Based on the letters from the OAG and the U.S. attorney, Mr. Santiago was charged Sept. 23, 2008, with "repeated and well-founded complaints concerning the performance of police duty," resulting in a violation of general orders for "inefficiency." The notice also cited the July 30, 2008, letter from Mr. Taylor saying Mr. Santiago's court testimony "would not be sponsored" by the U.S. attorney - an assertion nowhere to be found in that letter, a copy of which was obtained by The Washington Times.
The arbitrator identified other flaws in Chief Lanier's handling of the matter. According to Mr. Strongin's ruling, both the OAG and the U.S. attorney maintain lists that include the names of officers with records of convictions, ongoing investigations or misconduct. But, he noted, "Inclusion on the list means that an officer's prior conduct is subject to disclosure, not that the officer is barred from testifying."
In addition, Assistant U.S. Attorney Roy McCleese, appellate division chief, testified at the Santiago trial board that his office's advice "does not explicitly request any kind of discipline." He declined to comment for this article.
Similarly, according to the arbitrator's ruling, Robert Hildum of the OAG was prepared to testify that his office's advice "was not in the nature of a complaint, but more of a notification going forward with respect to the situation as related to [Mr. Santiago]." He also declined to comment.
Nevertheless, the trial board found Mr. Santiago guilty of inefficiency and the MPD fired him on Sept. 17, 2008. During the course of Mr. Santiago's appeal, Sgt. Robert Merrick of the Internal Affairs Division said MPD officials had assigned him to investigate the Santiago matter and dictated the format of the charges he was expected to file, including the questions he was to ask of Mr. Santiago, the arbitrator's ruling states.
Stopping short of endorsing what Mr. Santiago's attorneys claimed was a "sham investigation," Mr. Strongin said Chief Lanier "directed Agent Merrick to conduct an investigation while simultaneously directing him to charge [Mr. Santiago] with inefficiency regardless of his findings."
Mr. Strongin also said the chief's solicitation of legal advice convinced him that "MPD was not simply motivated by receipt of new evidence, but rather actively engaged in a process of creating a new charge based on old facts."
"There is scant if any evidence to support MPD's assertion that [Mr. Santiago's] ability to testify free of [credibility-related] concerns in fact is an essential element of [his] job," he wrote.
Asked for comment on the ruling, Chief Lanier said in a Friday email, "While I am disappointed in the arbitrators' decisions we have received to date, I will not back away from my effort to rid the department of members who have engaged in misconduct that has irreparably undermined their credibility."
The OAG and the U.S. attorney's office declined to comment.
Mr. Nickles, now in private practice, said MPD makes the decision on whom to fire, but if "uncontested violations of law" by an officer were so egregious that, based on a review by independent lawyers, the officer could not be called as a witness, then "the officer cannot do his or her job efficiently.
"The fact that an arbitrator doesn't agree doesn't affect my confidence in the analysis or actions of the lawyers in my office," he said.
Mr. Santiago's attorney, James Pressler, the general counsel for the Fraternal Order of Police, said Mr. Nickles "was completely wrong on the law, and there was no legal basis for taking action against these officers.
"They knew it, or should have known it, at the time they refired 18 of them," he said.