Emeryville Poa President Prevails at Arbitration

In a disciplinary arbitration involving Emeryville Police Officers’ Association (EPOA) President Sergeant Randy Horton, Arbitrator Norman Brand ruled that there was no “just cause” for Horton’s two-day suspension for insubordination and rudeness. The arbitrator’s decision and award vindicated Sergeant Horton and served notice on Emeryville Police Chief Joseph Colletti and his administration not to trample on the free speech rights of EPOA officers and rights of Horton in his capacity as the EPOA’s President and labor relations representative. Horton was represented by Dave Clisham and Dan Connolly of Clisham & Sortor of San Francisco.

On November 7, 1995, Chief Colletti addressed the Emeryville City Council and presented it with a “Status of Crime Report.” After the Chief’s presentation, Sergeant Randy Horton, in his capacity as EPOA President, also addressed the City Council on the Emeryville Police Department’s “Status of Crime Report” and answered questions from City Council members. While President Horton was deferential towards and respectful of the Chief during his City Council presentation, the Chief and his command staff thought otherwise.

The Chief testified that Horton’s appearance was “frustrating and embarrassing;” his civilian “commander” Jeannie Wong, testified that they (the command staff) were “disappointed and shocked.” While the Chief initially did not want to meet with Horton about Horton’s City Council appearance, his command staff persuaded him to meet with Horton to address his “performance” and his alleged acting in a manner consistent with his obligations as an Emeryville Police Sergeant.

The City presented no evidence that Horton had ever acted in a manner inconsistent with his obligations as an Emeryville Police Sergeant and that his performance as a sergeant had been compromised.

Chief Colletti summoned Horton into his office at 0600 hours on November 13, 1995, after Horton had completed the graveyard shift. With only Colletti and Horton present, the Chief proceeded to criticize Horton for his City Council appearance, telling Horton that he was an “embarrassment to the Department, the POA and himself.” Horton, realizing that the meeting was not about his performance as an Emeryville Police Department Sergeant but about his appearance before the City Council in his capacity as the EPOA President, advised the Chief that this was “bullshit” and requested that the meeting be rescheduled.

The “Chief kept talking and [Horton] kept asserting his desire to leave.” Colletti threatened Horton with insubordination if he left the Chief’s office, and Horton said to the effect, “Do what you have to do” and left the Chief’s office. The Chief immediately requested Horton’s ID card, badge, and building key; while en route to the sergeant’s locker room, Horton exclaimed that “this was fucking crazy” and told the Chief to “come to his fucking house” to get them.

As Horton and the Chief entered the locker room, two other officers were present and heard Horton tell the Chief, “If you want my fucking keys, come and get them … you can have my fucking badge too.” While in the sergeant’s locker room, Horton took his badge from his shirt and threw it on the floor saying, “There it is if you want it.” Horton subsequently picked it up, apologized for throwing it on the floor, and gave the Chief his ID, badge and building key. Horton told the Chief that the Chief was an embarrassment to the Department. On his way out of the building, Horton stopped to apologize to the dispatchers for any disturbance he may have caused.

The Chief thereafter issued Horton a “Notice of Intent to Discipline,” proposed a five workday suspension and based it on charges of insubordination and rude conduct. Subsequent to Horton’s “Skelly” hearing, the suspension was reduced to a two-day suspension.

Arbitrator Brand stated the following:

“Three aspects of the confrontation between Chief Colletti and grievant are immediately clear. First, there was never any performance issue that was going to be discussed with grievant. The only reason for the meeting November 13 was so the Chief could discuss with grievant the “embarrassment” that grievant caused by speaking before the City Council. Second, the Chief had no right to order grievant to discuss grievant’s lawful activities as POA President – which was entirely divorced from his duties as a sergeant in the department – at a time and place chosen by the Chief. Nor could the Chief order grievant to stay until he was finished discussing grievant’s performance as POA President. Third, grievant was unacceptably rude and discourteous to the Chief after he left the office.”

The arbitrator also acknowledged Horton’s First Amendment rights to address the City Council:

“… there is no overlap between the address grievant made to the City Council and his responsibilities as a sergeant in the department. There could not be a more clear example of a union official speaking to a public body on a matter of public concern. As the POA points out, this is at the core of protected First Amendment activity. Moreover, there is no evidence that the address grievant made to the City Council substantially disrupted departmental operations. In fact, there is no evidence the speech caused any disruption in departmental operations.”

However, because of Horton’s rude and disrespectful conduct towards the Chief in the hallway and in the locker room, the arbitrator found “just cause” for the department to issue Horton a letter of reprimand.

Sergeant Horton and his colleagues, as well as all peace officers, do enjoy First Amendment rights and are not relegated to a “watered-down version of Constitutional rights (Garrity v. New Jersey (1967) 385 U.S. 493, 500), and as acknowledged by Arbitrator Brand, EPOA President Horton cannot be ordered to participate in a meeting concerning labor relations matters.