Kocina v. the Public Safety Officers Benefits Board

By Don Webb

Accident Analysis Service

In December of 1988, Officer Tim Lytle, Medford Police Department asked me to review the Public Safety Officers’ Benefits Act Claim regarding a former Medford Police Officer, Doug Kocina who was killed in an automobile crash in Subic Bay the Philippines earlier that year. The Public Safety Officers Benefits Board (PSOBB) in Washington DC had ruled that his wife (Bette) and children were not entitled to death benefits due to his gross negligence in the operation of a government car.

Day of the Accident:

On the day of the accident Bette saw Doug’s commanding officer and the Chaplin pulling into her driveway. She knew the worst had happened! However, she thought that Doug had been assassinated by the NPA (New People’s Army). Doug had been working under-cover intelligence on the NPA and she knew that the NPA were targeting Naval Intelligence agents for assassination. She cried “where was he shot?” The commander said “He was not shot. A bus crossed the center line and hit him head-on. They (Doug and Jerry Kramer) both died instantly.

Investigation Report and PSOBB Determination:

Mrs. Kocina was assured by naval investigators that the bus was in the wrong lane and Doug was not at fault. However, for whatever reason (local politics?), the investigation was turned over to the National police. When the report came out, it blamed Kocina for driving at a tremendously high rate of speed (132.7 kph - 82.5 mph) around a curve causing his vehicle to cross the center line and hit the bus head-on. Then the PSOBB blamed Kocina for the accident and relied heavily on the investigation report.

Bette Kocina wanted to clear Doug’s name! “Doug was a dedicated professional who died in the service of his county” she said. She could not believe that his country had turned its back on him. Because of PSOBB’s determination, his spouse and children were barred from receiving the $250,000 widow and orphan fund and Doug Kocina’s name could not be put on the Public Safety Officer’s Memorial wall commemorating police officers killed in the line-of-duty. She stated that what was written in the PSOBB Determination was not true and anyone who knew Doug knew it was not true!

Analysis of the Facts:

I took this case pro bono because of the miscarriage of justice suffered by the Kocina family, the fact that I had known Doug and that I had also been on the Medford Police Department. My initial analysis of the case and PSOBB Determination reveled that there were grave errors made by National investigators and a rush by the US Government to agree with the local findings. We had to go through the Freedom of Information Act to have access to facts, reports and personnel. Most of the witnesses were murdered or missing. The Navy personnel involved investigation were scattered to the four winds. However, ultimately, we got the information we needed for my Forensic Analysis.

Before examining my analysis, the PSOBB Determination explains why they denied Doug Kocina his benefits.

 PSOBB DETERMINATION

On March 17, 1988, Douglas Kocina, a Criminal Investigator for the Navy Department was on duty and stationed in the Philippines. He and his partner, Investigator Kramer were returning to Subic Bay after completing foreign counterintelligence matters in Bataan Province. Investigator Kocina, who was driving, passed another vehicle on a curve while traveling at a high rate of speed. Their vehicle fishtailed while rounding the curve and crashed head-on into an oncoming bus in the opposing lane of traffic. Both men were killed in the accident. Investigator Kocina's death was reportedly caused by massive head and chest trauma. Kocina's spouse now applies for the award of benefits under the PSOB Act.

Section 3796 of the Act provides in pertinent part that, "No benefit shall be paid...

                (3)          if the public safety officer was performing

                                his duties in a grossly negligent manner at

                                the time of his death

Examination of the findings of Navy investigators investigating the accident and of statements obtained from eyewitnesses leads to the conclusion that Investigator Kocina was, in fact, performing his duties in a grossly negligent manner.

In addition to the apparent negligence on the part of Kocina, his reckless operation of the vehicle and certain conduct engaged in prior to the accident indicate that Investigator Kocina was also guilty of intentional misconduct in the performance of his duties which may have contributed to his death. Section 3796a of the Act further states that:         

"No benefit shall be paid...if the death was caused by the intentional misconduct of the Public safety officer".  Public Safety Officers' Benefits Act of 1976, supra, at §3796a(1). In determining whether the officer's death was caused by intentional misconduct, the Bureau must take into account, among other things, whether the conduct was in violation of rules and regulations of the employer and whether the misconduct was a "substantial factor" in the officer's death. See, 28 C.F.R. §32.7.

Applying these factors to the present case, it is clear that Kocina was guilty of intentional misconduct in his reckless operation of the vehicle. An internal Navy policy statement, establishing procedures for disciplinary action lists "violating traffic regulations, reckless driving on Navy premises or improper operation of a motor vehicle" as an offense punishable by reprimand or suspension for 2-10 days. As previously stated, the investigation report concluded that Kocina had been negligent in operation of the vehicle which would have made him subject to these disciplinary actions had he survived the accident. Moreover, the report concluded that Kocina's negligent driving was the direct cause of his fatal injuries which more than satisfies the "substantial factor" test in our determination. Examination of these factors leads to the conclusion that Kocina's intentional misconduct in his negligent operation of the vehicle caused his death so as to preclude eligibility for benefits under the Act.

Further, the record indicates that Kocina had consumed a considerable amount of alcohol while on duty. In a June 14th letter from the Commander, Naval Security and Investigative Command to the Judge Advocate General, additional findings of fact were made in which it was disclosed that Kocina had consumed a 12 ounce bottle of beer during each of his two counterintelligence related meetings

Although the investigative report concluded that there was "no evidence that alcohol...attributed to the accident", this determination falls short of concluding that the consumption of beer was-not a "substantial factor" in Kocina's ultimate death, because of the failure to conduct a toxicological examination on the body to determine the actual level of intoxication. Notwithstanding the investigator's determination, the amount of alcohol consumed and the close proximity between the time of consumption and the accident raise strong inferences that the consumption of beer was a "substantial factor" in Kocina's death by impairing his judgment while in operation of the vehicle. Investigator Kocina' s gross 'negligence in operating the vehicle and his intentional misconduct in failing to properly operate the vehicle and in consuming alcohol while on duty in violation of Navy policy necessitates a finding of ineligibility for receipt of benefits under the Public Safety Officers' Benefits Act.

END OF DETERMINATION

 NPA threat was not mentioned in the Determination:

Not mentioned in the findings was the threat against NIS Special Agents lives by the New People’s Army (NPA) and the fact that the high tension existed for the personnel and families in the area. No mention was made that Doug had just attended a four day Anti-terrorist Driver Course and completed it the day before the accident. The course curriculum included evasive actions to take in a kidnapping or assassination attempt. One of the scenarios covered in the course was the use of a ‘Jeepney’ in an assassination attempt. A Jeepney is a World War II jeep that has been converted for civilian use. Thousands of these jeeps were left behind after the war and the civilians have converted them for their personal use. The NPA had used a Jeepney armed with a machine gun to assassinate locals. The MO was to suddenly pull out from a side street in front of the victim’s car and machinegun him. Doug’s training included the evasive action to veer to the left and accelerate hard away from the area (which was actually what he did).

Alcohol Consumption:

The first witness (who by the way had been murdered by the time we tried to find him) stated that he saw a Jeepney pull out in front of Kocina’s vehicle and observed the vehicle veered to the left and accelerated at a high rate of speed. He did not see the actual accident, but heard it. He could not tell what lane the vehicle was in because it was around the curve when the impact occurred.