Oakland Police SWAT arbitration award - Just Cause not determined by reference to "Best Practices"

Arbitrator Paul Greenberg has overturned the demotion of two Oakland police officers arising out of their management of a SWAT response to the fatal shooting of two other officers. Lt. Christopher Mufarreh and Capt. Richard Orozco were demoted after a Board of Inquiry concluded that each was guilty of "gross dereliction of duty" in connection with the incident.

After a lengthy review of the facts surrounding the shooting and the police response in which two additional officers were killed, Arbitrator Greenberg determined that the conduct of both Lt. Mufarreh and Capt. Orozco was consistent with Oakland Police Department practice and training, and that both officers had been improperly singled out for discipline.

Arbitrator Greenberg rejected the City's reliance on evidence purporting to show that the officer's conduct deviated from "best practices". He noted:

Additionally, with regard to the entire [Board of Inquiry] process and its review of the tactical operations performance on March 21, Capt. Hansen testified his role (and the role of the other
experts) was to measure the actions of the OPD staff against general industry standards (i.e., “best practices”). ... Although this probably is the appropriate measure for evaluating OPD’s overall response to the incident, this Arbitrator questions whether it is the appropriate standard for evaluating the individual culpability of employees, who should be measured against
the employer’s standard policies, the training they have received, and the employer’s commonly accepted practice.

Arbitrator Greenberg also noted that other, higher ranking, officers were on the scene and, according to OPD policies, should have, but did not, assume command responsibility. These higher ranking officers were not disciplined. Viewing this as evidence of selective enforcement of policies, the Arbitrator observed:

In this Arbitrator’s view, however, the City’s decision to single out Lt. Mufarreh and Capt. Orozco for discipline does not adequately recognize the responsibility of others – including their organizational peers, and also some of the senior management of the Department. Like the
matter involving Sgt. Wingate [in an earlier unrelated dispute], the decision to discipline Lt. Mufarreh and Capt. Orozco has the appearance of the Department needing to hold someone individually accountable for the tragic deaths of Sgt. Romans and Sgt. Sakai, but not considering the possibility that senior-level management decisions also contributed to the chain of events.

Arbitrator Greenberg concluded "if OPD is going to hold Lt. Mufarreh to a strict ... interpretation of the General Orders when justifying its decision to demote him, then it is reasonable to question why other OPD personnel are not held to a similarly strict reading of the General Orders."

 In light of these findings, the Arbitrator sustained the grievance and ordered the City to restore both officers to their prior rank.

Arbitrator Greenberg's award can be found here.