Although former rookie Officer Joel Follmer was an “at will” employee of the city of Austin, and as such not officially covered by civil service law when he was terminated earlier this month by Acting Police Chief Cathy Ellison, he nonetheless is barred from seeking reinstatement via policies that protect “regular” city employees, city Human Resources Director Cathy Rodgers opined on June 12. In other words, says Follmer’s attorney Tom Stribling, it appears that being a probationary public safety employee in Austin – either a rookie cop or firefighter – means being an employee of no-man’s land, working toward the promise of civil service protection, but without any interim employment protection. “The point is that [the city] just [doesn’t] want to give rookie police officers and firefighters who’ve worked for the city at least six months, but are still on probation, any route for an appeal,” Stribling said. “Not even the route that other city employees have.”
Ellison fired Follmer on June 2 for using excessive force last fall while arresting 25-year-old Ramon Hernandez. Although Follmer was one of three officers involved in the arrest, he was the only officer fired in connection with the incident. An APD in-car video camera recorded a portion of the arrest; the video depicts Officer Christopher Gray, Follmer, and former Officer William Heilman pinning a handcuffed and sometimes-squirming Hernandez face-down on the ground. During the struggle, Gray is seen delivering numerous blows to Hernandez’s lower back/kidney area, while Heilman keeps Hernandez’s torso and head planted in the dirt and Follmer keeps Hernandez’s legs pinned while intermittently delivering several seemingly light blows to his legs. The three officers were indicted by a Travis Co. grand jury last winter on a charge of official oppression for their actions while arresting Hernandez, who’d fled from the scene of a traffic accident. Gray and Heilman (who resigned from the department shortly after the Hernandez arrest) were both tried and acquitted in Travis Co. district court, and prosecutors later dropped the criminal charge on Follmer; in April, former APD Chief Stan Knee handed Gray a 70-day suspension for using excessive force during the arrest and for “acts bringing discredit” to the department. Officially, Follmer was let go for failing to “meet the standards expected of a probationary police officer,” Ellison wrote in a one-paragraph termination letter. “Since you are a probationary officer, my decision is final and not subject to the appeal process” outlined in civil service law. Since Follmer was only several months out of the academy, and was still facing a year on probationary status, and thus not protected by civil service law – meaning he is barred from pursuing reinstatement through arbitration – Ellison was not required to pen a disciplinary letter containing the detailed reasons for Follmer’s termination
Nonetheless, Stribling says Follmer’s termination seems to hinge on what Ellison sees as “inconsistencies” in the statements Follmer gave to Internal Affairs detectives and to investigators in the department’s Integrity Crimes Unit, which reviews allegations of criminal misconduct by police and other public officials. Stribling says that during Follmer’s disciplinary review-board hearing, Ellison focused on a single answer Follmer gave to IA detectives as evidence that Follmer offered inconsistent explanations as to why he hit Hernandez. According to Stribling, Follmer told both IA and ICU officers that he hit Hernandez because he continued to struggle with the officers. Late in the questioning, however, Follmer told IA – in response to a direct question – that he might not have struck Hernandez if Gray, who was Follmer’s field training officer and thus responsible for evaluating Follmer’s performance during part of his probationary period, hadn’t first struck the handcuffed man. Stribling says it was that answer that Ellison used as the basis to complain that Follmer was inconsistent.
That makes little – if any – sense to Stribling. Follmer repeatedly tried to explain that Gray’s presence and actions weren’t his primary reason for striking Hernandez and that he had merely answered honestly a question put to him, Stribling said. Nonetheless, Stribling recalled that Ellison kept saying that given the inconsistent statements she didn’t know how the department would be able to trust his reasoning in the future. With that, she dismissed his employment – a move that is, at best, ironic, said Stribling, considering that Gray, who punched Hernandez repeatedly – a show of force that Chief Knee deemed excessive and outside policy – and who was supposedly acting as Follmer’s seasoned mentor, was allowed to keep his job.
To some officers, Ellison’s decision isn’t exactly a harbinger of an even-handed disciplinarian – instead, the new sitting chief’s first punitive decision looks more like an arbitrary smackdown, they say. Stribling tends to agree – Follmer was allowed to return to the street for several months after the incident but before he was indicted late last year, a move that appears to belie Ellison’s assertion that Follmer is not to be trusted. “I’m sitting there [in Follmer’s DRB hearing], thinking, ‘If you’re being intellectually dishonest [with your reasoning], well, okay; but if you’re really that stupid [as to believe Follmer’s answers were “inconsistent”] then that’s scary.'”
Stribling filed an official notice of Follmer’s appeal with Human Resources’ Rodgers on June 7, seeking review by a hearing examiner who would be tasked with reviewing the case and then recommending to City Manager Toby Futrell whether Follmer’s termination should be upheld or whether a lesser punishment would be warranted; Futrell would have the final say. As it stands, however, Rodgers has – at least for now – quashed Follmer’s request, thus upholding his firing. At press time, Stribling said he was reviewing city policy and exploring the possibility of other avenues for appeal
This article appears in June 16 • 2006.