Acevedo Stumbles

APD Cmdr. Larry Oliver (Photo by John Anderson)

In his termination of Austin Police Department Cmdr. Larry Oliver – the subject of a curious civil service hearing last week – APD Chief Art Acevedo appears to have made his first serious disciplinary misstep.

When Acevedo took over leadership of the department last year, he promised to bring high standards and an even hand, under which officers in supervisory positions would be held to a higher standard than their rank-and-file counterparts. Along with higher salary and rank, he reiterated on the stand last week, would come greater accountability. Officers were generally pleased with Acevedo's promises. The nine-year tenure of former Chief Stan Knee had been marked by inequitable disciplinary actions, and it was common for two officers in similar disciplinary circumstances to receive disparate treatment. Knee was also plagued by allegations that his assistant chiefs engaged in retaliation yet were above being held accountable. The ascension of Acevedo promised a much-needed breath of fresh air.

But the Oliver case has raised widespread concerns that while Acevedo may be a different person, business as usual still rules the Fifth Floor.

According to Acevedo, Oliver failed to report comments made to him by a colleague, Cmdr. Calvin Smith, that Oliver considered discriminatory against gay female officers. In discussing the possible transfer of Sgt. Mary Hesalroad to the training academy – a transfer Oliver had verbally approved while serving as training unit commander – Smith, who took over for Oliver in September, asked Oliver, "What kind of message would the department be sending if Mary was allowed to transfer to the academy?" Oliver subsequently recalled to Internal Affairs investigators. Hesalroad is gay, and at the time she was seeking transfer, there were already two other gay females working at the academy. Oliver commented later that Smith seemed to be saying that having three gay women working at the academy would somehow be a bad thing. Oliver told Smith he thought Hesalroad would be a great asset to the academy staff. And that was that – or so Oliver thought. Oliver never reported Smith's comments to a supervisor.

Several months later, however, Smith's comments were disclosed in a formal complaint filed by Hesalroad, who alleged that Smith, when he succeeded Oliver, had indeed denied her transfer to the academy because of her sexual orientation. Hesalroad had been told about Smith's comment by another officer, Lt. Deborah Sawyer, who'd previously filed a discrimination complaint against Smith – Oliver had mentioned to Sawyer his conversation with Smith. When interviewed by IA, Smith admitted the comment but denied it was discriminatory. Instead, he said, he was concerned about fostering "diversity" at the academy and that having three gay female officers assigned there might undermine that goal. "I guess my point was ... if you have too many of any kind of people at ... a workplace ... that might be a problem," he said. (Smith's defense does raise the question whether he believes there is such a thing as "too many heterosexuals.") Internal Affairs recommended that the allegation of workplace discrimination be sustained, but in March Acevedo ruled the allegation "inconclusive" – since Smith offered a neutral explanation for his comment – and handed Smith a 20-day suspension.

APD Chief Art Acevedo (Photo by Jana Birchum)

Oliver didn't fare as well. He acknowledged to investigators that it was wrong not to report Smith's comments, but according to Acevedo and Chief of Staff David Carter, Oliver was insufficiently "contrite" at his dismissal review board hearing in March. Acevedo ultimately gave Oliver a choice: Accept a 30-day suspension, waive his right to appeal, and keep his job, or receive an "indefinite suspension" (the civil service equivalent of termination) and retain the right to appeal the firing to an arbitrator. Part of "accepting responsibility" for his inaction, Acevedo testified last week, was accepting the chief's punishment. Oliver considered the discipline unnecessarily excessive, especially for a 24-year veteran officer with a clean record (he had been disciplined only one other time), and he believed the chief's ultimatum smacked of coercion. So he chose to appeal.

One Man's Joke ...

The contradictions seem almost absurd. Acevedo had concluded that Smith's comment wasn't in fact discriminatory – but because Oliver thought it was, the chief considered the punishment fitting. Oliver's attorney, Tom Stribling, says the discipline itself is out of line. "It's one of the strangest cases I've ever had," he said. Sending a strong message to officers by way of stern discipline is fine, Stribling argues (Acevedo has fired 10 officers since taking the helm last summer), but only if the discipline is evenhanded. In Oliver's case, he contends, it is not.

Acevedo considers the discipline necessary. "The higher you go in the chain of command, the greater the responsibility," Acevedo testified last week. He was "very disappointed" in Oliver, he said. "When you don't report something like that, as a commander, you're setting up the organization for failure."

However, Acevedo's standards for discriminatory comments appear curiously flexible, and Oliver contends that his case offers a stark example of disparate treatment based on rank. On Aug. 9, just a month before his conversation with Smith, Oliver did report to the Fifth Floor offensive comments made by then-Assist­ant Chief Leo Enriquez during a visit to the academy. In front of a group of about 20 people, including civilians, Enriquez explained that officers had been told to dress in their uniforms that day because it was expected that a Travis Co. grand jury would be handing down a decision in the fatal police shooting of Kevin Brown (who was black) by former Sgt. Michael Olsen (who is white). Several people present recalled Enriquez calling the uniforms a precaution because "we don't want them beating up on you white people."

"It was one of those disgusting moments where you're just embarrassed," retired Lt. Kim Nobles testified. "It was just tremendously offensive." Oliver thought so too, so he reported the remark to Chief of Staff Carter. Acevedo says he was notified of Enriquez's comments and that he conducted "intensive counseling" with Enriquez, ultimately requiring him to go back to the academy and apologize. No investigation was undertaken, and no witnesses were interviewed about Enriquez's comments – aside from one person, the white APD chaplain whom Acevedo talked to, who said he didn't find the comments discriminatory. (The chaplain testified that he replied to Enriquez with his own quip, "On behalf of all white people, we thank you.") Enriquez returned to the academy but in fact didn't apologize to the original group; instead, he called a meeting with subordinates of Oliver, telling them that Oliver would soon be transferred. Less than a month later, Oliver was moved to a new job, and Smith was brought in to take his place.

Oliver's Stand

Oliver was quick to say that he does not believe Acevedo retaliated against him for reporting Enriquez, but he said that Enriquez's attitude toward him became vindictive and that his decision not to report Smith's comments might have been influenced by his negative experience with Enriquez. (Last month, Enriquez retired unexpectedly, amid questions about possible misconduct unrelated to this case.) Acevedo insisted that comparing Enri­quez's comments to Smith's is comparing "apples to oranges." Enriquez "was trying to be humorous," Acevedo explained, and he had apologized for his "poor joke" about trying to avoid "civil unrest." Oliver, who is eligible for retirement, could have accepted the 30-day suspension and moved on. But on principle, attorney Stribling said, he couldn't let the matter rest; discipline can be firm, but it should also be equitable. This story "isn't just about Larry Oliver," Austin Police Association Vice President Wuthipong "Tank" Tantaksinanukij told reporters; it's about the 1,500 officers "Larry Oliver is standing up for."

A decision on Oliver's case is expected in early August.