Officer Victorious Over City of Riverside in Arbitration

Arbitrator Joe H. Henderson emphatically has overturned the termination of Riverside Police Officer Ben Shafer and returned him to work with full back pay and benefits.

Shafer, a 6 ½ year veteran assigned to Narcotics, was well on his way to making detective when his train got derailed by a seemingly innocent misunderstanding with his supervisor.

It was a routine drug bust, or should have been. Shafer was the case agent on a search warrant for a methamphetamine sales case. Though no meth was found at the residence, the suspect was arrested for possession of over a pound of marijuana. It was late, and the detective test was the next day. Shafer went home, figuring he’d weigh the evidence the next day.

With studying for the test, and the normal craziness of the “Narc bay,” Shafer had to be reminded by his sergeant to “weigh the items.” He did. There were a couple of loose “baggies” of marijuana, and a pound of marijuana packaged in 20 or more individual plastic baggies all housed in one big paper bag. Shafer followed his normal routine and weighed the entire paper bag. He thought this would be sufficient, since he was told to “weigh the items” and the paper bag was listed in his report as one item. He had also done it this way in the past, with no problems. In an effort to save time, he wrote in the weights by hand, and forwarded the report to records. He assumed the matter was done. He was wrong.

Later that day, his sergeant asked him if he had made the corrections. Shafer answered in the affirmative, since he felt that he had. The next day his sergeant asked him for a copy of the report “for his statistics”. Shafer gave him a copy of the old report, without the corrections. He thought this would be good enough, since he assumed that the sergeant only wanted the report for his own records. Again, he was wrong.

Shafer’s supervisor noticed that the report he was given did not have all corrections he had asked Shafer to make. He then asked Shafer for a corrected report, and here is where the stories began to differ. The sergeant remembered asking for a “faxed” copy from records. Shafer remembers his sergeant asking for a corrected report, but “not the faxed part”. Shafer then went to the stenographer and asked her to print out a copy of the report, adding the corrections. She did. He then gave this to his sergeant.

His sergeant noticed that some corrections were not made, and questioned if this was a faxed report from records. Shafer said no, and told him it was a corrected report, but not the one from records. His sergeant became suspicious. He thought Shafer had lied to him about how he had made the corrections, and decided to initiate an internal investigation. Don’t worry, it gets worse.

There were only two witnesses to the conversations forming the basis for the allegations of dishonesty: Shafer and his supervisor. You might think that since the supervisor was the complaining witness, he might have been biased. He was.

You might have thought that since the sergeant believed from the beginning that Shafer had lied to him, the department would have someone else conduct the investigation. They didn’t.

Shafer’s sergeant, the complaining witness, conducted the investigation. He interviewed the witnesses, including Shafer. No one ever interviewed him. In the end, though Shafer’s rep at the IA felt impelled to blurt out, “This sounds like one big miscommunication to me,” no one could convince the sergeant he was wrong. The sergeant sustained his own allegations and, once termination was recommended, signed off on that too, acting as investigator, prosecutor, judge and jury.

Shafer waived his Skelly hearing and went directly to arbitration. Michael Schwartz, of Silver, Hadden & Silver, represented Shafer at the hearing. Shafer’s sergeant admitted to being biased from the start, but tried to downplay his bias by saying he had had an open mind, and had given Shafer the opportunity to “prove” to him he wasn’t lying. Yet, in a case that hinged on what was said and what was understood, the sergeant could not remember word-for-word what Shafer had said to him during those five, brief conversations, no quotes, nothing. All the sergeant could remember was that Shafer had lied, and that was good enough proof for him, and the department.

It was not good enough for the arbitrator. He found that in fact Shafer had not lied, adding, “It is inconceivable to this arbitrator, with over 29 years of experience as a trier of fact in employment matters, that the department management would permit the termination of an officer under these conditions. The accuser (the person who made the charges) was also the supervisor who investigated the charges. He made the determination that appellant was lying because his account differed from the appellants and recommended termination.”

The arbitrator went on to conclude, “The main person that heard the appellant’s side of the matter was the accuser, investigator, prosecutor and judge. This was not a ‘fair’ hearing.”

Thankfully, the nightmare is over, and Ben Shafer is back to work. The department, a bit “wiser for the wear,” accepted the arbitrator’s ruling and had been more than cooperative in expediting Shafer’s return to uniform. Shafer now looks forward to the promising future he dreamed about as a 19-year old cadet, that of a City of Riverside police officer.