“Words have meaning,” Arbitrator tells Department
This may be a new concept to LAPD management. It takes a civilian to look into the Department forest and see a tree. And it only took two and a half years.
This is a follow up to a Warning Bells article from February 2014 entitled, “Failing to Anticipate the Unexpected is Misconduct.” It told the story of a traffic collision that resulted in a Board of Rights that was widely felt to be unfair by the officer’s peers. Over 50 had volunteered to appear at the Board as character witnesses for the officer.
In brief, the officer was responding to a backup request. With lights and sirens operating, he entered a major intersection at 54 mph in a 45 mph zone. He was 1.5 seconds behind another black and white that also went through the same intersection in the same direction. An unlicensed driver, who claimed not to have heard the siren of his vehicle after pausing for the first black and white, made a left turn in front of him. The officer swerved to avoid the collision, but the illegal left turner crashed into the driver’s side of the black and white, sending it into another vehicle and then a pole. The black and white was equipped with a Digital In-Car Video (DICV) camera that captured the incident.
The traffic collision (TC) was investigated and then adjudicated under the procedure negotiated with the Department by the League known as Special Order 45. This is the procedure where TC’s are adjudicated by a commanding officer as either “preventable” or “nonpreventable.” If preventable, the officer is given penalty points. Too many points result in various penalties. However, the officer’s TC in this case was adjudicated as non-reventable. End of story, except it wasn’t.
Unfortunately, several months later the Bureau happened to view the DICV and decided that the captain who had adjudicated the TC had made a mistake. There are those that believe that it was less the driving than the patter between the officer and his partner just prior to the TC that energized the Bureau. In any event, the Bureau reversed the captain’s decision, made the TC preventable and initiated a personnel complaint.
But wait! The procedure under Special Order 45 had already been implemented and the order says that when the procedure has been followed “the matter is closed and final.” The TC had already been ruled non-preventable and the time periods for review were long over. What part of “closed and final” didn’t the Department understand?
Every part, apparently. The officer was forced to go through a Board of Rights and even though the Department’s own traffic expert testified that the collision was the fault of the unlicensed driver and the accident was non-preventable, the Board ruled that the officer had failed to anticipate the illegal turn and was therefore guilty.
The League filed a grievance which was denied at all levels by the Department and the case finally ended up in front of a civilian arbitrator. The good news about arbitration is that the Department (and League) are bound by the arbitrator’s decision.
Documents were examined and a commander, a captain, and the general counsel of the League all testified and final arguments were made. This week, the arbitrator issued his ruling. Here are some of the things he said.
“In effect, whether the initial adjudication of the subject traffic collision was determined at a later date to be a mistake, the unambiguous provisions of Special Order No. 45 are exceptionally clear in that once a traffic collision is adjudicated by the commanding officer at the Division level and subjected to review by the Emergency Operations Division (EOD) of the Traffic Coordination Section (TCS) and the time limits expire without the filing of an appeal, the matter is closed and final. Words have meaning and the meaning of those highlighted words cannot be construed in any other way than to inform that upon completion of addressing a traffic collision under the provisions of Special Order No. 45…there can be no further action taken under Special Order No. 45 or any other further action taken under any other procedure.”
This is exactly what the League had been telling the Department for at least two years, but it fell on deaf ears. This is also why the League has increasingly gone to entities outside Department management such as arbitrators, the courts, public relations firms, politicians, and the Inspector General for relief when officers are treated unfairly. The Department routinely has deaf ears.
The arbitrator brought justice to the situation. He ruled as follows:
“As to remedy, the Department is to expunge all references to the five (5) days suspension assessed Grievant in any and all applicable of his personnel files and to make him whole for all lost pay as a result of the wrongfully imposed suspension. The initial adjudication of Grievant’s traffic collision is to remain as non-preventable and no further action is to be taken against Grievant based on the June 8, 2012, traffic collision.”
Again, end of story, or is it? All too often, the Department will not accept defeat and officers who have gained management’s displeasure are marked for destruction. This attitude, along with deaf ears, is what has cost the tax payers multiple millions of dollars in losses for employee abuse lawsuits. Bad management has cost the City more money than all the traffic accidents caused by bad driving of all of the police cars in the fleet. Will this officer be allowed to continue his career, or will he be our next millionaire?
The League thanks arbitrator George Edward Larney for the time he spent examining the evidence and his courage to call it as he sees it.
Be legally careful out there.
