Facebook postings grounds for dismissal of police officer, but delay in City's response warrants backpay

Arbitrator Eric Lindauer has found that the City of West Linn, Oregon was justified in terminating a police officer because his Facebook posts contained "what reasonably could be viewed as racist comments." Arbitrator Landauer's award can be found here.

He rejected the Union's claims that the City's policy was ambiguous and failed to adequately inform the employee that his Facebook postings could result in his termination (distinguishing an award of Arbitrator Chuck Miller making such a finding on what Arbitrator  Lindauer deemed to be different circumstances), that the City failed to prove that the posts were simply expressions of political views that were neither racially biased nor advocated violence, and that the views were comments by a private citizen about matters of public concern that were protected by the First Amendment. Concerning the First Amendment question, the Arbitrator observed:

In the Arbitrator's opinion. [Grievant's] Facebook postings amounted to more than just unpopular political speech. His postings were unnecessarily vulgar and disrespectful, could reasonably be construed as being racially motivated, and could reasonably be construed as advocating violence. [Grievant's] Facebook postings caused disruption in the City's operations and significantly undermined the public trust in the police department. Therefore, the Arbitrator concludes the Facebook postings were not protected by the First Amendment to the United States Constitution.

Finding termination appropriate, he noted as an "additional factor" the County Prosecutor's expressed concern that grievant's testimony in any potential criminal case could be compromised "... particularly in cases where a potential suspect was a minority person, may be politically motivated, or where force may have been used." He also noted what he described as grievant's lack of remorse.

However, Arbitrator Lindauer further found that grievant's supervisor, and several police officials, had been aware of the postings for some time and, contrary to the City's policy, failed to address them or to take action until they received local media attention. As a result he determined that the City bore "some responsibility" for its failure to take active steps to require grievant to remove the postings. He modified his remedy to take this failure into account:

Therefore, in determining the appropriate remedy in this case, the Arbitrator has considered the Department's condoning of [grievant's] Facebook postings. In the Arbitrator's opinion, the Department should be required to pay [grievant's] back pay. It is an approprate remedy because the Department management was aware of the content of [grievant's] Facebook page for a significant period of time and failed to appropriate action to have [grievant] remove the offending content. Instead, the Department did nothing until the issue became a matter of public concern. Therefore, the Department must bear some economic responsibility for its failure to follow its own Policies.

Recognizing that the remedy was "unusual," Arbitrator  Lindauer nevertheless deemed it appropriate in this case. The City reportedly intends to seek to appeal. Arbitrator: WLPD officer's firing justified, but warrants payout

For another case in which the arbitrator denied reinstatement but awarded back pay see Just cause for termination but grievant denied due process - Arbitrator awards back pay but no reinstatement