Examples brought to case

About 15 years ago, Newport Beach police Sgt. Neil Harvey and Craig Fox, a traffic officer at the time, responded to a traffic accident near 26th Street and Balboa Boulevard.

As now-Lt. Fox tells it, a drunk pedestrian walked into an unmarked area of the street between two cars and was hit by a drunk driver. When it came time to arrest the driver, officers on the scene were divided.

Or more specifically, it was Harvey on one side, everyone else on the other, Fox told jurors on the stand Monday during Harvey’s civil trial against the city.

Fox and others wanted to arrest the driver for misdemeanor DUI. While the driver was drunk and hit a person, Fox explained, it was the pedestrian’s fault because of where they were, reducing the incident to a misdemeanor. Fox told jurors Harvey wanted to book the driver on a felony DUI-causing injury.

In the days after, Fox heard from a watch commander and his own partner that Harvey was going behind his back, seeking backing for his side.

The conflict stuck with him, Fox told jurors Monday, and when it came time to consider promoting Harvey to lieutenant, it made him think Harvey wasn’t ready for the job.

“Over the years, I’ve seen very little growth without [Harvey] exhibiting some level of uncertainty,” Fox wrote during one of Harvey’s promotional reviews.

Fox’s comments were not unique, and are the foundation of the city’s defense that Harvey has not been promoted to lieutenant after 18 years because of his ability, or lack thereof, and not false rumors of his homosexuality as he contends.

Harvey is suing Newport Beach and its former police chief, Bob McDonell, claiming that rumors he was gay kept his superiors from promoting him — a form of discrimination.

Defense attorneys Monday called Fox, McDonell and others to the stand Monday who supported their claim that any rumors of Harvey’s sexuality were minimal, if at all. They certainly did not affect his chances of rising in the ranks, they maintain. Officers earlier in the trial testified just the opposite — that everyone mistakenly thought Harvey was gay and it hindered his chances at leading.

“Just overall, his leadership qualities weren’t where they probably should be,” said retired Capt. John Desmond. “It kind of fluctuated as far as performance … people were at their wits end with him as a supervisor.”

Candidates for a promotion are rated by their superiors — in Harvey’s case, several lieutenants and captains will rate how they believe he’d be in the next-highest rank.

“Doing a good job [as a sergeant] isn’t what I’m rating,” Fox told the jury. “He may be the best sergeant in the world and not be the best candidate.”

It’s a claim other lieutenants have emphasized in the trial, but also one that somewhat conflicts with what the former Chief McDonell said.

“The best predictor of future success is past performance,” McDonell said, but noting that it’s not the only predictor.

McDonell came under fire last week and Monday by Harvey’s attorneys when they pointed out others have testified he favored promoting married men.

McDonell defended his involvement in a 2006 investigation by the city into Harvey’s claims of discrimination. McDonell testified he contacted the city’s Human Resources Department to see how it was progressing, especially because it was taking so long. Defense attorneys aim to portray McDonell as trying to influence its outcome.

Harvey’s lawyers implied as much with current Chief John Klein when his assistant testified he took some of the raters out to lunch before they reviewed Harvey and others in an oral interview. She also pointed out representatives from the human resources department were there as well, probably to make sure everything was on the level.

Testimony in the trial will continue today in Santa Ana’s Central Justice Center in courtroom C-27 at 9:30 a.m.