Arbitrator Restores Tracy Officer to K-9 Handler Position

Posted by Daniel T. McNamara

A City of Tracy police officer, who was abruptly removed from his canine-handler position as part of a disciplinary action, won reinstatement to the assignment after an arbitrator found the action was unwarranted and outside the chief’s authority. The arbitrator ordered Officer Erik Speaks and his dog, Lord, reinstated to the K-9 position from which Speaks had been reassigned last May.

In March 2009 Officer Speaks was arrested for driving under the influence. He accepted responsibility for his lapse in judgment, pleaded guilty to the offense, and acknowledged his mistake to the new police chief, Janet Thiessen. The chief and city manager first attempted to impose a 90-day suspension on Speaks for his first offense, then reduced the discipline but removed Speaks from his canine position.

City Takes Dog From Officer’s Home

Speaks, a former U.S. Air Force dog handler, had been a K-9 handler for the Tracy Police Department since 2002. His German Shepherd canine, Lord, had been his partner and a member of his family for nearly four years. The department gave Speaks less than 24 hours’ notice before taking Lord from the officer’s home and reassigning him to a new, untrained handler.

While Officer Speaks stood ready to accept a suspension for his actions, any handler can sympathize with the impact Lord’s removal had on Speaks and his family. Speaks is a dedicated K-9 officer who testified eloquently about the bond canine handlers form with their partners:

“I’m sure any canine handler, including myself, would tell anyone that there is a special bond between a handler and his dog. Obviously the dog is not a pet, but when a handler spends as much time with the canine as I do, or any other handler would, which is essentially 24 hours a day, seven days a week, I’ve never experienced any kind of bond with an animal and with few people such as that. That dog would, without hesitation, willingly sacrifice himself to protect me or any other officer and I would certainly put myself in harm’s way to protect that dog.”

At arbitration, the city argued the chief had sole discretion to assign or remove officers from special assignments under the POA’s MOU. The arbitrator, John Wormuth, correctly decided that removing Officer Speaks from his canine assignment was unlawful. He held the Chief’s discretion in determining an officer’s special assignments did not extend to the disciplinary process.

City Raises “Brady” Specter Over Dui

The city’s attorney also argued Officer Speaks’ DUI conviction could impact the officer’s ability to testify in court. The city argued prosecutors would have to disclose the officer’s conviction to defense counsel as exculpatory evidence under Brady v. Maryland (1963) 373 U.S. 83.

Arbitrator Wormuth ruled Brady determinations are within the province of the Superior Court, not the Police Department, and found it was beyond the Police Chief’s authority to speculate what, if any, Brady issues might arise in Officer Speaks’ future.

Perhaps most importantly, Arbitrator Wormuth recognized that, while Officer Speaks exercised poor judgment in driving under the influence, the true measure of his character was his candor and truthfulness in accepting responsibility for his actions.

Daniel T. McNamara is an associate attorney with Mastagni, Holstedt, Amick, Miller & Johnsen. He represented Erik Speaks in his administrative appeal.