Despite an announcement to the contrary by a law firm that specializes in representing police officers, one of the two San Luis Obispo officers terminated after a fateful trip to Mexico has not been reinstated to the SLO Police Department.
Former patrol officer Dan McDow, 34, of Los Osos, pleaded guilty in federal court in 2010 to bringing some 850 misbranded pharmaceutical pills across the U.S.-Mexico border. He’s spent the last three years fighting his subsequent termination, but three disability claims filed since 2006 cast the story in a different light.
On May 3 of this year, the SLO City Council issued its final determination on the wrongful termination claim brought against the city by the seven-year officer, who was officially fired on 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, mainly because McDow and his attorney won’t talk to New Times.
Despite that murkiness, McDow’s attorney released a press release proclaiming the former officer victorious over an overzealous police department management, but according to the city attorney, that 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.
He was 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 mention McDow by 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 next 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. The lawyer’s counter to that was 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” McDow’s reinstatement.
As the city won’t confirm Dawson’s account, there are 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 information, and attempts to locate McDow were similarly unsuccessful.
City Attorney Christine Dietrick told New Times that Dawson’s announcement was premature, as the city had yet to make its final decision at the time of the press release. The law firm’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 serious public safety employee disciplinary matters, termination appeals are heard by an impartial hearing officer chosen from a list provided by State Mediation and Conciliation Services and who conducts a full administrative hearing. The officer hears testimony and examines evidence before issuing written findings and recommendations, which aren’t legally binding, and are considered only advisory to the City Council, Dietrick said.
The entire administrative record is then forwarded to the council for review. An independent legal adviser helps 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 results from a New Times public records request to the California Department of Industrial Relations, McDow has filed three applications for permanent disability benefits since 2006—one of which was listed as “cumulative” over a period of his employment for an August 2006 “tripfall” down a flight of stairs at the SLO police station, as well as back, neck, knee, and ankle (listed by his physician as a post right ankle fracture) injuries, up to his 2010 termination.
According to a physician’s report attached to the 2006 claim, the doctor reported that he did not find evidence of a work-related back problem and eventually determined that the final permanent disability was at just four percent.
The officer then attempted to reopen his claim in October 2010—two months after his termination—arguing that his condition had worsened. The city fought that petition, responding that McDow provided no facts to support that he had a new or further disability.
That claim was ultimately dismissed. Although he at first tried to take the city to court over the decision, McDow’s worker’s compensation attorney withdrew his demand for a trial in April 2012.
As of press time, no civil case had been scheduled in San Luis Obispo Superior Court related to McDow. Also as of press time, the contested Lackie, Dammeier, McGill & Ethir press release remained on its website. ∆
News Editor Matt Fountain can be reached at firstname.lastname@example.org.