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Sept. 25, 2021

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Law enforcement finds arbitration imperfect

Some agencies try to bypass system to get rid of problem officers

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The state’s grievance arbitration system was designed to protect public employees from discipline without just cause and violations of their employment contracts. Yet some arbitrator decisions reinstating police officers terminated for criminal activity or alleged criminal activity have called into question whether the arbitration system serves the interest of public trust in law enforcement.

Some law enforcement leaders say they can’t depend on arbitrators to uphold discipline of peace officers who violate the law. They have unsuccessfully proposed legislation that would decertify officers convicted of gross misdemeanors due to strong opposition from labor groups.

In lieu of legislative changes, some law enforcement agencies have sought to bypass arbitrators by coming up with alternative ways to get rid of officers accused or convicted of crimes — such as payoffs in exchange for a resignation — but those methods don’t prevent the officer from taking a job at a different law enforcement agency.

“It comes down to the public trust,” said Spokane County Sheriff Ozzie Knezovich, who helped spearhead legislation to address the problem. “The public has to trust that we hold ourselves to a higher standard.”

Meanwhile, labor groups say such cases are the exception and not the rule and that the arbitration is the most effective way to give employees and their employers due process during disputes.

How it works

Arbitration is the process that happens when a union decides to file a grievance on behalf of one of its members and the union and the employer cannot agree on a settlement. The union and employer usually obtain a list of arbitrator names from the Public Employees Relations Commission or another arbitration organization. Depending on the guidelines of their collective bargaining agreement, they typically choose an arbitrator either through mutual agreement or through a system in which each side strikes out a name, until one name remains.

The arbitrator reviews the group’s collective bargaining agreement and other documents and listens to arguments presented by each side before reaching a decision. In a small number of cases, the decision can be appealed to a court, but most of the decisions are binding.

There is no statistical information on how often arbitrators rule in favor of employees vs. employers because arbitration is largely a private affair, said Charity Atchison, the commission’s appeals administrator. The commission collects awards made by its staff arbitrators, but there were only six of those in the past 10 years, Atchison said.

Three out of six awards were in favor of employees, two were in favor of employers, and one was split between the employer and employees, according to the awards, which were reviewed by The Columbian.

Extreme cases

Several instances across the state have raised concerns that the arbitration system has failed to uphold firings of some peace officers who have committed crimes or have been accused of committing crimes.

For instance, an arbitrator reinstated Washougal police Officer Robert E. Ritchie, who had a history of discipline, to his job in June 2013 after the officer was convicted of repeatedly punching a mentally ill man who spat on him.

Ritchie was terminated from his job in September 2012 for violating the police department’s use-of-force policy when he hit Tyler Lampman, then 26, who was restrained in the back of Ritchie’s patrol car in July 2012. Clark County District Court Judge Sonya Langsdorf convicted him in March 2013 of gross-misdemeanor forth-degree assault for striking the man.

The Washougal Police Officers Association — made up of about 20 members — voted to file a grievance against the city challenging Ritchie’s termination and requested an arbitrator to resolve the dispute.

Following a hearing in June 2013, arbitrator Ron Miller concluded that termination was too harsh a punishment for Ritchie, given the officer’s 28 years of service with the department. He ordered that the city reinstate Ritchie to his job.

Instead of termination, Ritchie’s year without employment and pay — the equivalent of a one-year disciplinary suspension — would suffice as punishment for the officer’s misconduct, Miller said. City officials appealed the decision in Clark County Superior Court, but Judge John Nichols ruled that he didn’t have jurisdiction to overturn an arbitrator’s decision.

The judge found that arbitrator, Miller, abided by the law and the confines of the police department’s collective bargaining agreement in his decision.

While Miller acknowledged that Ritchie had violated the department’s use-of-force policy, he said Ritchie’s long record as a police officer should be considered as a whole when deciding how to discipline him. Miller wrote that it’s “well-established at arbitration that long service with an employer, particularly if unblemished, is an important mitigating factor in favor of an employee whose employment has been terminated.”

“Mr. Ritchie has no prior disciplinary record,” Miller added.

In fact, Ritchie had a notable disciplinary history. The arbitrator had refused to allow that information to come into the hearing, said Washougal police Cmdr. Allen Cook.

For example, Ritchie was demoted from the rank of sergeant in 2004 for shooting Olga Rybak 27 times with an electronic Taser gun in August 2003. The department determined he used excessive force while arresting the woman, who was accused of failing to comply with dog regulations. In 1994, he was suspended for three days for dereliction of duty for failing to pursue an allegedly drunken driver.

“During the arbitration hearing, the city attempted to present past discipline matters pertaining to Mr. Ritchie; however, Mr. Ritchie’s attorney objected, and the arbitrator ruled in favor of Mr. Ritchie,” Cook said. “The arbitrator subsequently prohibited the city from presenting prior discipline matters involving Mr. Ritchie that occurred more than a few years before this incident.”

Miller did not return a phone call and email from The Columbian seeking comment on the Ritchie case.

“The Washougal case is just such an extreme case in that he committed a criminal violation on duty,” said Mitch Barker, executive director of the Washington Association of Sheriffs and Police Chiefs. “If that doesn’t get someone terminated, we don’t know what would. If the arbitrator can just disregard all of that, where does that leave the community?”

Former Washington State Patrol Lt. Kenneth Garrison also was reinstated to his job after he was fired in 2003 under suspicion of the child rape of a relative two years earlier. He was initially charged with the crime in Cowlitz County, but the charge was later dismissed.

The child rape allegation led to an internal investigation that ended in Garrison’s termination. Garrison’s supervisor at the time reviewed the evidence and determined that there was enough proof that the sex abuse happened, said Bob Calkins, a State Patrol spokesman.

However, when Garrison appealed his termination, an arbitrator ruled in his favor, awarded him some back pay, and ordered him back to work. He returned to duty with the State Patrol in 2008. He remained with the agency until December, when he was accused of raping a different relative.

He is in Clark County Jail awaiting trial Dec. 15 on charges of second-degree rape and incest.

Unsuccessful legislation

Similar arbitrator decisions around the state were the impetus for bills in the past two legislative session designed to remove officers who commit crimes or lie about material facts. The most recent bill would have allowed the Criminal Justice Training Commission to decertify officers when they’re convicted of some gross misdemeanor crimes, or if they lie about a material fact.

Neither bill made it out of committee due to opposition from labor groups, Barker said.

Yet law enforcement leaders may have to take the heat from the public if an officer who has committed misconduct is reinstated, he said.

“The unions seem to just slide off the radar,” Barker said. “They could certainly say to their guy: We think you did wrong, and we are not going to represent you.”

Jeff Kipp, president of Vancouver Police Officers Guild, said the legislation would have circumvented due process for police officers when a sheriff or police chief was unhappy with an arbitration decision. The arbitration system provides an important protection for public employees to make sure their employer is following the tenets of the collective bargaining agreement.

“There will always be cases you look at that sound preposterous or outrageous if you don’t know the facts,” he said.

He said unions don’t file grievances for the vast majority of terminations that happen in public agencies.

“There are very few cases that get to arbitration,” he said. “Labor groups don’t look at this as a secret ace in the hole, and we’re going to win all of the time.” He said he can only remember one or two cases that the Vancouver guild took to arbitration in the past few years.

Alternatives to arbitration

In some cases, law enforcement agencies have tried to avoid arbitration by coming up with creative solutions to get rid of problem law enforcement officers. The city of La Center, for instance, recently made a separation agreement with a police officer who was accused of driving under the influence of alcohol and obstructing a law enforcement officer.

Officer Tracy Cook agreed to resign July 17 from the department in exchange for about $31,000. The payout included three months’ salary, six months of health coverage and her remaining vacation time.

As part of the deal, Cook agreed not to sue or file any grievances against the city, its elected officials or the La Center Police Officer’s Association.

“What none of us know is how many times police chiefs don’t impose discipline they want to impose because they know an arbitrator will reverse the decision,” Calkins said.

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