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 in 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 of 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 is 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.