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 ............. ..
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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
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