The city of Santa Maria should not have fired Lt. Dan Ast from his job with the Santa Maria Police Department, according to an arbitration hearing officer who recommended that he be reinstated.
Additionally, the arbitrator’s report claims Ast’s termination was a retaliatory act and violated the Police Officer’s Bill of Rights, according to Ast’s attorney, Jonathan Miller of Santa Barbara-based Nye, Peabody, Stirling, Hale & Miller.
Ast contended he was fired in March 2013 after making whistleblower complaints about problems in the department.
City officials terminated Ast in the wake of the 2012 fatal shooting of Officer Albert Covarrubias Jr., who was under investigation for having a sexual relationship with a teenage girl who served in the Police Explorers.
Hearing Officer Catherine Harris issued her 46-page ruling last week, which Miller said included the following findings:
“The record does not support the conclusion that a five-year lieutenant with an unblemished work record and no prior discipline committed gross incompetence on the night in question, especially where he made decisions in consultation with his commanding officer.
“A more plausible interpretation of the record is that due to circumstances beyond anyone’s control, Covarrubias chose his own death by firing his weapon and resisting the officers who tried to take the weapon away from him and to control him.
“The city’s argument, i.e., implying that this tragic event would not have occurred but for appellant’s alleged failure to follow policy, his incompetence or evil motives, is based on a tortured analysis and unsubstantiated theories that focus disproportionately on Appellant’s alleged shortcomings while virtually ignoring the shortcomings of other personnel…
“Under the circumstances presented here, the mere fact that a police action does not bring about the intended result (taking a suicidal suspect into custody before he harms himself) does not establish cause for disciplinary action.
“Based on the foregoing findings and conclusions, the following order is recommended: The appeal is granted.”
Harris also concluded that the city had no cause for disciplinary action, and that any charges related to the Covarrubias shooting be dismissed for lack of evidence.
The arbitrator’s decision is a recommendation to City Manager Rick Haydon, who makes the final decision.
He did not return a call for a comment on Monday.
Haydon has 30 days to uphold or overrule the decision.
If Haydon reinstates Ast, the city will be required to provide him back pay from the termination date, the police officer’s attorney said.
If Haydon decides against following the recommendation to reinstate Ast, the city must reimburse the former lieutenant for the costs of the arbitration.
Parts of the ruling are confidential, Miller said, because they include details relating to other officers.
However, the hearing officer had strong words, Miller said, about current Chief Ralph Martin, saying his “insistence on his purported right to embellish the charges (against Ast) after the fact is astonishing, given his long experience handling discipline and discharge cases.”
Harris reportedly also deemed it “particularly troubling” that Martin firmly believed Ast was motivated to go forward with arresting Covarrubias due to a “sinister scheme” to discredit another officer.
“The whole notion that appellant’s actions on the night in question were influenced by tainted motives, such as personal gain or retribution, is a far-fetched and fanciful construct that has no relationship to any hard evidence,” the hearing officer concluded.
“As such, Chief Martin’s wholesale acceptance of this unsubstantiated theory, as well as his eleventh-hour allegation of dishonesty, further undermine the credibility of the city’s position.”
Furthermore, the hearing officer contended, the city’s stance is “at worst, an after-the-fact theory developed in an effort to justify an unwarranted termination.”
The ruling noted that 12 days before the Covarrubias shooting, Ast and two other lieutenants had made a whistleblower complaint to the city, alleging unlawful conduct was occurring within the department, then led by former Chief Danny Macagni.
City officials have called the Ast case a personnel matter, and said last month they didn’t expect to release the ruling.
Typically, reinstatement hearings are held behind closed doors, but Ast requested that his occur in public. The hearing took place in late June and July.
Ast and two other lieutenants — Norm Comé and James Ginter — have filed a federal lawsuit against the city, with a trial set for next year.
If he is not reinstated, Ast’s attorney said, the federal lawsuit could be revised to include further claims of retaliation by Haydon, who is listed as a defendant.
The trio seeks past and future compensation, statutory penalties, punitive damages, attorney’s fees, reinstatement, and to stop the city from future illegal conduct.
— Noozhawk North County editor Janene Scully can be reached at jscully@noozhawk.com. Follow Noozhawk on Twitter: @noozhawk, @NoozhawkNews and @NoozhawkBiz. Connect with Noozhawk on Facebook.