After a month-long break, Beaumont Police officer Keith Breiner, who was suspended for having sex with prostitutes, will have to return to the arbitration table after a judge denied his requests for an injunction and plea to the jurisdiction.
However, if the arbitration chips don't fall Breiner's way, the judge has said Breiner may sue the city for monetary compensation.
Judge Gary Sanderson, 60th Judicial District, made his ruling Aug. 25.
Breiner is fighting for his career after he and another officer had sex with female employees at a spa that the police suspected was a front for prostitution.
Breiner admitted to having sex with the women while he was undercover at the Sun Spa, and claimed his superior officers not only knew about it, but told him engaging in a sexual act was necessary to make a felony case against the spa and gave him the money to pay the women.
After being suspended indefinitely, Breiner filed a lawsuit and got a restraining order on July 24 to stop his scheduled Aug. 1 termination.
On Aug. 19, District Judge Gary Sanderson began hearing arguments to determine if his court is appropriate jurisdiction for the case that has brought not only Breiner's but the entire department's actions under scrutiny.
Sanderson was tasked to decide if Breiner's constitutional rights outweigh a collective bargaining agreement with the police officers' union and allow the litigation to continue.
On Aug. 25, Sanderson denied Breiner's injunction request and plea to the jurisdiction, but granted his motion to stay, allowing the suspended officer to sue the city if arbitration doesn't go his way.
During the hearing, the Beaumont police lieutenant who allegedly told Breiner it was alright for him to engage in sex acts with women testified that having sex with prostitutes is neither necessary nor ethical.
Lt. Curtis Breaux of the Beaumont Police Department's narcotics division testified Monday, Aug. 25, that he did not believe Breiner was an ethical person and orally instructed the officer not to engage in sex acts, as the week long hearing continued.
Although officers having sex with a prostitute is permissible under law, it was not necessary in this case, and is a class B misdemeanor, Breaux said during the hearing.
Breaux also denied having any hands on involvement with the case, testifying that he delegated its operations to an officer under him.
Court documents and testimony show that Breiner was never provided with any written instructions that expressly ordered him not to engage in sexual acts while undercover at the spa.
Breaux testified that a lot of the department's business is handled orally.
Breiner's attorney, Larry Watts of Houston, insinuated that giving officers instructions orally gives the department "wiggle room."
Breiner said in his affidavit that Breaux approached him about having sex to pursue a felony prostitution case.
Breaux denied the allegation.
Grounds to sue
Breiner claims the department and Police Chief Frank Coffin Jr. want to fire him for doing the job he was told to do and ruin his chances for further employment.
During the hearing, Watts said Chief Coffin took it upon himself to "assassinate Breiner's character by sending his minions into the community" and to the media to label Breiner as a "rogue officer."
However, Chief Coffin testified that he believed the assertions making up Breiner's case to be inaccurate.
Watts argued that Chief Coffin's alleged actions diminished Breiner's future job prospects and violated his Texas constitutional rights for equal employment.
"If an action by an entity is to preclude employment, it is a constitutional violation," Watts said, adding that the punishment did not fit the crime since a similar incident transpired in the department in the past, but no corrective actions were taken.
The city is represented by City Attorney Tyrone Cooper.
Background
In his lawsuit, Breiner says he was contacted April 1 by an officer from the department's narcotics division "about performing an undercover operation at two houses of prostitution fronting as massage parlors."
Breiner claims he was told that an undercover officer would likely have to perform sex acts in order to make a Felony Aggravated Promotion of Prostitution case.
Breiner alleges he was selected for the task because other officers weren't "domestically able to do what was required," and the department believed Breiner and his wife "were so stable as to be able to make the necessary, temporary adjustments as a sacrifice for his job and the community's interests."
The suit lawsays that Breiner was told the Jefferson County District Attorney's Office had been consulted and that there was no violation of law involved.
He claims supervisors gave him $160 -- $60 for the massage and $100 for sex -- and sent him to the Sun Spa on April 8 and then again April 11.
"On April 15, 2008, it had been decided that the next step would require revisiting the massage parlors, secretly introducing tape recorders, and tape recording the sex acts," the suit says.
"It was also decided that in order not to cause Breiner to be assigned to engage in multiple sex acts required to make a felony charge, a second … officer would be enlisted, which led to the involvement of Lt. (David) Kiker in the operation."
Kiker is also currently suspended.
The suit continues by alleging that on April 15, both Breiner and Kiker were issued BPD funds for massages and sex acts, and with appropriate police cover, made the first team entry into Sun Spa.
The undercover officers each had a sexual encounter with a female employee, which each officer recorded. The suit claims the officers were debriefed by the department following the encounter and congratulated for not being identified.
The petition alleges the officers were repeatedly sent back to conduct sex acts on April 23, April 29 and again on May 7.
According to the petition, detailed affidavits from Breiner and Kiker were presented to a district judge in order to obtain search warrants.
In May, Beaumont police got search warrants for the VIP Massage Parlor and the Sun Spa in west Beaumont.
On May 12, Breiner claims a BPD captain verified that sex acts had been committed by him and Kiker in making the criminal case.
The suit states that the captain later said she hadn't known about what transpired, and notified Breiner that the chief of police was upset and she might be compelled to file complaints against the both of them.
According to the petition, on May 27, Breiner was notified that a complaint had been filed against him with BPD's Internal Affairs Division, alleging he'd acted unprofessionally while trying to make the criminal charges against the prostitutes and the massage parlors.
On May 30, Breiner was denied his request to take a polygraph he said would verify that he had been asked to perform the assignment and that he had been told that any sex acts performed by him as required to make the cases were expected, legal and permitted, the suit says.
Case No. B182-127