Wednesday, June 21, 2017

TOP STORY >> Chief to stay on as judge weighs suit

Leader staff writer

A hearing was held before Circuit Judge Alice Gray on Monday afternoon to determine whether or not Geoffrey Herweg will remain the Jacksonville Police Chief.

He is accused of filing a false police re-port after he crashed his car into a garage almost 17 years ago in Texas and allegedly lying about the termination of a police officer in New Mexico.

Judge Gray said at the end of the hearing she will decide early next week on whether to dismiss the lawsuit against Herweg brought by Alderman Tara Smith, who claims Herweg is ineligible to serve as Jacksonville police chief under the Arkansas Constitution, which bans anyone convicted of an “infamous crime,” including a crime of dishonesty, from holding an office of public trust.

Jacksonville attorneys have argued that the law doesn’t apply to appointed officials and that Smith has not followed procedures in her effort to oust Herweg.

The last question asked in the nearly 90-minute hearing came from Alex Gray, one of Smith’s attorneys, who asked Mayor Gary Fletcher, “Will you remove yourself from office if the police chief is removed?”

He didn’t say. A few minutes earlier, Gray had asked if it was true the mayor was staking his reputation on his police chief pick as reported in numerous media.

“Yes, given the chance the chief will do an outstanding job for the city of Jacksonville,” Fletcher said.

Gray then continued, “So, if he is removed, will you remove yourself from office?”

This exchange came about five minutes after Gray had asked the mayor if he had met with the police department and told officers their new police chief was a liar.

Smith’s attorneys made their case during a two-part hearing to determine whether the judge should side with the city and dismiss the case or if she should side with Smith and have the police chief removed from his position while the case continues through the court system.

Fletcher said removing Herweg would create more chaos and a black hole. “People believe the department is moving forward,” he said. “You can’t make a decision in fear.”

Judge Gray (no relation to Smith’s attorney) told the attorneys — Nate Steel and Gray for Smith and City Attorney Robert Bamburg representing the city, the mayor, the police chief and City Clerk Susan Davitt – that she would take the request for dismissal under advisement and decide on the removal of the chief by early next week.

Only three witnesses were called – Herweg, Fletcher and Police Officer Jennifer Corbin -- during the 90-minute proceeding that saw Judge Gray overrule Bamburg’s objections more than 20 times.

Steel pushed his position that even though the mayor has the right to hire and fire department heads the state constitution supersedes his power and that Article 9, Section 5 prohibits anyone convicted on a variety of charges including “infamous crimes” cannot hold a position of trust.

Bamburg argued that section of the constitution only applies to elected officials, not those appointed. He cited that all the case law related to that section involved elected officials.

“But does any of the case law specifically state it does not apply to appointed officials?” the judge asked. Bamburg said the cases were all about elected officials as that was what the constitutional section was about. “But show me the words,” the judge insisted. “Just because the cases have always been about elected officials doesn’t mean it doesn’t apply to appointed officials. Show me the words.”

Bamburg respectfully disagreed with the judge’s stance.

To establish that Herweg is a liar who would jeopardize all cases developed and brought to court by the police department, Steel asked Herweg about the 2002 misdemeanor conviction of filing a false report, then introduced into the record a certified copy of the case and its disposition and then tried to interrogate Herweg again about the case.

All over the objections of Bamburg, who said, “This is all in the record and what does this 17-year-old case have to do with this man serving as a police chief of Jacksonville?” Steel said it had to be brought out to show a pattern of lies as the definition of a so-called Brady cop is one who has a record of lying.

Herweg has not been on a Brady cop list in any state that he worked and is not on any list in Arkansas, according to the Attorney General’s Office and the Pulaski County Prosecutor’s Office.

Steel brought up three cases in his effort to show Herweg’s history of lying: The 2002 Taylor, Texas, conviction, a recent New Mexico civil suit where an officer who resigned filed suit against the Lovington Police Department, as well as then-Deputy Chief Herweg and Police Chief David Rodriguez.

The suit alleges that Travis Anthony Hobbs had to resign because of an investigation conducted by Herweg into Hobbs giving alcohol to underage girls at a party. Even though the Lovington police chief (not Herweg) offered Hobbs a choice of resigning or being fired and Hobbs decided to resign, he blames Herweg for losing his job.

The Leader has requested a copy of all investigative reports from the incident but the New Mexico city and county officials have yet to respond with the requested items.

Steel also brought up a suit to stop Ledell Lee’s execution which named the chief, who had only been on duty for eight days, and numerous other county and state officials.

In his efforts to have the judge dismiss the case, Bamburg argued that Smith, as an alderman, had not exhausted all legal means to remove Herweg from office because as a mayor’s appointment, Herweg’s appointment can be overruled by two-thirds vote of the council.

Judge Gray said the complaint only mentions Smith as an individual and not as an alderman and as an individual she has the right to sue regardless of any other posts or positions she holds.

Bamburg said the complaint did state Smith was an alderman and that her position had to be taken into consideration.

The judge disagreed.

The second paragraph of Smith’s original complaint says she is a Jacksonville alderman.

Bamburg also told the judge that if she ruled in favor of Smith, the hiring of every department head in every city in Arkansas would have to be questioned.

“I can’t consider that. I’m only looking at this case,” the judge said.

Bamburg argued that by Smith and her attorneys calling payment of Herweg’s salary as “illegal extraction” was not so. “Federal law says salaries must be paid.” He argued that the case was asking for money if that tax money had to be repaid.

Steel said that Smith was not asking for personal damages, but did insist that taxpayers’ money be returned.

If there’s money involved, Bamburg insisted that city officials had “qualified immunity.”

To emphasize his point of Herweg being a Brady cop, Steel called Police Officer Corbin to the stand. Corbin is an eight-year veteran with the department with six of those years as a school resource officer.

Steel thanked Corbin for speaking out even though “you put your job in jeopardy by being here today.”

Corbin most likely is protected under the state’s Whistleblower’s Act and cannot lose her job or suffer retaliation because of her stance.

She told the court that it was her opinion that Herweg was causing problems for the department and the city just by being the police chief. Why? “Because he is a Brady officer and I’m afraid that after we make arrests and build our cases, they will get thrown out.”

When Steel asked if Jacksonville and the police department would be better off if Herweg were removed as chief and given a police position equal to Corbin. She replied, “Yes, he’d be removed from the basic chain of command.”

Bamburg reminded the court that Corbin was one out of 73 police officers and does not live in Jacksonville. The judge said being a school resource officer or a non-resident did not take away from Corbin’s knowledge of the police department or city.

The judge told the attorneys at the end of the hearing that she would rule on the request for the temporary restraining order to remove Herweg early next week and to be ready to appear in court on short notice.