RINCON -- In a lengthy and frequently contentious appeal hearing Thursday, Jose Ramirez’s Jan. 16 termination from the Rincon Police Department was upheld by a panel appointed by the Rincon City Council.
The panel included Leon Zipperer, Pete Smith and Brett Bennett. They made their decision following more than three hours of testimony by Police Chief Mark Gerbino, who said Ramirez, a former lieutenant, was fired for “gross misconduct.”
Behavior Gerbino cited included:
— Insubordination or uncooperative attitude toward a direct order from a supervisor;
— Willfully giving false statements to supervisors, officials;
— Making false statements about one’s own or another’s work;
— Making or publishing vicious, malicious or false statements concerning the City (of Rincon) or its operations.
Ramirez’s attorneys, Rachel Berlin Benjamin and Ashley Clark Wilson of Atlanta’s Buckley Beal LLP, protested vigorously throughout the hearing that it was biased and unfair. They were not present in city council chambers but participated by telephone.
The attorneys exchanged heated words multiple times with Raymond Dickey, the hearing officer. Dickey is Rincon’s city attorney.
At multiple junctures, Ramirez’s defense team accused Dickey of not being neutral.
“You are biased in favor of the city and it’s patently obvious,” Benjamin said.
One of the major flash points involved Dickey’s admonition to Benjamin and Wilson to pick up the pace of their cross-examination of Gerbino. The warning came immediately following a one-hour lunch break. They had queried the chief for two hours at that point and he was still on the stand.
“We think this raises due process implications — this limitation on our time,” Wilson said.
Dickey replied, “That’s fine. You can raise that in whatever forum you want but we are going to finish this today so, if you will, move forward with your questioning ...”
Dickey set a deadline for the hearing, which was recorded by a certified court reporter, to end at 5 p.m. It started at 9:30 a.m.
Wilson asked, “Why is that not in the rules you gave us?”
Dickey officer replied, “It was understood that it would take nowhere near this amount of time based on these few documents. We are talking about thirteen pages of documents, OK?”
Gerbino, named chief in October 2018, was the lone witness. Benjamin and Wilson opted not to have their client testify.
Elizabeth F. Pavlis of Savannah, representing the City of Rincon, tried to call Ramirez to the stand but his attorneys resisted, saying he was not on the witness list.
Dickey responded, “He doesn’t have to be because he is required to be here and be available to testify. That is something that council passed. The other is a personnel policy that has been in effect for years ...”
As a result of Ramirez not testifying, his defense team wasn’t able to call other witnesses. They wanted to put Klimm and Effingham County Sheriff Jimmy McDuffie on the stand.
Klimm was nearly called to the stand by Pavlis but he wasn’t after the two conferred during a brief break.
McDuffie was not at the hearing, which surprised Benjamin and Wilson. Dickey told them they should have subpoenaed him and other witnesses.
Benjamin asked, “How are we going to subpoena them.?”
“The city will issue subpoenas,” Dickey replied.
Benjamin and Wilson said they were not made aware of that fact. Dickey said he notified Ramirez’s previous attorney.
“Again, Mr. Dickey, you conveniently failed to tell Mr. Ramirez’s current attorneys about that,” Benjamin said.
After the hearing concluded at about 3:45 p.m., Benjamin said, "It was very obvious that the hearing officer was very prejudiced in favor of the city because, of course, he is the city attorney. We were denied the opportunity to get to the truth and we were stonewalled from asking questions about Gerbino's discriminatory past which is, of course, relevant to the real reason for Lt. Ramirez's termination so that was very unfortunate but we do plan on pursuing the case going forward, which means we will be filing an (Equal Employment Opportunity Commission) charge and looking at all options looking at Lt. Ramirez's legal claims."
During nearly an hour of direct testimony, Gerbino outlined a series of charges against Ramirez, who repeatedly shook his head in disagreement. Gerbino said Ramirez consistently rejected responsibility for deficiencies he found in the police department — and efforts to correct them — following an assessment he made in the first few weeks after his hiring.
The alleged shortcomings included improper investigative and property/evidence areas, fleet maintenance, staffing and resource allocation, and morale and personnel issues.
During a combative cross-examination, Wilson wondered why Ramirez, an 11-year-veteran of the department, was named interim police chief last year if he was such a bad employee. Ramirez served in the capacity following the July resignation of Phillip Scholl until Gerbino’s hiring.
“The city appointed him to be interim chief because he was the pest person for that job,” Wilson said. “Can you say that is correct?”
“I cannot,” Gerbino replied. “I don’t know what the circumstances were.”
Gerbino — who challenged Wilson for interrupting some of his answers — said Ramirez started subverting his authority repeatedly as soon as he took the reins of the department. He said attempts to “clear up issues” and “wipe the slate clean” with Ramirez were unsuccessful.
In the aftermath of one private meeting with Ramirez, Gerbino reported the situation to Klimm, he said.
Wilson — who chided the chief occasionally for not answering her questions — asked Gerbino if he ever disciplined Ramirez. The chief said he attempted to issue a written warning but was unsuccessful. He said Ramirez refused to close the door to the office where they met and accused the chief of threatening him.
Much of Gerbino’s testimony centered on the hiring of Alexander Griffin, a police officer who joined the Rincon Police Department while Ramirez was in charge. Gerbino asserted that a proper background check wasn’t done on Griffin, who was terminated from the Springfield Police Department, and Ramirez lied about it to him and Klimm.
Wilson countered that other officers were involved in the hiring of Griffin, a black officer who ended up getting fired in Rincon, too. Gerbino cited “safety” concerns about Griffin that were noted in his Springfield records.
Klimm, in a document not presented during the hearing, wrote that Ramirez “knowingly withheld information from the officers he assigned to investigate Griffin’s background and failed to communicate concerns about Griffin from another officer to myself or city council.”
In the document, Klimm went on to say, “I concurred with Chief Gerbino that violations outlined in this recommendation for termination constituted gross misconduct and warranted immediate dismissal.”
At the start of the hearing, Dickey explained rules of the hearing that were established by the city council. One was that all questions had to be directly related to the grounds for dismissal listed in Ramirez’s termination documents. Another was that the panel had to agree with one only one of Gerbino’s reasons to terminate Ramirez to uphold his decision.
Wilson immediately drew Dickey’s ire when she strayed from the city council’s parameters and tried to delve into Gerbino’s service record in other police departments. A 41-year-old native of Puerto Rico, Ramirez has pointed to racial discrimination as the reason for his ouster.
“Mam, we are not going to go into it ...” Dickey said. “You have alleged discrimination and we have an independent investigation that is being conducted at this tiime concerning (Ramirez’s) allegation of discrimination. That has nothing to do with the allegations contained in the separation notice.
“... Council will consider all of the allegations of whatever is presented — discrimination, hostile work environment, whatever that is — council will consider that. That is not for this panel to be considered. We have already sent you the information that council has decided will be reviewed and decided by this panel so we are not going to go into discrimination.”
Wilson replied, “With all due respect, sir, our allegation is that the basis for this termination were discriminatory and retaliatory, and is pretextual and if we are not allowed to explore those alternative reasons for his termination how can we get to a finding of fact here for the basis of his termination.”
Dickey again urged Wilson to take up those concerns with the city council.
While with the Savannah Chatham County Police Department, Gerbino, a 44-year law enforcement veteran, was accused of mistreating officers when he was a major and head of the Criminal Investigation Division. He was investigated for creating a “hostile work environment” in 2010. Nearly two dozen officers were interviewed during the probe.
Some of the “finding of fact” in the investigation in Savannah by Ellis, Painter, Rattee & Adams LLP were:
— “Major Gerbino loses his temper and ‘blows up” at subordinates and other employees of the Police Department.
— “Major Gerbino twists the facts and lies to suit his own purposes.”
— “Major Gerbino is erratic in that he makes impulsive decisions, and will later ‘flip-flop’ on the decision, creating confusion and inefficiency in CID.
— Major Gerbino has spoken in a derogatory manner about employees to other subordinates Citing personal reasons, Gerbino resigned his CID post on Feb. 27, 2011.
Wilson said, “For the record, we strenuously object to the fact that we are not allowed to explore pretextual basis for Lt. Ramirez’s termination.”
Ramirez’s attorneys also protested Gerbino being allowed to read three text messages that he made with his city-issued telephone. In them, Ramirez called Gerbino “nuts” and “crazy.”
The texts weren’t discovered until after Ramirez’s termination.
“I think it’s relevant what Mr. Ramirez was saying about Mr. Gerbino given all the horrible, derogatory names that he has called other people during his prior employment at other police departments,” Benjamin said.
“It’s noted, and the (panel) will take it under consideration,” Dickey said.