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The following article was posted on May 8th, 2013, in the New Times - Volume 27, Issue 41 [ Submit a Story ]
The following articles were printed from New Times [newtimesslo.com] - Volume 27, Issue 41

SLO officer fired after Mexico trip fights city

BY MATT FOUNTAIN

One of the two San Luis Obispo police officers to plead guilty in 2010 following their arrest for bringing some 850 misbranded pharmaceutical pills across the U.S.-Mexico border has spent the last three years fighting his termination.

On May 3, the City Council issued its final determination on the claim brought against the city by seven-year officer Dan McDow, who was fired Aug. 2, 2010, along with his friend and co-worker, Armando Limon. City officials can’t disclose public safety employee disciplinary information, and the terms of the city’s final determination on McDow remain something of a mystery.

McDow’s attorney released a glowing press release proclaiming the former officer victorious over overzealous police department management, but according to the city attorney, the release doesn’t tell the whole story—and it now appears the only way McDow could get his job back is to further pursue the matter in court.

McDow is being represented by Andrew Dawson, an attorney with the Sacramento-based firm Lackie, Dammeier, McGill & Ethir, whose slogan is “Former Cops Defending Current Ones.”

In his release—which doesn’t use McDow’s name—Dawson claims McDow and Limon were out for a “fun-filled excursion” that “turned into a three-year nightmare.” He wrote that McDow had to miss work the previous day due to his detention, and claimed that when he later pleaded guilty to a federal misdemeanor charge of transporting misbranded pharmaceuticals he was doing so under the impression that the plea wasn’t a fireable offense.

Dawson wrote that the city tried to argue that the offense was the state equivalent of possession of a controlled substance. Dawson argued back that McDow would have to have known transporting the pills was illegal—mens rea—as a “requisite mental element” for a criminal conviction. He alleged that the two police captains who handled the internal investigation, as well as former chief Deb Linden, didn’t know what mens rea is.

“One must question how the San Luis Obispo Police Department is run when their command staff is unaware about the mental element that is needed for criminal convictions,” Dawson wrote.

Describing the city’s tactics as “reprehensible,” Dawson wrote that a third-party arbitrator sided with him in an administrative hearing and “ordered” his reinstatement.

As the city won’t confirm or deny Dawson’s account, there’s only two other people who can prove the validity of the press release: Dawson and McDow. Dawson, however, didn’t respond to relentless New Times attempts for additional comment, and attempts to locate McDow were similarly unsuccessful.

City Attorney Christine Dietrich told New Times that Dawson’s announcement was premature, as the city had yet to make its decision at the time of the press release. Dawson’s web post—though not dated—was seen online by New Times staffers as far back as early April.

Under the city’s process for dealing with significant public safety employee disciplinary matters, termination appeals are heard by an impartial hearing officer, who’s chosen from a list provided by State Mediation and Conciliation Services and conducts a full administrative hearing. The hearing officer hears testimony and examines evidence before issuing written findings and recommendations, which aren’t binding. They’re considered only advisory to the city council.

The entire administrative record is then forwarded to the city council for review. The council is provided with an independent legal advisor to help with that review and in drafting findings and a final decision. The council can then accept, reject, or modify the findings and recommendations of the hearing officer, and its determination is final—unless challenged in court.

Though no reportable action was taken, the City Council recently held two separate closed session meetings—on April 8 and 24—in regard to “EMPLOYEE DISCIPLINE/DISMISSAL/RELEASE.”

There may be other factors at play in McDow’s case. According to preliminary results from a New Times public records request to the California Department of Industrial Relations, McDow has filed three applications for disability benefits since 2006—at least one of which has yet to be resolved. Those specific records weren’t available as of press time.

McDow was hired in April 2002 and served for seven years before his termination. As of press time, his attorney hadn’t filed court papers challenging the city’s decision.