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Arbitrator Overturns Termination of Veteran Sergeant

Posted on Thursday, April 01, 2004 at 12:00PM
Posted by Harry S. Stern

Bob Heady worked for the East Bay Regional Parks District Police Department for 21 years, 15 of those years as a sergeant, before the department fired him based on allegations stemming from a minor traffic collision between he and another officer (a fellow sergeant). Heady had no prior discipline.

The department concluded that Heady had violated four POA contract sections: “1. Failing to promptly report a traffic accident…which resulted in reasonably identifiable damage; 2. Dishonesty, in that his statement to the investigator was not forthright; 3. Insubordination based on Heady’s brief telephone call to the other sergeant; and, 4. Willful Disobedience, also concerning the telephone call to the other sergeant.”

After a Skelly hearing and following the additional grievance steps mandated by the Memorandum of Understanding between the police officers’ association and the department, the parties submitted Heady’s appeal to binding arbitration before Arbitrator Alexander Cohn.

The department’s central premise was that Heady lied about his knowledge of the damage to the involved patrol cars, presumably to help the other sergeant. This premise essentially had two components. First, that Heady was dishonest about what he knew about his own patrol car. However, the evidence at the hearing revealed that the damage to Heady’s car was not “reasonably identifiable,” as described in the charged section. For example, a number of the department’s own witnesses testified that they did not see any damage to Heady’s patrol car.

The second component of the dishonesty charge is that Heady lied about his observations of the damage to the other sergeant’s patrol vehicle. In sharp contrast to the department’s theory, Heady consistently maintained (and the other sergeant acknowledged) that he relied on the other sergeant’s representation that the damage to his patrol car was old and that he would “take care of” any reporting requirements.

Accordingly, the parties’ positions could be summarized as follows. The department leapt to the untenable inference that Heady’s (the “victim” in the collision—the investigating lieutenant’s own term) conduct was indicative of untruthfulness and in furtherance of a conspiracy with the other sergeant to cover up the accident. On the other hand, Heady’s position all along is that he believed the other sergeant (in retrospective mistakenly) and that he truly did not think that there was fresh “damage” to his own cruiser.

In hindsight, Heady’s actions were, at worst, negligent. The department failed to prove that Heady was lying and, hence, the proper subject of termination after a long and productive career.

Lastly, at the hearing the department claimed for the first time that Heady had waived his appeal by applying for retirement with the Public Employees’ Retirement System (PERS).

After three days of hearing and the submission of post-hearing briefs, Arbitrator Cohn reversed Heady’s termination and found that he had not been fired for “just cause.”

As to the “insubordination” concerning the telephone call, Arbitrator Cohn ruled that, “it is well known that the purpose of a gag order is to insure that an employee(s) does not cook up a story with another employee(s) prior to being interrogated. The record demonstrates that Heady wanted to put an end to the issue before it was formalized and foolishly called the other sergeant to tell him to call the investigating lieutenant and, in essence, ‘make things right.’ The record is devoid of evidence indicating that Heady, in any way, tried to ‘cook up’ a matching story with the other sergeant. Thus, the totality of circumstances, including Heady’s years of service, tips the scales away from summary discharge for the proven misconduct, the ‘insubordination’ that Heady admitted all along.”

Furthermore (and more significantly), the arbitrator wrote, “The district’s dishonesty case has a number of problems. First, the other sergeant hit grievant’s vehicle. The record is devoid of evidence demonstrating some motivation for grievant to lie about the accident when he was not at fault; e.g., grievant and the other sergeant, apparently, were not best friends. Second, the IA investigator, says the ‘only’ way to determine grievant was dishonest was to draw ‘inferences’ from five circumstances; one of which grievant’s call to the other sergeant after being told not to do so, and another is how the investigator ‘interpreted’ a witness’s conversation with grievant. As just noted, calling the other sergeant after the directive was a serious violation, but grievant did not ‘cook up’ a story with the other sergeant. Redundantly, he told the other sergeant – as the other sergeant had previously asserted he would – to contact the investigator and take care of it. Chief Lapera, who saw this as part of the reason he found grievant dishonest, also acknowledged that both grievant and the other sergeant said that the other sergeant said ‘he would take care of it.’ Simply put, this is hardly proof of a separate act of dishonesty.”

Arbitrator Cohn wrote that a key witness, “interpreted grievant’s ‘nope, everything is fine’ response to both his question and statement as an acknowledgment that there had been an accident. Yet, grievant’s response can just as easily be seen as the answer to the question (Hey, is everything okay?) as opposed to the statement (It looked like you guys got in an accident). Thus, the investigating lieutenant’s ‘inferences’ from what he saw as the circumstances are misplaced.

In addition, Lapera did not believe grievant’s assertion that the other sergeant told him the damage to his (the other sergeant’s) vehicle was pre-existing. This decision was based on what the other sergeant said in his own IA interview. On this record, given the other sergeant’s role, as to the veracity of the other sergeant and grievant, the arbitrator finds no reason to conclude that the other sergeant is the more credible witness.

Finally, Lapera determined that grievant was dishonest because he said there was no damage to his own vehicle. As to the damage to vehicle #255, at least two people saw the patrol vehicle do not recall noticing the hanging tailpipe. Further, everyone acknowledged that the scuffmarks on the bumper did not constitute damage as they could be rubbed off. The key then is the small tear in the bumper. At all times, grievant has maintained this was ‘old’ damage. On June 8, another officer inspected #255 carefully because he was taking it to a driver’s training class. He believes he would have seen the tear and the tailpipe, but did not see them. However, he acknowledged that it was possible he might not have seen the tear on the bumper if it was smaller than that shown on the photo. Although a report should have been filed for other reasons, on balance, as to grievant’s vehicle, a trier-of-fact cannot conclude there was ‘reasonably identifiable damage’ requiring a prompt report. Accordingly, the district’s evidence and argument that grievant was untruthful/dishonest is unpersuasive.”

In a truly “Solomon-like” award, Arbitrator Cohn ordered the department to return Heady to duty once he had “unretired” with PERS. The arbitrator did not award Heady “back-pay” which released him from the obligation to repay PERS for the retirement benefits he received while he contested his termination.

Although, Heady had the ability to retire, due to his years of service, he wanted to go out on his own terms. Cohn’s decision allowed him that right and, more importantly, vindicated his reputation.

Bob Heady is extremely grateful for the support of the Legal Defense Fund.

PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.