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  • Officer Matthew Luckhurst City of San Antonio Police Department Decision Redacted

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    Officer Matthew Luckhurst City of San Antonio Police Department Decision Redacted

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    © All Rights Reserved
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    17K visualizzazioni19 pagine

    Officer Matthew Luckhurst City of San Antonio Police Department Decision Redacted

    Caricato da

    Fares Sabawi
    Officer Matthew Luckhurst City of San Antonio Police Department Decision Redacted

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    © All Rights Reserved
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    IN THE MATTER OF ARBITRATION BETWEEN OFFICER MATTHEW LUCKHURST ) ) APPEAL OF INDEFINITE ) SUSPENSION vs. ) ) ) AAA CASE NO. 01-17-0000-6809 CITY OF SAN ANTONIO ) Date of Beginning of Suspension: Date of Appeal: Dates of Hearing: Date of Closing of the Record Date of Decision: Appearances: Appellant: City: Arbitrator: December 1, 2016 December 1, 2016 February 24-27, 2020 May 22, 2020 Sune 19, 2020 Ben M. Sifuentes, Jr., Esq. Attorney-at-Law Logan Lewis, Esq. Michael Urbis, Esq. Assistant City Attorneys City of San Antonio Thomas A. Cipolla, Esq. L.BACKGROUND Officer Matthew C. Luckhurst (hereinafter, “Appellant” or “Grievant” or “Luckhurst”) has been with the City of San Antonio Police Department (or “SAPD”) since May 2012. He was indefinitely suspended by the Chief of Police and advised so in a letter to the Grievant dated December 1, 2016 for ‘two violations of the SAPD General Manual, including RULE 3.04 - RESPONSIBILITY TO SERVE THE PUBLIC, (C) CONDUCT AND BHEAVIOR, and PROCEDURE 918 — HARASSMENT, DISCRIMINATION, AND SEXUAL CONDUCT IN THE WORKPLACE (.04) PROHIBITED ACTIVITIES (D). Additionally, the Grievant was charged with violation of Subsection C of Rule XIII of the City of San Antonio Fire Fighters’ and Police Officers’ Civil Service Commission Rules. The factual basis for the rule violations as stated in the Final Indefinite Suspension includes the following: “On or about June 12, 2016, during the night shift, between approximately 5:30 p.m. to 3:30 am., after another male officer went into the women’s locker room at the Bike Patrol Office and defecated in the toilet assigned to female personnel, Officer Matthew C. Luckhurst went into the same facility and defecated on top of the previously deposited excrement. The toilet was left unflushed by both officers intentionally. Officer Luekhurst and the officer also obtained a brown substance with the consistency of tapioca and spread it on the toilet seat, giving the appearance that there was fecal matter on the seat. Officer Luckhurst then boasted of these actions to fellow officers. This inappropriate behavior was done afier a female officer requested the women’s restroom be kept clean, ILISSUES 41, Whether the instant suspension is valid given that Luckhurst was no longer an employee of the City of San Antonio? 2. Is an indefinite suspension is equivalent to dismissal from the department? 3. Which factual charges alleged by the City of San Antonio in the final indefinite suspension (City Exhibit 5) were proven by a preponderance of the evidence? 4, Based on the charges found to be true by a preponderance of the evidence, which rules did Matthew C. Luckhurst violate? 5. Based on the rules violated and the record, is the imposed discipline upheld, or should some lesser discipline be substituted? 6, Are the charges against the Appellant are not true under a “just cause” standard? TI. RELEVANT DOCUMENTS, Excerpts from the San Antonio Police Department Rules and Regulations RULE 3.04 - RESPONSIBILITY TO SERVE THE PUBLIC: Members shall serve the public through direction, counseling, assistance, and protection of life and property. ‘Members shall also respect the rights of individuals and perform their services with honesty, sincerity, courage, and sound judgment. (C) CONDUCT AND BEHAVIOR: Members, on-or off-duty, shall be governed by the ordinary and reasonable rules of good conduct and behavior, and shall not commit any act tending to bring reproach or discredit on themselves or the department. seeeee PROCEDURE 918 - HARASSMENT, DISCRIMINATION, AND SEXUAL CONDUCT IN THE WORKPLACE (.04) PROHIBITED ACTIVITIES (D) (04) PROHIBITED ACTIVITIES (D) Members (both sworn and civilian) shall not engage in conduct that could be construed as inappropriate behavior, sexual harassment or any other significant behavioral infraction, Excerpts from the Collective Bargaining Agreement Article 7, Section 1 states in part: Subject to the terms of this Agreement, the Association recognizes the management of the City of San Antonio and the direction of the Police Department are vested exclusively in the City, and nothing in this Agreement is intended to circumscribe or modify the existing right of the City to operate and manage its affairs in all respects. The Association recognizes the City’s statutory and Charter Rights to: teenee C. Discharge, demote, or suspend Officers, pursuant to the requirements of Chapter 143 Local Government Code and further and fully agreed to in Article 28, Disciplinary Actions, of this Agreement, Article 28, Section 1 states in part: * The Chief shall have authority to demote and/or suspend not to exceed forty-five (45) calendar days, or indefinitely suspend (as provided for in Chapter 143 of Local Government Code) any Officer for causes set forth in the Rules and Regulations of the Commission. Article 28, Section 3 states in part: The written statement shall point out the particular rule or rules alleged to have been violated by the Officer and the specific act or acts alleged to be in violation. Article 28, Section 10(C) states in part: In all hearings under this Section, the City shall prove its case by a preponderance of the evidence. Article 28, Section 11 states in part: Unless otherwise provided in this Agreement, the Arbitrator shall have all those powers and only those powers vested in the Commission under Chapter 143 of the Local Government Code and the Commission Rules, with respect to suspensions, indefinite suspension, and demotions, with the sole exception of the power to amend such rules. Article 28, Section 19 states in part: Except as provided in this section of this Article, the Chief and City are precluded from the introduction of evidence or otherwise complaining of any acts or occurrences earlier than the one hundred and eightieth (180th) calendar day immediately preceding the date on which the Chief suspends or demotes the Officer. The Chief may introduce evidence or otherwise complain of any felony Penal Code violation, a felony violation of the Controlled Substance Act, a Class A or B Misdemeanor committed by an officer so long as the evidence or complaint is filed within one hundred and eighty (180) calendar days of the Department's first knowledge of the act, provided however, that the statute of limitation for criminal judicial action against the officer involved has not expired. This amendment language shall not be applied retroactively. Only upon written notice in the original written statement of the Chief may any act or occurrence be admissible in a disciplinary hearing in accordance with this section. Excerpts from the Texas Local Government Code Tex. Loe. Gov't Code Ann, § 143.053(¢) states: (a) This section does not apply to a municipality with a population of 1.5 million or more. (b) Ifa suspended fire fighter or police officer appeals the suspension to the commission, the commission shall hold a hearing and render a decision in writing within 30 days after the date it receives notice of appeal. The suspended person and the commission may agree to postpone the hearing for a definite period. (©) Ina hearing conducted under this section, the department head is restricted to the department head's original written statement and charges, which may not be amended. (d) The commission may deliberate the decision in closed session but may not consider evidence that was not presented at the hearing. The commission shall vote in open session. (c) Inits decision, the commission shall state whether the suspended fire fighter or police officer is: (1) permanently dismissed from the fire or police department; (2) temporarily suspended from the department; or (3) restored to the person's former position or status in the departments classified service. (If the commission finds that the period of disciplinary suspension should be reduced, the commission may order a reduction ii the period of suspension. If the suspended fire fighter or police officer is restored to the position or class of service from which the person was suspended, the fire fighter or police officer is entitled to: (1) full compensation for the actual time lost as a result of the suspension at the rate of pay provided for the position or class of service from which the person was suspended; and (2) restoration of or credit for any other benefits lost as a result of the suspension, including sick leave, vacation leave, and service credit in a retirement system, Standard payroll deductions, if any, for retirement and other benefits restored shall be made from the compensation paid, and the municipality shall make its standard corresponding contributions, if any, to the retirement system or other applicable benefit systems, (g) The commission may suspend or dismiss a fire fighter or police officer only for violation of civil service rules and only after a finding by the commission of the truth of specific charges against the fire fighter or police officer. Tex. Loc. Gov't Code Ann. §174.006 states: Effect on Civil Service Provisions (a) A state or local civil service provision prevails over a collective bargaining contract under this chapter unless the collective bargaining contract specifically provides otherwise. (b) A civil service provision may not be repealed or modified by arbitration or judicial action but may be interpreted or enforced by an arbitrator or court (©) This chapter does not limit the authority of a mu Chapter 143 (Municipal Civil Service for Firefighters and Police Officers) except as modified by the parties through collective bargaining. L ITI ipal fire chief or police chief under F THE PARTIES A. CITY 1, Appellant admits to most of the facts as alleged in the Final Indefinite Suspension. 2. The actual written suspension indicates the allegations of the rule violations cited in the document. 3. Appellant's case was investigated by Internal Affairs and reviewed by the swom and civilian members of the Complaint and Administrative Review Board (CARB) who voted unanimously to sustain both allegations 4. The file and the CARB vote were reviewed by Chief McManus and his command staff who also met with and discussed the case with Appellant’s Deputy Chief in his chain of command. 5. Afterword, the Ci facts and rule violations alleged against him, and informing him he had the right to schedule a meeting issued a notice of contemplated suspension, advising Appellant of the with Chief to rebut the charges prior to a final decision. 6. The Appellant did not avail himself of the opportunity to meet with the Chief prior to the imposition of an indefinite suspension. 7. Appellant argues the Final Indefinite Suspension issued to him on December 1, 2016 was void because it was allegedly issued while he was already serving an indefinite suspension for another matter; however, the Appellant presented no evidence to support his factual claim that he was indefinitely suspended prior to being suspended on December 1, 2016. 8. Chapter 143 requires a hearing examiner (or arbitrator under the CBA) to decide the issues based solely upon the evidence presented at the hearing and Appellant did not move to admit any prior disciplinary action taken against him to substantiate a contention that he was or was not already indefinitely suspended on December 1, 2016. 9. Appellant’s procedural challenge to dismiss should therefore fail because Appellant failed to present evidence of any prior discipline. 10, In the alternative, if the Arbitrator relies on Appellant Counsel’s opening statement and unsubstantiated testimony, Appellant’s argument still fails as during his opening statement, Appellant's Counsel said the first indefinite suspension was issued to Appellant on October 28, 2016, thirty-four days prior to the issuance of this discipline on December 1, 2016; however, the December 2016 discipline was issued for misconduct that occurred on or about June 12, 2016, well before October 28, 2016. 11, Taken literally, Appellant would like the Arbitrator to find that he had a “get out of jail free card” for any misconduct the department uncovered after October 28, 2016; and, setting aside the logical problems with that position, there is tremendous legal authority to overrule Appellant's procedural challenge. 12, Appellant cannot identify any provision of Chapter 143 that requires dismissal. 1B. Furthermore, the Texas Supreme Court permits a city to issue two indefinite suspensions. (See, In Firemen's and Policemen’s Civil Serv. Com'n v. Hamman, 404 §.W.2d 308 (Tex. 1996), the Court explained, “Section 16 of Article 1269m does not, however, purport to prohibit more than one charge in any given six-month period; a statement or charge based on acts and incidents unrelated to and

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