Former Los Alamos Police Commander Randy Foster, former Commander Scott Mills and former Los Alamos Police Detective Paige Early have announced that on Feb. 4, 2016 they settled their claims against Los Alamos County for $2 million.
Settlement vindicates former Los Alamos Police Commander Randy Foster
According to a statement released from the Hemphill Firm: As part of the settlement the County rescinded Foster’s termination and offered the three Plaintiffs reinstatement to their former positions (which they declined).
Further, the County agreed to expunge discipline from the personnel files of Foster and Mills. The settlement entirely vindicates the actions of the three Plaintiffs, who acted to protect the Los Alamos community from a perceived threat from a fellow officer who doctors assessed as being potentially violent and dangerous.
They were variously disciplined, fired and mistreated for acting in good faith to protect public safety. This settlement is a significant victory for the Plaintiffs and hopefully will inspire other whistleblowers to act in good faith to protect their communities even when their employer retaliates against them for revealing the truth.
Settlement vindicates former Los Alamos Police Commander Scott Mills
Through Santa Fe attorneys George Geran and Linda Hemphill, with assistance later also provided by attorney Margaret McLean, the Plaintiffs filed suit against Los Alamos County in January 2014. As stated in their initial Complaint and other public filings, Commander Foster had been wrongfully terminated and Commander Mills and Detective Early had been wrongfully and constructively discharged for whistleblower activity.
Plaintiffs had voiced concerns about the mental health of their co-worker, former LAPD Detective Brian Schamber. Early alleged that she had been reporting Schamber’s consistently disturbing conduct and remarks about hurting others to Chief of Police Wayne Torpy for a period of approximately 18 months before the events of Dec. 21, 2012 culminated in Schamber’s involuntary hospitalization on the grounds of being a danger to himself or others.
Early also claimed that Chief Torpy had discriminated against her based on gender by requiring her to “babysit” Schamber, and further alleged that Chief Torpy refused to address her safety complaints, thus subjecting her to an extremely hostile work environment.
Settlement vindicates former Los Alamos Police Detective Paige Early
The filed Complaint alleged that on Dec. 21, 2012, Early reported that Schamber had swerved his police unit at a pedestrian and made statements about killing the pedestrian with his police vehicle. Schamber later stated that he was not going to carry his gun to work anymore because he was a danger to others. Early reported this to Commander Mills and then acting Chief Foster (who was then Acting Chief of Police due to Torpy’s stroke a month earlier). Schamber then told the two Commanders that he did not want to be on CNN for killing 20 kids and that he had demons in his head telling him to kill.
With the assistance of Schamber’s psychiatrist, Gregory Baca, M.D., Schamber went voluntarily to Los Alamos Medical Center where Christopher Gutierrez, M.D. signed a commitment order requiring that Schamber be transported to the New Mexico Behavioral Health Institute in Las Vegas. While the LAMC staff arranged the hospitalization, Schamber eloped from LAMC, necessitating an all-hands search to effectuate his previously voluntary hospitalization, and compliance with the orders of the doctors.
The hospitalization of Detective Schamber occurred one week after the Sandy Hook Massacre in Newtown, Connecticut, which claimed the lives of 20 school children and 6 adults. As alleged in the Complaint, the hospitalization followed Schamber’s Dec. 17, 2012 Facebook posting stating that the police no longer could “involuntarily hold” persons they believed to be a danger to themselves and others. The posting then listed some 50 mass murders throughout the United States.
Plaintiffs’ Complaint alleged that Torpy originally praised the handling of the situation by Foster and Mills. After Schamber threatened the County with a $25,000,000 lawsuit, however, Torpy told Foster and Mills that he was not going to lose his own job and that they needed to make sure that Schamber got settlement money. According to pleadings filed in the lawsuit, Torpy ignored the medical opinions provided by the physicians at NMBHI, Dr. Gutierrez, and Dr. Baca about Schamber’s fitness for duty.
Torpy then hired Dr. Susan Cave, who concluded that Schamber was fit for duty. When Schamber failed to return to work, the County filed a lawsuit against him asking a federal judge to declare that he could carry a weapon. Schamber then counterclaimed against the County, Dr. Baca, Foster and Mills, but the three individuals were never served.
Although attorneys for Foster and Mills wrote to the Los Alamos County Council July 1, 2013 contending that Torpy and County Administrator Harry Burgess had been working to allow Schamber to keep his job or in the alternative to secure a tort award from the County and to resign instead of being appropriately disciplined, the County ignored Plaintiffs’ demands for full investigation of Schamber, Torpy and Burgess’s conduct. Instead, the County opted, without conducting any discovery, to settle the lawsuit the County originally filed by paying Schamber $600,000 in the fall of 2013.
Plaintiffs believed that the settlement with Schamber, which required that he relinquish his law enforcement certification, was a fraud against taxpayers, in part, because the New Mexico Law Enforcement Academy Board had already been proceeding against Schamber’s license at the time that the settlement occurred. Consequently, the County did not need to pay Schamber money to secure the relinquishment of his license.
Plaintiffs’ Complaint alleges that Schamber, who was placed on paid administrative leave by the County for almost a year, received only minor discipline for his unstable and potentially dangerous conduct. Foster, on the other hand, was wrongfully disciplined and ultimately terminated after bringing this situation to light. Mills and Early ultimately resigned after they were subjected to an ongoing hostile work environment because of their complaints and because of the County’s refusal to substantively address their grievances, including complaints that Early had been subjected to gender discrimination.
The settlement followed more than thirty months of extensive litigation and pre-litigation work by the Plaintiffs. The case was so contentious that at one hearing in October 2015 before presiding Judge Raymond Ortiz of the First Judicial District in connection with Plaintiffs’ Motion to force the County to provide them with missing discovery, the Court found that the County’s answers to discovery “are all deficient in a number of respects, including that some of the information provided by the County is demonstrably false.” This finding ultimately led to the County being required to pay Plaintiffs’ attorney’s fees related to the Motion in the amount of $21,153.43.
When asked about the litigation and its result, Scott Mills said, on behalf of all three Plaintiffs:
“This lawsuit has never been about money, it has always been about doing the right thing and protecting our community, even in the face of unimaginable adversity. Just one short week after the devastation of the Sandy Hook Massacre, Randy Foster, Paige Early and I protected our community from a fellow officer who had clearly expressed his intentions of doing similar harm in Los Alamos. After taking the necessary steps to protect the children and citizens of our community, we were persecuted, harassed and run out of town by a deceitful and self-serving County Administration.
“Our basic employee rights were violated and the remedies that should have afforded us by the protections guaranteed by the County’s Personnel Rules, Grievance Process and Personnel Board were blatantly ignored and denied to us by members of the County’s Senior Administration in their effort to cover up their own misdeeds and collusion.”
Attorney Geran said: “Problems like this don’t arise in a vacuum. Throughout the Schamber matter there was a pattern of County officials thinking they knew what had happened and what to do about it. Set ideas like that are dangerous in government. Here, those fixed beliefs were allowed to influence the results of three investigations because the County decision-makers did not honor the procedural divide of investigate first, decide later.
“Foster, Mills and Early, all of whom were good, established officers doing their jobs, were blamed when they did nothing wrong. Los Alamos officials should reassess how they govern, and folks like the County Council members should seriously question whether or not they are properly exercising their responsibility to supervise the County. Someone needed to question the County decision-makers. Someone needed to say the Emperor has no clothes.”
Attorney Hemphill, concurred, saying: “It was an honor to represent three officers so committed to the safety of their community that they brought to the attention of medical community disturbing behavior they had observed in a fellow officer. They also had the courage to protest the payment of $600,000 to that officer in a frivolous lawsuit, which cost them dearly. The community owes them a great debt for standing up for what is right.”
All three Plaintiffs have secured new employment. Former Commander Randy Foster is now the Chief of Police in Bloomfield, N.M. Former Detective Early has given up police work entirely, and works as an Investigator for the State of Alaska. Former Commander Scott Mills is a Sergeant with a Colorado Police Department.
Los Alamos County Public Information Officer Julie Habiger issued the following statement:
“The New Mexico Self-Insurer’s Fund and former Los Alamos Police Department employees Randy Foster, Scott Mills and Paige Early reached a settlement agreement on Feb. 4, 2016. Under the agreement, the New Mexico Self-Insurer’s Fund agreed to pay $2 million in total settlement to the claimants.
“The County was represented in the settlement by the New Mexico Self-Insurer’s Fund (NMSIF), an insurance pool of New Mexico municipalities and other political subdivisions, including the County, through an arrangement with the New Mexico Municipal League. It was the decision of the Self-Insurer’s Fund to settle the case before it was tried in court, as is the prerogative of the NMSIF under the insurance policy. This settlement specifically stated that there were no findings of fault nor admissions of liability by either party, but that the agreement was based solely on the consideration of the economic costs of proceeding with the case.”