The termination of Fayetteville Police Lt. James Miller has been overturned following an appeals hearing conducted in March 29. Jennifer Keaton, an Altanta attorney, found in her review of the appeal that Miller should be demoted rather than terminated. Miller's termination seemed to be the trigger point for some recent backlash against the department from an anonymous letter, ostensibly written by a Fayetteville Police Officer, that accused Heaton and his second in command Major Kevin Gooding of a litany of offenses from work place discrimination to ticket fixing to setting a work environment that had caused large numbers of police to leave the department. The accusations were so wide ranging that the city has brought an outside entity to investigate.
The anonymous letter opened saying that the March 21 firing of Lt. Miller had been the last straw in an apparent ongoing struggle between the department and its leadership. Whether or not the anonymous writer spoke for the whole department is unclear and will likely be made more clear when the investigation is concluded.
The firing of Lt. Miller stemmed from a March 14 incident in which Officer Keith Jojola was involved in an early morning two-car accident at the intersection of Highway 85 and 314 which injured neither driver but "severely damaged" both vehicles. Jojola was on-duty and driving his police vehicle at the time, and also admitted to being responsible for the accident.
Chief Heaton had implemented a policy for such situations in 2011 which, according to Keaton's report, called for "vehicular accidents involving officers driving city-owned vehicles to be investigated internally. Until that time, the city relied upon external law enforcement agencies... to investigate these officer-involved accidents within the City limits."
The series of events from March 14 to Miller's termination on March 21 are described in Keaton's report as a combination of insufficient action taken by Miller and poor communication throughout the chain of command. While Keaton upheld the charges that Miller had "failed to follow policy" and had been "unsatisfactory" in his performance, she also found that there was insufficient evidence that Miller had been deliberately insubordinate, which had been one of the reasons Heaton gave for the termination.
The question of insubordination seems to stem all the way back to the original implementation of the policy in 2011. Keaton's report states that the policy was unpopular when Heaton announced it and that a "begrudging adherence or acquiescence to this policy appears to have been in place."
Since shift Captain Patty Kent was not on-duty at the time of the accident, Lt. Miller was the supervisor in charge of investigating and, if appropriate, issuing a citation to Officer Jojola. While the policy called for Miller to conduct the investigation himself, he "delegated that duty to Officer Harper, an officer who had significant training for investigating and managing traffic accident scenes."
The report says that Miller supervised Harper but that Harper "generally processed the accident alone" and that neither Miller nor Harper reviewed the in-car video from Jojola's patrol car, instead relying on "Officer Jojola's statement to them that he had viewed the video and that he had clearly run the red light, causing the accident. Officer Jojola was forthright with his chain of command and fellow officers at the scene regarding his culpability for the accident."
Around 7 a.m. that morning, after meeting with Major Gooding, Lt. Miller and Officer Harper submitted their accident report. Upon reviewing it, Major Gooding "believed that the report was poorly written and contained inadequate details." Gooding e-mailed Miller that day pointing out that, in particular, he felt the report should be clear as to Jojola being at fault for the accident and directed Miller to issue Jojola a citation. Lt. Miller's immediate supervisor, Captain Patty Kent, also received that e-mail.
According to the report, Kent and Miller "collaborated on a second report, which also was unsatisfactory to Major Gooding... Gooding e-mailed both with specific requests for more details in the report, including an explicit statement of which driver was at fault. Additionally, Major Gooding noted that no citation had been issued to Jojola."
That e-mail, sent around noon on Friday, March 15 instructed Miller to make those corrections by the morning of Monday, March 18. Miller was working that Friday but would be off until the evening on Monday. The report says he filed a third report that day but did not issue a citation and told Major Gooding in person that he was "uncomfortable" with issuing one. From that meeting, Major Gooding "believed, based upon Lt. Miller's body language and tone, that he meant that he would not issue the citation despite the directive."
Major Gooding met with Officer Jojola on Monday morning and issued him a citation for the accident. Chief Heaton had instructed Gooding to issue the citation if Miller had not done it "by Monday morning," and to Gooding's understanding Miller had never informed Jojola that he might be issued a citation. According to the report, "Lt. Miller learned that Major Gooding had issued Officer Jojola a citation and, therefore, did not come into the department that morning. Indeed, Lt. Miller did not report to work at all that Monday."
On March 21, Chief Heaton and Major Gooding met with Lt. Miller and informed him he was to be terminated for "insubordination, failure to follow policy, and unsatisfactory performance." Those were apparently compounded by other "performance problems" by Lt. Miller in the preceding 12 months.
Lt. Miller "did not offer any additional information, rebuttal, or explanation, but suggested that he believed that he could not change the Chief's mind," though he did file an appeal to the termination on the same day.
The appeals hearing brought out further information that had apparently never been properly transmitted up the chain of command to Chief Heaton. The report says, "in short, multiple opportunities were missed by Major Gooding, Captain Kent, Officer Jojola, and Lt. Miller to communicate effectively with each other and through the chain of command. As a result of what can only be described as poor communication, Chief Heaton relied upon, and reasonably relied upon, flawed and incomplete information prior to making the decision to terminate the employment of Lt. Miller. Based upon the information Chief Heaton had at the time he made the termination decision, his decision appears to be objectively correct and justified.
The additional information that came out in the appeals hearing suggested that while Lt. Miller did not properly follow department policy, the report did not find that Miller was deliberately insubordinate, but may have just been worried about the legalities of issuing a citation to a fellow officer.
"Apparently, concern that issuing a citation to a fellow officer under the policy might be unlawful without an indictment existed for at least Lt. Miller and Captain Kent, and perhaps additional officers. While Lt. Miller expressed this legal concern to Captain Kent on or before Friday, March 15, she did not take this concern up the chain of command or otherwise. As such, Lt. Miller's legal concern remained unknown to the Major and to the Chief," the report says.
That failure of communication is considered in the report to be a major reason for Chief Heaton's impression that Lt. Miller was being deliberately insubordinate.
"The evidence presented at the appeals hearing indicates that the impression of insubordinate conduct certainly existed and was allowed to exist based upon the choices of each officer in this matter. Had just one of these officers been forthright, responsive, and committed to the task, Chief Heaton may not have been led to believe that Lt. Miller, a seventeen-year veteran of this Department, was challenging his authority."
In the conclusion of her report, Keaton recommends corrective actions for several of the officers involved. The recommendation is for Miller to be demoted at least to the rank of Sergeant with deference on that decision to the Chief. Miller will be transferred to a shift where he does not report to Captain Kent, and that captain shall "be responsible for administering a six month performance improvement plan to address Sgt. Miller's investigation and report writing skills as it pertains to traffic calls, accidents, and related items."
The report also recommends "additional driving instruction" for Officer Jojola, "personnel management and training principles" for Captain Kent, and a general assessment by the chief as to whether additional training is needed for the department as whole on "traffic enforcement responsibilities with respect to accident investigation."
While this particular matter has been closed, there is still an ongoing investigation into the wide ranging allegations that were made via anonymous letter shortly after the original termination. Chief Heaton has opted to take retirement, something he had apparently been considering before the allegations were made. Major Gooding says he had also planned to resign in the spring and chose to do so. Both are cooperating with the city's investigation, which is being conducted by an outside entity.