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Posted on Sunday, February 01, 2004 at 12:00PM

Factual Background

Matthew Morrissey began his police career with Concord as a Cadet in 1979, became a sworn officer in 1981, and was promoted to sergeant in 1992. On several occasions, Morrissey was approached by management and encouraged to compete for a lieutenant’s position. He declined the invitations, preferring to concentrate his off duty time on his family and on being a certified trainer both for the Concord Police Department and for the Contra Costa County Sheriff’s Office Academy and advance officers schools. Morrissey was appointed as acting lieutenant of the Southern Field Office for the months of July, August and early September 2002, and then assumed the position of the sergeant in charge of the Financial Crimes Unit in late September 2002. In October 2002, he participated in the oral examinations for the lieutenant’s position, along with several other candidates.

Morrissey’s style of accountability ran afoul of some people in the Financial Crimes Unit who complained to upper management. His lieutenant undertook a surreptitious investigation of Morrissey’s outside teaching activities and claimed he did not know that Morrissey had been adjusting his schedule so that he could perform his outside teaching activities and his duties with the Concord Police Department. The lieutenant claimed that Morrissey did not have authority to do “schedule adjustments”. This resulted in Morrissey being terminated from the Concord Police Department on April 29, 2003, after 23 years of spotless, discipline-free service to that department.

In May 2003, the city hired outside attorney Richard C. Bolanos of Liebert, Cassidy & Whitmore to represent its interests in the disciplinary appeal.

Discovery

The parties agreed on Arbitrator Bonnie G. Bogue to hear the matter and arbitration dates in October and November 2003 were scheduled. Morrissey’s counsel, William R. Rapoport of Redwood City, California, realizing that the core issue regarding Morrissey’s discipline related to how he spent his time, requested voluminous materials to show that Morrissey put in the requisite 40 hours and more per week during the relevant time periods. Those investigating Morrissey had not even looked at most of this information. Major disputes arose between Morrissey’s counsel and the City regarding entitlement to those documents. The matter was finally resolved in favor of discovery by pre-arbitration rulings of Arbitrator Bogue.

The MOU

The Concord Police Department MOU requires in Section 15.11.4, in pertinent part, that the city and appellant enter into “an agreement for arbitration”. There is no specificity in the MOU regarding the contents of such an “agreement”, however, the city, through its counsel, initially proposed a five-page draft of a proposed “agreement” which contained provisions (not in the MOU) regarding (1) the authority of the arbitrator, (2) the issue to be decided, and (3) the burden of proof. Needless-to-say, none of these were favorable to Morrissey. Rapoport objected to the provisions as outlined by the city and refused to sign this document as proposed. The parties agreed to submit their dispute to Arbitrator Bogue, who, on October 30, 2003 (after the initial arbitration date had been vacated because the city claimed that they needed more time to review the discovery they had been ordered to produce) issued a 13-page well-reasoned decision, finding in pertinent part, as follows:

“An agreement would satisfy the requirements of Section 15.11.4 by stating that the parties have agreed to submit the dispute over Sergeant Morrissey’s termination to final and binding arbitration under Section 15 of the MOU, and that the arbitration will be conducted in conformance with this ruling regarding the scope of the arbitrator’s authority and the issue to be determined.” (The position of Morrisey’s counsel all along).

Court Order

The parties reconvened with Bogue at the next date scheduled for the arbitration in early November 2003. Morrissey and his counsel announced they were ready to proceed with the arbitration. The city declined to proceed without a written “agreement for arbitration”, and further declined to let Bogue mediate the dispute regarding the contents of such “an agreement for arbitration”. Dates for three days in the first week of December 2003 had been reserved, after which Bogue advised that she would not be available until April and May 2004. The parties made their record, and, with the approval of the Legal Defense Fund, Morrissey’s counsel filed a petition to compel arbitration in the Contra Costa County Superior Court. He requested an order shortening time so that the court could hear and determine this issue before the arbitration dates in December were lost. The court, after argument, set the hearing for the week following the three reserved dates in December, but on December 8, 2003 granted Morrissey’s petition and issued its order compelling the city to participate in the arbitration process without the necessity of a written “agreement”.

The court followed the case of State Farm v. Hardin (1989) 211 C.A. 3d 501, in holding that the city could not get two bites of the apple, i.e., a pre-arbitration ruling on the arbitrator’s authority, burden of proof, and determination of “the issue.” Rather, it had its one bite at the apple post-arbitration remedies of a petition to vacate or confirm the arbitrator’s award, or on appeal from a judgment confirming the award. The court followed a long line of cases, which hold that the lack of specificity in an MOU (in this case no guidance as to what must be contained in the “agreement for arbitration”) is not something that the courts can or should remedy.

Though now long delayed, Morrissey’s arbitration will start before Arbitrator Bogue on April 26, 2004. Without the complete backing and support of the Legal Defense Fund, no one can determine how long the city could have held Morrissey hostage without forcing the matter to arbitration. Both Morrissey and his counsel are deeply indebted to the Legal Defense Fund for its support.

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