Lawsuit details Foster's firing

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By The Staff

Editor’s note: The Los Alamos Monitor continues to break down the lawsuit that former LAPD commanders Randy Foster and Scott Mills and current detective Paige Early filed against Los Alamos County last week. The county, meanwhile, received the lawsuit from the offices of Santa Fe attorney George Geran Friday afternoon, according to county PIO Julie Habiger.

In the days after Brian Schamber was committed to the Las Vegas mental hospital, then acting LAPD chief Randy Foster took steps to comply with the county’s administrative rules and regulations governing Schamber’s situation.
On Dec. 24, according to the complaint, Foster met with Human Resource administrator Valerie Park and county administrator Harry Burgess.
According to the complaint, Burgess and then police chief Wayne Torpy also told Foster that Schamber would be terminated and the incident needed to be reported to the New Mexico Law Enforcement Board.
On Dec. 24, Foster completed the incident report on the medical confinement of Schamber. In this document, Foster did not implicate detective Paige Early by name and did not divulge her statements to him on Dec. 2, 2012 because she had repeatedly expressed concern regarding violent retaliation.
According to the complaint, Foster instead emphasized his concerns regarding Schamber’s conduct at the “Me, Myself and Irene” video, and indicated that “other officers” (without identifying (then commander Scott) Mills and Early by name) had contacted him throughout the day stating that Schamber’s behavior was of concern.
Foster also documented the things that he himself had heard and seen to substantiate the commitment and also stated that the decision to commit was made by Dr. Baca, holding the narrative section of the incident report to one page, in accordance with past practice on commitment matters.
According to the complaint, Foster also began an internal investigation into Schamber’s behavior, with the knowledge and consent of Burgess, Torpy and Human Resource administration, by sending a letter to Schamber dated Dec. 24 (drafted by Park) and a memorandum to the designated police investigator, Commander Preston Ballew on Dec. 28. Both letters reference the subject matter of the Friday, Dec. 21 incident, but neither provided details, which seemed to Foster to be redundant and inflammatory.
Also according to the complaint, pursuant to Torpy’s instruction, Foster sent an LEA-90 form to the Department of Public Safety through the New Mexico Law Enforcement Board informing it about the incident, checking the “yes” box to indicate that the investigation into the incident was complete, as he felt that his investigation of the Schamber incident had concluded and there were no instructions on how to fill out the form.
On or about January 2, 2013, Torpy returned to work. During a staff meeting shortly after he returned to work, Torpy characterized Schamber as a “crazy expletive” and stated that he should have fired Schamber a long time ago, but gave him second chances because he liked him, according to the complaint. Torpy publicly congratulated Foster and Mills for their proper handling of the situation and said that Schamber needed to accept responsibility for his actions.
According to the complaint, Torpy also said that because Schamber would never be able to be a cop again, he needed to make sure that Schamber got some money out of the situation.
During Torpy’s absence from work, in December, 2012, Foster was given a goal by Burgess, as part of the Senior Management Team, to reduce costs by 5 percent. Foster immediately identified that LAPD’s Computer Aided Dispatch (“CAD”) System had for years been leased by a company called Intergraph and which had cost it millions of dollars. Because Foster saw that Intergraph was a huge expense for LAPD, several key county employees reported unhappiness with the product, and all concerned recognized that changing to another vendor could potentially save the county $400,000 as well as improve services.
Foster recommended to Burgess that the county put out a request for proposal for a new CAD. Almost immediately after Torpy’s return to work, upon learning during a presentation by Mills (who was placed in charge of the RFP process by Foster) that the change was underway, Torpy became furious and told Foster and Mills that they had been insubordinate in attempting to make the switch.
According to the complaint, Foster, who believed that Torpy’s loyalty to Intergraph stemmed from the fact that Intergraph had offered expenses paid “conferences” to Las Vegas for “training” purposes (which Foster had been asked to attend in 2011 when Torpy was unavailable at the last minute), he told Torpy that he would not support Torpy’s decision.
The following day, Torpy told Foster and Mills to cancel the RFP and that when he, Torpy, made a decision, it was their job to support him. Within days of their argument, Torpy, according to the complaint, initiated an almost-unheard of investigation into an incident in which Foster had taken a gun from a friend (at the friend’s request), for which he was later disciplined.
Although Foster and Mills also initially felt after Torpy’s return from leave that they would be commended for their conduct in protecting the public, within the next several months, Torpy and the county began engaging in a series of behaviors that would eventually result in the termination of Foster on May 29, 2013 for what was labeled as dishonesty in the handling of the Dec. 21-22, 2012 incident, and which left no doubt in Plaintiff Foster’s and Mills’ minds that they were being scapegoated in an effort to placate Schamber and to facilitate his recovery of significant amounts of money from the county.
On Feb. 4, 2013, while Schamber was still out on administrative leave, he filed an official complaint regarding Mills’ and Foster’s conduct in connection with the Dec. 21-22, 2012 incident. The complaint contained some 33 charges regarding Foster’s and Mills’ conduct, but did not address Schamber’s own behavior in any manner.
Schamber’s official complaint shows clear evidence of the county’s aiding and abetting him in his allegations against Mills and Foster related to a confinement he himself intentionally caused, including the fact that:
• The complaint and its accompanying affidavit are bolstered by multiple references to the transcripts of Commander Ballew’s investigatory interviews during his internal affairs investigation against Schamber, giving specific citations to both the full Investigator’s Report and to at least some 15 interview transcripts. The transcripts were improperly or illegally (in violation of policy and nationally-accepted police practices) released to Schamber by Torpy, who then encouraged Schamber to file his complaint, perhaps for the purpose of securing the compensation, which Torpy believed Schamber should recover.
• Foster and Mills requested copies of the investigative interview transcripts in writing, as well as a copy of the full Investigator’s Report, but were denied access and were only given copies of their own interview transcripts.
• According to the lawsuit, the complaint and affidavit were reworked entirely by Schamber, Commander Jason Wardlow-Herrera, and by-then-retired deputy chief Kevin Purtymun, who met at and worked through a Super Bowl Party on February 3, 2013, the day before it was filed. Upon information and belief, the county’s editing and aid to Schamber was planned and organized by Torpy, and a continuation of Torpy’s and Burgess’s plan to scapegoat the two plaintiffs, placate Schamber and downplay their own roles in failing to address or discipline Schamber after multiple complaints by Early.
As further evidence of retaliation, on or about March 1, 2013, some 70 days after the Dec. 21-22, 2012 incident, LAPD removed Foster’s title of Acting Deputy Chief and suspended him for two days in connection with an incident in early January, 2013 where he took a firearm from a family friend (at his request) and did not report it to LAPD.
According to the complaint, the investigation of Schamber’s complaint was conducted by Glenn Thomas of Universal Investigation Services, at Torpy’s direction, after he advised all staff that he was taking charge of the investigation into Schamber’s complaints against Mills and Foster.
According to the complaint, Torpy was never interviewed by Thomas during the investigation or by Ballew during the previous investigation. Consequently, neither investigator reported that Torpy and Burgess had not only turned a blind eye to the concerns expressed by Early, but had accommodated Schamber and sheltered him from any disciplinary consequences by providing limited information to the psychologists who evaluated him.
According to the complaint, Torpy met with Thomas for a half-day to allegedly “brief” him regarding the needs of the investigation. The complaint alleges that no recording of the briefing exists, conveniently, in order to immunize the county and the investigation from any perception of taint or bias. Further, the need for such an investigation is suspect, given the fact that a prior investigation (conducted by Ballew) of the same events already existed, which involved interviews of some 15 employees and others and extensively detailed relevant events. Ballew determined in his report of investigation that Schamber had multiple, sustained findings against him and there were no sustained findings against Foster and Mills.
According to the complaint, the county’s decision to conduct the second investigation was motivated by:
• Foster’s reporting of Schamber’s behavior to the Department of Public Safety, which rightfully unleashed the potential for extreme criticism and potential legal actions, such as discipline, termination and lawsuits directed at Burgess and Torpy, who had failed to comply with county policy;
• The desire to discipline, terminate and humiliate Mills and Foster, and scapegoat them in order to placate Schamber and his threats of a multi-million dollar lawsuit; and
• The desire to shift blame onto Plaintiffs Mills and Foster and thus insulate Burgess, Torpy and the county from responsibility for and publicity about their failure to deal with Schamber’s behavior.
• The new investigator, Thomas, after instruction from Torpy, mischaracterized evidence stating that Foster had admitted that Schamber was joking when he stated that he did not want to end up on the news for shooting 20 children, when no such admission ever occurred, failed to address the ongoing threatening and disturbing behavior exhibited by Schamber and reports of that conduct to Torpy and Burgess, asked leading questions clearly designed to elicit responses favorable to Schamber, and failed to account for the fact that Schamber had access to all of the interview transcripts from Ballew’s investigation, in violation of law.
According to the complaint, the final investigation report, dated March 18, 2013, while being compelled to admit that 31 of the 33 allegations made by Schamber were either unfounded or not sustained, improperly and determined that Foster was responsible for five violations.
On May 2, 2013, the county served Foster with notice of the proposed termination, accusing him of dishonest conduct, despite the fact that nine days earlier, on April 23, 2013, Foster had been reassured by Torpy that the LAPD would only impose minor discipline upon him related to the Schamber incident, up to and including a written warning.
The complaint said Schamber was never disciplined or let alone terminated, for his intentionally causing the events of Dec. 21-22, 2012, nor for his many illegal and unethical actions before that date.
On May 17, 2013, apparently in response to Schamber’s refusal to return to work (while on continuous paid administrative leave) and threats to sue the county for a reported $25 million in connection with his evaluation at the New Mexico Behavioral Health Institute, the county filed a “Complaint for Declaratory Judgment” against Schamber, requesting that a federal judge declare that Schamber could carry a gun and thus return to work. Ultimately, Schamber filed a counterclaim against the county, and a third-party complaint against Dr. Baca, Foster and Mills.
Although Foster refuted the allegations made in the notice of proposed action, provided extensive evidence that Burgess had been untruthful about his contacts with Foster and approval of the actions taken against Schamber on Dec. 21-22, and demonstrated that the proposed discipline was incongruent with LAPD’s historic practices, Foster was terminated by the county on May 29, 2013.