Sgt. Darryl Roberts V. East Palo Alto Police Department

Posted by William R. Rapoport

Heated negotiations continued through the summer of 2001 which, in addition to the controversy between the POA negotiating team and the city, created controversy between Roberts and other POA members. Certain POA members scheduled a vote of “No Confidence” regarding Roberts as president of their POA, and the vote was scheduled to be held on August 10, 2001, because of allegations that: (1) His handling of the contract negotiations (For example, several officers wanted Roberts to make copies of all proposals and counter-proposals and discuss them at a POA meeting before engaging in bargaining.

Roberts, understanding this would be nearly unworkable, apparently did not follow the proposed procedure and this resulted in complaints regarding his conduct) was not in accord with their wishes, and (2) General economic issues regarding pay were raised. On August 1, 2001, after heated debate, the POA ratified a new contract with the city of East Palo Alto in large measure due to Roberts’ tireless and persistent efforts.

Between August 1 and August 9, 2001, the day before the “No Confidence” vote (which was not successful), Roberts engaged in heated conversations with several different POA members, all occurring within the police department, some while he was on-duty and others while he was off-duty. Roberts is an African-American, and these heated debates took place with officers who were white (2), Hispanic (1), and African-American (another sergeant).

Some of these exchanges resulted in questions by Roberts about racial motivations vis-à-vis his presidency of the POA, but each was solely and exclusively about the past POA negotiations for the contract with the city, and the pending “No Confidence” vote on his presidency. During the contract negotiations, Roberts was getting very little sleep (having a work schedule of 7 p.m. to 7 a.m., followed by sometimes day-long meetings to negotiate the contract).

Wesley Bowling, chief of the East Palo Alto Police Department, found after an Internal Affairs investigation, that Roberts’ conduct was in violation of four departmental rules:

• Discourteous or disrespectful treatment of employees;
• Conduct which damages the city or its reputation;
• Harassment and workplace violence (through no physical contact or threat of such contact existed); and
• Conduct unbecoming an officer.

In response to those findings, the chief initially recommended a 160-hour suspension, which was later reduced to an 80-hour suspension after the Skelly hearing. Roberts was represented from the inception of the Internal Affairs investigation through the arbitration by this author.

In a lengthy and well-reasoned decision, arbitrator Thomas Angelo, after a two-day hearing, found that Roberts’ position was correct. This position was that each conversation between Roberts and the four other POA members referred to POA issues about which each complaining officer had taken a public position and that Roberts was clearly entitled to speak with each person in their POA activities since they were fellow unit members and constituents.

Moreover, none of these conversations were with an idle bystander, because each had expressed a viewpoint dealing directly with Roberts’ performance as POA president. Angelo’s decision included the following statements:

“There is nothing ‘harassing’ about an elected union official’s efforts to communicate with unit members over current issues. The grievant may have gone about it in a less than effective manner, and his language may have strayed far from words of persuasion, but the fact passionate speech is involved is not per se proof of harassment. Moreover, while there was some desire by the different participants to have the conversations elsewhere, they all tacitly understood that grievant had not randomly selected them for conversation.”

“The officers had each voiced criticism regarding the grievant’s role as a union representative, and by involving themselves in the union’s affairs, they tacitly invited a response by the grievant. As a general proposition, a union official is entitled to respond to criticism without the response being labeled ‘harassment.’ Each officer should have understood that, once he embarked on the path of union debate, he had to accept the natural consequences of that decision.”

Since these contacts and conversations were not made in Roberts’ capacity as a “sergeant”, but in his capacity as a “POA president”, the charge of conduct unbecoming an officer is not intended to apply to otherwise lawful POA behavior. Angelo found specifically as follows:

“However, even assuming ‘rude’ and ‘non-public profane’ language was encompassed by the ‘conduct unbecoming’ rule, the grievant’s comments were not made in his capacity as a sergeant, but in his capacity as a POA president. The focus of the work rule is on the behavior of the ‘employee’ – as indicated by the rule itself – and it is not intended to apply to otherwise lawful POA behavior. Accordingly, the work rule would not have been violated because the grievant was not engaged in departmental duties when discussing POA work. Moreover, the notion that an employer may ‘correct’ union-related speech is anathema under every labor relations system in the country, and the city clearly did not intend for its work rules to be defined in a way contrary to law.”

Based on that, Angelo found that there was no evidence to support any cited work rule violations against Roberts.

More importantly, Angelo, citing numerous California, federal and NLRB case law, found that Roberts was engaged in “protected speech”, and that no discipline was, therefore warranted.

Though under the MOU for the East Palo Alto Police Department, the decision by Angelo was a “recommended” decision and award, the city elected not to contest the matter further.

About The Author

William R. Rapoport is a sole practitioner in San Mateo, California, and has defended numerous peace officers in state and federal criminal and civil cases for over 25 years. At present, he is counsel for one of the Oakland police officers being criminally prosecuted in “The Riders” trial.