Temporary suspension of Officer Mark Lakes

Received
OF
City of Austin
2018 NOV 27 PH 12: 31
1839
Human Resources Dept
MEMORANDUM
Austin Police Department
Office of the Chief of Police
TO:
Joya Hayes, Director of Civil Service
FROM:
Brian Manley, Chief of Police
DATE:
November 26, 2018
SUBJECT:
Temporary Suspension of Police Officer Mark Lakes #1259
Internal Affairs Control Numbers 2018-0565
Pursuant to the provisions of Chapter 143 of the Texas Local Government Code, Section
143.052, and Rule 10, Rules of Procedure for the Firefighters', Police Officers' and
Emergency Medical Service Personnel's Civil Service Commission, I have temporarily
suspended Police Officer Mark Lakes #1259 from duty as a City of Austin, Texas police
officer for a period of ten (10) days. The temporary suspension is effective beginning on
November 27, 2018 and continuing through December 6, 2018.
I took this action because Officer Lakes violated Civil Service Commission Rule 10.03,
which sets forth the grounds for disciplinary suspensions of employees in the classified
service, and states:
No employee of the classified service of the City of Austin shall engage in,
or be involved in, any of the following acts or conduct, and the same shall
constitute cause for suspension of an employee from the classified service
of the City:
L.
Violation of any of the rules and regulations of the Fire
Department or Police Department or of special orders, as
applicable.
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The following are the specific acts committed by Officer Lakes in violation of Rule 10:
On June 1, 2018, Austin Police Department (APD) Officer Mark Lakes worked a secondary
employment assignment at Altitude Trampoline Park located in the City of Austin. During
the course of the assignment, Officer Lakes initiated an encounter with four male juveniles
that entered a video game simulator designed to accommodate single players. As Officer
Lakes attempted to clear everyone from the video game simulator to have only one person
inside, one of the juveniles that exited the simulator made a pointing motion with his right
hand toward Officer Lakes' chest area.
This prompted Officer Lakes to grab the juvenile by the wrist, who then attempted to pull
his hand back. Officer Lakes then used his left hand to control the juvenile by the back of
his neck. The juvenile eventually complied and Officer Lakes released his grip. The
juvenile was released to his parents at the scene without further incident.
Officer Lakes verbally reported the incident to his corporal the next day, which did not
afford an opportunity for an on scene response to resistance (R2R) investigation. Officer
Lakes documented the incident in an APD report on June 2, 2018. However, Officer
Lakes' failure to report the R2R in a timely fashion as an on scene R2R incident,
prompted an Internal Affairs (IA) investigation.
Officer Lakes was interviewed by IA and took responsibility for his actions, by admitting
to each of the policies contained in this memorandum. Officer Lakes indicated he felt his
actions at the time of the incident fell into a "gray area" as he was unsure whether this
was an R2R incident. He acknowledged that since it was unclear to him, he should have
called a supervisor to the scene of a R2R and/or potential R2R incident.
Officer Lakes also elaborated, upon further refection "at the time because it was more of a
gray area, now I look back, hindsight it was a response to resistance.' Additionally,
Officer Lakes stated he violated general orders by "enforcing house rules" and not turning
on his department issued Body Worn Camera (BWC). He went on to say "I forgot to turn
it [his BWC] on, there' no reason behind it. I know I violated policy.
By these actions, Officer Lakes violated Rule 10.03(L) of the Civil Service Rules by
violating the following rules and regulations of the Austin Police Department:
Austin Police Department Policy 211.9: Response to Resistance Inquiry,
Reporting, and Review: Incidents during Secondary Law Enforcement
Related Employment
211.9 Incidents during Secondary Law Enforcement Related Employment
Officers involved in a force incident while working secondary law enforcement
related employment (LERE) shall be required to comply with this order.
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Supervisors in the area where the force incident occurred shall conduct the inquiry.
However, for Level 3 force incidents, should the LERE assignment employ two or
more officers and one of the officers is a supervisor not involved in the force
incident, the LERE supervisor may conduct the review.
211.8 Level 3 Incident Inquiry, Reporting, and Review Requirements
Level 3 force incidents require the involved employees to document the incident in
a report and notify their supervisors. Supervisors shall conduct a review of Level 3
force incidents as outlined below but may upgrade any Level 3 force incident to a
Level 2 force incident in order to conduct a more extensive review.
(a) Supervisors shall respond to the scene of any Level 3 incident involving:
4. Any incident resulting in injury or complaint of pain beyond the
temporary discomfort of unresisted handcuffing. Supervisors shall review
the general circumstances of the incident with the involved personnel and
ensure the reporting level is correct based on the facts.
Austin Police Department Policy 303.2.1: Body Worn Camera Systems: When
Department Issued BWC System Use is Required
303.2.1 When Department Issued BWC System Use is Required
This section is not intended to describe every possible situation where the system
may be used. In some circumstances it may not be possible to capture images of an
incident due to conditions or location of the camera, however the audio portion can
be valuable evidence and is subject to the same activation requirements. The BWC
should only be activated for law enforcement purposes.
(a)
All units responding to a scene shall activate their department issued BWC
equipment when they:
2.
Have detained or arrested a person; or
3.
Are attempting to detain or arrest a person
(b)
Examples of when the department issued BWC system must be activated
include, but are not limited to:
6.
Any contact that becomes adversarial in an incident that would not
otherwise require recording.
(c)
Officers that are issued a BWC will be required to utilize the BWC when
engaging in Off-Duty LERE Overtime.
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(e)
There may be instances in which an officer is required to take immediate
action to an event that occurs directly in front of them which may not allow
time to activate their BWC. In those situations, it may be impractical or
unreasonable for employees to activate their BWC system before taking
police action. It is expected that once the immediacy of the situation is over,
employees will activate their BWC system to record
Austin Police Department Policy 949.4.3: Secondary Employment: Prohibited
Types of Secondary Employment
949.4.3 Prohibited Types of Secondary Employment
Employees shall not work for, or engage in, the following types of secondary
employment:
(e)
Where it is expected the employee will enforce company policies or rules
(commonly known as "house rules").
1.
The Department shall have the absolute discretion to determine which
businesses, establishments or events fall within this section.
By copy of this memo, Officer Lakes is hereby advised of this temporary suspension and
that the suspension may be appealed to the Civil Service Commission by filing with the
Director of Civil Service, within ten (10) days after receipt of a copy of this memo, a proper
notice of appeal in accordance with Section 143.010 of the Texas Local Government Code.
By copy of this memo and as required by Section 143.057 of the Texas Local Government
Code, Officer Lakes is hereby advised that such section and the Agreement Between the
City of Austin and the Austin Police Association provide for an appeal to an independent
third party hearing examiner. If appeal is made to a hearing examiner, all rights of appeal
to a District Court are waived, except as provided by Subsection (j) of Section 143.057 of
the Texas Local Government Code. That section states that the State District Court may
hear appeals of an award of a hearing examiner only on the grounds that the arbitration
panel was without jurisdiction or exceeded its jurisdiction, or that the order was procured
by fraud, collusion or other unlawful means. In order to appeal to a hearing examiner, the
original notice of appeal submitted to the Director of Civil Service must state that appeal
is made to a hearing examiner.
By copy of this memo, Officer Lakes is hereby advised that this temporary suspension may
be taken into consideration in my determination as to whether a valid reason may exist to
bypass Officer Lakes for promotion in accordance with Austin Police Department Policy
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BRIAN MANLEY, Chief of Police AsstChief
11/25/18
Date
TO WHOM IT MAY CONCERN:
I hereby acknowledge receipt of the above and foregoing memorandum of temporary
suspension and I have been advised that if I desire to appeal that I have ten (10) calendar
days from the date of this receipt to file written notice of appeal with the Director of Civil
Service in accordance with the provisions of Chapter 143 of the Texas Local Government
Code.
March take 4514
1/26/18
Police Officer Mark Lakes #1259
Date
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