OFFICER VICTORIOUS OVER
CITY OF RIVERSIDE IN ARBITRATION
Arbitrator Joe H.
Henderson emphatically has overturned the termination of Riverside
Police Officer Ben Shafer and returned him to work with full back pay
and benefits.
Shafer, a 6 ½ year
veteran assigned to Narcotics, was well on his way to making detective
when his train got derailed by a seemingly innocent misunderstanding
with his supervisor.
It was a routine drug
bust, or should have been. Shafer was the case agent on a search warrant
for a methamphetamine sales case. Though no meth was found at the
residence, the suspect was arrested for possession of over a pound of
marijuana. It was late, and the detective test was the next day. Shafer
went home, figuring he’d weigh the evidence the next day.
With studying for the
test, and the normal craziness of the "Narc bay," Shafer had
to be reminded by his sergeant to "weigh the items." He did.
There were a couple of loose "baggies" of marijuana, and a
pound of marijuana packaged in 20 or more individual plastic baggies all
housed in one big paper bag. Shafer followed his normal routine and
weighed the entire paper bag. He thought this would be sufficient, since
he was told to "weigh the items" and the paper bag was listed
in his report as one item. He had also done it this way in the past,
with no problems. In an effort to save time, he wrote in the weights by
hand, and forwarded the report to records. He assumed the matter was
done. He was wrong.
Later that day, his
sergeant asked him if he had made the corrections. Shafer answered in
the affirmative, since he felt that he had. The next day his sergeant
asked him for a copy of the report "for his statistics".
Shafer gave him a copy of the old report, without the corrections.
He thought this would be good enough, since he assumed that the sergeant
only wanted the report for his own records. Again, he was wrong.
Shafer’s supervisor
noticed that the report he was given did not have all corrections he had
asked Shafer to make. He then asked Shafer for a corrected report, and
here is where the stories began to differ. The sergeant remembered
asking for a "faxed" copy from records. Shafer remembers his
sergeant asking for a corrected report, but "not the faxed
part". Shafer then went to the stenographer and asked her to print
out a copy of the report, adding the corrections. She did. He then gave
this to his sergeant.
His sergeant noticed that
some corrections were not made, and questioned if this was a faxed
report from records. Shafer said no, and told him it was a corrected
report, but not the one from records. His sergeant became suspicious. He
thought Shafer had lied to him about how he had made the corrections,
and decided to initiate an internal investigation. Don’t worry, it
gets worse.
There were only two
witnesses to the conversations forming the basis for the allegations of
dishonesty: Shafer and his supervisor. You might think that since the
supervisor was the complaining witness, he might have been biased. He
was.
You might have thought
that since the sergeant believed from the beginning that Shafer had lied
to him, the department would have someone else conduct the
investigation. They didn’t.
Shafer’s sergeant, the
complaining witness, conducted the investigation. He interviewed the
witnesses, including Shafer. No one ever interviewed him. In the end,
though Shafer’s rep at the IA felt impelled to blurt out, "This
sounds like one big miscommunication to me," no one could convince
the sergeant he was wrong. The sergeant sustained his own allegations
and, once termination was recommended, signed off on that too, acting as
investigator, prosecutor, judge and jury.
Shafer waived his Skelly
hearing and went directly to arbitration. Michael Schwartz, of Silver,
Hadden & Silver, represented Shafer at the hearing. Shafer’s
sergeant admitted to being biased from the start, but tried to downplay
his bias by saying he had had an open mind, and had given Shafer the
opportunity to "prove" to him he wasn’t lying. Yet, in a
case that hinged on what was said and what was understood, the sergeant
could not remember word-for-word what Shafer had said to him during
those five, brief conversations, no quotes, nothing. All the sergeant
could remember was that Shafer had lied, and that was good enough proof
for him, and the department.
It was not good enough
for the arbitrator. He found that in fact Shafer had not lied,
adding, "It is inconceivable to this arbitrator, with over 29 years
of experience as a trier of fact in employment matters, that the
department management would permit the termination of an officer under
these conditions. The accuser (the person who made the charges) was also
the supervisor who investigated the charges. He made the determination
that appellant was lying because his account differed from the
appellants and recommended termination."
The arbitrator went on to
conclude, "The main person that heard the appellant’s side of the
matter was the accuser, investigator, prosecutor and judge. This was not
a ‘fair’ hearing."
Thankfully, the nightmare
is over, and Ben Shafer is back to work. The department, a bit
"wiser for the wear," accepted the arbitrator’s ruling and
had been more than cooperative in expediting Shafer’s return to
uniform. Shafer now looks forward to the promising future he dreamed
about as a 19-year old cadet, that of a City of Riverside police
officer.
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