FULLERTON – Three of the six police officers at the scene after a confrontation with a mentally ill homeless man will be returning to work, said Capt. Dan Hughes, the acting police chief.

The three will be assigned to desk duty and not on patrol, the captain said.

Hughes didn’t know when, or if, the three would return to patrol duty.

Transient Kelly Thomas, 37, died five days after a fight with officers at the Fullerton Transportation Center on the evening of July 5, 2011. Two officers face criminal charges stemming from the incident and are among three no longer with the department following Thomas’ death.

The other three – officers Kenton Hampton, James Blatney and Kevin Craig – faced discipline, but not severe enough to warrant termination, according to the findings of a 53-page report from an outside investigator made public Tuesday.

“They were either not present when force was used or in a position to prevent force from being used,” Hughes said of those officers’ involvement.

Hughes, who said he is following the recommendations of investigator Michael Gennaco of the Los Angeles Office of Independent Review, wasn’t sure exactly when the three officers would return to work. They have been on paid leave for about a year.

In making his decision, Hughes said he also referred to the findings of FBI investigators looking into the case and a report from District Attorney Tony Rackauckas, which found no criminal culpability by Hampton, Craig and Blatney, who were the fourth, fifth and sixth officers respectively to arrive at the scene.

The three couldn’t have know they “were assisting in the restraint of a victim who had been subjected to excessive force by other FPD officers,” the D.A.’s report states.

But the attorney representing Kelly Thomas’ father disagrees.

“Each of them had a duty to stop violence when they saw it,” said Ron Thomas’ attorney, Garo Mardirossian.

Officers were responding to a call reporting that a man fitting Thomas’ description was trying to open car doors in the Fullerton Transportation Center.

A city-owned surveillance video shows officers questioning Thomas for about 18 minutes before the situation turned violent.

Officers are seen in the video striking Thomas with batons, wrestling him to the ground, delivering knee and elbow blows, shocking him with a Taser and then hitting him with it.

“It is a sad day in police policy when a police officer, Kenton Hampton, is part of what (Cpl. Jay) Cicinelli is doing … and watching Wolfe hitting Kelly with his baton and using his knees and punching and using his elbow and is within a few feet and could have done something to stop it,” Mardirossian said.

Hampton, and four other officers, are also accused of civil rights violations in another lawsuit filed by Mardirossian on behalf of Veth Mam who was accused of attacking an officer and later acquitted. That suit, filed in August, 2011 has yet to be settled.

Gennaco is being paid close to $70,000 for his year-long investigation which included an internal affairs review of the Kelly Thomas incident along with department polices. Gennaco also made a series of recommendations on how the department can improve.

Gennaco said he interviewed Hampton, Craig and Blatney and that all three cooperated in his investigation.

In July, Thomas filed a civil suit for unspecified damages against all six officers, along with former chief Michael Sellers, in charge of the department on the day of the incident.

In addition to the six who had direct contact with Thomas, other officers involved in the incident were also disciplined, Hughes said.

The captain wouldn’t’ give specifics, but acknowledged that one officer who arrived after Thomas was taken to the hospital was disciplined for not having his digital audio recorder turned on.

The District Attorney’s Office charged Officer Manuel Ramos with second-degree murder and involuntary manslaughter and Cpl. Jay Cicinelli with involuntary manslaughter and excessive force. Both have pleaded not guilty.

The pair is due in court Friday when pretrial motions will be discussed and future hearing dates set.