Police Union Attorney Claims City Manager Violated Constitutions

COLUMBIA, MO – City Manager Mike Matthes violated the state and federal constitutions Monday during a meeting with the Columbia Police Officers’ Association board in which he demanded they fire the union’s director because of a controversial Facebook post, a letter from the association’s attorney claims.

Matthes contends that the issues the letter raises about the situation are moot points.

St. Louis-based attorney Sally Barker wrote in the letter that Matthes violated Article 1, Section 29 of the Missouri Constitution that guarantees police officers the right to choose their own collective bargaining representative.

“Demanding that your employees fire their collective bargaining representative’s executive director violates that obligation” to bargain in good faith with a representative of their own choosing, Barker wrote.

Matthes has said he will not ask voters for more money to hire additional police officers until Dale Roberts, the executive director of the Columbia Police Officers’ Association, leaves his post.

Barker claimed Matthes’ threat of “adverse consequences if they do not comply with your demand constitutes unlawful retaliation” and violates the Missouri Constitution.

Matthes said the board members were not collectively bargaining when he met with them, so any law about bargaining does not apply. Matthes said the board need not respect his request to remove Roberts and that calling his request a threat or retaliation is an “exaggeration.”

Because Roberts opposed past ballot measures to fund police officers, Matthes said, city officials won’t propose another one while he remains in charge of the union.

“As long as he is there, why even bother?” Matthes said. “It’s not retaliation.”

Matthes called on the union to fire Roberts on Monday because of a post Roberts wrote on the union’s Facebook page. The post declared Sunday “Darren Wilson Day” and called him a “persecuted officer” who did nothing wrong when he shot and killed Michael Brown Jr. on Aug. 9, 2014.

The death of Brown, who was unarmed and black, at the hands of a white Ferguson police officer set off protests across the country about police use of force — particularly against minorities — and sparked riots in the St. Louis suburb and nearby communities. Riots erupted again in November when a St. Louis County grand jury declined to indict Wilson. Protests started anew over the weekend in recognition of the one-year anniversary.

After news of Roberts’ post surfaced Monday morning, a group of about 20 people staged a silent protest in front of the Columbia Police Department. Matthes, Assistant City Manager Tony St. Romaine and police Chief Ken Burton participated in the protest.

“The thing that really angers everyone on behalf of our police officers is that this is like the sixth embarrassing thing he’s done on a global platform,” Matthes said, citing a history of Roberts drawing local and national attention.

Columbia police have repeatedly said they are understaffed, and a ballot measure last November that would have increased property tax rates to hire about 40 officers failed. The letter claims Matthes threatened to withhold salary raises for officers while Roberts is in his post.

At the meeting, the letter alleges, Matthes “interrogated officers and threatened them for the executive director’s speech” in violation of the First Amendment to the U.S. Constitution. Matthes refused to allow Roberts in the meeting to represent the board, the letter says. Matthes also infringed on the officers’ collective bargaining and free speech rights because he implied that they also could be fired for expressing their personal views on their own time.

Barker requests in the letter that Matthes rescinds his call for the police union to fire Roberts and take back his “unlawful threat to retaliate if your demand is not met.”

Reached by phone, Barker said the threats included what Matthes expressed in a meeting with officers as well as an email to city officials and the police department.

“I’m really not going to comment any further than what’s in the letter at this time,” Barker said.

University of Missouri law professor Richard Reuben said Roberts demonstrated questionable judgment by declaring the anniversary of the shooting “Darren Wilson Day” without board approval, but it does not justify Matthes using his authority to make an inherently political statement in asking for Roberts’ termination. He said the issue boils down to two serious lapses in judgment: “one by a local leader that was repugnant to many people … and the other by a city official that may well have violated the statutory obligations of a public servant and the police union’s collective bargaining rights.”

“It is hard to say which is more offensive,” said Reuben, who is involved in pending litigation against the city. “Reasonable minds could differ.”

Roberts’ post made national news this week and quickly spread via social media. A rally for people who opposed Matthes’ call for Robert’s termination was planned for 5 p.m. Wednesday at City Hall. The Mid-Missouri chapter of the NAACP was planning a counter-protest.

Roberts said “it’s all pretty clear” that Matthes violated the state and national constitutions.

“I’m trying to be a little cautious about this because it may turn into litigation,” Roberts said.

He declined to comment on the internal workings of the police union or how he would advise the group to move forward. Roberts said this week that he has no plans to resign.

Roberts said he believes Matthes, Burton and St. Romaine violated city code by attending the protest Monday outside the police department. Roberts cited section 19-39 of city code, which outlines the types of political activity appointed officers or employees can not engage in while on duty or in uniform.

The code says appointed officers, such as Matthes, “shall not engage in any political activity while on duty or in uniform or otherwise use equipment or resources of the city.” The code further defines — but does not limit — the sort of political activities that are banned. Those political activities include “support or opposition for any political office, cause or party.”

Matthes said the city ordinance does not apply because the protest was not political. He said he wasn’t standing there making money, calling for legislative action or participating with any political party or candidate.

“We were just there to say to the public that we reject Dale Roberts’ post,” he said.

Reuben said the officials attending the protest could be seen as them taking a stance regarding a cause. Because the protest took place from during the lunch hour from noon to 12:30 p.m., he said, the real question is whether Matthes, St. Romaine and Burton were “on duty.” Reuben said proving that would be difficult.

“He might be okay in terms of technical compliance with the statute,” Reuben said. “He also does have a First Amendment right to express his own political points of view as far as the law is concerned.”

From The Columbia Tribune