MEMORANDUM Austin Police Department Office of the Chief of Police Joya Hayes, Director of Civil Service FROM: Brian Manley, Interim Chief of Police DATE: November 3, 2017 SUBJECT: Indefinite Suspension of Detective Mark Luera # 4620 Intemal Affairs Control Number 2017-0582 Pursuant to the provisions of Chapter 143 of the Texas Local Government Code, Section 143.052, and Rule 10, Rules of Procedure for the Firefighters’, Police Officers’ and Emergency Medical Service Personnel’s Civil Service Commission, I have indefinitely suspended Police Detective Mark Luera # 4620 from duty as a City of Austin, Texas police officer effective November 3, 2017. T took this action because Detective Luera violated Civil Service Commission Rule 10.03, which sets forth the grounds for disciplinary suspensions of employees in the classified service, and states: ‘No employee of the classified service of the City of Austin shall engage in, or be involved in, any of the following acts or conduct, and the same shall constitute cause for suspension of an employee from the classified service of the City: L. Violation of any of the rules and regulations of the Fire Department or Police Department or of special orders, as applicable. The following are the specific acts committed by Detective Luera in violation of Rule 10:On May 8, 2017, Detective Luera was assigned to the Criminal Interdiction Unit (CIU) within the APD Organized Crime Division assigned to work at Austin Bergstrom International Airport (ABIA), Detective Luera was issued a Security Identification Display ‘Area (SIDA) access badge by ABIA’s Operations/Security (OPSEC) department to facilitate his supervisory and investigatory duties while overseeing and conducting interdiction operations at the airport. SIDA badge access is closely monitored and strictly enforced by OPSEC personnel in adherence with federal guidelines to ensure the safety of travelers, employees, and other individuals affected by airport operations. A SIDA badge is issued only after an applicant has completed a comprehensive training program and successfully passed a competency exam. Detective Luera completed the requisite training and passed the ensuing exam on March 14, 2017 and was issued his SIDA badge the same day. During the badge issuance process, Detective Luera acknowledged and signed a “Terms and Conditions” agreement which outline — among other things ~ the following prohibitions: «This [SIDA] badge is issued for my Individual Use Only and I will not under any conditions allow another individual to use it. ‘© Lagree that I will not piggyback through any designated door or gate and will not allow anyone else to piggyback behind me. ‘© Tagree to comply with all ABIA Escort Procedures. 1 agree that if I travel as a passenger I must access the sterile area through a TSA screening checkpoint with any property I intend to carry onboard the aircraft and remain in the sterile area after entering. Detective Luera also acknowledged and signed the ABLA Escort Procedures form that accompanies the SIDA badge training. The escort procedures outline, in part, the following mandates: © Only individuals with current unescorted access authority are permitted to escort. + Individuals escorted into a sterile area, who have not been cleared at the screening checkpoint, must remain under escort until they exit the area The maximum number of individuals who can be escorted is three (3). Furthermore, any violation of the airport’s security procedures can result in the suspension, revocation, and/or denial of SIDA badge privileges. Additionally, the City of Austin can be penalized by the Transportation Security Administration (TSA) or Federal Aviation Authority (FAA) for security violations committed by an authorized badge holder. Security at ABIA is provided by the City of Austin Aviation Department (owner/operator of the airport), the federal government (primarily through the TSA), air carriers, private security contractors, and other entities. OPSEC take initial responsibility for responding to the airport's access control system alarms. APD is responsible for providing law enforcement at the airport, Access to the airport's gates by passengers is controlled by the‘TSA, and all travelers and their property are subject to sorcenin, a security checkpoint and metal detector. On May 8, 2017, Detective Luera was booked on a Southwest Airlines flight from ABIA to Cancun, Mexico. Detective Luera was accompanied by his wife, his two children, and two adult friends, who were all booked on the same flight. Detective Lucra escorted his family and his friends downstairs to the police office located inside the terminal. The police office is considered a “secure area” and requires a SIDA badge to gain entry. This was the beginning of a deliberate, concerted scheme by Detective Luera to circumvent the SIDA and ABIA Escort Procedures for the benefit of himself, his family, and his friends. Detective Luera then led his family and his friends through a back corridor and into a sterile area of the airport without any of them or their property being screened at a TSA security checkpoint (he first escorted his friends to the terminal then went back to the police office for his wife and children). In doing so, Detective Luera navigated locked doors in the corridor which required him io use his APD/SIDA credentials. The electronic log documenting Detective Luera’s SIDA badge transactions on May 8, 2017, revealed he used his badge nine times during the incident to bypass secured access points in order to circumvent the TSA security checkpoint with his family and friends. Detective Luera’s friends boarded their plane without them or their property being screened by security. Afler Detective Luera accessed the sterile area of the airport, the APD reccived a call from airport security personnel about the possible security breach. This security breach was reported by a civilian employee who observed Detective Luera and his family apparently circumventing security procedures by accessing the terminal through the back corridor. ‘The witness notified an ABLA Operations Supervisor and the breach was confirmed after reviewing video surveillance. ‘Two APD officers, including Officer Michael Pont, located Detective Luera and his family ina gift shop and took them to a nearby check point to be screened (his friends had already boarded the aircraft). Officer Pont briefly interviewed Detective Luera to obtain the basic details of the incident. During his initial statement to Officer Pont, Detective Luera failed to speak truthfully or inform Officer Pont or the other responding personnel, that two of his friends had also bypassed TSA screening at his direction and boarded the aircraft. In fact, Officer Pont specifically asked Detective Luera who else was with him, but he only mentioned his family members. (Detective Luera told IA he did not disclose the truth because he did not want his friends “to be bothered” and knew they would not do anything illegal). ‘Two APD Sergeants (Michael Brown and Steve Rodriguez) subsequently responded to the check point and interviewed Detective Luera approximately twenty minutes later. During his initial statements to Sergeant Brown, Detective Luera yet again failed to speale truthfully or provide information about his friends. Omitting the fact that he had also assisted his two friends with bypassing security during his respective statements to Officer Pont and Sergeant Brown were acts of dishonesty. (In his IA interview, Detective Lueraacknowledged that he should have been more forthcoming about his two friends when he ‘was first stopped and questioned about the incident during this criminal investigation). After completing his initiel interview with Detective Luera, Sergeant Brown then leamed ‘TSA personnel had received information that Detective Luera may have allowed others to accompany him while bypassing security. Sergeant Brown reestablished contact with Detective Luera in an aitempt to clarify the issue, Sergeant Brown asked Detective Luera again if there were others in his party besides his wife and children. Detective Luera told him no, Sergeant Brown, who suspected Detective Luera was being untruthful, immediately re-asked the question. Detective Luera finally conceded there were two other people with him but said they were, “long gone.” This was another lie as the flight had not yet departed. Sergeant Brown asked if the friends had been screened by TSA and Detective ‘Luera answered in the affirmative. In fact, Detective Luera knew that his friends had not been screened because he had escorted them around the security cheok point and he was booked on the same flight. (In his IA interview, Detective Luera admitted that he lied to Sergeant Brown during this criminal investigation). Detective Luera’s friends were subsequently located on the plane and removed by the police, Detective Luera, his family, and his friends left the airport and rescheduled their flight to Mexico for the next day. In addition to his false and misleading statements about whether or not his friends had bypassed security, Detective Luera told several of the responding officeis and investigators that the decision to bypass security was made spontaneously on the day of the incident, either as a time-saving measure or to etable him to use the bathroom in the police office located within the terminal. However, one of Detective Luera’s two friends told the APD Special Investigations Unit (SIU) and JA that Detective Luera first mentioned bypassing security protocols at ABJA during a social gathering 2-4 weeks before the trip. This assertion revealed that Detective Luera developed and carried out a deliberate, concerted plan to violate the ABIA security procedures. This incident was not the result of a spontaneous decision, as Detective Luera initially claimed. When questioned on this point by IA, Detective Luera conceded he had already made the decision to bypass security as much as much as three weeks ptior to the flight. Moreover, during his IA interview, Detective Lucra admitted that he knowingly and intentionally used his law enforcement credentials to circumvent the established TSA security checkpoint at ABIA with his family and friends, and admitted his actions violated the ABIA security training he received prior to receiving his SIDA badge. On the day of the incident, Detective Luera was issued a citation for a violation of Austin City Code 13-1-83: Circumvention of Screening Prohibited. He subsequently pled no contest and was fined $370.00. This incident was also investigated and documented by the TSA. Detective Luera violated Part 1540.107(2), Title 49 of the Federal Code of Regulations (Submission to Screening and Inspection), which resulted in a $2000 fine.Detective Luera’s SIDA badge was revoked due to his actions. Moreover, his multiple lies, misstatements and/or omission of pertinent information during a criminal investigation were acts of dishonesty that are addressed in the criminal elements of a False Report to a Peace Officer, a Class B misdemeanor violation pursuant to Texas Penal Code Section 37.08 (a) (1) and/or (a) (2). Insum, Detective Luera’s deceptive actions and dishonest statements throughout the events of May 8, 2017, have brought significant discredit to the APD. His dishonest statements during the criminal investigation will compromise his credibility as a witness if he continues to serve as a police officer (i. Brady material). By these actions, Detective Luera violated Rule 10.03(L) of the Civil Service Rules by violating the following rales and regulations of the Austin Police Department: > Austin Police Department Policy 900.1, Responsibility to Know and Comply 900.1 PURPOSE AND SCOPE, Itis the policy of the Austin Police Department that employees conduct themselves at all times in a manner that reflects the ethical standards consistent with APD written directives. This policy shall apply to all sworn and civilian members, including volunteer, part-time, auxiliary, and nonpaid civilians affiliated with the Department through a Department-sponsored program while under the direction of a Department employee. This policy is intended to guide employees in conducting themselves and their affairs, both on-duty and off-duty, in a manner that reflects the professionalism required of Department personnel. Furthermore, this policy is intended for internal use only and shall not be construed to increase or establish an employee's civil or criminal liability, nor shall it be construed to create or establish a higher standard of safety or care. 90.1.1 RESPONSIBILITY TO KNOW AND COMPLY The rules of conduct set forth in this policy do not serve as an all-inclusive list of requirements, limitations, or prohibitions on employee conduct and activities; employees are required to know and comply with all Department policies, procedures, and written directives. (@ Employees will maintain a working knowledge and comply with the laws, ordinances, statutes, regulations, and APD written directives which pertain to their assigned duties. (&) Employees who do not understand their assigned duties or responsibilities will read «the relevant directives and guidelines, and will consult their immediate supervisor for clarification and explanation. (©) A lack of knowledge of an APD written directive is not a defense to disciplinary action. To wit:Title 49, Code of Federal Regulations, § 1540.107 Submission to screening and inspection. (a) No individual may enter a sterile area or board an aircraft without submitting to the screening and inspection of his or her person and accessible property in accordance with the procedures being applied to control access to that area or aircraft under this subchapter. City of Austin Code of Ordinances: § 13-1-83 — Circumvention of Screening Prohibited (a) A person not otherwise exempt under law from the screening process, may not introduce an item, package, object, or device into a sterile area unless the item, package, object, or device has been suibmitted for screening by an authorized person’at a screening location. (b) A person shall comply with a screening process designed to detect weapons and explosives in compliance with applicable aviation law. A person shall remain at the screening location until all items, packages, objects, or devices introduced by that person into the sterile are have completed the screening process. (©)A person may not interfere with, assault, threaten, or intimidate screening personnel in the performance of their official duties. Texas Penal Code Sec. 37.08. False Report To Peace Officer, Federal Special Investigator, Or Law Enforcement Employee. (@) A person commits an offense if, with intent to deceive, he knowingly makes a false statement that is material to a criminal investigation and makes the statement a (1) a peace officer or federal special investigator conducting the investigation; or 2) any employee of a law enforcement agency that is authorized by the agency to conduct the investigation and that the actor knows is conducting the investigation, (b) In this section, "law enforcement agency” has the meaning assigned by Article 59.01, Code of Criminal Procedure. (©) An offense under this section is a Class B misdemeanor. > Austin Police Department Policy 900.3.1: Honesty900.3 GENERAL CONDUCT This section covitains the expectations and requirements of employee conduct, both on- duty and off-duty, and causes for disciplinary action due to employee misconduct. This is not intended to cover every possible type of misconduct and does not preclude the recommendation of disciplinary action for specific action or inaction that is detrimental to efficient Department service. 900.3. HONESTY Honesty is of the utmost importance in the police profession. Employees are expected to be truthful at all times in the performance of their duties. (a) Employees will speak the truth at all times and reflect the truth in all reports and written communications. Any statement or omission of pertinent or material information which intentionally misrepresents facts or misleads others through an official statement will be considered a false official statement. The following are examples of an "official statement": 2. Verbal or written statements made by an officer in connection with their official duties to: (a) An investigator conducting an administrative or criminal investigation of the officer or anothet person's conduct. (©) Employees will not attempt to conceal, divert, or mitigate their true culpability ina situation, nor will they engage in efforts to thwart, influence, or interfere with an internal or eriminal investigation. > Austin Police Department Policy 900.3.2: Acts Bringing Discredit Upon the Department 900.3.2 ACTS BRINGING DISCREDIT UPON THE DEPARTMENT ‘Since the, conduet of personnel both on-duty of off-duty may reflect directly upon the Department, employees must conduct themselves at all times in a manner which does not bring reproach, discredit, or embarrassment to the Department or to the City. (a) Employees will not commit any act which tends to destroy public confidence in, and respect for, the Department or which is prejudicial to the good order, efficiency, or discipline of the Department. In deciding the appropriate discipline, I considered « multitude of factors, including the nature of the violations, Detective Luera intentionally and knowingly circumvented TSA security procedures for the benefit of himself, his family, and his friends, and thenrepeatedly lied about the nature and scope of his actions. He jeopardized the security of ABIA and his actions could have resulted in the closure and clearance of the Southwest flight and perhaps the entire terminal, which could have affected air travel across the nation. As noted above, Detective Luera repeatedly lied to the investigating officers, supervisors, and/or TSA and OPSEC regarding what occurred and his motivation for his actions. Dishonesty with an officer conducting a criminal investigation of the officer’s behavior is considered a false official statement. The penalty for the first occurrence of a false official statement under the APD Disciplinary Matrix is an indefinite suspension. By copy of this memo, Detective Luera is hereby advised of this indefinite suspension and that the suspension may be appealed to the Civil Service Commission by filing with the Director of Civil Service, within ten (10) calendar days after receipt of a copy of this memo, a proper notice of appeal in accordance with Section 143.010 of the Texas Local Government Cade. By copy of this memo and as required by Section 143.057 of the Texas Local Government Code, Detective Luera is hereby advised that such section and the Agreement Between the City of Austin and the Austin Police Association provide for an appeal to an independent third party hearing examiner, in accordance with the provisions of such Agreement. If appeal is made to a hearing examiner, all rights of appeal to a District Court are waived, except as provided by Subsection (j) of Section 143.057 of the Texas Local Government Code, That section states that the State District Court may hear appeals of an award of a heating examiner only on the grounds thet the arbitration panel was without jurisdiction or exceeded its jurisdiction, or that the order was procured by fraud, collusion or other unlawful medns. In order to appeal to a hearing examiner, the original notice of appeal Submitted to the Director of Civil Service must state that appeal is made to a hearing [-17 Date ‘TO WHOM IT MAY CONCERN: T hereby acknowledge receipt of the above and foregoing memorandum of indefinite suspension and I have been advised that if I desire to appeal that I have ten (10) calendar days from the date of this receipt to file written notice of appeal with the Director of Civil Service in accordance. the provision of Chapter 143 ofthe Texas Local Government Code. use uf) iE Pole Deactife Mark Luera # 4620 Date