Sunday, June 30, 2013

Police officer's denial of misconduct insufficient to establish untruthfulness

A San Antonio police Lieutenant was "indefinitely suspended" by the Department after being charged with violation of several Department rules. The discipline arose from an incident between grievant and a Deputy Constable who was providing security at a local restaurant/bar. The Deputy asserted that after he denied access to grievant because he was carrying a bottle of liquor, grievant identified himself as a San Antonio police officer. After grievant returned the bottle to a limo he and his companions had hired for the evening he returned to the door where the Deputy again denied entry because grievant appeared intoxicated. The Deputy claimed that grievant then let loose a string of racial slurs, identified himself as an SAPD Captain, and claimed he would "have his badge and gun". The Deputy notified his supervisor and also called SAPD.

 After an investigation of the incident by Internal Affairs, grievant was charged with drinking while off duty in violation of a rule prohibiting drinking "to an extent which renders him unfit to report to duty." He was also charged with violating a Department rule providing "Members, whether on-duty or off-duty, shall be governed by the ordinary and reasonable rules of good conduct and behavior, and shall not commit any act tending to bring reproach and discredit on themselves or the Department". Finally, grievant was charged with "untruthfulness". Specifically "Since [grievant] is in fact not a captain, his statement was untruthful and [grievant] was also subsequently untruthful during the investigation into this incident when he denied having made any threatening and racist statements to Deputy Ahumada".

Arbitrator William McKee rejected a portion of the charge related to off duty drinking. In agreement with the Union, he found the "unfit to report to duty" standard untenably vague. He did conclude, however,  that grievant was intoxicated in public in violation of the rules. He also found that the evidence supported the charge that grievant had used "inappropriate, abusive and intimidating language" in his interaction with the Deputy and that grievant's conduct demonstrated a lack of sound judgement.

With regard to the untruthfulness allegations, Arbitrator McKee found the first charge, relating to the alleged misrepresentation of grievant's rank, unsupported by the evidence. Concerning the allegation that the grievant had "untruthfully" denied using abusive and inappropriate language, the Arbitrator concluded:

In a very technical sense, any factual determination that the complainant's version of events is more credible than the officer/appellant's could also be construed as a determination that the officer/appellant was untruthful. However, many arbitrators, including myself are reluctant to sustain a charge of untruthfulness based solely on the fact that an appellant denied the charges and put a city and department to its proof. I recognize the City's position that officers are required to be truthful at all times, but I am also aware that there is a distinction between making an affirmative   misrepresentation, which sends an investigation off on a 'wild goose chase' or incurs unnecessary investigative costs, and simply declining to admit the wrongdoing of which the officer is accused.

The Arbitrator noted that it was "common" for officers involved in a disciplinary suspension to respond with a blanket denial of charges, and that "[t]here may be other reasons for an officer who has been charged with serious violations to deny those charges, not the least of which is the possibility that further investigation will produce different facts than were known originally".

In light of his conclusions, Arbitrator McKee reduced the indefinite suspension to 45 days.

The San Antonio Express News reports on the case Officer wins appeal of firing; IA criticized and links to Arbitrator McKee's award here.

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