OCEANSIDE OFFICER WINS
REINSTATEMENT TO FORCE
Arbitrator Joe Gentile
recently reinstated six year veteran Oceanside Officer Doug Baxter.
Baxter was investigated in September and October 1994 when an audit
conducted by department supervisors revealed that a number of officers
assigned to patrol were using the mobile digital transmitters
("MDT") in their police cars for personal communications.
At the commencement of
the investigation, all of the subjects of the investigation were given
written orders not to talk about the investigation with anybody except
their representatives. Baxter violated the order when he talked to a
number of officers in an effort to glean information about the
investigatory and disciplinary process.
LDF attorney Michael P.
Stone of Pasadena, who represented Baxter in this appeal, noted that
"One of the unusual features about this disciplinary action for
insubordination is that at no time was Officer Baxter attempting to
evade responsibility for his personal communications on the MDT, which
amounted to a single episode of innocent banter with another officer
over the outcome of a Raiders-Seahawks game played that day.
When he was interviewed,
Baxter readily admitted his involvement. After all, his identification
number accompanied each communication".
At his initial interview,
Baxter was asked whether he had violated the written order not to
discuss the investigation with anyone. Baxter, feeling that the order
was a routine precaution, the violation of which did not carry
significant penalties, said that he had not talked about the case with
anyone.
In a subsequent
interview, he supplied IA with a handwritten list of individuals he
discussed the investigation with, and brief summaries of what was said
in each conversation. The conversations were limited to Baxter's effort
to learn "how much trouble he was in" for his misuse of the
MDT.
Still, the department alleged
that Baxter, with no prior disciplinary history, had exhibited
persistent untruthfulness and a "pattern of dishonesty",
demonstrating that he was unfit for further police service. He was
terminated February 1995. The city manager, following a brief appeal
meeting available to an officer in Oceanside under the MOU, upheld that
termination.
However, at the
arbitration, it was discovered that after he met with Baxter and before
upholding the discharge, the city manager had an ex parte meeting
with the police chief in which the chief firmly argued that the city
manager should disregard his inclination to take this appeal
seriously and to consider reinstating Baxter.
Attorney Stone said,
"The problem with this contact was that it occurred while the city
manager had Baxter's appeal under submission and consideration. The city
manager had employed special legal counsel during the appeal, who spoke
with me about the potential terms of the reinstatement if the city
manager decided to modify the discipline and reinstate Baxter.
"When we finished
the appeal process with the city manager, we were under the impression
that there was a good chance that he was going to order Baxter to be
reinstated, based on our post-appeal conversations with his special
legal counsel. It was after this point that the chief met with him, and
according to the chief's testimony at the hearing, lobbied strongly to
uphold his (the chief's) discharge of Baxter."
The arbitrator embraced
the defense proposition that this ex parte meeting between
the chief and the city manager when the latter was considering the
appeal, was improper and violative of due process.
Other evidence at the
hearing showed that Baxter was being treated differently than others
with similar misconduct, for no good or apparent reasons, leading to the
conclusion that the penalty was disproportionately harsh. Moreover, the
arbitrator found that Baxter had, by submitting the memo with the names
of those he had talked to, made a good faith effort to "come
clean" and that the city had failed to demonstrate that Baxter had
exhibited the "pattern of untruthfulness or dishonesty."
Curiously, the
arbitrator's award (which is binding) ordered that the reinstatement be
without back pay, which effectively assigned Baxter an 18 month
disciplinary suspension. The arbitrator's order was silent as to the
rationale for this extreme penalty, commenting only that the misconduct
was very serious.
Officer Baxter was sworn back into the
Oceanside Police Department on September 19, 1996. In
addition to LDF attorney Michael Stone, Officer Baxter's defense team
consisted of Oceanside Police Officers' Association representatives
William Cramer and Les Lang.
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