An Arbitrator ordered the reinstatement of a seven (7) year Inglewood police officer to his position after the Department had terminated him for driving under the influence. The officer was represented by Andrew M. Dawson in his administrative appeal.
The Inglewood Police Department terminated the officer after a DUI incident in May of 2008. The officer did not contest the underlying DUI incident. The only contested issue was the level of discipline and the use of progressive discipline by the Department. In order to justify the discipline, the Department relied upon an incident in March of 2008 where the officer was parked on the side of the road in his vehicle and was intoxicated. The March 2008 incident did not result in any arrest, nor was the officer disciplined for the incident prior to his DUI arrest in May of 2008. Additionally, after the March 2008 incident, the officer was told by Department personnel that if he were to receive any discipline it would be at most a written reprimand. The officer was returned to work and was not placed on any notice that discipline would be imposed relating to the March 2008 incident.
No discipline was ever imposed prior to his DUI arrest in May of 2008; rather, the officer was issued the proposed discipline for the March 2008 incident on January 6, 2009, almost 7 months after the May 2008 DUI arrest which was the basis for the Department’s use of progressive discipline. The Department attempted to overcome the misapplication of the principle of progressive discipline by relying on the fact that the officer was notified of an Internal Affairs investigation for the March incident prior to his DUI arrest in May of 2008. However, Chief Seabrooks testified on average only 30% of officers who are subjects of Internal Affairs investigations result in sustained charges and discipline. Additionally, Chief Seabrooks confirmed the DUI charge on its own would have resulted in a minimum 9-day suspension and would not have resulted in termination. The mere fact that the officer was notified of the investigation and interrogated prior to his DUI arrest in May of 2008 was not sufficient to place him on notice for the purposes of progressive discipline. The Arbitrator ruled that the Department’s argument was a “perversion of the concept of progressive discipline.”
The Arbitrator further considered in her evaluation of the appropriate level of discipline the fact that the officer was going through difficult financial and marital issues at the time of his DUI arrest. Although such issues do not excuse his conduct, they were relevant in determining the level of discipline. Furthermore, the officer also attended additional counseling beyond courtmandated counseling and testified he had not had a drink since the night of his DUI arrest. He further produced evidence of voluntary, random alcohol testing to prove he was no longer consuming any alcohol. The Arbitrator held that these facts coupled with his above average ratings during the last few years prior to his termination and the lack of progressive discipline required the officer’s reinstatement absent back pay.
Furthermore, at the beginning of the Department’s case-in-chief, the Department attempted to introduce a video of the officer’s DUI arrest that had never been provided to the officer prior to the hearing. The investigator’s supervisor admitted during testimony that the investigator had the video at the time of the investigation and the video was reviewed by the investigator in preparing the findings and conclusions of the investigation. As the video was clearly material to the investigation and was relied upon by the Department, the Arbitrator found a Skelly violation by the Department for its failure to disclose the video recording.
Due to the City’s violation of the officer’s Skelly rights, the Arbitrator’s final ruling was the reinstatement of the officer with half of his back pay to compensate him for the due process violations by the Department. The Arbitrator’s decision is advisory to the City Manager. We are hopeful the City Manager will do the right thing and order the officer to be returned to work, as there was a clear Skelly violation and termination was not appropriate based on the misapplication of progressive discipline.
The officer is grateful to PORAC’s Legal Defense Fund, his Association and his attorneys, for the support and successful defense against the Department’s allegations.