A neutral Arbitrator has recently made an unprecedented award in an Oakland POA discipline case. The Arbitrator awarded full back-pay for a served five-day suspension, plus interest, attorneys’ fees, and fully overturned all sustained allegations in an appeal action against the City of Oakland. The award of attorneys’ fees (which are not called for in the MOU) were essentially made as a sanction for the City’s conduct. As the Arbitrator explained:
“This case is extraordinary. The City committed an egregious violation of the parties’ collective bargaining agreement. The City failed to meet its burden to prove just cause, not just in one element, but in all four elements: notice, proof of wrongdoing, fairness of investigation and reasonable penalty. In addition, the City failed to prove that it treated the Grievant fairly during the administrative IA investigation and subsequent review process, or that it seriously and fairly provided the Grievant the due process that is required by Skelly v. State Personnel Board, 15 Cal. 3d 194 (1975) and the MOU’s grievance procedure.”
The Arbitrator also found that the Department’s discipline was “arbitrary, capricious, and in bad faith” and, moreover, that:
“The grievance could easily have been avoided if the City had seriously followed its contractual obligations. As a result of its arbitrariness and bad faith in pursuing the grievance for an improper purpose, however, and for refusing to pay serious attention to the Skelly officer’s findings and recommendations, the Grievant had to incur attorney’s fees in litigating the matter over more than a year, through arbitration, when the matter should have been promptly resolved.”
With these findings and awards, the Arbitrator sent a clear and compelling message to the City of Oakland and the Oakland Police Department that an employer cannot short-circuit the due process rights of law enforcement officers.
The Occupy Oakland protests were a chaotic time for the City of Oakland and for the officers of the Oakland Police Department. Rank and file officers and supervisors were caught between a department administration unprepared for the large-scale violent protests and looting, a City government sending mixed messages to the protesters, police and the public, and poor staffing levels and equipment that often left officers on the front line of protest skirmish lines open and vulnerable to attack. This case revolves around one of the earlier Occupy events where the Department response was tested with a large protest centered in Frank Ogawa Plaza in front of Oakland City Hall on October 30, 2011.
The Oakland Police Department had been tasked by the City with moving the protesters and their tent city out of the public plaza in front of City Hall and on October 30th police skirmish lines were set up early in the morning in an attempt to peacefully move the protesters and their belongings out of the square. Unfortunately, the attempts to peacefully move the protesters out of the plaza quickly failed as a large group of the protesters made it clear they were not leaving without a fight.
Multiple protesters attacked police as the officers attempted to move through and clear the square, forcing officers to respond with various crowd control tactics involving various levels of force. The Department administration, unprepared for the violent response from the protestors and a City under attack, scrambled to put together an operations plan to try to help the officers and contain and arrest the most violent of the protestors. Amidst this chaos and rapidly devolving incident, my client, then a Sergeant with the Oakland Police Department, was assigned the task of attempting to document the many clashes between protestors and police and the resultant uses of force.
The Department had no policies governing how to prepare a use of force report in such circumstances and had never trained Department personnel on how to prepare such a report. My client responded to a holding area in downtown Oakland where he was confronted with a mass of protesters, making accusations of all kinds against their arresting officers, with little time to interview each before they were transported to jail. My client interviewed each as thoroughly as he could that night and then spent several months collecting reports and evidentiary tapes from all officers involved to complete the use of force report. He submitted the report through normal procedures, which included review and approval by his chain of command. The reports were approved by his superior officers and my client never heard any additional concerns about the report until Internal Affairs noticed him several months later. The notice included allegations of an intentional failure to take complaints of improper force from the protesters he interviewed that night and a failure to adequately prepare the use of force report.
In a long Internal Affairs interview, my client attempted to explain that no protesters had ever made any complaints about improper use of force or had expressed any desire to file a complaint against the Department, the City, or any of the officers there that night. He also attempted to explain the chaos of the night and his diligence in attempting to prepare a report that was the first of its kind for the Department. The Internal Affairs investigator was only able to find one of the protesters from that night and interview him briefly. The protester confirmed the Sergeant’s assertion that he had no desire to file a complaint against the Department. Unfortunately, instead of realizing that the Department could not prove the failure to take a complaint allegation and realizing that that the failure to complete a “proper” use of force report was a training issue, Internal Affairs the two allegations against the Sergeant and recommended a five-day suspension although he had no prior disciplinary history.
Appeal of the Case
Rains Lucia Stern lawyers immediately appealed the case and requested a Skelly conference with one of the Department’s Captains. We held the client’s Skelly conference almost one year after the incident date and argued the obvious. We reiterated that the Sergeant never refused to accept a complaint from any protester, that no complaints were made that night, and that the Sergeant did the best he could to complete a use of force report for an unprecedented incident which he was neither trained for nor given policy or guidelines on. Shockingly, the Skelly officer largely agreed with our position and recommended overturning the allegation related to failing to take a complaint and reducing the discipline for the failure to complete a correct use of force report from a five-day suspension to a written reprimand. Without further explanation, the Chief of Police ignored this recommendation, upholding both allegations and the five-day suspension. We decided to take the case to arbitration in the hopes that a third-party neutral arbitrator could see reason and right the wrongs.
We presented the same evidence at arbitration that we had at the Skelly conference with one key difference: the Chief of Police had changed his mind about the allegations and discipline and testified that he did not think either the allegations or the discipline was warranted or justified. The City presented no evidence. Thankfully, not only did the Arbitrator see reason and side with the client’s position in her written decision, she also punished the City for wasting everyone’s time and money pushing the case to an arbitration where they failed to present any evidence by awarding interest on the five days of back pay and an unprecedented award of attorneys’ fees. This case is a clear message to police chiefs and sheriffs that their disciplinary cases should be based on sound findings and evidence or they may well face monetary damages.