As S.F. Appeals 'Textgate' Ruling, Accused Cops Collect Pay – At Least $2 Million So Far

A group of San Francisco police officers who exchanged text messages peppered with racist, homophobic, sexist and other bigoted language have racked up more than $2 million in pay since a Superior Court judge ordered them back on the city's payroll in 2015, according to the deputy city attorney who argued an appeal of that ruling on Wednesday.

Some of the 14 officers implicated in a search of convicted former SFPD Sgt. Ian Furminger's cellphone resigned in the days following the publication of some of the texts in a March 2015 federal court filing.

But nine officers -- backed by their union and led by named plaintiff Rain Daugherty -- challenged the Police Department's move to discipline them. The department, their attorneys argued in court, blew through the state's one-year statute of limitations for responding to police misconduct by failing to act on the offending text messages for approximately three years while a federal investigation of Furminger ran its course.

"The law in our reading of it doesn’t prevent anything that the city did," Deputy City Attorney Kenneth Walczak said in an interview Tuesday as he prepared to argue San Francisco's position before the state's 1st District Court of Appeal.

"The Superior Court was wrong here because it started that clock without accounting for the criminal investigation that led the department to discover the racist texts."

Walczak said the law in question -- the Public Safety Officers Procedural Bill of Rights Act -- has explicit provisions that pause the statute of limitations for a criminal investigation.

Now-retired Superior Court Judge Ernest Goldsmith didn't buy that argument in late 2015, finding the text messages in question "were not the subject of a criminal investigation."

"The city is trying to piggyback on the Furminger investigation," Goldsmith said before making his final ruling in the case -- prohibiting the department from disciplining the officers and solidifying his earlier ruling that has kept them on the city's payroll.

Attorneys representing the officers point out that two SFPD lieutenants were aware of the text messages within the statute of limitations but didn't initiate a disciplinary probe, despite moving on other alleged misconduct discovered during the criminal investigation.

"Twice during the joint investigation, Lieutenant [Jerome] DeFilippo exercised his authority to initiate misconduct investigations as a result of information obtained," says a brief opposing the city's appeal by attorney Alison Berry Wilkinson. "Neither of the investigations Lieutenant DeFilippo initiated during the joint corruption investigation involved the text messages."

Another SFPD lieutenant had no problem with the officers remaining on the streets and testifying in court, according to the brief, "despite knowing the character of the text messages."

"Lieutenant [Michelle] Jean was not concerned with this misconduct because she had worked with each of the [officers], knew them to be good, effective police officers, and had never seen any of them act or enforce the laws in a racist, homophobic, or anti-Semitic manner," the brief says.

Deputy City Attorney Walczak said he's confident the appellate court will rule in San Francisco's favor, effectively allowing the nine officers to go through a closed-door disciplinary process before the Police Commission, where they will be allowed to further argue their case.

"I think there is a cost to the city, both financially, paying officers who might have faced termination or might otherwise have been disciplined for this," Walczak said. "But at the same time there’s also a cost in terms of the credibility of the department."

The appellate court is expected to issue a ruling within three months.