By Jim Cline and Geoff Kiernan
An arbitrator found that while a Portland police captain committed the numerous offenses at issue during the grievance hearing, the city did not have just cause for the indefinite demotion of the officer. Given the Police Captain’s 23 year history without discipline and the fact that the officer was in counseling to address some of the issues, the arbitrator found that a 60-day suspension was more appropriate.
As result of a high profile off duty incident involving the Police Captain, government officials within the City of Portland demanded a full investigation into the Captain. In August, 2011, the police captain, allegedly violated work rules when while off-duty and on family vacation in Idaho, showing his gun and badge to a motorist who was allegedly cutting him off in traffic. There were disputed accounts about exactly what happened, but the end result was the motorist called the State Patrol, who subsequently pulled the officer over. The officer was allegedly very rude with officers who pulled him over, however ultimately he was allowed to leave the scene.
He was criminally charged (but later acquitted) of the misdemeanor charge “Exhibition of a Deadly Weapon”. During the course of the Internal Affairs investigation several of the Captains coworkers were interviewed and some new charges were brought to light. One of which was an allegation from two women who had interacted with the Police Captain and alleged that he had improperly touched them on the thigh. There were several conflicting stories about exactly when the touching happened, what was touched, and how offensive the touches really were. The Captain claimed that this touching was innocent and were simply his attempts at being friendly. However the city contended that even if this touching was not inappropriate, the Captains response to it clearly was not. His response was that the victim was unattractive and he was trying to be compassionate towards someone who was uneducated and unskilled.
A third charge was brought up at the grievance hearing that in the previous year during a meeting with an employee and her union representative, Captain O violated a department policy. During the meeting he yelled at the representative and forced her out of his office. The city argued that by doing this in such an aggressive and hostile manner the Captain violated the requirement that supervisors act in a courteous and considerate manner toward subordinates at all times.
The arbitrator sustained the charges. He found that the weapons charge could still be sustained despite the acquittal, and that there was sufficient evidence to support the other charges.
But the Arbitrator also concluded that there was not just cause for his “indeterminate sentence” of demotion. While there were many factors which favored harsh discipline, the arbitrator also noted that there were several mitigating factors as well. The most important of which was the fact that the captain had more than 23 years on the force without a single instance of discipline. Furthermore he had no history of sexual harassment in the past, and there have been no instances of it since. The arbitrator noted that some of the events which the officer was charged with took place over 4 years prior and the most recent event took place 11 months before the hearing.
The arbitrator felt that Captain has been disciplined enough and that the Captain was capable of continuing to contribute the Portland Police Department and any further discipline would only serve to punish the Captain:
Cases for mere punishment do exist…this is not that case. The record reflects that, following the Idaho incident, Grievant was retained by the Employer in positions requiring significant judgment and responsibility and performed successfully.
The arbitrator explained that rather than further punishing the officer, it would be to the benefit of the City to allow the Captain to return to work:
I find that the grievant is capable of performing the duties expected of an officer of the rank of Captain, and that PPB’s legitimate interest in being able to rely upon the Grievant to conform to its standards
Thus the arbitrator overturned the demotion and reinstated his rank.
This case demonstrates the common approach of arbitrators which is to view demotions with some skepticism. Management often views demotion as another tool that is simply an alternative to suspensions. In fact a demotion is the equivalent of firing someone from the position, often with significant long term economic consequences. Therefore, arbitrators generally will hold employers to a high burden on demotion cases.
Generally is not enough for an employer to demonstrate that the demoted employee engaged in some significant misconduct. Instead, they are usually required to prove that the misconduct at issue has some direct link to the supervisor rank. In other words, the question to be addressed is whether the misconduct at issue is such that it disqualifies the person from being able to supervise others.
This case involved sexual harassment which often can be a type of offense that could be disqualifying for a supervisor. But here the harassment involved a third party, not a subordinate. The other charges involved issues of judgment and emotional stability. With these events in close proximity, one can understand why the City thought demotion was appropriate. The arbitrator, though, as often occurs, found the conduct insufficient to warrant the discharge.
