In May of 2014 grievant was rotated to the day shift. In an effort to get out of what he described as a "funk" and improve his statistics for actively enforcing traffic laws, grievant began using stationary patrols as his primary method of traffic enforcement. This involved grievant parking at a location and looking for traffic violations. The use of stationary patrols was neither encouraged nor discouraged by the Department.
While engaging in these patrols grievant would randomly enter plate numbers of nearby vehicles to check for outstanding warrants and for individuals driving with a suspended or revoked license. This was a common method utilized by officers in the Department. Among the locations of grievants stationary patrols were the entrances and exits of two mobile home parks. Many of the residents of the mobile home parks were Hispanic and a number of residents were undocumented individuals who did not have drivers licenses. Per policy, if a plate check showed that the registered owner of a vehicle did not have a license, and if the driver generally matched the gender and age of the registered owner, it was appropriate to pull over the driver. Grievant continued to engage in these stationary patrols and, on a number of occasions, pulled over and issued citations to individuals who did not match the gender/age of the registered owner. Grievant's activities engendered a number of complaints to the Department alleging grievant was targeting Hispanics, and the Department instructed grievant to cease the stationary patrol at those locations. Grievant was upset at this directive but complied. Grievant was subsequently instructed to cease running random license plates and to cease arresting drivers for not having a license without the approval of a supervisor. In discussions with his supervisors concerning this directive grievant was alleged to have stated " I am personally responsible for sending over 100 illegal immigrants back to Mexico." Grievant denied making this statement. The Department thereafter arranged for an independent investigation of grievant's stops, and in April of 2015 terminated grievant's employment asserting that he had "engaged in patrol activity resulting in the unauthorized and unlawful targeting of Hispanic/Latino drivers..." and that he had "provided untruthful answers during your interview ...."
The City's action was grieved and ultimately presented to Arbitrator Richard John Miller for resolution.
Arbitrator Miller rejected the grievance and upheld the termination.
Initially Arbitrator Miller addressed the question of burden of proof. Rejecting any effort to categorize the appropriate burden, the Arbitrator observed:
"Burden" and "quantum" of proof are two of the most involved aspects of the rules of evidence, which ordinarily are eschewed by arbitrators as being so complicated, theoretical and technical that they are unsuitable for such a relatively informal process. Consequently, rather than assigning to this case a quantum of required proof, such as proof beyond a reasonable doubt, preponderance of the evidence, clear and convincing evidence, or evidence sufficient to convince a reasonable mind of guilt, a better and more realistic approach to take is a determination of whether the Grievant is guilty of the appearance of and racial profiling by his patrol activity in the targeting of Hispanic drivers and, if so, was his misconduct the type serious enough to justify his discharge.
Applying this test, Arbitrator Miller concluded that the City had established the charges alleged. He found:
The Grievant asserts that his stationary patrol activity at the entrances and exits of the mobile home parks targeted traffic violations and not a specific class of people. However, that assertion is refuted by the evidence showing that the Grievant relied on racial and ethnic stereotypes as factors in selecting where to engage in stationary patrol and whom to stop and search. When the Grievant conducted stationary patrol at the entrances and exits of two mobile home parks widely known to have predominantly Hispanic residents, versus conducting stationary patrol on Highway 41 where the race of drivers could not be reasonably anticipated, his patrol activity effectively focused on racial and/or ethnic stereotypes as factors in his stops of Hispanic drivers since he associated no DL violations with Hispanics.
In light of this conclusion, the Arbitrator determined:
The Arbitrator also found that the evidence supported the City's claim that grievant had been untruthful, and that this provided an additional basis for the City's actions, noting:
A Police Officer is "granted special powers" and is held out as someone "the public can trust." City of Brooklyn Center v. Law Enforcement Labor Services, Inc., 636 N.W.2d , 244 (Minn. Ct App. 2001), rev. denied (Dec. 11, 2001). Police Officers are held to a higher standard of conduct than other public employees. This stems in part from the oath that Police Officers take to protect the public they serve. The public entrusts the safety and security of lives and property to the protection of Police Officers. In turn, Police Officers are expected to conduct themselves in an exemplary manner adhering to the regulations promulgated by the CPD. The CPD badge and uniform worn by all Police Officers are symbols of the public's faith and trust, and Officers must conduct themselves in such a manner to be a role model to all citizens by adhering to the CPD General Orders and the state statute.
Accordingly Arbitrator Miller deemed the City's action's supported by just cause and therefore denied the grievance. The Arbitrator's award can be found here.