By Anthony Rice
In City of Bartlesville, the arbitrator found there was just cause to terminate an Oklahoma City police sergeant for not properly controlling officers who engaged in excessive force. The arbitrator applied the 7 tests for finding just cause and found the sergeant’s actions showed a lack of proper supervision of the officers under his watch command.
The discipline arose from an incident involving the sergeant and three other officers attempting to transport a mentally ill citizen. The sergeant and the officers responded to a request for transport of a patient who was “suicidal and needing treatment.” Specifically, the sergeant responded as the watch officers while the subordinate officers conducted the transport. The sergeant and the officers eventually completed the transport. However, the next day a doctor from the hospital called a lieutenant to report the physical abuse of the mentally ill patient the night before. The lieutenant obtained a copy of a surveillance video that showed the officers slamming the patient to a cot then choking him to the point of unconsciousness.
The City presented testimony to support their assertion that the sergeant failed to take proper action as a supervisor. Captain Greg Sipes was retained as an expert in the use of excessive force by police officers. He found that the officers used excessive force given the circumstances they faced, and the sergeant did not take proper action to restrain them and redirect their actions. The City also called Chief Holland who testified that he believed the sergeants failed to firmly reprimand the officers. Progressive discipline was not utilized and the sergeant was terminated.
At arbitration the first issue was the burden of proof to be applied. The arbitrator held that
[s]ince discharge is the most severe penalty that can be imposed on an employee the Employer has the burden of proving by “clear and convincing evidence” that a Grievant was discharged for just cause. This is a higher degree of proof than the usual “preponderance of evidence” standard used in non-discharge arbitrations, but it is less than the criminal standard of “beyond a reasonable doubt” which the Union believes should have been used.
Next the arbitrator applied the 7 tests for finding just cause for termination. After review of the 7 tests, the arbitrator concluded that “[a]lthough termination from the [department] is a severe disciplinary action, the City showed by “clear and convincing” evidence that the discharge was for ‘just cause.’ The Union did not present sufficient evidence to overcome this proof.”
