Credit: Darrow Montgomery/file

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In the early morning hours of Jan. 11, 2009, D.C. Police Officer Jay Hong crossed the center line on a road and crashed into another vehicle. Both he and his woman passenger had been drinking. The woman was found unconscious and partially nude on the passenger side floorboard, and she later accused Hong of sexual assault. Hong’s loaded, unholstered gun was nearby.

Hong pleaded guilty to driving while intoxicated, and the Metropolitan Police Department ultimately fired him in 2010.

But six years later, Hong’s termination was overturned by a third-party arbitrator, who found “insufficient evidence of sexual assault” and found that termination was too harsh a penalty for a cop who, at the very least, got into a drunk driving collision with a loaded gun in the car. The arbitrator determined that a 35-day suspension was more appropriate.

But MPD refused to give Hong his job back. It took multiple additional levels of appeals—in front of the Public Employee Relations Board and in the D.C. Superior Court—before the department was forced to reinstate him on Feb. 19, 2021. He received $290,811 in back pay and remains a police officer to this today, assigned to the security officers management branch of the Internal Affairs Bureau.

Hong’s case is just one example of the long and complicated process that allows D.C. police officers to keep their jobs even after they’ve been found to have engaged in serious, and sometimes repeated, misconduct, including criminal offenses.

The full scope of this problem and what it has cost D.C. taxpayers, is detailed in an explosive report released this week from D.C. Auditor Kathy Patterson.

From October 2015 to March 2021, the Office of the D.C. Auditor found that MPD fired 49 officers and was forced to rehire 37 officers. The department paid out $14.3 million in back wages to 36 of those officers after their appeals crawled toward a resolution. As of this month, the auditor reports, 15 of the officers who were reinstated are still employed with MPD (most of the others either retired or resigned; one was terminated, and another is deceased). Three of those officers, including Hong, are classified by ODCA as a “threat to safety.”

ODCA defined threat to safety cases as those that “include risk of harm to persons through action or inaction, such as physical and sexual violence, mishandling firearms, or compromising evidence related to an arrest.”

The other two officers tagged as safety threats, who are still employed with MPD, are Wilberto Flores and Richard Mazloom, according to ODCA.

Flores was convicted in a criminal court of exposing his genitals to women in the parking lot of a grocery store in 2010, according to the report, which cites information from MPD and the Office of Employee Appeals. He was sentenced to 30 days in jail and three years of probation and was fired by MPD, against the recommendation of an Adverse Action Panel, which is a tribunal of MPD brass who recommend discipline.

Flores was reinstated in December of 2016 and paid $362,461 in backpay, according to ODCA. Between 2016 and the release of the auditor’s report, he engaged in three more acts of misconduct, including crashing an MPD vehicle. He is assigned to the Third District.

Mazloom was the subject of three complaints submitted to the Office of Police Complaints before he went out drinking with friends while off duty and with his service weapon on him in August of 2011. (The Office of Police Complaints is an independent agency that investigates police misconduct but has no authority to mete out discipline.)

That night, Mazloom got into a fight on H Street NE, the auditor’s report says. He was later fired, but an arbitrator overturned his termination, in part because they “thought the evidence showed Mazloom was not the aggressor and the other party instigated the fight.” He was reinstated in January 2019 with $205,661 in back pay.

Since then, Mazloom has racked up two more OPC complaints and another instance of sustained misconduct from MPD. He is assigned to the First District.

Notably, Patterson included an appendix in her report that identifies each of the rehired officers by name. MPD has historically kept officers’ names confidential, especially in connection to their misconduct. It took an act of the D.C. Council, and a court ruling, to force MPD to identify officers who killed residents, for example. Patterson’s report is a major breakthrough in that regard.

These cops are able to keep their jobs for several different reasons, the auditor’s report explains, including insufficient evidence, a conflict with the Adverse Action Panel’s recommendation, and an arbitrator’s ruling that termination is excessive.

But in 39 percent of the cases, terminations were over turned because MPD missed an administrative deadline. The department has 90 days from the start of an investigation to provide officers with a notice of proposed discipline. And the department has 55 days after an officer requests a panel hearing to issue a final notice of discipline.

“In meetings with ODCA, current MPD management expressed frustration over the reinstatement of ‘bad cops’ and concern that MPD officers are demoralized when their colleagues are reinstated despite breaking the rules,” the auditor’s report says. “They suggested that officers may be more likely to engage in misconduct when they believe they have a good chance of overturning any resulting discipline.”

Patterson makes eight recommendations in the report, including the suggestion that MPD should meet statutory deadlines for handing out discipline. Patterson also recommends MPD analyze disciplinary data each year to identify trends.

In response to ODCA’s report, Chief Robert Contee writes in a letter, included in the audit, that he agrees with most of the recommendations. Contee’s relatively minor disagreement comes in response to recommendation No. 2, which suggests the D.C. Council codify a “table of penalties” to make disciplinary decisions less subjective and more uniform. Contee says that process should be done through rule-making instead of with legislation. ODCA, however, did not change its recommendation in response to Contee’s note, and opted to leave that decision up to the Council.

Council Chair Phil Mendelson introduced legislation that will effectively eliminate arbitration from the disciplinary process for police officers.

Patterson says that will have a positive impact, but arbitration is only one step in the process. Adverse Action Panels are codified into law, for example. “Does that make sense today?” Patterson says in a phone call with City Paper. “These are questions policymakers must grapple with. It speaks to something that is not simple to resolve.”