Disparate Treatment Found In Suspension Of Santa Maria POA President

A Santa Maria Police Officer, who was also the POA President, was suspended for 10-days for a prisoner escaping from his police vehicle, while the officer went inside the Department’s Communications Center to obtain the suspect’s criminal history. While inside the Communications Center, Appellant was approached by dispatchers with questions regarding a recent union matter. After a 2-day hearing litigated by Andrew M. Dawson, the Arbitrator found the Department’s discipline to be inappropriate and found disparate treatment by the Department. This was the second attempt by the Department to discipline this officer since he began working on the POA Board. Both instances resulted in reduction of discipline.

On October 2, 2009, Appellant responded to a crime in progress at Costco. Upon arrival, the suspect was restrained by Costco employees, and Appellant was told that the suspect was observed placing video games in his backpack and attempted to leave the premises without paying for the items, at which point he fought with Costco security. The suspect was questioned and admitted to using physical force against the Costco employees when attempting to flee, and upon searching his back pack, syringes and two Oxycontin pills were found.

The suspect stated that he may be willing to work with the Department as a possible confidential informant in order to avoid trouble. Appellant contacted his supervisor to discuss the possibility and to have him meet him at the station to interview the suspect to determine whether he could be used as an informant. The suspect was then handcuffed and placed in the back of Appellant’s patrol vehicle. Appellant asked the Lead Dispatcher to print out a criminal history for the suspect, and upon arrival to the station, Appellant parked his vehicle in the gated lot outside the Communications Center. Appellant left the suspect handcuffed in the back of his patrol unit as he went inside the Communications Center to collect the criminal history information.

Once Appellant was inside the Communications Center, he was contacted by multiple dispatchers and asked questions about proxy voting in relation to contract negotiations between the Union and the City, given his position as POA President. Appellant, as well as the dispatchers, had previously been informed that officers were only to conduct official business in the Communications Center rather than lingering to chat with dispatchers. Appellant was in the Dispatch Center for a total of 17 minutes, which included obtaining the criminal history information for the suspect and answering the questions posed by the dispatchers.

While Appellant was inside the Communications Center, the suspect kicked out the left rear window of the patrol vehicle and escaped. Once Appellant discovered the suspect escaped, he broadcasted his escape over the radio and informed his supervisor. Appellant also prepared an accident report regarding the damaged City vehicle. Appellant contacted the suspect’s mother and was successful in having the suspect turn himself in later that night. Appellant interviewed the suspect in a recorded interview room and asked him about the escape.

The Department alleged four violations against Appellant: (1) dereliction of duty by failing to properly control a prisoner and leaving a prisoner unattended, (2) failure of Appellant to thoroughly document the prisoner’s escape in his report, (3) disobeying an order from the Dispatch Supervisor to limit all contact in the Communications Center to official business, and (4) engaging in political activity in the Communications Center while on duty.

A recently retired lieutenant, who was at one time in charge of Internal Affairs for the Department, testified on behalf of Appellant. The retired lieutenant testified that he was unaware of any officer being disciplined or even being subjected to an Internal Affairs investigation for allowing a prisoner to escape. He also added that officers commonly discuss Association business on duty without being disciplined or subjected to an Internal Affairs investigation.

Appellant’s sergeant, the sergeant he reported the escape to, testified he was aware of several prisoner escapes over the years and none resulted in any formal discipline or Internal Affairs investigation. Rather, a supervisor’s memo would be issued if a prisoner escaped. He also reiterated what the lieutenant stated in that officers regularly discussed union business on duty, to which no discipline has been issued. Both the sergeant and lieutenant also stated that even if it was found that the report was incomplete the most discipline that should be issued is a supervisor’s memo, as has been done for other officers.

The Arbitrator stated “The Union maintains the suspension is excessive and the product of disparate treatment. A review of all evidence and argument in this proceeding supports the position of the Union. It follows the suspension must be reversed.” The Arbitrator recognized that for allegations of escaped suspects and/or allegations of insufficient details in a police report do not rise to the level of formal discipline. The most discipline that should be given in this situation would be a supervisor’s memo or other customary form of counseling. Regardless, the Arbitrator held “a finding Appellant violated the Department policies alleged in connection with this report cannot be established.” The Arbitrator also held that as for the allegation regarding political activity on duty “the fact Appellant politely answered questions initiated by three Dispatchers under these circumstances cannot be construed as a violation of those provisions. This conclusion is buttressed by the reality none of the three Dispatchers were cited, accused, or disciplined by the City for violating the very same provisions for which the Department accuses Appellant of violating.”

As such, the Arbitrator overturned the entire 10-day suspension and ordered the Appellant made whole. The officer was pleased with the outcome of the case and is thankful for the constant support of LDF and his attorneys.

 

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