EMERYVILLE POA
PRESIDENT PREVAILS AT ARBITRATION
In a disciplinary arbitration involving Emeryville Police Officers'
Association (EPOA) President Sergeant Randy Horton, Arbitrator Norman
Brand ruled that there was no "just cause" for Horton's
two-day suspension for insubordination and rudeness. The arbitrator's
decision and award vindicated Sergeant Horton and served notice on
Emeryville Police Chief Joseph Colletti and his administration not to
trample on the free speech rights of EPOA officers and rights of Horton
in his capacity as the EPOA's President and labor relations
representative. Horton was represented by Dave Clisham and Dan Connolly
of Clisham & Sortor of San Francisco.
On November 7, 1995, Chief Colletti addressed the Emeryville City
Council and presented it with a "Status of Crime Report."
After the Chief's presentation, Sergeant Randy Horton, in his capacity
as EPOA President, also addressed the City Council on the Emeryville
Police Department's "Status of Crime Report" and answered
questions from City Council members. While President Horton was
deferential towards and respectful of the Chief during his City Council
presentation, the Chief and his command staff thought otherwise. The
Chief testified that Horton's appearance was "frustrating and
embarrassing;" his civilian "commander" Jeannie Wong,
testified that they (the command staff) were "disappointed and
shocked." While the Chief initially did not want to meet with
Horton about Horton's City Council appearance, his command staff
persuaded him to meet with Horton to address his "performance"
and his alleged acting in a manner consistent with his obligations as an
Emeryville Police Sergeant.
The City presented no evidence that Horton had ever acted in a manner
inconsistent with his obligations as an Emeryville Police Sergeant and
that his performance as a sergeant had been compromised.
Chief Colletti summoned Horton into his office at 0600 hours on
November 13, 1995, after Horton had completed the graveyard shift. With
only Colletti and Horton present, the Chief proceeded to criticize
Horton for his City Council appearance, telling Horton that he was an
"embarrassment to the Department, the POA and himself."
Horton, realizing that the meeting was not about his performance as an
Emeryville Police Department Sergeant but about his appearance before
the City Council in his capacity as the EPOA President, advised the
Chief that this was "bullshit" and requested that the meeting
be rescheduled. The "Chief kept talking and [Horton] kept asserting
his desire to leave." Colletti threatened Horton with
insubordination if he left the Chief's office, and Horton said to the
effect, "Do what you have to do" and left the Chief's office.
The Chief immediately requested Horton's ID card, badge and building
key; while en route to the sergeant's locker room, Horton exclaimed that
"this was fucking crazy" and told the Chief to "come to
his fucking house" to get them. As Horton and the Chief entered the
locker room, two other officers were present and heard Horton tell the
Chief, "If you want my fucking keys, come and get them ... you can
have my fucking badge too." While in the sergeant's locker room,
Horton took his badge from his shirt and threw it on the floor saying,
"There it is if you want it." Horton subsequently picked it
up, apologized for throwing it on the floor, and gave the Chief his ID,
badge and building key. Horton told the Chief that the Chief was an
embarrassment to the Department. On his way out of the building, Horton
stopped to apologize to the dispatchers for any disturbance he may have
caused.
The Chief thereafter issued Horton a "Notice of Intent to
Discipline," proposed a five work day suspension and based it on
charges of insubordination and rude conduct. Subsequent to Horton's
"Skelly" hearing, the suspension was reduced to a two-day
suspension.
Arbitrator Brand stated the following:
"Three aspects of the confrontation between Chief Colletti and
grievant
are immediately clear. First, there was never any performance issue
that was going to be discussed with
grievant. The only reason for the meeting November 13 was so the Chief
could discuss with grievant the "embarrassment" that grievant
caused by speaking before the City Council. Second, the Chief had no
right to order grievant to discuss grievant's lawful activities as POA
President - which was entirely divorced from his duties as a sergeant in
the department - at a time and place chosen by the Chief. Nor could the
Chief order grievant to stay until he was finished discussing grievant's
performance as POA President. Third, grievant was unacceptably rude and
discourteous to the Chief after he left the office."
The arbitrator also acknowledged Horton's First Amendment rights to
address the City Council:
"... there is no overlap between the address grievant made to
the City Council and his responsibilities as a sergeant in the
department. There could not be a more clear example of a union official
speaking to a public body on a matter of public concern. As the POA
points out, this is at the core of protected First Amendment activity.
Moreover, there is no evidence that the address grievant made to the
City Council substantially disrupted departmental operations. In fact,
there is no evidence the speech caused any disruption in departmental
operations."
However, because of Horton's rude and disrespectful conduct towards
the Chief in the hallway and in the locker room, the arbitrator found
"just cause" for the department to issue Horton a letter of
reprimand.
Sergeant Horton and his colleagues, as well as all peace officers, do
enjoy First Amendment rights and are not relegated to a "watered
down version of Constitutional rights (Garrity v. New Jersey (1967) 385
U.S. 493, 500), and as acknowledged by Arbitrator Brand, EPOA President
Horton cannot be ordered to participate in a meeting concerning labor
relations matters.
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