By Jim Cline and Abagail Klonsinski
In City of Lakewood, Arbitrator Mayne ordered reinstatement and expungement of a police officer’s record after finding there was no just cause to terminate the Officer for untruthfulness.
Arbitrator Mayne also found that the Lakewood Police Department had unfairly denied the Officer’s procedural due process rights during an Internal Affairs investigation by not allowing him access to the in-car video.
The Officer had responded to a burglary in process call and stopped a suspect vehicle. He retrieved a weapon from the vehicle. Later, an issue arose as to whether the occupants were inside or outside of the vehicle when he had seized the weapon. At the criminal trial, the judge suppressed evidence of the weapon, finding discrepancies in the officer’s courtroom account as well as in an earlier search affidavit.
Upon this discovery, the police department launched an internal investigation into the Officer. The Officer was given notice that the investigation was underway, but initially was provided almost no information about it. Eventually, the Officer was informed of the incident number, but the audio and video evidence taken during the incident were withheld. The CBA required that: “At least forty-eight (48) hours before an interview of a subject employee, the employee shall be informed in writing of the nature of the matter in sufficient detail to reasonably apprise him/her of the factual basis of the matter.”
At the conclusion of the investigation, the Department concluded that the Officer was untruthful, and he was terminated.
The Lakewood Police Independent Guild argued that the Officer’s grievance should be sustained, as he was unaware that his misstatement became the center of the internal investigation. Further, the charge of untruthfulness was not supported by the evidence the Department provided. Finally, the Department withholding evidence from the Officer during the investigation violated the CBA.
The Lakewood Police Department argued that the audio and video evidence in combination with the Officer’s recorded statements proved that the Officer had been untruthful when he submitted his police report and search warrant, constituting just cause for termination.
In Arbitrator Mayne’s opinion, the Department had violated the CBA by withholding the full audio and video evidence from the Officer until after the investigation had concluded. This withholding constituted a due process violation, as the CBA clearly required that files of the incident be shared with the accused at least 48 hours prior to an internal investigation. Further, the Arbitrator concluded that the evidence did not support a conclusion that the Officer had been “knowingly untruthful.” Arbitrator Mayne ordered reinstatement and that the Officer’s record be expunged of the untruthfulness charge.
This case demonstrates the importance of Department compliance with CBA notice provisions. The CBA here contained a clause similar to many other law enforcement CBA’s that detailed notice (“in sufficient detail to reasonably apprise him/her of the factual basis of the matter”) is required preceding the interview. Here, the arbitrator concluded that notice was lacking as to which aspect of the Officer’s conduct was it issue.
Most noteworthy in this decision is the Arbitrator’s ruling that the CBA notice requirement mandated access to the available video. Allowing video access for internal interviews is typically something that unions negotiate for separately as part of the video policy. Here, the arbitrator apparently found such access was implied by the clause requiring pre-interview notice.
Typically, Departments comply with that requirement by providing only a brief written description of the event at issue. This Arbitrator ruling took a more expansive approach to the duty to provide information. This decision may force Departments to reconsider whether videos or perhaps other evidence need be supplied with the initial notice.
Another interesting aspect of the ruling is the finding that the Department had not carried its burden of proof of untruthfulness. A Superior Court judge had already weighed in with a contrary ruling, which presumably would have led to the Officer being declared a Brady officer. In that regard, this case demonstrates the importance of the right employees have to a full arbitration hearing on the merits of misconduct claims. An abbreviated 3.5 hearing was not held conclusive on an issue that could be dispositive of an officer’s career.
