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Originally published January 27, 2010 at 11:35 AM | Page modified January 27, 2010 at 9:18 PM

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Councilmember pushes city to consider appeal of officer's reinstatement

Seattle City Councilmember Tim Burgess, chair of the council's public-safety committee, is urging the city attorney to strongly consider a court challenge to an appeals board decision that overturned the firing of a Seattle police officer.

Seattle Times staff reporter

A key city councilmember urged City Attorney Peter Holmes on Wednesday to consider a court challenge to a review-board's decision that overturned the firing of a Seattle police officer.

"They find the officer was dishonest, but then they reduce the discipline and that puts the police chief in an untenable position," said Tim Burgess, chair of the council's Public Safety, Human Services and Education Committee.

The city's three-member Public Safety Civil Service Commission unanimously agreed last week that Officer Eric Werner acted dishonestly when he failed to disclose he had a punched a suspect. But in a 2-1 vote, the commission ruled termination was too harsh and reduced the penalty to a 30-day suspension to be deducted from his back pay.

In a written decision, commission members Joel Nark and Herb Johnson found the Seattle Police Department doesn't apply its dishonesty rule in an evenhanded way. The commission members said in past cases where honesty was an issue, officers either received no suspension of duties or only temporary suspension of duties.

They also noted no other employee has been terminated based on dishonesty.

The third board member, Terry Carroll, wrote in his partial dissent that the previous disciplinary actions cited by the majority did not involve findings of actual dishonesty.

Werner, 31, who joined the department in 2000, was fired for failing to tell internal investigators in 2007 he had punched an agitated man who complained he was Tased.

Werner maintained he forgot about the punch until he applied for a job with the Snohomish County Sheriff's Office in May 2008, and then disclosed it as part of a hiring process that included polygraph examinations.

The sheriff's office didn't hire Werner, but notified Seattle police of his disclosure. After an internal investigation, he was fired last May by interim Police Chief John Diaz for violating the department's honesty policy.

Werner appealed his firing in what was viewed as a key test of the honesty policy, which presumes officers will be fired for dishonesty in their official duties. It was a cornerstone of new rules adopted in 2008 to address community concerns about police accountability.

The City Attorney's Office said Tuesday it is reviewing the finding and has 30 days from the date the decision was issued to appeal to the King County Superior Court.

Burgess said Holmes should examine all avenues of appeal and gauge the city's chances of prevailing in court.

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Citing the 2008 rules, Burgess called them "major steps forward in raising the bar on officer behavior," and "dishonesty is a trigger that in almost every case would lead to the dismissal of the officer."

The city, which rarely appeals rulings of the Civil Service Commission, faces a steep legal hurdle.

It first must convince a Superior Court judge to take the case under a writ of review.

City attorneys must show the commission did not have substantial evidence to support its decision or failed to follow the law in reaching its findings. The city also can raise questions about whether the commission adhered to a state civil-service standard requiring it to act in good faith.

If accepted by the court, the city would have to prove the commission overstepped its bounds.

Although the commission's rulings were based on the dishonesty finding, during its October hearing on case, it also heard testimony about other admissions Werner made during the Snohomish County screening process.

Lee Malkow, a Snohomish County sheriff's detective and polygraph examiner, testified that amid his polygraph questioning, Werner volunteered he might have engaged in inappropriate behavior with an adult male who had fallen asleep, but that he believed it occurred in a dream.

But after further discussion, Werner then said the event had occurred, Malkow said.

Werner then changed his mind again when he was later questioned by the Seattle police internal-investigation unit, attributing the recollection once more to a dream, Sgt. James Danielson of the department's Office of Professional Accountability (OPA) testified.

Werner explained he only suggested it might have occurred because he wanted to pass the polygraph exam, Danielson testified.

The OPA exonerated Werner on the original excessive-force allegation. It cannot be reopened because of time-limit rules governed by the city's contract with the Seattle Police Officers' Guild, OPA officials said

Even though Werner got his job back, the dishonesty finding led the King County Prosecutor's Office to add his name to a list of potential witnesses whose honesty has been called into question. Most of the 52 names on the list are law-enforcement officers.

The prosecutor's office will be required to notify defense attorneys whenever Werner is called to testify against a criminal defendant.

Burgess said the listing means Werner's truthfulness will be "questioned every time he appears in court," making his ability to "serve as a police officer problematic."

Information from Seattle Times archives is included in this story.

Steve Miletich: 206-464-3302 or smiletich@seattletimes.com.

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