Two days before her retirement, Douglas City Manager Jerene Watson agreed Wednesday to accept the unanimous recommendation of a citizen board and reverse the demotion of a veteran police officer who lost his sergeant stripes last year in a public dispute with his chief.
Watson instead ordered Jose Duarte to serve a short unpaid suspension in keeping with the Personnel Appeals Board’s recommendation following an all-day hearing June 30 on whether Chief Kraig Fullen’s decision to demote Duarte back in October 2019 was warranted or not.
The Douglas city manager initially affirmed the chief’s decision, but Duarte appealed the action with the help of Jeff Jacobson, an employment attorney who handled the matter on behalf of the Arizona Conference of Police and Sheriffs (AZCOPS).f
Fullen testified at the June 30 public hearing of the five-member appeal board that his decision to demote Duarte was based on the then-sergeant’s handling of an assault incident Duarte witnessed on-duty the morning of April 5, 2019. The incident involved a teenaged girl who appeared to have been assaulted by another girl.
As Duarte drove his patrol vehicle closer to the scene both girls got into a car parked nearby. Neither they nor the female adult driver nor another girl in the vehicle would identify themselves nor allow Duarte to independently ascertain whether the girl needed help. The woman, however, said several times all the girls were okay and had just been horseplaying.
Multiple officers were called to the scene, Duarte testified, as it was unclear whether there was something nefarious involved, such as human trafficking or sex trafficking. Among the “highly suspicious” actions he saw, Duarte testified, was the driver rolling up the window when he approached, and the woman telling the girls to not talk to him.
All four occupants of the vehicle were handcuffed, separated, and taken to the police station. The girls were finally identified, while the woman initially presented two different state driver’s licenses with slightly different names. She claimed to be the mother of two of the girls and a relative to the girl Duarte saw being assaulted.
Eventually a family member was located who came and picked up the girls from the station. In the meantime, the driver was told she was under arrest but was never formally booked into JAIL. That’s because Fullen became involved in the matter and ordered the woman released.
At the time of the incident, Duarte was serving as the department’s administrative sergeant after recovering from two rounds of treatment for cancer. Fullen testified to the appeals board he became involved due to concerns Duarte violated state law by demanding identification from the occupants of the vehicle when he wasn’t there on a traffic offense.
City Attorney Juan Pablo Flores suggested Duarte may have been well-intended in his actions that morning but had instead committed “a sizable, serious transgression” and appeared “rusty” about Arizona laws. Flores and Fullen also discussed concerns that Duarte had exposed the city to possible litigation by not taking the driver’s word that everything was okay at the scene.
Jacobson, the attorney for AZCOPS, argued there was no evidence presented of Duarte ever being seriously reprimanded throughout his career and that his performance reviews did not address any deficiencies. (The board members asked about recent performance reviews, but the city never made any available after 2017.)
The chief conceded the woman and teens never filed a complaint against Duarte or the city. But Fullen ordered the demotion six months later, he testified, because the chief lost confidence in Duarte’s judgment.
Duarte, however, contended he did nothing worthy of a demotion which he said tarnished his reputation within the department and the community. Instead, he testified he perceived the demotion as retaliation for having filed two whistleblower complaints against a higher ranking Douglas police official.
One of his whistleblower complaints involved a payroll issue, but there was limited discussion of the matter. At one point the board members were advised that the issues related to Duarte’s complaints may come before the board in the future.
According to Fullen’s testimony, the threshold for an officer to initiate an inquiry is whether there is reasonable suspicion to believe a crime “may have been” committed. The chief had no issue with the fact Duarte approached the vehicle after witnessing what he thought may have been an assault.
But according to Fullen, once the woman said everything was okay then Duarte had no right to detain anyone. It didn’t matter, the chief testified, whether something more sinister was afoot or that the adult driver may have instructed the girls to not answer Duarte’s questions, because at that point there was no probable cause that a crime “had been” committed.
The board members also heard testimony that Duarte and several other officers completed reports detailing their activities in connection to the incident. The chief, however, did not write a report of his involvement nor document that he called an attorney prior to ordering the driver’s release, or that he drove the woman to retrieve her impounded vehicle.
The board also heard that some officers noted the woman and at least one of the teens appeared to be recording the police on cellphones. The Cochise County Sheriff’s Office interviewed the woman and the girls as part of an administrative review requested by Fullen, but if deputies collected any video it was not presented during the hearing.
Duarte retired in April after 25 years of service, of which nine were spent as sergeant except the last six months. Even though Duarte appealed his demotion last year, no action was taken until the June 30 hearing while city officials attempted to secure enough active board members who could hear the case without a conflict.
Watson, the city manager, could have stood behind the chief’s demotion order, which likely would have sent the matter to Cochise County Superior Court. Instead, she went with the board’s unanimous recommendation that Duarte’s demotion was too harsh, and that at most he should have received a 10-day unpaid suspension.
Duarte’s payroll will now be recalculated from October 2019 to April 2020 to reflect his sergeant’s wages after which the city will subtract for the 10-day suspension. The city’s pension board will also be advised of Duarte’s revised earnings in case it impacts his retirement benefits.