The city of San Luis Obispo is firing back at a legal challenge to its termination of a police officer whom city officials contend engaged in a “series of serious judgment errors and misconduct.”
Daniel McDow was an 8-year veteran of the department when he was fired following his detention at the U.S.-Mexico border with fellow officer Armando Limon for trying to cross into the U.S. with a number of prescription drugs in misbranded containers.
The case is set to be heard in San Luis Obispo Superior Court in mid-March.
On Sept. 15, 2009, McDow and Limon brought some 850 pills across the border, some of which it was later discovered contained methylphenidate, a component of the attention deficit disorder medication Ritalin. McDow missed work the next day due to his detention and told his girlfriend to call in sick for him, court records show.
He later pleaded guilty to one federal misdemeanor count of introducing a misbranded drug into interstate commerce and was subsequently fired. Limon also was fired but did not appeal his termination.
McDow did appeal, however, and an independent hearing officer later suggested that he be returned to duty under a “last-chance agreement.” The City Council overruled the arbitrator and upheld his firing in May.
During the city’s internal investigation from September 2009 to August 2010, McDow collected $150,530 while on administrative leave, according to the city human resources department.
In his initial Jan. 14 filing, McDow argued that his termination was excessive, as he didn’t understand complex federal laws about bringing prescription drugs across the border, and had no intention of breaking the law.
“Officer McDow did what thousands of tourists do every day — he purchased and paid for pharmaceuticals from an established brick-and-mortar pharmacy in the tourist town of Ensenada,” the legal brief reads.
McDow’s attorney, Fullerton-based Michael Morgess, did not return a request for comment on the case Friday.
McDow is seeking full reinstatement, with back pay, as well as the deletion of all references to his troubles on his personnel record. In the civil proceedings, McDow’s counsel will bear the burden to prove to a judge that the city abused its discretion.
On Monday, the city filed a response to McDow’s accusations. City Attorney Christine Dietrick said Friday morning that the city’s position on his employment has remained unchanged.
According to the city’s case filing, in addition to his conviction, McDow also violated four specific department regulations pertaining to “conduct unbecoming of an officer,” improper use of sick leave and failing to report his criminal conduct to the department.
McDow also admitted guilt, testifying during the administrative hearings, “I soiled my family tree, because this department is and always has been my family. And if I tarnish myself, I tarnish them,” according to the filing.
The city contends that even though the Mexican pharmacist told McDow that he would be all right to cross the border as long as he didn’t bring with him any drugs that required a prescription, McDow didn’t ensure that the pills with no markings — which turned out to be generic Ritalin and Viagra — did not require a prescription.
Additionally, McDow purchased the muscle-relaxing medication Soma, which he claimed to have a prescription for, according to the record. The city contends there is no proof that McDow ever had a prescription for Soma.
“Simply put, McDow argues that the border incident was a onetime good faith error in judgment,” it reads. “However, his argument strains the credulity of any rational observer.”
Lastly, the city acknowledged that incidents like McDow’s “tarnish and create a negative image of law enforcement officers in the eyes of the public” and that McDow “reflected negatively on the image of the San Luis Obispo Police Department.”
“His continuing, glaring lack of insight and accountability suggest that serious lapses in judgment are more of a character trait, rather than a deviation,” the city’s brief reads.
“Next time, the poor judgment could be on duty, in the heat of the moment, when the public’s safety is at issue.”
Both sides are scheduled to appear for a hearing in Superior Court on March 17.