes, Cpl. Boyette, SCpl. Rivers, and Cpl. McCoy. Lt. Oliver was present during the Training Review meeting, but was not part of the Training Review Committee. Mr. Taylor describes a Training Review session as being very informal and not disciplinary, but corrective, in nature. Mr. Taylor denied that he, or any other member of the Training Review Committee, said that Officer Reteguiz was at the training session because of the City Manager. Mr. Taylor recalls hearing Officer Reteguiz make repeated statements that the only reason he was there was because Mr. Cutter was the City Managers husband. After hearing that several times, Mr. Taylor replied that he was glad Mr. Cutter made the complaint and brought the issue to their attention because Officer Reteguiz should not be pulling his gun during a stop for a seatbelt violation, and this was an opportunity to train and develop Officer Reteguiz so it would not happen again. Mr. Taylor recalls that Major Fagerstrom stated during the Training Review session that Officer Reteguiz was not being disciplined, but only being provided additional training.

Mr. Taylor recalls Lt. Oliver appearing frustrated during the Training Review session and, at one point, he jumped in verbally stating to Officer Reteguiz that he was missing the boat because the Training Review was there to help him, not hurt him. Officer Baker, the other officer on the traffic stop at issue, also went before the Training Review committee. Mr. Taylor recalls that Officer Baker stated during the Training Review that Officer Baker did not view Mr. Cutter as ever being threatening. Mr. Taylor denied that Officer Reteguiz was treated any differently because Mr. Cutter was married to the City Manager. He recalled other specific incidents where officers were given corrective training similar to what was provided to Officer Reteguiz for incidents where weapons were drawn in appropriately. Examples he recalled from memory included Officer Schwandt and Officer Amaduri. Mr. Taylor does not know who referred Officer Reteguiz for consideration for a fitness for duty examination. Major Dean Fagerstroms Testimony: Major Fagerstrom described the process of his receiving the final OPS report relating to the investigation of Officer Reteguizs pulling his weapon during the traffic stop with Mr. Cutter. He described that OPS serves as a fact-finder, but that he (Officer Reteguizs commanding officer at the time) was the person to make a recommendation about what action would be taken. He then forwards his recommendation up the chain of command. Major Fagerstrom read the OPS report and determined that this was a training issue, not a disciplinary issue. Major Fagerstrom drafted his Commanding Officer Adjudication on September 26, 2013 and sent it up the chain of command to Major Richard Zapal. See Exhibit B. Once his recommendation was approved, Major Fagerstrom communicated his findings verbally to Officer Reteguiz, telling him that no discipline was being issued, and that training was being provided because SCMPD policy was not followed. Major Fagerstrom also warned Officer Reteguiz that there would be disciplinary action if a similar violation happened in the future. Major Fagerstrom stated that the Cutter situation never came into play in his decision. Major Fagerstrom was not aware of who initially recommended that Officer Reteguiz be referred for a fitness for duty exam, but speculates that the decision would have been made by Captain H. Wiley and/or Chief W. Lovett (both retired). Facts Relating to Fitness for Duty Exam: Officer Reteguiz was seen by Ruth Foster on August 27, 2013, and Foster referred Officer Reteguizs file to Dr. Anthony Stone. Dr. Stone responded to Foster that appropriate intervention would be training, and not a Fitness for Duty exam. See Exhibit A.

III.

Findings of Fact.

Officer Reteguiz and Officer Baker stopped Mr. Robert Cutter for a seat belt traffic violation on July 15, 2013, and Officer Reteguiz pulled his weapon (in the low/ready position) during the stop. Mr. Cutter filed a complaint with the Office of Professional Standards and an investigation was performed. (OPS No. 2130710). On August 23, 2013, Officer Reteguiz was placed on administrative leave with pay pending that investigation. Officer Retequiz was returned to work and placed on desk duty on September 9, 2013. The OPS investigation file was forwarded to Captain (now Major) Dean Fagerstrom, Officer Reteguizs commanding officer, on September 12, 2013. It is unclear from my investigation who made the decision to refer Officer Reteguiz to Ruth Foster. Regardless, Officer Reteguiz was never subjected to a full fitness for a duty examination, and he was never subjected to anger management training. Officer Reteguiz attended a training review before the SCMPD Training Unit on September 20, 2013 where he was instructed about the SCMPD standard that an officers decision to draw a firearm should be based on the Officers reasonable belief of a substantial risk that deadly force may be needed. The Training Unit recommended that Officer Reteguiz attend one-on-one use of force training. See Exhibit C. Major Fagerstrom issued his Commanding Officer Adjudication on September 26, 2013 recommending that Officer Reteguiz receive verbal/written counseling and Use of Force Training. Major Fagerstrom reasoned that discipline was not appropriate since corrective counseling and remedial training were appropriate to ensure that Officer Reteguiz understands the proper procedures in the use of firearms. See Exhibit B. Cpl. Chris Boyette conducted one-on-one training with Officer Reteguiz on October 3, 2013. Cpl. Boyette found that Officer Reteguiz demonstrated the ability to make sound decisions under stress and that he understands the SCMPD Use of Force General Order and Firearms General Order. See Exhibit D. Officer Reteguiz was returned to active duty on October 16, 2013. There is no evidence that Officer Retequiz was treated differently than other officers. Other officers with similar firearms policy violations were provided training similar to what Officer Retequiz was provided. It is common practice for sworn SCMPD officers to be placed on administrative leave with pay pending investigation when a complaint is filed regarding inappropriate use of force. There is no evidence that Officer Retequiz received any disciplinary action because of the traffic stop involving Mr. Cutter. There is no evidence of retaliatory action against Officer Reteguiz because of the traffic stop involving Mr. Cutter. There is no evidence that the connection of Mr. Cutter to the City Manager had any impact on the Officer Reteguizs situation. 6

There is no evidence that the City Manager asserted any influence on the Officer Reteguiz investigation.

Please let me know if you have any questions or require additional information.

Respectfully submitted,

Maury Bowen