MISSED DEAD­LINE

The Washington Post Sunday - - POLITICS & THE NATION - DAXZANEOUS BANKS

The nine-year ef­fort to fire D.C. po­lice of­fi­cer Daxzaneous Banks be­gan in March 2008 when a court em­ployee asked why the un­der­cover of­fi­cer had signed in as hav­ing at­tended a crim­i­nal trial that had been resched­uled. Banks had been paid for be­ing avail­able to tes­tify, al­though the trial had not oc­curred.

In­ter­nal af­fairs be­gan to in­ves­ti­gate and found that on at least 10 oc­ca­sions, he had al­legedly forged the sig­na­tures of sev­eral pros­e­cu­tors on his time sheets, records show.

“You af­fixed these sig­na­tures know­ing them to be im­proper and fraud­u­lent,” ac­cord­ing to an ac­count of the case filed in court by the D.C. At­tor­ney Gen­eral’s Of­fice.

Banks’s con­duct forced pros­e­cu­tors to aban­don charges against a sus­pected co­caine dealer be­cause the of­fi­cer was the sole wit­ness to the al­leged drug trans­ac­tion, ac­cord­ing to the records. The ac­cu­sa­tions of forgery, pros­e­cu­tors told in­ter­nal af­fairs, raised “se­ri­ous ve­rac­ity is­sues” about his po­ten­tial tes­ti­mony in crim­i­nal cases, ac­cord­ing to their ac­count.

Po­lice in­ves­ti­ga­tors con­cluded that Banks had vi­o­lated four poli­cies: be­ing in­volved in the com­mis­sion of an act that would con­sti­tute a crime; con­duct un­be­com­ing an of­fi­cer; in­ef­fi­ciency; and fraud.

On Sept. 9, 2008, then-Po­lice Chief Cathy L. Lanier rec­om­mended to the trial board, a three-mem­ber panel that over­sees of­fi­cer dis­ci­pline, that Banks be fired. Af­ter a two-day hear­ing in March 2009, the board found Banks guilty of vi­o­lat­ing three of the four poli­cies, and in June 2009, he was fired.

Shortly there­after, the union ap­pealed Banks’s fir­ing, ar­gu­ing that the depart­ment had missed its dead­line to dis­ci­pline the of­fi­cer.

Marc L. Wil­hite, the union at­tor­ney who rep­re­sents Banks, said the of­fi­cer de­nies forg­ing the sig­na­tures. Banks “ex­pressed re­peat­edly he be­lieved he had a case sched­uled that day,” ac­cord­ing to the Dis­trict’s sum­mary of the case.

In the ap­peal, the union ar­gued that the city be­gan its in­ves­ti­ga­tion in April 2008 and was re­quired by law to dis­ci­pline Banks within 90 busi­ness days of start­ing the in­ves­ti­ga­tion. Wil­hite said Lanier’s Septem­ber 2008 rec­om­men­da­tion to fire Banks was made at the end of 96 days — six days past the 90-day dead­line set by Dis­trict code.

The depart­ment ar­gued that its in­ves­ti­ga­tion did not truly be­gin un­til May 2008 and that it had met the 90-day dead­line.

Be­cause of a back­log of union ar­bi­tra­tion cases, Banks’s ap­peal lan­guished un­til 2016, ac­cord­ing to Wil­hite. He said Banks, mean­while, worked as a life­guard and at other jobs.

Fi­nally, in Septem­ber of last year, ar­bi­tra­tor Homer C. La Rue sided with Banks.

“It is clear that the depart­ment failed to meet its obli­ga­tion to bring charges against Ofc. Banks within 90 days of the in­ci­dent,” wrote La Rue, a lo­cal la­bor at­tor­ney.

La Rue or­dered that Banks — af­ter seven years off the force — be re­in­stated with full back pay and lost ben­e­fits, and that his per­son­nel record be ex­punged of the ter­mi­na­tion. At the time of his fir­ing, Banks was earn­ing $68,023 an­nu­ally.

The Dis­trict ap­pealed the de­ci­sion to the Public Em­ployee Re­la­tions Board, which re­views dis­putes be­tween the Dis­trict and unions, but the re­in­state­ment was up­held.

In Jan­uary, the D.C. At­tor­ney Gen­eral’s Of­fice ap­pealed the case in D.C. Su­pe­rior Court, ar­gu­ing that any harm caused to Banks by miss­ing the dead­line is out­weighed by the po­lice depart­ment’s in­ter­est. The ap­peal is pend­ing. To date, the Metropolitan Po­lice Depart­ment has not re­turned Banks to ac­tive sta­tus.

Wil­hite said that Banks, the son of a Dis­trict po­lice of­fi­cer, wants his job back and has been un­der pres­sure from his fam­ily to re­turn to polic­ing.

Banks is one of 26 of­fi­cers na­tion­wide or­dered re­in­stated since 2006 be­cause ar­bi­tra­tors ruled that po­lice of­fi­cials had missed dead­lines as out­lined in lo­cal laws or union con­tracts. Of those, 23 were from The Dis­trict. Six of those of­fi­cers were or­dered re­in­stated in the past two years, records show.

The dead­line is­sue has trou­bled the depart­ment for decades and has been doc­u­mented in sto­ries in The Wash­ing­ton Post and in the Wash­ing­ton City Pa­per.

Many de­part­ments have time lim­its un­der union con­tracts or lo­cal laws to com­plete in­ter­nal in­ves­ti­ga­tions to pre­vent cases from drag­ging on.

The Dis­trict’s dead­lines are among the short­est: A sur­vey last year of 81 ma­jor po­lice de­part­ments found that at least 21 de­part­ments im­posed dead­lines, rang­ing from 30 days to three years, ac­cord­ing to Cam­paign Zero, a po­lice ac­count­abil­ity group.

For many years, the Dis­trict code im­posed a 45-day dead­line for a city em­ployee ac­cused of wrong­do­ing to be in­ves­ti­gated and dis­ci­pline rec­om­mended, said Mark Viehmeyer, an at­tor­ney for the po­lice depart­ment and act­ing di­rec­tor of its la­bor re­la­tions branch.

The City Coun­cil re­pealed the rule in 1998, call­ing the dead­line ar­bi­trary. In 2004, the City Coun­cil took the is­sue up again be­cause the po­lice and fire unions were com­plain­ing that of­fi­cials were tak­ing too long to pur­sue dis­ci­plinary cases, Viehmeyer said. The coun­cil then im­posed a 90-day dead­line for the po­lice and fire de­part­ments, he said.

Sep­a­rately, he said, the po­lice union con­tract since the early 1980s has im­posed a sec­ond dead­line: Po­lice of­fi­cials have 55 days to fire an of­fi­cer once they de­cide to do so.

Dis­trict of­fi­cials said in in­ter­views that they are meet­ing the dead­lines and that cases are over­turned be­cause ar­bi­tra­tors mis­in­ter­pret when the clock be­gins.

D.C. Po­lice Chief Peter New­sham said the depart­ment in the past two years has taken steps to elim­i­nate the am­bi­gu­ity about when the in­ter­nal af­fairs in­ves­ti­ga­tion be­gins so that au­thor­i­ties can meet ar­bi­tra­tors’ in­ter­pre­ta­tion of the 90-day dead­line.

“That was our main point of con­tention with the ar­bi­tra­tors,” New­sham said. “They were con­tin­u­ally chang­ing when the 90-day clock started tick­ing.”

Viehmeyer said that in many of the cases in which the depart­ment was or­dered to re­hire of­fi­cers, the un­der­ly­ing mis­con­duct was never in dis­pute.

“There are a lot of cases where the ar­bi­tra­tor’s anal­y­sis I think is sort of be­lied by some of the facts in the case,” he said.

Wil­hite, who has rep­re­sented many of the of­fi­cers who were re­in­stated, said the rules are clear.

“There are lots of other an­gles that MPD has been us­ing to try and avoid the re­al­ity, which is once the 90 days has been vi­o­lated, that case must be dis­missed,” Wil­hite said.

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