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By PORAC | January 1, 1997 | Posted in PORAC LDF News

Arbitrator Finds Termination Excessive Penalty

Arbitrator Bonnie Bogue reinstated a Berkeley police officer fired by the department after the officer failed to investigate a fraternity-house burglary. The officer appealed the termination and was represented by Carrol, Burdick, & McDonough’s Martin Gran. While the arbitrator sustained most of the allegations against the officer, she overturned the termination as being too severe under the circumstances.

The case arose from a fraternity-house party taking place on a Friday night in the summer of 1995. The party started out as a 15—person birthday party but ballooned to nearly 10 times that size. Officers testified that the party grew out of control, with over 100 students crashing the party, drinking, and creating noise and other problems in the neighborhood.

As a result of the party, the Berkeley Police Department received at least three calls for service that night. The first two calls involved noise complaints and a report of a “man with a gun” on the premises. Around 11 p.m., police officers tried to remove the party-crashers; however, by midnight the party was back in full swing.

The third call for service came out over the radio as both burglary and individuals drunk in public. One of the intoxicated party-goers went to the third floor, broke open a bedroom door and began removing stereo and computer equipment. One of the residents of the room caught the suspect in the act, wrestled him down to the second story mezzanine, and held the suspect until the police arrived.

The officer who was later terminated was the beat officer for the south campus area that night. Although he did not respond to either of the previous calls when dispatch announced the burglary call, he confirmed that the address was the site of the earlier complaints, and stated that the party should be shut down.

He drove to the scene, entered the house and spoke briefly to the victim. The victim had already given a statement to another Berkeley Police Department officer who arrived earlier. The beat officer mistakenly concluded that the suspect had taken the computer equipment from a room on the second floor where party-goers were playing video games.

The officer then continued with his predetermined course of action and cleared out the party. After he and other officers finished clearing out the party, he eventually booked the suspect on suspicion of being “drunk in public,” rather than on burglary charges. The officer erroneously stated in his police report that he contacted the suspect outside the fraternity.

The chief of police quickly terminated the officer for dishonesty and neglect of duty. After the department terminated the officer, the chief learned of a new allegation; that the officer failed to take a report of an assault.

Although this allegation was never substantiated, the chief felt that the allegation justified an unprecedented audit of all of the officer’s calls for the preceding two months. The chief instructed the Internal Affairs sergeant to review dispatch records and try to contact every person to whom the officer was dispatched, to see if he properly handled that call.

With the help of two officers on light duty, the Internal Affairs sergeant concluded that the officer failed to properly investigate crimes on four occasions. Three of the matters involved minor incidents, such as a scratched bumper and the illegal use of a fraternity’s dumpster; one involved property damage committed by a drunk driver who left the scene.

The department thereafter modified the termination to include these four instances of alleged failure to investigate. The department also tried to characterize the officer’s use of the MSC (miscellaneous service call) label for closing these cases as dishonesty.

At arbitration, Gran and the Berkeley Police Association attempted to show that the department rushed to judgment in terminating him. First, they introduced evidence that the officer had a very good reputation among the fraternities.

The presidents of two fraternities testified that the officer visited them regularly, spoke to them about noise and safety issues, and dealt with them respectfully and effectively when the police were called out. They also introduced letters of support from other fraternity members.

Testimony was also presented by other officers regarding the nature of the south campus area. They stressed the problems in dealing with fraternities, including constant noise complaints, excessive alcohol use, and a variety of pranks, some of which involved stealing other fraternity members’ property.

Secondly, the appeal team highlighted the officer’s performance evaluations, which showed him to have good “people skills,” a good sense of humor, and an ability to learn from his past mistakes. The chief admitted that he did not consider these evaluations when deciding what discipline to mete out in this case.

Third, they brought out evidence that the chief was in contact with the District Attorney’s Office with regard to both the fraternity call and one of the supplemental cases. They argued that, under the circumstances, such contact showed bias on the part of the chief against the officer.

Finally, they argued that the penalty was excessive. The department relied heavily on a previous 10—day suspension for supposed dishonesty. The chief argued that the prior 10—day suspension for “dishonesty” showed that the officer could not learn from his past mistakes and that he had “no alternative” but to fire him.

In the previous case, a sergeant caught the officer speeding in his patrol car and confronted him about why he was speeding. The officer jokingly responded that he was ” chasing somebody.” When the sergeant did not laugh, the officer immediately admitted that he had no reason to speed and that he was just bored.

The sergeant wrote the officer up, and the chief imposed a 10—day suspension regarding the comment. The officer did not appeal the suspension because he was on probation at the time. At arbitration, the defense argued that the matter should never have resulted in a suspension, and the underlying suspension could not properly justify the termination.

At arbitration, the chief attempted to justify his swift conclusion to terminate by comparing the officer to two of the most vilified police officers of our time: Detective Mark Fuhrman and Sergeant Stacey Koon.

The chief argued that if the LAPD had cracked down on these individuals early in their careers, they would not have caused the LAPD the embarrassment that they did. This hyperbolic comparison, of course, greatly upset the officer, and frankly backfired during the arbitration.

Following the arbitration, the parties submitted briefs, and the arbitrator ruled that the penalty of termination was excessive under the circumstances.

The arbitrator first considered the department’s reliance on the previous 10-day suspension. The arbitrator noted:

“The undisputed evidence concerning the reason for the 10-day suspension is that the grievant told his superior officer that he was speeding because he was in pursuit, when he was not. His superiors deemed that “dishonesty” and based the discipline in part on that charge, whereas the grievant claimed he was not lying, but merely attempting to joke about being caught speeding. Since the record of that incident indicates that he recanted immediately and admitted to the sergeant right then that he had no excuse for speeding, the department cannot reasonably equate that incident with the kind of “dishonesty” involved in the grievant’s present misconduct.”

While the arbitrator did not reverse the termination on pure “progressive discipline” grounds, she certainly took the circumstances of the underlying suspension into account in determining the proper discipline.

The arbitrator also specifically noted several mitigating factors in the case, such as: (1) the propensity of fraternities to play pranks on each other, including activity that was technically criminal but that would not necessarily be treated as such by the police; (2) the chaotic nature of the party and the officer’s predetermined plan to shut it down; and (3) the officer’s strong performance record, as evidenced by his performance evaluation (which showed an ability to learn from past discipline and confirmed his commitment to the south campus community) and his discipline-free record between the time of the 10-day suspension and the termination.

Finally, the arbitrator noted that the officer immediately admitted his error and acknowledged the seriousness of his failure to properly investigate the burglary. She also noted that the four supplemental cases actually showed strong performance, as they represented only four relatively minor problems out of as many as 600 calls in that time period. Although the arbitrator did not conclude that the department rushed to judgment, she did fault the department for not considering the mitigating factors discussed above.

The reinstatement was not a complete victory. In reinstating the officer, the arbitrator imposed a “last chance” provision under which the department can terminate the officer should he breach his duties as a police officer in the next 12 months. The arbitrator also chose not to make a back-pay award, noting that the admitted misconduct deserved a substantial suspension.

While the reinstatement came with some strings attached, the officer is happy to be back at work. The arbitrator’s award, general analysis of the case, and observations on progressive discipline and penalty issues represent a ray of hope for employees appealing terminations in a climate where courts (and to some extent arbitrators) are increasingly unreceptive to such arguments.