ARBITRATOR FINDS
TERMINATION EXCESSIVE
PENALTY
Arbitrator Bonnie Bogue
reinstated a Berkeley police officer fired by the department after the
officer failed to investigate a fraternity-house burglary. The officer
appealed the termination and was represented by Carrol, Burdick, &
McDonough's Martin Gran. While the arbitrator sustained most of the
allegations against the officer, she overturned the termination as being
too severe under the circumstances.
The case arose from a
fraternity-house party taking place on a Friday night in the summer of
1995. The party started out as a 15-person birthday party, but ballooned
to nearly 10 times that size. Officers testified that the party grew out
of control, with over 100 students crashing the party, drinking, and
creating noise and other problems in the neighborhood.
As a result of the party,
the Berkeley Police Department received at least three calls for service
that night. The first two calls involved noise complaints and a report
of a "man with a gun" on the premises. Around 11 p.m., police
officers tried to remove the party-crashers; however, by midnight the
party was back in full swing.
The third call for
service came out over the radio as both a burglary and individuals drunk
in public. One of the intoxicated party-goers went to the third floor,
broke open a bedroom door and began removing stereo and computer
equipment. One of the residents of the room caught the suspect in the
act, wrestled him down to the second story mezzanine, and held the
suspect until the police arrived.
The officer who was later
terminated was the beat officer for the south campus area that night.
Although he did not respond to either of the previous calls when
dispatch announced the burglary call, he confirmed that the address was
the site of the earlier complaints, and stated that the party should be
shut down.
He drove to the scene,
entered the house and spoke briefly to the victim. The victim had
already given a statement to another Berkeley Police Department officer
who arrived earlier. The beat officer mistakenly concluded that the
suspect had taken the computer equipment from a room on the second floor
where party-goers were playing video games.
The officer then
continued with his predetermined course of action and cleared out the
party. After he and other officers finished clearing out the party, he
eventually booked the suspect on suspicion of being "drunk in
public," rather than on burglary charges. The officer erroneously
stated in his police report that he contacted the suspect outside the
fraternity.
The chief of police quickly
terminated the officer for dishonesty and neglect of duty. After the
department terminated the officer, the chief learned of a new
allegation; that the officer failed to take a report of an assault.
Although this allegation
was never substantiated, the chief felt that the allegation justified an
unprecedented audit of all of the officer's calls for the preceding two
months. The chief instructed the Internal Affairs sergeant to review
dispatch records and try to contact every person to whom the officer was
dispatched, to see if he properly handled that call.
With the help of two
officers on light duty, the Internal Affairs sergeant concluded that the
officer failed to properly investigate crimes on four occasions. Three
of the matters involved minor incidents, such as a scratched bumper and
the illegal use of a fraternity's dumpster; one involved property damage
committed by a drunk driver who left the scene.
The department thereafter
modified the termination to include these four instances of alleged
failure to investigate. The department also tried to characterize the
officer's use of the MSC (miscellaneous service call) label for closing
these cases as dishonesty.
At arbitration, Gran and
the Berkeley Police Association attempted to show that the department
rushed to judgment in terminating him. First, they introduced evidence
that the officer had a very good reputation among the fraternities.
The presidents of two
fraternities testified that the officer visited them regularly, spoke to
them about noise and safety issues, and dealt with them respectfully and
effectively when the police were called out. They also introduced
letters of support from other fraternity members.
Testimony was also
presented by other officers regarding the nature of the south campus
area. They stressed the problems in dealing with fraternities, including
constant noise complaints, excessive alcohol use, and a variety of
pranks, some of which involved stealing other fraternity members'
property.
Secondly, the appeal team
highlighted the officer's performance evaluations, which showed him to
have good "people skills," a good sense of humor, and an
ability to learn from his past mistakes. The chief admitted that he did
not consider these evaluations when deciding what discipline to mete out
in this case.
Third, they brought out
evidence that the chief was in contact with the District Attorney's
Office with regard to both the fraternity call and one of the
supplemental cases. They argued that, under the circumstances, such
contact showed a bias on the part of the chief against the officer.
Finally, they argued that
the penalty was excessive. The department relied heavily on a previous
10-day suspension for supposed dishonesty. The chief argued that the
prior 10-day suspension for "dishonesty" showed that the
officer could not learn from his past mistakes, and that he had "no
alternative" but to fire him.
In the previous case, a
sergeant caught the officer speeding in his patrol car and confronted
him about why he was speeding. The officer jokingly responded that he
was " chasing somebody." When the sergeant did not laugh, the
officer immediately admitted that he had no reason to speed, and that he
was just bored.
The sergeant wrote the
officer up, and the chief imposed a 10-day suspension regarding the
comment. The officer did not appeal the suspension because he was on
probation at the time. At arbitration, the defense argued that the
matter should never have resulted in a suspension, and the underlying
suspension could not properly justify the termination.
At arbitration, the chief
attempted to justify his swift conclusion to terminate by comparing the
officer to two of the most vilified police officers of our time:
Detective Mark Fuhrman and Sergeant Stacey Koon.
The chief argued that if
the LAPD had cracked down on these individuals early in their careers,
they would not have caused the LAPD the embarrassment that they
did. This hyperbolic comparison, of course, greatly upset the officer,
and frankly backfired during the arbitration.
Following the,
arbitration, the parties submitted briefs, and the arbitrator ruled that
the penalty of termination was excessive under the circumstances.
The arbitrator first
considered the department's reliance on the previous 10-day suspension.
The arbitrator noted:
"The undisputed
evidence concerning the reason for the 10-day suspension is that the
grievant told his superior officer that he was speeding because he was
in pursuit, when he was not. His superiors deemed that
"dishonesty" and based the discipline in part on that charge,
whereas the grievant claimed he was not lying, but merely attempting to
joke about being caught speeding. Since the record of that incident
indicates that he recanted immediately and admitted to the sergeant
right then that he had no excuse for speeding, the department cannot
reasonably equate that incident with the kind of "dishonesty"
involved in the grievant's present misconduct."
While the arbitrator did
not reverse the termination on pure "progressive discipline"
grounds, she certainly took the circumstances of the underlying
suspension into account in determining the proper discipline.
The arbitrator also
specifically noted several mitigating factors in the case, such as: (1)
the propensity of fraternities to play pranks on each other, including
activity that was technically criminal but that would not necessarily be
treated as such by the police; (2) the chaotic nature of the party and
the officer's predetermined plan to shut it down; and (3) the officer's
strong performance record, as evidenced by his performance evaluation
(which showed an ability to learn from past discipline and confirmed his
commitment to the south campus community) and his discipline-free record
between the time of the 10-day suspension and the termination.
Finally, the arbitrator
noted that the officer immediately admitted his error and acknowledged
the seriousness of his failure to properly investigate the burglary. She
also noted that the four supplemental cases actually showed strong
performance, as they represented only four relatively minor problems out
of as many as 600 calls in that time period. Although the arbitrator did
not conclude that the department rushed to judgment, she did fault the
department for not considering the mitigating factors discussed above.
The reinstatement was not
a complete victory. In reinstating the officer, the arbitrator imposed a
"last chance" provision under which the department can
terminate the officer should he breach his duties as a police officer in
the next 12 months. The arbitrator also chose not to make a back-pay
award, noting that the admitted misconduct deserved a substantial
suspension.
While the reinstatement
came with some strings attached, the officer is happy to be back at
work. The arbitrator's award, general analysis of the case, and
observations on progressive discipline and penalty issues represent a
ray of hope for employees appealing terminations in a climate where
courts (and to some extent arbitrators) are increasingly unreceptive to
such arguments.
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