More about Lathropgate

If you read Wednesday’s column about the Sheriff’s race, and Lathropgate, you probably sensed there was more to the story. More that had to remain confidential because of laws protecting the personnel files of law enforcement officials.

Once the story was published, however, a countervailing law kicked in. California Penal Code section 832.7(d) allows for information in a personnel file to be released when the employee knowingly tells the media false or misleading information about the file’s contents, and the media publishes it. 

It is the position of Undersheriff Jon Picone that Sgt. Pat Withrow told me false or misleading information. He released a statement, which discloses more about the Lathropgate investigation. Here it is.

“On Wednesday, May 21, 2014, the Stockton Record’s Mike Fitzgerald wrote an article addressing, in part, why Pat Withrow had originally agreed to open his personnel file to the media and then reneged on that agreement.  In his explanation for his change of mind, Withrow made erroneous statements to the reporter that he knew or should have known to be false, regarding his personnel file.”

I’m a columnist, but let’s not split hairs.

“Withrow claims that the Sheriff has control over his (the Sheriff’s) own personnel file and that he can add or remove anything he wants from that file including disciplinary action.  That is an inaccurate claim. The Sheriff is governed by the same County policies as any other County or Sheriff’s Office employee.

“Sheriff Moore was in fact disciplined (a written letter of reprimand) for an at fault fender-bender traffic accident (which the Sheriff freely disclosed to the media), and then, based on Sheriff’s Office policy, requested after the appropriate two year waiting period for it to be removed.  Per policy the request was submitted to the Undersheriff.  The Undersheriff then removed the letter of reprimand from the personnel file.  This is a routine process and every employee in the Sheriff’s Office has the same opportunity to have a letter of reprimand be removed, and for the most part, Sheriff’s Office employees have taken advantage of that opportunity.”

That’s not on point. What did Withrow say about his discipline that was false?

“Withrow stated in the article that the discipline he received arising out of the Lathrop investigation was, “the only blemish on his record and said it was political payback from Moore for supporting Moore’s rival in an earlier election.”  This is an incorrect statement.  In fact, Withrow received both a letter of reprimand for failure to properly supervise and the 10 hour suspension for his own failure to submit time off slips.  It should be noted that this letter of reprimand was removed by the Undersheriff from Withrow’s personnel file at Withrow’s request after the two year waiting period.

“The article infers that Withrow advised the Stockton Record reporter that he was disciplined with a one-day suspension for failure to properly supervise his immediate subordinates who failed to submit time off slips when they in fact took time off away from the job.  That was not the case.  Withrow was given the one day suspension for the failure on his part to submit time off slips on numerous occasions when he took time off away from work.  The discipline Withrow alluded to in the newspaper article for failure to appropriately supervise his employees who failed to turn in time off slips was actually a letter of reprimand.”

The statement then arguably goes off point again. Perhaps not.

“With regard to the Withrow’s ‘political pay back’ comment, the discipline given to Withrow was based on an extensive internal affairs investigation. It was initiated as the result of information received that there were employees in Lathrop not accounting for all their time off.

“It should be noted that the first promotion made by Sheriff Moore when he became Sheriff in 2007, was to promote to Assistant Sheriff (the third highest ranking position in the Department) an employee who himself actively campaigned for Moore’s opponent.  Additionally, John Huber ran in the primary against Sheriff Moore. Following the primary, Huber publically endorsed Moore’s opponent.  After the election and when the next opportunity arose Moore also promoted Huber to the position of Assistant Sheriff.”

Then statement returns to the PC 832.7(d) issue.

“The Stockton Record article also included a claim by Withrow that the “vacation mistakes were the result of the S/O’s Byzantine vacation form process, a clerical error.” Management of time off is not a Sheriff’s Office process.  It is a County process adhered to by all County employees. This process has been in place for well over 25 years.  Failure to turn in time off slips when required is not even remotely pervasive in the Sheriff’s Office or throughout the County.  When the same time-keeping errors are made repeatedly over a lengthy time frame it would appear to be more than a clerical error and warrants further investigation.

“Withrow also stated that the Sheriff’s Office did not think that the falsifying of records was a significant issue.  This is incorrect.  An extensive Internal Affairs investigation took place over 8 months of continuous effort to determine all of the facts of the case.  It involved a significant amount of man-hours and cost to uncover the truth. As a result, Withrow was given a suspension without pay for his involvement in the matter.”

The statement then provides useful background.

“In light of the Withrow claims, it is also necessary to note how the disciplinary process of Sheriff’s Office employees works.  The Office receives information of inappropriate behavior of an employee one of two ways.  The first way is that a civilian or other non-sheriff related entity contacts the Sheriff’s Office and files a complaint.  The complaint goes to the Internal Affairs Unit of the Sheriff’s Office.  All complaints are investigated. 

“The second method is that the captain (or his/her designee) of a division within the Sheriff’s Office learns of a potential misconduct of an employee within that division and that captain forwards the matter to Internal Affairs.  Internal Affairs conducts a fact-finding investigation only and on completion of that investigation turns the information over to the involved captain.  The captain then determines if the allegation of misconduct is sustained or unfounded.  If it is sustained, that same captain (if the level of discipline is a letter of reprimand) will immediately issue the letter and the matter is then determined to be resolved. 

“If the discipline is determined by the captain to warrant a greater level of discipline than a letter of reprimand, a three member committee is formed to review the case and then jointly make a determination of the discipline to be meted out.  At no time by Office policy is the Sheriff involved in this process of establishing who will be disciplined or how much discipline the employee should receive.  It should be noted that the investigation into the unaccounted for time off slips and the ensuing discipline of Withrow was handled in this same manner.  It was a three member panel that determined Withrow’s level of discipline with no involvement at all from the Sheriff.

“The Sheriff’s only involvement in any disciplinary process is merely receipt of the final determination and related discipline of the investigation.  Withrow was aware of this process when he was disciplined and, thus, his claim that the Sheriff was politically motivated in Withrow’s investigation is inappropriate.”

If you discern a mix here of politics and disclosure of fact, then you are well able to sort that out. I am contacting Withrow’s camp with an invitation to respond to this statement.

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  • Blog Author

    Michael Fitzgerald

    Mike Fitzgerald is The Record’s award-winning metro columnist. His column runs in the paper three times a week. Born in San Francisco, he was raised in Stockton. His column covers diverse beats including, sometimes, the offbeat. Read Full
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