Unfair labor finding against Vancouver Police Dept. is upheld

Then-guild president was denied spot in motorcycle unit




The state Court of Appeals has upheld a finding that the Vancouver Police Department committed an unfair labor practice in 2009 by denying an officer a spot in the motorcycle unit because of his activities as president of the police officers’ guild.

The officer, Cpl. Ryan Martin, resigned from the police department last summer and works as an Oregon State Police trooper.

The unanimous ruling by the three-judge panel was issued Tuesday.

In 2009, Martin was among four internal candidates for two spots in a revived motorcycle traffic unit that had been eliminated by then-Chief Cliff Cook during a 2008 budget crisis, according to the Court of Appeals’ opinion.

“In the months between Martin’s election to the Guild’s presidency and the selection of the officers for the motorcycle unit, Martin challenged the police department’s leadership on behalf of the Guild’s members on several different occasions, filed grievances against the department for Guild members and exercised Guild members’ rights under the collective bargaining agreement to block Cook’s attempts to reorganize the department,” Judge Thomas Bjorgen wrote in a 30-page decision.

Acting Chief Judge Jill Johanson and Judge Bradley A. Maxa concurred with the ruling.

During the interview process, three panel members met with the candidates. One panel member, Cpl. Robert Schoene, said Martin was the most qualified to serve in the motorcycle unit. “(Assistant Chief Chris) Sutter responded that ‘the person with the most skills and qualifications is not always the best fit for the unit’ and that the panel should be seeking someone who ‘supports the chief’s vision and the chief’s direction.’ ”

Given the timing of Martin’s activities as guild president and Sutter’s awareness of them, there was “substantial evidence” to support a hearing examiner’s finding Sutter was using Martin’s protected guild activities against him, according to the court ruling.

A hearings examiner’s ruling was appealed to the Public Employment Relations Commission, which confirmed in December 2011 that police administration “deprived Martin of an ascertainable right, benefit, or status,” and broke the law when it did not choose Martin to fill one of two open spots.

The commission ordered the city to give Martin a spot in the motorcycle unit within 30 days and read the decision aloud at a city council meeting. The city appealed the PERC decision, bypassing Clark County Superior Court to the Court of Appeals, Division II.

Assistant City Attorney Jonathan Young said Tuesday he doesn’t anticipate the city will appeal to the state Supreme Court.

While the Court of Appeals upheld the finding, it did correct what the city argued were two legal errors in the PERC decision, Young said. Even though the appellate judges found the errors were harmless, Young said the city was satisfied to have the errors — applying an improper burden of proof in determining the city’s liability and wrongly interpreting a legal decision — corrected so they cannot set a precedent.

Martin, who was eventually assigned to the traffic unit, could not be reached for comment Tuesday.

Cook resigned in 2012 and was succeeded by Chief James McElvain, who said Tuesday he didn’t want to comment on an incident that happened before his time.

Officer Jeff Kipp, president of the 170-member guild, said Tuesday guild members feel the decision speaks for itself and they “are pleased that the court will protect labor leaders from discrimination.”

Young said the court order will be read aloud during an upcoming city council meeting and posted on the city’s website.