And
City of
Interest Arbitration
Arbitrator: Janet L. Gaunt
Date Issued:
Arbitrator:
Gaunt; Janet; L.
Case #: 15596-I-01-355
Employer:
City of
Date Issued:
IN THE MATTER OF THE INTEREST ARBITRATION
BETWEEN
CITY OF
)
Employer, )
) INTEREST ARBITRATION
vs, )
) AWARD
)
)
PERC Case No. 15596-1-01-355 )
__________________________________________)
On
to resolve certain bargaining
issues that had remained at impasse despite collective
bargaining and mediation by
the Public Employment Relations Commission (PERC). The
issues certified by the PERC
Executive Director for arbitration were:
1. The
process for resolving disputes regarding the Office of Profes-
sional Accountability
Review Board implementation agreement, and
2. The scope
of the issues to which the resolution process would apply.
By mutual consent, Janet L.
Gaunt was selected to serve as the neutral Arbitrator.
After some earlier postponements, the interest arbitration
was scheduled to
commence on
they had reached agreement
upon terms and provisions that completely and equitably
resolved the issues submitted
for arbitration. At the request of the parties, I have been asked
to adopt those provisions as
my award and hereby do so. Pursuant to the parties' joint
stipulation and in accordance
with the statutory criteria of RCW 41.56.465, the following
language should be renumbered
and inserted as an Appendix to the current Collective
Bargaining Agreement.
OPA REVIEW
BOARD
I. NOTHING IN THE
AGREEMENT BETWEEN THE CITY AND THE GUILD
SHALL BE CONSTRUED AS A WAIVER AND/OR LIMITATION ON THE
CITY'S RIGHT TO ADOPT LEGISLATION ENACTING THE OPARB SO
LONG AS NOTHING IN SUCH LEGISLATION IMPLICATES A MANDA-
TORY SUBJECT OF BARGAINING AND/OR IS INCONSISTENT WITH
THE AGREEMENT BETWEEN THE CITY AND THE GUILD. THE
CONTRACT GRIEVANCE PROCESS SHALL NOT APPLY TO THE
TERMS OF THIS
APPENDIX. THE EXCLUSIVE PROCESS FOR RESOLV-
ING DISPUTES RELATING TO THE TERMS OF THIS APPENDIX IS SET
1. COMPOSITION OF THE OPA
REVIEW BOARD
The City of
three (3) members. A quorum
shall be two members.
A. The City
Council shall appoint all of the members of the OPARB.
B. The City
Council shall solicit input from the Guild concerning potential
appointments to the OPARB.
C. The City
Council shall establish the term of office for the members of the
OPARB with none serving a term
of more than two (2) years, although members may be
appointed to successive terms.
2. ELIGIBILITY CRITERIA FOR
BOARD MEMBERS
The OPA Review Board members
should possess the following qualifications and
characteristics:
A. A citizen
of the
States.
B. Possess a
high school diploma or a GED at time of appointment.
C. Be at
least 21 years of age for appointment.
D. A
commitment to and knowledge of the need for and responsibilities of law
enforcement, as well as the
need to protect basic constitutional rights of all affected parties.
E. A
reputation for integrity and professionalism, as well as the ability to
maintain a high standard of
integrity in the office.
F. The
absence of any plea to or conviction for a felony, crime of violence, or
an offense involving moral
turpitude.
G. Because
members of the OPA Review Board may serve in a quasi-judicial
capacity in making decisions
about whether or not investigations of police misconduct are
complete, as a requirement for
appointment, candidates must be able to comply with the
requirements of the appearance
of fairness doctrine with respect to their duties as a member
of the OPA Review Board. For
the purposes of this Appendix, the appearance of fairness
doctrine shall be applied as
an eligibility criteria for appointment to the OPA Review Board,
as opposed to being applied on
a case-by-case basis.
In an effort to limit disputes regarding the type of
information which must be provided to the
Guild regarding a candidate,
the parties hereby set forth the information to which the Guild
is entitled. Criminal history
record information which includes records of arrest, charges,
allegations of criminal
conduct and nonconviction data relating to a
candidate for
appointment, and Department
records of any complaints of police misconduct filed by the
candidate shall be made
available to the Guild. Access to such records by the Guild shall be
for the sole purpose of
assessing whether or not the candidate meets the above eligibility
criteria. Access shall be
limited to the executive officers and members of the Board of
Directors of the Guild and the
Guild’s attorneys. Such records shall not be used by anyone
in connection with any other
civil, criminal or other matter, or for any other purpose. After
the Guild has conducted its
assessment of the candidate, the records shall be promptly
returned to the Department
unless the Guild challenges the appointment as set forth in
Section 6, below. If the Guild
challenges the appointment, the records shall be used solely
for the purpose of the
arbitration, will be presented to the arbitrator under seal, and will be
returned to the City at the
conclusion of the arbitration. Except as otherwise necessary for
the purposes of this Appendix
or the resolution of a dispute under Section 6 below, such
records shall be maintained by
the Guild as confidential and shall not be copied, disclosed
or disseminated.
Section 3: In addition to the qualifications and
characteristics set forth in Section 2
above, at least one (1) member
of the OPARB shall be a graduate of an accredited law school
and a member in good standing
of the
Section 4: In addition to the qualifications and
characteristics set forth in Section 2
above, at least one (1) member
of the OPARB shall have at least five (5) years of experience
in the field of law
enforcement.
Section 5: In addition to the qualifications and
characteristics set forth in Section 2
above, at least one (1) other
member of the OPARB shall have significant experience and
history in community
involvement, and community organizing and outreach.
Section 6: The City Council may establish such
additional qualifications and
characteristics, as it deems
appropriate, consistent with this Appendix.
II. 3. CONFIDENTIALITY
An intentional breach of the
confidentiality provisions of the ordinance shall constitute
grounds for removal.
In addition, Board members shall
sign a confidentiality agreement that states, as follows:
As a member of the City of
I understand that I will have
access to confidential and/or investigative information and/or
records that I am prohibited
from disclosing. I agree not to disclose any such confidential
and/or investigative
information and/or records. I understand that proven, intentional, release
or disclosure of such
confidential and/or investigative information and/or records shall
constitute grounds for my
removal as a member of the OPARB.
I further agree to indemnify,
defend, and hold the City of
legal action(s) arising from
proven, intentional, release or disclosure of such confidential
and/or investigative
information by me.
Finally, I understand that in
the event I do not intentionally release or disclose any
confidential and/or
investigative information and/or records, the City has agreed to
indemnify, defend, and hold me
harmless for and from any legal action(s) arising from my
conduct as a member of the
OPARB in accordance with SMC 4.64.100 and SMC 4.64.110.
III. 4. THE BASIS FOR
REQUESTING FURTHER INVESTIGATION
Prior to submission of an
issue to the OPARB the Auditor and OPA Director will delineate
their dispute in writing and
the Auditor will specify what if any further investigation is being
requested. Such referrals will
not consider disputes over classification decisions, and will
be limited to disputes over
(1) whether relevant witnesses were contacted and relevant
evidence collected; and (2)
whether interviews were conducted on a thorough basis. The
OPARB after reviewing the file
will issue a final and binding decision resolving the dispute
between the OPA Director and
Auditor.
If the OPARB sends a case back
for further investigation, it must specify what investigative
task(s) need to be performed
as previously outlined by the Auditor.
A case only may be sent back
for further investigation if a reasonable amount of time is
available to accomplish the
articulated investigative task(s) leaving time for the administra-
tive
processing of the investigation before expiration of the contractual 180 day
time period.
The administrative processing
of the investigation includes the time required for line review,
but does not include any time
subsequent to the mailing or other delivery of the Loudermill
notice.
The OPA Director will notify
the OPA Auditor when the articulated investigative tasks have
been completed and/or will
provide an explanation to the OPA Auditor of the reasons the
requested tasks could not be
completed. The OPA Auditor may perform an audit of the file
to ensure compliance with the OPARB’s request for further investigation. If the OPA
Auditor does not agree that
the Department has complied with the request for further
investigation, the OPA Auditor
will meet with the OPA Director to try and resolve the matter
and gain compliance. If the
OPA Auditor and OPA Director can not agree regarding
compliance, the matter of compliance
will be submitted to the OPARB. The decision of the
OPARB regarding compliance
shall be final and binding. All other conditions set forth
above regarding time
constraints shall be applicable.
IV. 5. OPA REVIEW BOARD
REPORTS
The Board shall generate
reports and those reports shall be quarterly. The Board reports
shall include the following:
1) A review and report on the implementation of the Office of
Professional Accountability.
2) A general overview of the files and records reviewed by the Board,
including the
number of closed, completed
cases reviewed.
3) IIS shall be responsible for gathering statistical data
relating to complaints and shall
City of
provide the same statistical
data to the Board as is provided to the Auditor. That data
shall include the:
a) number of complaints
received;
b) category and nature of the
allegations;
c) percentage of cases
sustained;
d) disciplinary action taken
in sustained cases;
e) data on patterns of complaints,
including types of complaints;
f) geographic area of the
complaint, and census tract rather than street addresses may
be used to identify the
geographic area of a complaint;
g) number of officers, if any,
who receive three or more sustained complaints in one
year. The names of the
officers shall not be disclosed.
4) The Board’s report shall include the number of cases in
which the Board requests
further investigation.
5) The Board’s report shall include: a summary of issues,
problems and trends noted by
the Board as a result of their
review; any recommendations that the City consider
additional officer training,
including recommendations that the City consider specialized
training for investigators;
and any recommendations that the Department consider policy
or procedural changes.
6) The Board shall be advised and the Auditor shall report on
the OPA Director’s
involvement in community
outreach to inform citizens of the complaint process and the
OPA’s
role.
7) After the committee on racial profiling has made its final
report and recommendations,
the City may determine that it
is appropriate to gather, maintain and report data on the
race, ethnicity and gender of
complainants, and on the race, ethnicity, gender,
assignment, and seniority of
officers who are the subject of complaints. The City will
provide thirty (30) days
notice to the Guild of its intent to begin gathering, maintaining
and reporting such data on
complainants and officers who are the subject of complaints,
and within the thirty (30) day
notice period, the Guild may request to reopen
negotiations on that subject.
Such bargaining shall follow the requirements of
paragraph 10D of the
Memorandum of Understanding executed on
During the bargaining process,
the preexisting status quo will be maintained.
6. Dispute Resolution Process
A. Disputes
between the City and the Guild over alleged violations of the terms
of this Appendix shall be resolved solely
through recourse directly to arbitration.
B. With
respect to disputes over a Board candidate meeting the eligibility criteria
for appointment or whether or not the City
has met its obligation to provide records
regarding a candidate, the Guild shall
provide written notice to the President of the
City Council, with a copy to
the Mayor, the Chair of the Public Safety Committee
and the Chief of Police, of
the Guild’s objections, including a summary of the
evidence that the Guild has at
the time in support of its objections. Such written
notice shall be provided not more
than ten (10) work days following the date that
the City Council solicits
input from Guild on the appointment, as required by
Section 1 .B above. If the
City intends to proceed with the appointment despite the
Guild’s objections and/or
refuses to provide the required information, the Guild may
submit the matter directly to
an arbitrator by providing written notice to the Director
of Labor Relations of the
intent to do so, within ten (10) work days following the
date that the Guild is
notified by the City of the intent to proceed with the
appointment and/or is notified
that the required information will not be provided.
If the Guild fails to raise a
timely objection to the appointment there shall be no
arbitration. In the event the
City is ordered to provide additional records, the Guild
may rely on such records in
raising an objection to an appointment, by providing
written notice in the manner
prescribed above not more than ten (10) work days
following receipt of the
records, including a summary of the evidence that the Guild
has at the time in support of
its objections. If the City does not act on the Guild’s
objections, the Guild may
submit the matter directly to an arbitrator by providing
written notice to the Director
of Labor Relations of the intent to do so, within ten
(10) work days following the
date that the Guild is notified by the City of the intent
not to take action on the
Guild’s objections.
C. With
respect to disputes over a Board member violating confidentiality
requirements, the Guild shall
provide written notice to the President of the City
Council, with a copy to the
Mayor, the Chair of the Public Safety Committee and
the Chief of Police, of the
Guild’s allegations that confidentiality requirements have
been breached by a Board
member, including a summary of the evidence that the
Guild has at the time in
support of its allegations. Such notice shall be provided not
more than ten (10) work days
following the date of the alleged breach of confidential-
ality
or of the date that the Guild knew or should have known of the alleged breach.
If the Board member remains on
the Board more than ten (10) work days following
notice to the City from the
Guild, the Guild may submit the matter directly to an
arbitrator by providing
written notice to the Director of Labor Relations of the intent
to do so within ten (10) work
days following the ten (10) work day notice period.
D. With respect to other disputes over alleged
violations of the terms of the
Appendix other than those
denominated above, the Guild shall provide written
notice to the President of the
City Council, with a copy to the Mayor, the Chair of
the Public Safety Committee
and the Chief of Police, of the Guild’s allegations that
a provision of this Appendix
has been breached, including a summary of the
evidence that the Guild has at
the time in support of its allegations and the remedy
sought. Such notice shall be
provided not more than ten (10) work days following
the date of the alleged breach
or the date that the Guild knew or should have known
of the alleged breach. If the
city does not provide notice of its intent to implement
the remedy sought within ten
(10) work days following notice to the City from the
Guild, the Guild may submit
the matter directly to an arbitrator by providing written
notice to the Director of
Labor Relations of the intent to do so within ten (10) work
days following the ten (10)
work day notice period.
E. The
contractual 180 day time period for completion of an investigation shall be
tolled and no discipline shall be imposed
from the date a dispute alleging a violation
of Section 4 of this Appendix is submitted to
arbitration until the date of the
arbitration award or the date of the
settlement or dismissal of the arbitration.
F. The
parties shall meet and select an arbitrator no later than ten (10) work days
from the date of the written notice of
arbitration from the Guild to the Director of
Labor Relations.
1. The
parties agree that the following arbitrators shall constitute the pool from
which arbitrators shall be
selected:
a) Michael Beck
b) Janet Gaunt
c) Kenneth McCaffree
d) Shelly Shapiro
e) Don Wollett
2. The
same arbitrator shall not be eligible to serve as the arbitrator in consecutive
arbitrations, except by mutual
agreement.
3. The
first eligible arbitrator from the above list available to conduct the hearing
within sixty (60) days shall
be selected. If none are available to conduct a
hearing within sixty (60)
days, the eligible arbitrator with the earliest available
hearing date shall be selected
unless the parties otherwise agree, and the
hearing shall commence on the
earliest available hearing date for the arbitrator
selected unless the parties
otherwise agree in writing.
4. The
parties may mutually agree to make additions or deletions to the list at any
time, but the number of
arbitrators on the list shall not be less than five. If an
arbitrator is no longer
available so there are less than five on the list and the
parties are unable to mutually
agree on a replacement, an arbitrator shall be
added to the list using the
selection process specified by the grievance
provision in the collective
bargaining agreement.
G. Briefs,
if any are offered, shall be filed and served no later than the beginning
of the arbitration hearing. The parties shall
present their evidence to the arbitrator
at the hearing. The arbitrator shall issue
his/her decision immediately at the close
of the hearing and following
oral argument by the parties. The cost of the arbitrator
shall be borne by the party
that does not prevail, and each party shall bear the costs
and attorney fees of
presenting its own case, except as provided by subsection J
below. The decision of the
arbitrator shall be final and binding on the parties, and
there shall be no appeal from
the arbitrator’s decision.
H. Disputes
submitted to arbitration by the Guild and defenses raised by the City
shall be well grounded in fact
and not interposed for any improper purpose, such as
to harass or delay. Violations
of this subsection shall support the award of
reasonable attorney fees at
prevailing commercial rates by an arbitrator.
Dated this 26th day of
November, 2001 by
Janet
L. Gaunt