personnel board's filing against everett
TRANSCRIPT
AlaFile E-Notice
To: GEAR GAYLE HAYWOOD
01-CV-2012-000066.00
NOTICE OF ELECTRONIC FILING
IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA
The following 12 was FILED on 6/8/2012 3:46:18 PM
GREGORY EVERETT VS CITY OF BIRMINGHAM, BIRMINGHAM POLICE DEPARTMENT
01-CV-2012-000066.00
Notice Date: 6/8/2012 3:46:18 PM
ANNE-MARIE ADAMS
CIRCUIT COURT CLERK
JEFFERSON COUNTY, ALABAMA
JEFFERSON COUNTY, ALABAMA
BIRMINGHAM, AL 35203
205-325-5355
IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA
BIRMINGHAM DIVISION
GREGORY EVERETT,
Appellant,
v.
THE CITY OF BIRMINGHAM,
BIRMINGHAM POLICE DEPARTMENT,
and THE PERSONNEL BOARD OF
JEFFERSON COUNTY,
Appellees.
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Civil Action No.: CV2012-00066
THE PERSONNEL BOARD OF JEFFERSON COUNTY’S OPPOSITION TO THE
APPELLANT’S COMPLAINT AND NOTICE OF APPEAL
COMES NOW the Personnel Board of Jefferson County, (“the Personnel Board”) by
and through its undersigned counsel and files this Opposition to the Appellant’s Complaint and
Notice of Appeal and respectfully requests this panel affirm the decision of the Personnel Board
dated January 10, 2012.
I. PROCEDURAL HISTORY.
1. Appellant, Gregory Everett (“Officer Everett”), was served with a Birmingham
Police Department Employee Notification form advising him that he was the subject of an
Administrative Investigation related to a Complaint filed by a citizen, Cedric Lowe (“Mr.
Lowe”), on September 15, 2010. R.8, Exhibit 1.
2. On September 22, 2010, Officer Everett was served with a Notice of
Determination Hearing and advised that on Monday, September 27, 2010 there would be hearing
ELECTRONICALLY FILED6/8/2012 3:46 PM
CV-2012-000066.00CIRCUIT COURT OF
JEFFERSON COUNTY, ALABAMAANNE-MARIE ADAMS, CLERK
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concerning certain personal action which could result in suspension, demotion or dismissal. R.8,
Exhibit 7.
3. On April 7, 2011, Officer Everett was served with a decision of the Determination
Hearing, signed by Chief A.C. Roper (“Chief Roper”) of the Birmingham Police Department,
advising Officer Everett his employment was being terminated effective Friday, April 8, 2011.
Id; R.29.
4. On April 27, 2011, Officer Everett filed a Notice of Appeal denying he was guilty
of the charges against him and stating the action taken against him was to severe a penalty.
R.30.
5. On December 8, 2011, following several continuances, the Appeal Hearing was
presided over by Hearing Officer, Tamula R. Yelling. Officer Everett was represented at the
Appeal Hearing by Attorney Gayle Gear and the City of Birmingham (“the City”) was
represented by Attorney Michael Fliegel. Seven (7) witnesses were called to testify including
the reading of the deposition of one (1) witness who was not in attendance.
6. On December 29, 2011, the Hearing Officer issued a Finding of Fact and Law and
Recommended Decision. R.5.
7. The Hearing Officer found the City had met its burden in demonstrating Officer
Everett violated the Rules and Regulations of the Personnel Board and the Birmingham Police
Department including, but not limited to, making false statements in the arrest report concerning
the August 17, 2010 arrest of Cedric Lowe. R.7, Exhibit 5.
8. The Hearing Officer also found Officer Everett had not offered any evidence
demonstrating his punishment was too severe. Id, p. 40.
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9. The Hearing Officer’s Recommendation to the Personnel Board was to affirm the
City’s decision to terminate the employment of Officer Everett. Id, p. 5.
10. On January 4, 2012, Officer Everett, through his counsel, filed an objection to the
Report of the Hearing Officer. On January 10, 2012, the Personnel Board heard oral argument by
counsel for the parties. On January 10, 2012 the Personnel Board adopted as its final decision
the Report and Recommendation of the Hearing Officer affirming the termination of Officer
Everett. R.3.
11. Officer Everett, through counsel, filed a timely Notice of Appeal of this matter to
the Circuit Court of Jefferson County on January 18, 2012.
12. The Personnel Board was served with the Complaint and Notice of Appeal on
January 18, 2012.
13. The Personnel Board filed an Answer to the Complaint and Notice of Appeal on
January 25, 2012.
II. CHARGES AGAINST OFFICER EVERETT.
14. The specific charges alleged against Officer Everett by the City stem from an
incident on August 17, 2010. Specifically the charge states as follows:
“In that, on August 17, 2010, you went inside the business of H&C Automotive
and stated to Mr. Cedric Lowe, the owner, “I want them damn keys!” In addition,
you pushed Mr. Lowe three times, grabbed keys from his waistband and gave
them to a representative of Budget Rental Car. Then, you went back inside the
business and told Mr. Lowe to put his cell phone down while he was talking to the
911 Operator. Furthermore, you held mace up to his face and threatened to mace
him; you placed handcuffs on him and arrested him for Disorderly Conduct while
inside his place of business. Moreover, you pick up his cell phone which was
lying on a vehicle and threw it into a wall. Finally, you made false statements in
the Arrest Report indicating Mr. Lowe took an aggressive stance with legs apart,
body bent forward and fists clenched and he used profanity which was not
accurate.”
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15. The violations asserted involve Rule 12.2 of the Rules and Regulations of the
Personnel Board Section (c), “Conduct unbecoming an Employee/Officer,” Section (l)
“Violation of any rule or regulation of the Appointing Authority, or failure to comply with
instructions made and given by a superior officer or supervisory,” Section (m), “Violation of any
of the provisions of the Act or of these Rules,” Section (p), “Any other legitimate and
nondiscriminatory reason that constitutes good cause for disciplinary action, is reasonably
specific, is consistent with the Act and these Rules, and is not motivated by any non-work-
related preference or animus for or against any person.”
16. In addition the Birmingham Police Department cited to their own Rules
and Regulations including:
Procedure No. 107–1, DUTY REQUIREMENTS - GENERALLY, Section,
XV., INTERFERE WITH PRIVATE BUSINESS, related to unnecessarily
interference in the private business of any person, or threatening a law-abiding
citizen in the lawful pursuit of a legitimate business.
Procedure No. 107-5, DUTY REQUIREMENT- POLICE OFFICER,
Section, II, BEAT ASSIGNMENT AND RELIEF, Subsection D., requiring
reporting of any unusual crime, occurrence, or condition to a superior officer.
Procedure No. 109-3, CONDUCT AND DEPORTMENT, Section II.,
EFFORT AND MANNER OF MEMBERS, Section III., COURTESY,
Section XIII., CONDUCT OF MEMBERS, relating to establishing and
maintaining the highest standard of efficiency, courtesy and conduct.
Procedure No. 109-12, FALSE REPORTS, Section I., FILING FALSE
REPORT Subsections A – C, prohibiting the filing of a false report and
requiring the truth be spoken at all times and under all circumstances.
Procedure No. 110-2 Section VII, GENERAL OFFENSES, related to
maltreatment of a prisoner or using profanity or discourteous language and
engaging in conduct unbecoming of police officer.
Procedure No. 116-1, IMPOUNDED PROPERTY – GENERALLY,
Section I., CONVERSION PROHIBITED, related to destroying or
converting personal use of property of one another.
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III. FINDINGS OF THE HEARING OFFICER RELIED UPON BY THE
PERSONNEL BOARD.
17. On August 17, 2010, Officer Willie Hall (“Officer Hall”) responded to a call at
H&C Automotive by the owner, Mr. Lowe.
18. A woman had dropped off a car for repairs at H&C Automotive more than a week
earlier. Mr. Lowe discovered that the car had been rented from Budget Rent-A-Car and advised
Budget Rent-A-Car he had performed repairs on the vehicle and expected payment. The Budget
Rent-A-Car representative stated they did not authorize the repairs and therefore, would not pay
for them. The Budget Rent-A-Car Representative further said if the car was not returned
immediately it would be reported as stolen.
19. Shortly after Officer Hall arrived on the scene, the Budget Rent-A-Car
Representative, Michael Weiss (“Mr. Weiss”), and two (2) other Officers, Officer Everett and
Officer Benjamin Roberts (“Officer Roberts”), appeared. Officer Everett, Hall, and Roberts
stood outside of the building at H&C Automotive and spoke with Mr. Lowe and Mr. Weiss. At
the end of the conversation the Officers told Mr. Lowe he would have to turn the vehicle over to
Mr. Weiss, but Officer Hall would complete an Incident Report to help Mr. Lowe pursue the
appropriate action against the woman who dropped off the vehicle for repairs.
20. Officer Hall and Mr. Lowe went into the building to look at some paperwork.
Shortly thereafter Officer Hall received a telephone call from Sgt. Leisa Roby and went out to
his patrol car to take the call from Sgt. Roby and to complete the paperwork.
21. While Officer Hall was sitting in his patrol car, Mr. Lowe knocked on the car
window and yelled to him that one of the Officers pushed him. Officer Hall noticed some of the
people from the neighborhood had started to gather and one of Mr. Lowe’s employees was video
recording the incident.
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22. When Officer Hall walked back into the building Mr. Lowe was on the telephone
and Officer Everett told Mr. Lowe to put his hands behind his back and flashed his mace in Mr.
Lowe’s face. Mr. Lowe eventually put his hands behind his back and Officer Everett escorted
him to the police car. Mr. Lowe was arrested for disorderly conduct.
23. After the arrest, Officer Everett completed an Arrest Report stating that Mr. Lowe
interfered with their investigation, became loud and boisterous, and took an aggressive stance
(ie., legs apart, body bent forward, and fists clenched) and refused Officer Everett’s verbal
commands to comply. According to the Arrest Report at the time of the arrest, Mr. Lowe took
steps toward Officer Everett with clenched fists but stopped when Officer Everett presented his
mace.
24. The video which was taken by one of Mr. Lowe’s employees at the time Mr.
Lowe was arrested shows at the time Officer Everett presented his mace and arrested Mr. Lowe,
he was not acting aggressively toward Officer Everett. Instead the video shows when Officer
Everett presented his mace Mr. Lowe’s hands were in the air backing away from Officer Everett.
The video goes on to show at the time Officer Everett presented his mace and arrested Mr. Lowe,
Mr. Lowe put down his cell phone and Officer Everett picked it up and threw it into a wall.
IV. ADDITIONAL FACTS SUPPORTING THE PERSONNEL BOARD’S DECISION.
25. Following the August 17, 2010 arrest, Mr. Lowe filed a Complaint with the
Division of Inspections and Internal Affairs (“I.A. Div.”). R.7, Exhibit 3.
26. Sgt. Nashond Goree, Sgt. ( ) Grayson, and Sgt. Edmond Hanks, all in the I.A.
Div., interviewed Darrius Echols (“Mr. Echols”) (R.7, Exhibit 2), Mr. Lowe (R.7, Exhibit 7),
Officer Hall (R.7, Exhibit 3), Officer Everett (R.7, Exhibit 11), Cedric Anderson, Dispatcher
Alicia Sharpe, Officer Cyrita Glover, Captain Jamal McCaskey, Sgt. Joe Roberts, and Officer
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Benjamin Roberts (R.7, Exhibit 8) concerning the Complaint filed by Mr. Lowe and the events
surrounding his arrest and the Arrest Report filed by Officer Everett. T241-244, 250-254.
27. A summary of the I.A. Div. investigation appears in the Record on Appeal at R.7,
Exhibit 8. The Findings and Conclusions appear on pages 12-13. The allegations against
Officer Everett, with the exception of the theft of $300.00 from Mr. Lowe, were all sustained.
28. The deposition of Mr. Weiss was admitted into evidence as R.8, Exhibit 4.1 Mr.
Weiss testified under oath that he never went into the shop at H&C Automotive. P.22.
29. Mr. Weiss testified he did not get near Mr. Lowe. P.23.
30. Mr. Weiss testified he got the keys to the rental car and the next thing he saw was
Mr. Lowe in handcuffs. P.19.
31. Mr. Weiss testified he could not hear what was being said in the building. P.22-
23.
32. Further, Mr. Weiss said he did not know what was going on in the building and he
did not see the arrest. Id.
33. Mr. Echols testified he was an employee of H&C Automotive on August 17,
2010. T.38.2
34. The recorded video, R.7, Exhibit 1, taken by Mr. Echols on his cell phone shows
Officer Everett with his gloves on. T.46, 48, 50-51.
35. The video shows Mr. Lowe was on the telephone and Officer Everett came
toward Mr. Lowe, and showed his mace to Mr. Lowe. After Mr. Lowe put down his cell phone
the video shows Officer Everett picking up the cell phone and throwing it against the wall. T.56.
1 The deposition of Michael Weiss was taken on June 22, 2011. Pages from that deposition will be referred to as
“P” plus the page number(s). The deposition was read in its entirety at the hearing on December 8, 2011. 2 The transcript of the December 8, 2011 hearing appears at the end of the Record on Appeal. Specific pages from
the transcript will be referred to as “T” plus the page number(s).
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36. Officer Hall testified the situation between Mr. Weiss and Mr. Lowe was a civil
matter. T.128, 130.
37. Officer Hall testified he never saw Mr. Lowe do anything he should have been
arrested for. T.129.
38. Officer Hall testified he never saw Mr. Lowe clinch his fists, curse, or refuse
commands. T.132-133.
39. Chief Roper testified that following the I.A. Div. investigation, Officer Everett
was served with the charges against him. Officer Everett was given a hearing by the City, at
which he was represented by counsel. T.332.
40. Chief Roper testified it was his decision to terminate Officer Everett based on the
totality of the situation. T.333.
41. Chief Roper testified submitting a false report was a very serious offense. T.336.
42. Chief Roper testified he did not believe the Arrest Report submitted by Officer
Everett was truthful and Officer Everett’s actions warranted termination. T.333-338.
43. Chief Roper testified he watched the video, R.7, Exhibit 1, a number of times.
T354.
44. Officer Everett admitted Mr. Weiss never went into the building at H&C
Automotive. T.453.
45. Officer Everett was twenty (20) feet away when he said he felt threatened by Mr.
Lowe. T.461-462.
46. The charges against Corey Hooper in September 2007 did not include, in addition
to punching and tasing an arrestee, an allegation of submitting a false arrest report. See R.8,
Exhibit 12.
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47. R.7, Exhibit 11 is a statement made by Officer Everett to the I.A. Div. Officers
investigating the Complaint of Mr. Lowe.
48. In response to Question 07, Officer Everett said when he was on the radio with
Officer Hall he heard yelling in the background. This statement contradicts Officer Hall’s
testimony that Mr. Lowe was not yelling. Further, Officer Everett said there was an argument
between Mr. Weiss and Mr. Lowe. The evidence at the Appeal Hearing and as stated by Mr.
Weiss was Mr. Weiss did not appear at the H&C Automotive until after the Officers Everett and
Roberts had arrived.
49. In the same response, Officer Everett told the I.A. Div. Officers Mr. Lowe had the
keys to the Budget Rent-A-Car in his hand. He testified at the Appeal Hearing the keys were in
Mr. Lowe’s waistband.
50. Officer Everett testified he never touched Mr. Lowe, but in his statement given to
the I.A. Div. Officers in response to Question 09 he stated “I was trying to put my hands on
him.”
51. Officer Everett told the I.A. Div. Officers that Mr. Lowe put something up to his
face and “I grabbed it” and “threw it out of my face.” See Response to Question 07. Officer
Everett can clearly be seen in the video, R.7, Exhibit 1, picking up Mr. Lowe’s cell phone and
throwing it against the wall.
52. In his response to Questions 22 and 23 of the I.A. Div. statement Officer Everett
said “the aggressive stance, leg apart and body bent forward and fists clench” of Mr. Lowe was
when he was trying to arrest Mr. Lowe and when Mr. Lowe put the object in Officer Everett’s
face. The video clearly shows this was a false statement.
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53. Officer Everett told the I.A. Div. Officers he got the keys from Mr. Lowe after he
arrested him. See Responses to Questions 33 through 35. In the video you can clearly see the
tow-truck leaving with the Budget Rent-A-Car while Officer Everett is searching Mr. Lowe. Mr.
Weiss testified he got the keys from Officer Everett and the next time he saw Mr. Lowe he was
in handcuffs. R.8, Exhibit 4, P.19.
V. FINDINGS BY THE PERSONNEL BOARD.
Officer Everett was not truthful in his report to either the I.A. Div. or in his report of
the circumstances leading to the arrest of Mr. Lowe. The video tape taken by Mr. Echols shows
approximately thirty-six (36) seconds of Officer Roberts arguing with one of Mr. Lowe’s
employees, believed to be his son, until Officer Everett enters the building wearing his leather
gloves. Officer Everett walks between Officer Roberts and the employee at a rapid pace. Mr.
Lowe backs up and says “man, don’t touch me.” Officer Everett then says, “you are under
arrest” and flashes his mace in Mr. Lowe’s face. Mr. Lowe turns around, puts down his cell
phone and puts his hands behind his back. Officer Everett picks up the cell phone and throws it
against the wall and then he continues to handcuff Mr. Lowe. At no time do you see Mr. Lowe
being aggressive toward Officer Everett other than saying, “Man don’t touch me, man don’t
touch me” and backing away. After Mr. Lowe is lead outside, Officer Everett can be seen taken
items out of Mr. Lowe’s pocket and taking off Mr. Lowe’s hat. After Mr. Lowe is placed into
the back of the police car the video shows the rental car being towed away.
The Personnel Board finds Officer Everett acted in a matter unbecoming to a Police
Officer in the way he arrested Mr. Lowe. He acted with unnecessary aggression toward Mr.
Lowe by flashing his mace in Mr. Lowe’s face and then throwing Mr. Lowe’s cell phone after he
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had already obtained the keys to the Budget Rent-A-Car vehicle and the reason Officer Everett
had to be called to the scene in the first place had been resolved.
Finally and most importantly, it is obvious from reviewing the video tape and testimony
from other witnesses, Officer Everett was not truthful when he completed the Arrest Report
concerning the incident. He was not truthful in giving testimony to the I.A. Div. Officers
investigating the complaint of Mr. Lowe. Officer Everett was not truthful in his testimony at the
Appeal Hearing before the Hearing Officer.
Officer Everett’s evidence that in 2007 another Police Officer who had twice been
found guilty of abusing an arrestee was only suspended for fifteen (15) days without pay (R.8,
Exhibit 12) and not terminated is not impressive. First, there is no evidence that in addition to
breaking several Rules and Regulations of the Personnel Board and the Birmingham Police
Department, Officer Hooper submitted a false report or was untruthful in an I.A. Div.
investigation. Second, the document placed into evidence by counsel for Officer Everett
concerning Officer Hooper was signed by former Chief of Police Annetta W. Nunn, not by Chief
Roper. T.367.
The Personnel Board acts as the trier of facts and has the duty to reach a determination
regarding conflicting testimony. City of Mobile v. Mills, 500 So. 2d 20 (Ala. Civ. App. 1986).
When the Personnel Board utilizes a Hearing Officer, the Hearing Officer Findings of Fact are
presumed to be correct. Alabama Alcohol Beverage Control Board, 465 So. 2d 1158 (Ala. Civ.
App. 1985); Ex parte City of Birmingham, 7 So. 3d 363, 367 – 368 (Ala. Civ. App. 2008). The
Personnel Board’s decision to affirm the Hearing Officer’s Report and Recommendation was not
arbitrary or capricious and is supported by substantial and legal evidence.
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VI. CONCLUSION.
The Personnel Board respectfully requests this Honorable Court affirm its order of
January 10, 2012 regarding the termination of Officer Everett.
Respectfully submitted on this the 8th
day of June, 2012.
/s/ Laura C. Nettles
Laura C. Nettles (NET006)
Attorney for The Personnel Board of Jefferson
County
OF COUNSEL:
LLOYD, GRAY , WHITEHEAD & MONROE, P.C.
2501 20th
Place South, Suite 300
Birmingham, Alabama 35223
(205) 967-8822 - Telephone
(205) 967-2380 – Facsimile
CERTIFICATE OF SERVICE
I hereby certify that on June 8, 2012, I electronically filed the foregoing with the Clerk of
Court using the AlaFile system which will send notification of such filing to the following:
Gayle H. Gear
2229 Morris Avenue
Suite B
Birmingham, Alabama 35203
Michael Fliegel
Assistant City Attorney
City of Birmingham Law Department
1710 First Avenue North
Birmingham, Al 35203
/s/ Laura C. Nettles
OF COUNSEL