By Jim Cline and Stephen Hatton
In City of Selma, Arbitrator George Riggs, Jr. held that Selma, California’s Police Department had just cause to terminate an officer who had violated six of its departmental policies between 2005 and 2021.
The arbitrator determined that three of the offenses committed by the Officer were severe violations for which the City was not obligated to discipline progressively, whereas the other three offenses were less severe, and did require progressive discipline. Nonetheless, the arbitrator held that the City had followed due process and progressive discipline, and therefore dismissed the Union’s grievance.
The Officer in the case had a notably checkered past. In Fall 2020, the officer had ignored text messages sent by Selma’s police chief and had worked two unauthorized extra-duty details against the Chief’s orders. At roughly the same time in 2020, the Officer had mishandled perishable criminal evidence collected for a sexual assault case by stopping at her home to change into her police uniform instead of driving directly to the Department headquarters.
Afterwards, on October 4, 2020, the Officer was placed on administrative leave. At that time, a sergeant who was processing the Officer’s equipment noted that (1) the Officer’s Taser was dead and inoperable and had not been checked since July 2020; (2) the Officer’s ammunition count was short six live rounds; (3) in one of the ammunition clips, the Officer had co-mingled two target rounds with other live-duty ammunition rounds; (4) and the keyboard inside the Officer’s patrol car was missing six keys.
In a letter that Selma Police Department sent to the Officer, the City detailed its reasons for terminating the Officer. The letter accused the Officer of insubordination, making misleading statements, discourteous or disrespectful treatment towards another Department employee, severely deficient police work in a sexual assault investigation, taking Department property, unexcused or unauthorized tardiness, and misuse or lack of care for Department and citizen property.
The Selma Police Officer’s Association argued that the City’s termination of the Officer was unfair, violated just cause and progressive discipline, and violated the Officer’s rights under the Public Safety Officers procedural Bill of Rights for the State of California.
The City, on the other hand, argued that their decision to terminate the Officer was the appropriate penalty for the Officer according to the Officer’s violations of City and department policy. The City issued a letter to the officer listing the charges against the Officer, as well as examples of misconduct that the City used to justify their decision to terminate the Officer.
The arbitrator found that the Officer had committed three serious violations of the Department policy, each of which he claimed justified summary discharge without a serious attempt at corrective discipline or prior warnings. These violations included the insubordination charge, the sexual assault investigation deficient police work charge, and the misuse/lack of care for department and citizen’s property charge.
The arbitrator continued on and explained that the remaining three offenses were less-serious violations of the Department policy, which required progressive discipline and notice measures – all of which the City had followed when disciplining the Officer. In fact, the arbitrator found that the City had provided the Officer with due process:
The employer also has a record of using progressive discipline as an appropriate form of “notice” to help the Officer to improve her behavior. The employer did not seize upon an isolated event or a one-time mistake to use as a pretext for imposing discipline or otherwise “rush to judgment”. Based on the evidence presented, just cause did not exist for the employer to discipline [the Officer].
According to the arbitrator, the City had started its progressive discipline with the Officer in 2005 and utilized its corrective measures several times between 2005 and 2020. The arbitrator explained that the City’s notices and administrative investigation procedures were enough for due process:
In the first of the ‘Letter(s)’ from the Police Department to the Officer the alleged violations of department policies and procedures[], the reasons for intending to take disciplinary action were clear and unambiguously written. This letter was dated February 5, 2021, giving [the Officer] the information and time necessary to prepare a vigorous defense. Each of the enumerated “charges” was also linked to a specific policy to offer a clear illustration of the serious nature of both the ‘charge’ and the potential consequences of its violation. The employer submitted sufficient evidence of the Officers violations at the Administrative Investigation, the [Officer’s State mandated discipline] hearing and at the arbitration hearing. When this evidence is reviewed and supplemented with some of the Officers’ own testimony it is sufficient to meet the “clear and convincing” standard.
The arbitrator also dismissed the Union’s argument that the City had violated the State of California’s Peace Officers procedural Bill of Rights, finding that he had no authority to address violations of that statute. He noted that the agency that administers the Peace Officers procedural Bill of Rights was the appropriate place to submit any such complaints.
Since the City had just cause to terminate the Officer’s employment, the arbitrator dismissed the Union’s grievance and upheld the City’s disciplinary action.
This seems to be situation where an arbitrator concluded that the officer was essentially a “bad officer” and based on that conclusion relaxed the normal progressive discipline requirement. While some of the Officer’s violations were serious, the arbitrator doesn’t convincingly explain why they were “summary discharge” offenses warranting bypassing normal progressive discipline. The arbitrator also overlooks a key union argument that bill of rights procedures were violated. The arbitrator concluded that these statutory violations cannot be evaluated by him in grievance arbitration. Yet most other arbitrators do find that employer violations of mandatory legal procedures (good examples would be Loudermill or Weingarten) can undermine just cause
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