Retired judge Ian Pitfield has substantiated three allegations of workplace harassment by former Victoria police chief Frank Elsner. Pitfield concluded that Elsner had physical contact with two women officers that was unwanted and made inappropriate remarks of a sexual nature to one of the women.
Officer A was standing near the former chief’s assistant’s desk in 2014 when Elsner approached her from behind. “He pressed his groin against her buttocks, and his chest against her back in what [Officer A] described as a ‘nuts to butts’ manoeuver. … She told investigators she was shocked that “my new chief would stand behind me and from a female’s perspective it’s almost like an oppressive position in a way, was very inappropriate, awkward,’ ” Pitfield wrote in his report.
Elsner applied force without consent and should have known that constitutes an assault, wrote Pitfield. The actions violate the department’s Workplace Harassment Policy.
Officer B told investigators that on the day of a police mess dinner in 2015, Elsner approached her in a hallway at Victoria police headquarters and held her by both arms with her back against or close to the wall for about a minute. She felt uncomfortable that he was “in her space.”
Elsner told investigators he had no recollection of the incident. “His evidence would suggest that it was his practice to place his arms on individuals as a sign of friendship or gratitude. It is an error to believe that anyone can touch or greet another in that manner with impunity,” wrote Pitfield.
The officer could have felt threatened or intimidated. She could not back away and it’s unlikely she would have told the chief to remove his arms from her, said Pitfield.
The third allegation also involved Officer B. It took place at a use-of-force training session in 2014 when Elsner was paired up with the officer to practise neck restraints that involved close body contact. When they were applying the restraints, Elsner said things like: “You are so warm, don’t stop,” or “I could do this all day, you’re so warm.”
“She stated that while the comments were not overtly sexual, she felt they had sexual tone as they were made at the time when their bodies are touching,” wrote Pitfield.
The retired judge noted that Elsner denied all the allegations and lacked insight into the effect of his attitude and behaviour towards subordinates.
He concluded that suspension without pay for 30 days, the maximum term permitted by the Police Act, and a requirement that he undertake harassment and sensitivity training would be appropriate disciplinary measures.
Retired judge Carol Baird Ellan substantiated five allegations of misconduct by the former chief. She concluded that his inappropriate relationship with the wife of one of his officers was a breach of trust and a conflict of interest.
The former chief knew or ought to have known his behaviour would bring discredit to his department, she said. Over several months, the chief and the officer’s wife sent sexually charged messages to each other. There was also a romantic embrace and kiss in Elsner’s office.
In September 2015, the officer had an angry confrontation with Elsner in a park and Elsner denied he’d had any inappropriate communication with the officer’s wife. “This angry confrontation is indicative of his sense of betrayal,” wrote Baird Ellan, who imposed the penalty of dismissal from policing for the misconduct.
The retired judge also found that Elsner “intentionally and dishonestly minimized the nature of his interactions” with the officer’s wife. During the confrontation, Elsner told the officer there was only one Twitter message, which was mistakenly sent by the wife to Elsner, instead of her husband.
The officer left the meeting under a false impression, then told the mayors who oversaw Elsner that he did not want an investigation. By misleading a subordinate in an investigation into his own conduct, Elsner ought to have known he would bring discredit to his office, wrote Baird Ellan.
She imposed a 30-day suspension, a demotion to constable and a requirement that he be trained in ethical standards.
Baird Ellan also found Elsner misled an internal investigator who was hired to look into the Twitter message allegations.
“It becomes clear on reviewing the former chief’s evidence that he is caught in a web of untruths. Where he finds himself facing contradictory evidence, he tailors his statements to reveal only that part of the truth he feels he must, to address the established facts with which he is faced. His statements reflect many obvious efforts at obfuscation,” she wrote.
She found Elsner’s statements disclosed a clear intent to mislead, not only the internal investigators, but the external investigators. “He appears, in his statements and his testimony, to have considered himself justified in presenting to her any versions of events that would assist him to achieve a favourable outcome,” Baird Ellan concluded.
For this misconduct, Baird Ellan imposed dismissal from policing.
Elsner also asked a Victoria police employee to lie to the internal investigator and corroborate his story that he didn’t know his officer was still married.
Elsner asked the employee if she would be comfortable telling the investigator that she didn’t recall telling the chief that the officer and his wife were still married. “No one would know but you and I,” the former chief added.
The retired judge concluded that Elsner attempted to procure a false statement from a witness. She imposed the penalty of dismissal from policing.
“This misconduct strikes at the heart of the integrity of the disciplinary investigative process and displays disrespect for a core value of policing, testimonial trustworthiness. Moreover, it is an abdication of the exemplary moral and ethical standards required by a Chief Constable,” wrote Baird Ellan. “I consider the misconduct in relation to this allegation of deceit to be very high on the scale of seriousness.”
Elsner used his business Twitter account, email and cellphone to communicate with the officer’s wife. Much of the activity took place while he was on duty, found the retired judge, who imposed the penalty of dismissal from policing.
