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About Portland observer. (Portland, Or.) 1970-current | View Entire Issue (Aug. 13, 1981)
Arbitration report The Association maintains that the discharges were not for just cause because the C ity failed to adequately investigate the incident before im posing discipline. Specifically, the Association charges that Commissioner Jordan, the individual who made the decision, did not have all the relevant facts as o f March 26, the day the decision was made to terminate the griev ants. The Association pointed to the fact that Commissioner Jordan refused to speak with the grievants, the other eight officers at the scene on March 12, or any o f the grievants* im m ediate supervisors. . . F u rth e r, the Association contends that the discharges cannot stand because the incident was brought about by a lack o f supervision. According to the Association, the supervisors at North Precinct allowed a serious dispute between officers to grow unabated so as to be a significant factor in the March 12 incident. The Association maintains that failure o f an employer to properly train an employee prevents the employer from relying on a disciplinary decision ®«r*butable to the lack o f training. In the few o f the Association, the failure o f the City to provide some sort o f racial sensitivity or cultural awanmess training was a contributing factor to ‘ he March 12 incident. Dlacuaalon O fficers G allaw ay and Ward w ith Portland P olice A sso cia tio n p resid en t Stan Paters (w ith bull horn) during d em on stration by pollcs union In support of ths officers. (Photo: Richard J. Brown) Following are excerpts from the A rbitrator's Opinion and A ward o f Grievances o f Craig Ward and James Galloway submitted to the City o f Portland on A ugust II. 1981 by Gary L. Axon. Statem ent of Facts On March 12, 1981, the grievants (W ard and Gallaway) were assigned to patrol district 582 in the North Precinct o f Portland. The grievants were checking alleys which burglars had been using to gain access to residences. Officer W ard, who was driving the car, spotted an opossum in front o f the car. He sped up and ran over the opossum with his car, killing the opossum. Subsequently. Officer Ward used the police car to run over and kill a second opossum. Later, the two officers dubed three other opossums to death with their police batons. They placed the dead animals on the floor in the back seat o f the patrol car. The grievants were uncertain o f what to do with the dead animals. Officer Ward testified he considered using the pelts o f the animals but rejected the idea after closer examination revealed the pelts were not useable. It should be noted here that Office Ward maintains a trap line during the nine winter months o f the year, and it is on the basis o f his trapping experience that he made the determination o f pelt quality. The grievants testified they then decided to put the dead opossums in the back o f a sergeant’s car at North Precinct. The idea was abandoned after they learned that this particular sergeant was not on duty. O fficer Galluway suggested that they place the deas opossums in the parking lot between the Burger Barn Restaurant and Weimer’s Hardware Store on Union Avenue, near Shaver Street. At about 10:20 p.m. the grievants called for a ’ ’meet” with other officers at the p arking lo t. Eight other o fficers responded to the call for this ’’meet” . The grievants removed the carcasses o f the dead animals from the car and showed them to their fellow officers. The testimony indicated that there was little conversation at the scene. One officer testified that there was little conversation at the scene. One o ffic er testified he heard O ffic e r Gallaway state that he and Officer Ward intended to make a presentation or a gift. The grievants each picked up two dead opossums and carried them across the parking lot and threw the dead opossums onto a public sidewalk on Union Avenue in front o f the Burger Barn Restaurant. The grievants returned quickly to their car and left the scene. The other police cars left the parking lot immediately after the grievants left the scene. Police radio records indicated that from the time O ffic e r G allaw ay had called for a “ meet” and the last car cleared the parking lot a total o f ap proximately four minutes time had elapsed. The son o f the owner o f Burger Barn called Channel 2 and the incident was carried in the media. Officer Ward told his sergeant o f his involvement on March 14th and an Internal Affairs Division investigation was initiated on March 16th. Charges were brought against the grievants on March 23rd alleging violation o f the rule that states: “Employees, whether on duty or o ff duty, shall be governed by the ordinary and reasonable rules o f good conduct and behavior, and shall not commit any act lending to bring reproach or discredit upon the Bureau or o f the City o f Portland. A disciplinary hearing was held on March 26th after which Chief Bruce Baker went immediately to the office o f Commissioner Charles Jordan to discuss what action should be taken. A t the conclusion o f the meeting, Commmissioner Jordan indicated that the grievants should be terminated and Chief Baker concurred. The notice o f dismissal was dated March 30th. The officers filed grievances that were denied by Jordan. The Portland Police Association took the matter to arbitration as provided fo r in the union contract. Position of the City The City contents it had just cause to terminate the grievants. According lo the C ity, “ the focal point o f this case is that a police officer is a public vant in a position o f great power and public trust.” The City alleges! that the wrongful conduct o f the grievants brought great discredit and reproach to the Portland Police Bureau. Further, the City reasons that extremely high standards o f discipline and accountability are essential for efficient and ef fective police work. The City maintains that public trust and confidence are fundamental to a properly functioning police agency. The C ity asserts there are no mitigating circumstances which justify the grievants’ actions. . . Further, the City maintains the grievants, as experien ced street officers, knew their conduct was wrong and that they should have known better. . .In addition, the City denies that discharge o f the grievants under the circumstances o f this case was too severe. . . The City denies the claim by the Association that the discharging o f the grievants in this case was inconsistent w ith discipline adm inistered by the bureau in other disciplinary cases. . . The C ity denies that any procedural defect exists because Commissioner Jordan refused to meet with the grievants. Position of ths Association The Association contends that the discipline imposed in this case was not m keeping with discipline mected out by the City for similar offenses in the past The association maintains once disparate treatment is demonstrated a fin d in g that the level o f discipline imposed was not fo r just cause’is .««lu.rcd. T he A u o c ia tio n . l i e , . , I h . l .he eeid en e, „1 p . „ d i , d X demonstrated that the Bureau has been “ so inconsistent that it may be s x s r ............. .. °> There is no dispute that O fficers W ard and Gallaway did deposit four dead opossums on a public sidewalk in front o f the Burger Bam Restaurant on March 12, 1981. N or is it denied by the Association that the grievants should not be punished for their conduct on March 12. The question before the A rb itra to r is whether or not there was just cause to term inate the grievants. At the outset, it is necessary for the Arbitrator to discuss the question o f whether or not the M arch 12 incident was a racially m otivated act. The Burger Barn Restaurant is a black owned and operated business on Union Avenue in Northeast P o rtla n d . In order to accurately understand the situation, it must be realized that the term Burger Barn had a meaning to Portland police officers separate and distinct from the restaurant itself. . . It includes the parking lot area between the Burger Barn Restaurant and Wimers (sic) Hardware. The public sidewalks and several buildings in the immediate vicinity are included in the geographic area referred to by police officers as the Burger Barn. The Burger Barn geographic area as opposed to the restaurant represen ted to the police a symbol o f a place where illegal transactions took place Grievant Gallaway testified “ that’ s where most people congregate when they are dealing their dope, prostitution, pimping, fencing hot items.” The evidence demonstrated that the geographical area known as the Burger Barn was a source o f frustration to police officers because they were unable to stop the illegal activity that transpired in the area. The grievants stated the reason for engaging in their conduct was to help solve a peer problem among officers on the shift. The grievants thought it would be funny to display the opossums to their fellow officers and leave them at the Burger Barn in an attempt to get the officers laughing. The reason they chose the Burger Barn geographic area was because it was a trouble spot known to all officers. The grievants felt it would have the greatest humourous effect in the area o f lawless troublemakers. The grievants denied that their act was racially motivated. The Internal Affairs Division report found no evidence o f racial intent. Chief Baker was unable to attribute any racial motivation for the grievants’ conduct. Com missioner Jordan testified as follows: Q. (By M r. M ortland) Did you consider it to be an act o f either racial harassment or harassment? A . Harassment, yes. harassment. I did not think it was racial. I reallv didn’t .” y There is not a scintilla o f evidence in the record to suggest that the grievants’ conduct was racially motivated. The record in this case clearly and convincingly establishes that the act o f leaving the dead opossums on the sidewalk was a way o f getting back at what the officers viewed sa “ lawless troublemakers,” white or black, who frequented the geographic area known as the Burger Barn. The evidence in the record leaves no doubt that the decision to leave the opossums at the Burger Barn was made on the spur-of-the-moment. The Arbitrator finds that Gallaway’s and W ard’s act was a mistaken and ill advised attem pfat humor in order to get their fellow officers to laugh. No evidence exists in this record to even suggest the con duct was racially motivated. It is a cardinal rule o f labor-m anagem ent relations that the degree o f discipline must be reasonable related to the seriousness o f the offense and the employee’s work record . . . There is no dispute that both W ard and Gallaway were superior police officers. C losely related to the evaluation o f an employee’s work record, is the concept o f progressive discipline. The C ity ’s “ Manager and Supervisors Handbook for Progressive Discipline” states: The concept o f progressive discipline recognizes that as violations recur without correction despite istiplmary action, the severity o f the disciplinary measures taken must in crease. . The pattern followed in the C ity o f Portland is oral warning(s)- di*cha?g7Pnmand<’ ): and suspension(s) Preccding the ultimate penalty o f Portland Observer. August 1 3 .1M1 Pago • was given that the officers would lie. M o te o v n in the context o f the amount o f publicity generated in this UrC Ot f . ommiM,onCT Jordan to speak directly with the griev ants o r their im m ediate supervisors constitutes a serious flaw in the in- whh?hc g?ieiants™iMiOner J° rdan tertified on " hX he dk*n’‘ want to speak A t that time I, for a couple o f reasons and one o f the reasons is I didn t know whether it was proper, but that was really «^ondary I think my primary reason was, and I had a lot o f input at that point from a lot o f unwanted sources, you know, trying to influence my decision. And I really wanted to just get away and not have any more input, you know, anyone else or anything else that could in fluence my decision. “ I really didn’t wrestle with that. It was hard enough as it was to make the decision. And so I didn’t want to complicate it. I wasn’t sure what my legal grounds were i f I talked to the officers; did this mean that I had to record everything I said, i would be brought up in a hearing again. C hief Baker, as we’ve talked about this many times, about how involved I get into these hearings. The more in volved I get into the investigation, then the more accountable 1 am to keep a record and be able to recall all those things. And I just didn’t want to do it. I didn’t want to get that involved, so I refused to talk to them. . . .Because if you try to temper your discipline with justice and with mercy, it’s going to be regurgitated later on in some hearing like this. And so it just - you know, you really don’t want to get in volved in things like th a t.” Commissioner Jordan admitted he was getting input from outside sources trying to influence his decision. In addition, the case had generated an im mense amount o f notoriety about Officers Ward and Gallaway o f which the Commissioner was aware. For these reasons, the A rbitrator must find in the context o f this case that the failure o f Commissioner Jordan to personally speak with the grievants constituted a violation o f the basic notions o f fair play and justice. The record in this case clearly established that the grievants will be able to return to work as effective police o fficers.. . The claim by the City that the grievants could not function effectively in the black community was unsup ported by the record. Sergeant Charles Moose, a black officer, probably expressed it best on the ability o f the grievants to return to police service. "W e ll, it confuses me when, you know, when you make such a general statement there about the - effectively communicating with people. Because I think part o f the problem would be that there would be cer tain people, you know, tht would want to say that they couldn’t com municate with them or get along with them. But I think most o f the - the way I perceive a lot o f police work is there are a lot o f victims and when you ve got a victim out there and he’s got a chance there to help the vicitm or i f you’ve got someone that they saw, maybe a lead or some in fo rm a tio n about a certain crim e, when I thin k that these people are part o f the com m unity, to, and they are going to talk to ^n^ ody that ’ a Pohceman or anybody th a t’ s there to try to help “ Now to people I would see that w o u ld n ’ t talk to Ward and Galla way is, you know, there might be some guy there in front o f the Bur ger Barn with no identification at 3:00 o’clock in the morning. When they go up and ask him his name, well, this person, w ell, he’s not going to cooperate with them. But I don’t even know if he’s going to realize it s W ard and Gallaway. “ I t ’ s going to be a certain percentage o f people that w o n ’ t cooperate with any policemen. But I think that’s a small percentage.” The A rb itrato r finds that the C ity ’s claim that the grievants could not return to work as effective police officers unsupported by the evidence in the record. The grievants’ conduct was offensive and stupid. The seriousness o f their conduct cannot be understated. In this case, we are faced with two grievants with outstanding work records which prior to M arch 12 were completely unblemished. Both o f the grievants deeply regret the incident o f March 12. Under the circumstances o f this case, reason and justice do not require that ’ be supreme penalty d*schar8e b« imposed on two grievants who made their first mistake in a combined total o f twelve years service to the C ity. The C ity ’ s legitim ate interest in discouraging this type o f behavior and maintaining its credibility will be served by a lesser penalty which will put the other police officers on notice that conduct such as the grievants’ will not be tolerated. The C ity did not consider progressive discipline because the conduct in * aS dcl,bcra,c’ In,entional. and carried out without any thought to tend ,ha7ihCOnSeqUenCeS ,hC BurCaU ' • The C i,y can" ° ’ seriously con- o u i t i d h le v a n t s arc beyond rehabilitation. The grievants who have ou stand.ng work records, and who have, for the first time made a mistake in the course o f their jobs are the type o f employees who will benefit from progressive discipline. Likewise, the City will benefit from the future ser vices o f these two officers who C hief Baker concluded will be unlikely to commit such an act again. The defense o f disparate treatment raised by the Association requires the v ity to be consistent in the imposition o f discipline. i . t ad A review o f the disciplinary log indicates that in the last seven years, ex cluding the grievants in this case, five officers have been discharged. The record o i those discharges would indicate that three were for receiving stolen property, one for violation o f gun laws and one for theft. . . The A r bitrator also notes that the other eight officers at the scene on March 12 received no discipline whatsoever. The grievants were not charged with the violation o f any criminal statutes as was the case in past disciplinary actions which resulted in suspensions. Nor were the grievants discharged by the City for any alleged criminal activity. The Arbitrator was persuaded that the overriding reason the City chose to discharge the grievants in this case was because o f the voluminous media at- opossum incident attracted. The City in seeking to distinguish the differences between the prior discipline meted to police officers noted tim e and tim e again that the act o f misconduct received little or no publicity. The City argued that none o f the previous cases o f wrongful con duct by officers even came close to the adverse publicity generated by this case. Under the unique set o f circumstances o f this term ination, the A r- ',ra,° r IS compelled to conclude that the grievants were “ singled o u t" for discipline because o f the substantial amount o f media attention given to this incident. I he C ity made a strong argument that public trust and public concern arC.,zhCk f° rC P l° ' ntS Of ,his case The «e«'mony o f Commissioner Jordan and C h ief Baker was extensive regarding their goals and philosophies dealing with public trust, public accountability, and community relations that provided the framework in which the decision to terminate the grievan ts was made. . . Commissioner Jordan and Chief Baker both testified they were aware of and gave great weight to the expressions o f public concern. In the face o f all the media coverage. Commissioner Jordan did not per sonally speak with the grievants. However, he spoke twice with the owners ° the Burger Barn Restaurant. He appeared on radio and tclevison and spoke with others who were not directly involved with the Bureau about the incident. Further, neither Commissioner Jordan nor Chief Baker ever spoke with the three immediate supervisors o f Officers Ward and Gallaway prior Io the decision to discharge them. Furthermore, the Bureau must accept some o f the responsibility for the public reaction to the Incident o f March 12. The Bureau did little to dispel unsound information that was being reported. Commissioner J o rd a n to ld '’ e Oregonian on March 13, 1981 that he needed witnesses because “ the o f ficers, if involved, will say they were not involved.” Thus, the implication >