Menlo Park: Two arbitration processes for police misconduct cases

The two unions representing the city’s police officers will have two different procedures for handling appeals of disciplinary decisions by binding arbitration, if the council approves a proposed contract with the Menlo Park Police Officers’ Association.

The proposed contract with the POA, which represents 37 members of the police department, was approved by the union in November, according to a staff report released in advance of the Dec. 16 council meeting.

Instead of choosing from a pool of retired San Mateo County judges as arbitrators — as called for by the contract with the sergeants’ association approved late last year — the choice would be limited to a list of five pre-selected people.

The five arbitrators are Alexander Cohn, Joseph Grodin, John LaRocco, Carol Ann Vendrillo and John Wormuth.

Why the change, after the council trumpeted the benefits of using local judges who would be familiar with the community? Mayor Catherine Carlton said it came down to compromise.

“They just wouldn’t agree to the judges. That’s kind of the way it works when you negotiate, I guess. You figure out a solution everybody agrees to,” Ms. Carlton said.

Binding arbitration came under scrutiny after the Almanac broke the story last year of veteran officer Jeffrey Vasquez, who was reinstated by an arbitrator despite being caught naked with a prostitute in a motel room and reportedly admitting it wasn’t the first time he had hired a hooker for sex. The arbitrator, James Margolin, also awarded him $188,000 in back pay.

Another case is now wending its way through the arbitration process. Rolando Igno, who was an officer in Menlo Park for nearly seven years, is appealing his firing on grounds that previous allegations of lying to his supervisors should not have been considered in the decision to terminate his employment in April.

POA

Negotiations with the POA started in April 2013, and stretched through November 2014 after more than a year of wrangling, according to the staff report.

Human Resources Director Gina Donnelly said that the city worked with a labor consultant and the union to establish a list of arbitrators with experience in police officer disciplinary appeals. She said she was pleased that the city reached agreement on the list with the union.

“Working collaboratively with the city’s bargaining units is in all parties’ interest,” Ms. Donnelly said.

Attorney Sean Howell of Mastagni, Holstedt, Amick, Miller & Johnsen, a law firm which represents POA members, said the agreement represents “a mutual decision.” Did the union prefer this alternative to using local retired judges? “To imply that the Menlo Park POA ‘preferred’ having the list of five arbitrators gives the wrong impression and inaccurately describes what was a mutual agreement between the parties,” he replied. “The Menlo Park POA is satisfied with the tentative agreement with the city’s negotiators on the contract as a whole, including the disciplinary due process the parties have mutually agreed to.”

At least 16 jurisdictions in California rely on binding arbitration in police disciplinary cases. The state doesn’t require arbitrators to publish their decisions, and due to confidentiality laws, both parties must give permission before an arbitrator can release a case ruling. Labor attorneys said sample decisions provided by arbitrators are typically selected according to who is asking — a city manager, for example, will likely be given a copy of a ruling that supported management.

The lack of a centralized database of arbitration decisions, or even statistics on how many cases are upheld, turns evaluating the effectiveness of the system — or individual arbitrators — into a monumental challenge.

The Almanac obtained 17 redacted decisions in police misconduct cases involving San Jose, Stockton, Richmond, Alameda, Sierra Madre, Oroville, Merced County and Oakland. Arbitrators reinstated the officers nine times, and reduced a suspension once, yielding a reversal rate of about 59 percent.

They upheld terminations in the remaining seven cases. Academic studies of similar cases in Chicago and Houston show approximately the same reversal rate.

According to the mayor, the city’s labor consultant maintains his own collection of outcomes by arbitrators, and used that to help select the list of five that he “felt 100 percent comfortable working with” for Menlo Park.

“We wanted to make sure they were going to follow the rule of law, and not be biased,” Ms. Carlton said.

The council is expected to vote on the proposed POA contract on Tuesday, Dec. 16.