- Matthew Schniper
- Claims filed with the city of Fountain allege racial and gender discrimination.
After being sexually harassed for years — by a superior officer who asked her for a "quickie" because he said she needed "some dick" — a female Fountain Police Department officer was forced to resign by that very officer, who's since been promoted, her legal claim says.
She isn't the only officer to accuse Fountain Department of Public Safety Director and Police Chief Chris Heberer of a sort of perverse housecleaning: flagging experienced cops with trumped-up charges and harassing them into resigning under pressure. So far, four cops and a firefighter have filed claims against the city of Fountain, a precursor to a lawsuit, according to records obtained by the Independent through open records requests and sources. The firefighter remains on the job, and one police officer is on administrative leave. The others are gone and have yet to be replaced.
The casualty list also includes a black officer who served more than a decade and a 17-year officer of Asian heritage. The other officer, the only Mexican-American on the force, his attorney notes, remains on the payroll but hasn't returned to work after he was pressured by Heberer to report sexual harassment misconduct by others and did so, saying command staff members were "preying on new female recruits." He says he was later pressured by the deputy chief to resign.
All those who have left allege they resigned under duress (known as "constructive discharge" in legal lingo) based on racial and gender discrimination and sexual harassment. And attorney Andrew Swan, who represents four of the five claimants, says people don't "get forced out without the chief's approval." The claims seek a combined total of $3.5 million in damages, or in some cases, reinstatement.
"It appears that discriminatory and retaliatory conduct are rife in FPD's [Fountain Police Department] workplace," Hollie Wieland, an attorney for one claimant, said in a claim letter.
It's worth noting that the claims are allegations and so far unproven. The city didn't respond to a query by the Indy's press time asking if any claims had been settled.
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Heberer, chief since 2015, denies the allegations, saying in an interview, "each of them made individual decisions."
"I can't comment on any specifics," he says, "but let me tell you this: I don't have legal problems. I had four or five individuals that lacked the ability to take responsibility for their actions, period. I fired nobody. People resigned. People are still here. People decided to retire on their own accord. Period.
"We treat people the same, regardless of who they are," he adds. "We treat them equal under the law, in accordance with the law, in accordance with good conduct, good discipline."
But, Heberer says, he has "a contract with our community," and the community "expects me to police the police."
Fountain Mayor Gabriel Ortega declined to comment, but says via email that such claims "are investigated immediately, comprehensively, and in an unbiased manner to ensure the protection of both the City and our employees."
The city has spent $600 so far on an investigation, but refuses to release it. But there's not a big financial risk to Fountain from the claims: Insurance foots most of the bill.
Five of seven Council members (including the mayor) either refused to comment or didn't respond to phone calls and emails. Councilor Phil Thomas, however, tells the Indy he hasn't read the claim letters and is only marginally familiar with the allegations. After hearing details from the Indy, Thomas, who's black, says, "As a minority, I know what it's like to be scrutinized by the color of my skin. I have zero tolerance for discrimination. I have zero tolerance where a person should be judged for their sexuality. I have zero tolerance for women being discriminated against. So I would hope that those things are not going on in any department in the city, and if that is found to be the case, then those individuals who are participating in such behavior should be held accountable."
A former female officer says in her June 25 claim letter that she'd worked for two decades in law enforcement before hiring on in Fountain about three years ago. On an unspecified date while on assignment in Salida, then-Cpl. Matt Racine — who's since advanced to sergeant and lieutenant — unbuttoned his pants and asked if she "want[ed] to touch it," the claim says. Not wanting to appear to be ratting out a fellow officer, she didn't report the incident, the claim letter says; but she confided in another officer who apparently reported it to Heberer.
(The city of Fountain refused to release the woman's letter, citing a provision of the Colorado Open Records Act that allows investigations of sexual harassment to be withheld from the public. The Indy obtained the letter through other means.)
Thereafter, Thomas Coates — a lieutenant overseeing the female officer's supervisor — "consistently reminded her that he had other qualified people who could take her position," her claim letter says. In May 2017, Coates began sending text messages to her, asking for a "quickie," and seeking oral sex, "assuming your [sic] a giver." Swan, the attorney, says the messages have been preserved.
The female officer thought her "safest course" was to "play along," the letter says, noting she was "petrified about retaliation." She didn't engage in any physical contact, but she didn't say stop.
"Women are not safe within the Fountain Police Department," the letter says. "[The female officer's] status as a female became an acute hindrance to her job ... when she increasingly rebuffed these inappropriate advances."
On March 9, 2018, the woman was called to meet with Coates and two other officers. They showed her a body camera clip, which the claim letter labels as "friendly interaction" between her and Sgt. Tim Johnson. (The clip, described in Johnson's claim, shows him clasping her hands in his after she says her hands are cold, and her then pecking him on the cheek for helping her find her keys.)
Coates told the female officer she must resign immediately or she'd be fired and would "never work in law enforcement again," the claim letter says, noting she was scared for her safety and signed a paper she wasn't permitted to read. "On top of everything else," the letter says, "we have learned that Chief Heberer has been defaming her both inside and outside the Department."
Heberer denies that, saying, "I wish [she] had come to talk to me. I had a good relationship with [her]. She was a good detective. I hired her from Cañon City." He then declined to respond to various questions regarding the claims, on advice of City Attorney Troy Johnson, who declined to comment on behalf of Racine and Coates.
According to city records, the female officer was last promoted on March 20, 2017. Her sergeant subsequently rated her at 65 on a 100-point scale on Sept. 8, 2017.
The Indy didn't identify the woman because she fears retaliation and inability to get another job based on her claims.
Coates was promoted to deputy chief on Sept. 26, 2017. Ten days after the female officer resigned, Heberer rated Coates at 85 on a 100-point scale.
Sgt. Johnson, who's black, was a career Navy man before joining the Fountain force in 2006, where he was promoted to corporal and then sergeant. As of early 2017, he was one of three non-white members of the command staff, his June 1, 2018, claim letter says.
As Heberer's hostility toward Johnson mounted for an unexplained reason, his claim letter says, the chief told him in February 2018 that "one of us has gotta go, and it's not gonna be me."
On March 9, Coates called Johnson into his office where he and two others showed him the body cam footage of the "cold hands" incident, and Coates "insinuated that there was some sort of extramarital affair" between Johnson and the female officer. (Swan, Johnson's attorney, says that's false.) Coates insisted Johnson retire, and said if he refused, the department would launch an internal affairs investigation and "comb through [his] personal cell phone and bank records," the letter says. Johnson didn't see an alternative, and resigned on March 12, fearing an IA would sully his reputation whether true or not, considering Heberer was known to broadcast to command staff which officers faced IAs, his claim letter says.
Records show Johnson's most recent promotion came on Jan. 1, 2012. His lieutenant scored him at 65 on a 100-point scale in his most recent performance evaluation, on June 16, 2016.
Sgt. Moses Cho, among the department's longest-tenured employees with 17 years of service, oversaw the six-member school resource officer (SRO) unit. He was forced to resign on May 9, 2018, his May 21 claim letter says.
On May 8, Heberer and Coates came to Cho's office and said, "We need to talk," the letter says. Heberer demanded Cho resign by Sept. 1, saying he had undermined the chief's authority and sabotaged the SRO unit, but offered no justification for those allegations, Cho's letter says.
"During the meeting, Chief Heberer continued his well-established practice of berating those under his authority by yelling and physical intimidation," the letter says. Heberer threatened to put Cho on midnight shifts if he didn't retire, and if he still refused he would "make [him] hate life," Cho's letter contends. Frightened by the encounter, Cho, whose SRO unit had served as a model program in a Clemson University study, submitted his retirement notice May 9.
- Courtesy City of Fountain
- Fountain Police Chief Chris Heberer was hired in 2015 after retiring from an Army military police unit at Fort Carson.
Cho was promoted to sergeant on Jan. 1, 2012, and was rated by a lieutenant at 50 on a 100-point scale on his Sept. 21, 2016, job review, the most recent available. Cho's letter notes that after he and the others departed, the department's 15-member command staff became "entirely Caucasian."
Heberer promised the Indy a racial and gender breakdown of the police force but never provided it. He also invited the Indy to interview anyone on his staff but failed to respond to a request for names and phone numbers.
Two of those who filed complaints remain on the payroll.
One is a female firefighter, Lauren Bachmann, who alleges in her Aug. 13 letter she was passed over for a lieutenant promotion in favor of a man who has fewer certifications than she. Bachmann's letter, also submitted by Swan, alleges that test results for the promotion were "doctored" and were not graded by an outside independent agency as claimed by Heberer. Interim Fire Chief Michael Orr told Bachmann she was given training duties by her male supervisor only because "he was sexually infatuated with her" which the letter says was untrue but demonstrates Orr's "discriminatory" treatment of female employees. Rather than seeking generous monetary damages, Bachmann's letter asks for her attorney fees, to be reinstated to oversee training and be "treated as the professional that she is."
Asked about that, Heberer says, "I had her and the HR director in my office the other day. We talked about it. She wanted to be back in training. I said absolutely. She's a great gal." The claim remains pending.
The other is Officer Jose Barraza, who had 18 years of law enforcement experience and worked as a Fort Carson Police Department officer before joining the Fountain department in May 2014. He's been trained in crisis negotiations, drug recognition and impaired-driving coordination, his July 30 claim letter states.
Barraza got caught up in an internal investigation in February 2018, the letter says, but he took a polygraph test, and Heberer assured Barraza he knew he was truthful, vowing the incident was "behind" them, his letter says.
But amid the IA, Coates "encouraged" Barraza to "give up his stripes" during a sergeants meeting, the claim says, meaning Barraza would relinquish his sergeant rank, and Barraza complied.
In mid-March 2018, Heberer asked Barraza if he'd heard about officer misconduct. Barraza told the chief he'd been told by two female officers of misconduct involving Coates, and a civilian city employee told him she'd had an "intimate relationship" with Coates, Barraza's letter says. Barraza also told Heberer that two lieutenants, including Racine, were "preying on new female recruits."
On May 17, Heberer asked Barraza if he thought those women would come forward, the letter says. Coates learned of Barraza's reporting of the misconduct, and on July 3, while Heberer was on vacation, Coates placed Barraza on administrative leave and began an IA investigation of his handling of DUI cases, according to the claim letter.
"FPD's upper management knows and condones Deputy Chief Coates's discriminatory behavior," the letter says, noting Barraza is the only Mexican-American on the 53-member force and that after coming forward with misconduct information as requested by Heberer, he's been denied advancement and slapped with a second IA probe. The city confirmed that Barraza is on the city's payroll, but Heberer says he remains on administrative leave.
Barraza was promoted to sergeant on Dec. 2, 2017, after being rated at 65 on a 100-point scale on June 23, 2017, records show. Barraza's attorney, Wieland, declined to comment on her client's behalf.
Swan, who represents the female police officer, Johnson, Cho and Bachmann, says their claims portray "a pervasive sexist culture within the command staff," as well as bias against minorities, which includes a command staff member "routinely" using the N-word in the presence of Johnson. Swan's clients have also filed complaints of discrimination and harassment with the Colorado Civil Rights Division, another step toward a lawsuit.
Meanwhile, Heberer's two most recent job reviews, in July 2017 and May 2018, by City Manager Scott Trainor, labeled his performance "excellent." Trainor says the ratings are based on 17 criteria, such as knowledge and quality of work, use of equipment, adaptability and ability to learn, initiative, attitude, working relationships and ability to supervise.
A trail of suits
The Indy could find no cases in which Fountain actually lost due to a judge's ruling or a jury verdict. Rather, Fountain usually turns to its insurance carrier to settle cases. The city pays nearly $780,000 a year in premiums to cover workers' compensation, property and casualty and liability cases, such as the discrimination claims. But the city is only on the hook for deductibles owed to the carrier of $2,500 per claim, City Attorney Johnson says, and records show it's paid a total of $29,635 in deductibles since 2014, which doesn't include auto or property claims. In recent years, Fountain has seen three lawsuits thrown out and two settled.
A settlement of $150,000 was paid in early 2017 to Richard Villanueva, who sued in 2015 alleging he was fired from the Fire Department due to his efforts to organize a union. Villanueva is no longer with the department.
A settlement of $450,000 went to Elizabeth Alvar, the mother of Patrick O'Grady, 17, who was killed by Officer Jonathan Kay in a Sept. 24, 2015, shooting, despite the District Attorney's Office finding, in December 2015, that the shooting was justified. O'Grady reportedly reached for a gun when Kay confronted him, leading to the fatal shot.
Sylvia Simpson, who's Hispanic, lost her case when a judge dismissed it in 2014. Simpson had alleged she was promised a promotion upon the retirement of another city employee, but the city promoted a white woman instead. Simpson no longer works for the city.
Two cases dismissed by judges alleged violations of civil rights by the Police Department's SWAT team in raiding homes with medical marijuana grows on July 22, 2016.
At 6 a.m. Marisela Chavez and Eli Olivas were startled awake by a flash bang. Police ordered them outside — him in his underwear and her in a nightgown — handcuffed them and "made them sit within a few feet of the exhaust pipe on a running police vehicle" which sickened the couple, the lawsuit says.
Police targeted Olivas' greenhouse. Olivas is a former Green Beret who suffers from knee and back injuries after serving in Iraq and Bosnia and winning the Bronze Star. He's a registered medical marijuana card holder and was entitled to grow marijuana. After police destroyed the backyard gate, they had to borrow a key to enter the locked greenhouse. The police's "unconscionable aggression" traumatized Olivas, who suffers from Post Traumatic Stress Syndrome from serving in combat, the lawsuit said.
Police seized three firearms; it's unclear if they were ever returned.
A similar scene unfolded a half-hour later that day at another Fountain home. Bryan Rawlings and Brittany Vasquez, both registered medical marijuana patients, suffered similar treatment. Police also notified the Department of Human Services, because two children lived there, and contacted city code enforcement, claiming the marijuana greenhouse was illegal. DHS found no abuse, and code enforcement ruled the structure legal, their lawsuit said. No charges were filed. In both cases, Lt. Racine failed to check the Colorado Medical Marijuana Registry when seeking the search warrants.
Both suits were dismissed by separate judges, leading Terrence Johnson, an attorney in both cases, to tell the Indy, "Unfortunately, the Federal Court granted the City's motions to dismiss basically because marijuana is illegal under Federal law. At this point, if a person's constitutional rights are violated and marijuana is involved, I do not believe the laws provide sufficient redress."
Regardless, the Indy asked Heberer: Did the raids represent good policing?
"Absolutely," he says. But when pressed, he said he wasn't at the raids and wasn't going to comment about an incident two years ago.
Pressed further, Heberer says, "Every operation, we do a debrief. Every operation, we learn from. I did that exact thing in this case. We talked about it after the fact. Is there a better way to do things moving forward? There's always lessons learned. I'll be the first one to tell you, the Fountain Police Department is not gonna be perfect. It's too hard in our environment to be perfect. We do the best we can. We learn from it. We move forward. We share lessons learned. We grow as an organization. Sure, I've made mistakes over the last four years. Everybody has. Every leader has. We all have. We live and learn."
He then noted that since the July 2016 raids, "How many more SWAT marijuana raids have we conducted? Zero."
Editor's Note: The city of Fountain at first refused to release city expenditures related to claims but later did so. Some information regarding officials' pay and evaluations was inaccurate but was later corrected. The city didn't respond to all of the Indy's requests within the time permitted by law.