Officer Cannot Be Held Responsible For ‘Newspaper’s Premature Judgment’

Officers in the Montgomery, Minnesota Police Department are represented by Local 87 of Law Enforcement Labor Services. A grievance filed by Local 87 challenging a 21-day suspension issued to an officer produced a significant decision involving the importance of media publicity in the disciplinary context.

Though there were several disciplinary charges against the officer, the most important stemmed from a family gathering attended by the officer, his wife, and their children. The officer’s youngest brother, an adult with a cognitive disability, was angry because the officer’s wife wouldn’t let him hold an 8-month-old child. The brother told the officer that his wife was “a fucking bitch,” and threw his cell phone in her direction, where it broke on the ground.

While the family gathering generally dispersed, the officer, his older brother (who was a City Council member), and a female cousin spent the evening drinking beer around a bonfire. Shortly after midnight the brothers were arguing about how the City would have police protection if it eliminated the police department. This turned into a physical altercation and the officer used his wrestling skills to subdue his brother and left to walk a couple of blocks to his house.

The officer’s brother called 911 and requested police assistance to remove “an unwanted” person from his property. The brother reported that when he asked the officer to leave, the officer said “why don’t you make me.” The brother stated that a scuffle ensued in which he was thrown to the ground and placed in a headlock by the officer. The brother indicated he wanted to press criminal charges.

Two months later, the officer was criminally charged with felony domestic assault by strangulation as well as two misdemeanor assault charges. Pursuant to a plea agreement, these charges were eventually dismissed and the officer pled guilty to the misdemeanor of disorderly conduct. The supporting probable cause statement specified: “When asked to leave the residence of another person, he refused to do so, and told the property owner he would have to ‘make me leave’; he also swore at and used profane language toward the property owner (the brother).”

The City suspended the officer for 21 days. In significant part, the City’s disciplinary decision was based on the negative publicity garnered in the local newspaper by the filing of charges. The City argued in arbitration that the front page of the local newspaper reported the domestic assault charges, stating that the officer betrayed his badge, integrity and character, and the public trust.

An arbitrator reversed the suspension. On the merits of the dispute, the Arbitrator focused primarily on the incident with the officer’s brother, and was clearly unconvinced by the brother’s account of the incident. The Arbitrator commented that the chain of events leading to the criminal charges and the plea agreement contained weak links:

  • A 911 call from an intoxicated person for assistance in removing an unwanted person who had already left;
  • An initial incident report that named both brothers as both victim and suspect in “a family dispute between brothers,” citing only one injury, which was to the officer’s elbow, but the officer did not want to pursue a complaint and the uninjured party wanted unspecified charges;
  • A complainant who escalated his inconsistent claims to the Investigator, less than 14 hours later tried to stop the process he had instigated, and later retracted the claims;
  • A recalcitrant witness whose damaging claims were tardy and suspect;
  • The concept of the officer’s “choking” his brother was introduced in the initial notes of the County Investigator’s report, supposedly based on the information relayed from the responding PO via the County Sergeant, although there was nothing in this information about choking; and
  • Brother’s written disavowal of his claims, stating: “Due to my documented medical conditions and anger issues and medication I have taken for the last 10 years. I do not feel comfortable standing behind my statements given in reference to the disturbance at my home.”

The Arbitrator then turned to the question of the newspaper reports, and was harshly critical: “The Union persuasively argues that the newspaper report was based on the inflated charges and the subsequently discredited allegations by Brother. It is unfortunate that a community newspaper would so irresponsibly judge an accused before due process has run its course. Given the ultimate outcome of the matter and the accurate underlying facts, the officer cannot be held responsible for the newspaper’s conduct and the resulting public criticism.”

The Arbitrator found that the officer’s off-duty conduct in the cited incidents did not constitute misconduct warranting disciplinary action. Although the officer’s plea of guilty to the misdemeanor charge of disorderly conduct was a technical violation of policy, the specified underlying facts did not constitute misconduct warranting disciplinary action. The City did not have just cause to suspend the officer for 21 days without pay.”

City of Montgomery, BMS 16-PA-0828 (Neigh, 2017).