SGT. DARRYL ROBERTS V.
EAST PALO ALTO POLICE DEPARTMENT
By William R. Rapoport
Sergeant Darryl Roberts
was hired as a patrol officer for the East Palo Alto Police Department
in May 1990, and promoted to sergeant in October 2000. Shortly
thereafter, in November 2000, Roberts became a member of the POA’s
contract negotiating team and became heavily involved in negotiations
with the city over a new POA contract. He was elected as president of
the POA in June 2001.
Heated negotiations
continued through the summer of 2001 which, in addition to the
controversy between the POA negotiating team and the city, created
controversy between Roberts and other POA members. Certain POA members
scheduled a vote of "No Confidence" regarding Roberts as
president of their POA, and the vote was scheduled to be held on August
10, 2001, because of allegations that: (1) His handling of the contract
negotiations (For example, several officers wanted Roberts to make
copies of all proposals and counter-proposals and discuss them at a POA
meeting before engaging in bargaining. Roberts, understanding this would
be nearly unworkable, apparently did not follow the proposed procedure
and this resulted in complaints regarding his conduct) was not in accord
with their wishes, and (2) General economic issues regarding pay were
raised. On August 1, 2001, after heated debate, the POA ratified a new
contract with the city of East Palo Alto in large measure due to Roberts’
tireless and persistent efforts.
Between August 1 and
August 9, 2001, the day before the "No Confidence" vote (which
was not successful), Roberts engaged in heated conversations with
several different POA members, all occurring within the police
department, some while he was on-duty and others while he was off-duty.
Roberts is an African-American, and these heated debates took place with
officers who were white (2), Hispanic (1), and African-American (another
sergeant). Some of these exchanges resulted in questions by Roberts
about racial motivations vis-à-vis his presidency of the POA, but each
was solely and exclusively about the past POA negotiations for the
contract with the city, and the pending "No Confidence" vote
on his presidency. During the contract negotiations, Roberts was getting
very little sleep (having a work schedule of 7 p.m. to 7 a.m., followed
by sometimes day-long meetings to negotiate the contract).
Wesley Bowling, chief of
the East Palo Alto Police Department, found after an Internal Affairs
investigation, that Roberts’ conduct was in violation of four
departmental rules:
-
Discourteous or
disrespectful treatment of employees;
-
Conduct which
damages the city or its reputation;
-
Harassment and
workplace violence (through no physical contact or threat of such
contact existed); and
-
Conduct unbecoming
an officer.
In response to those
findings, the chief initially recommended a 160-hour suspension, which
was later reduced to an 80-hour suspension after the Skelly
hearing. Roberts was represented from the inception of the Internal
Affairs investigation through the arbitration by this author.
In a lengthy and
well-reasoned decision, arbitrator Thomas Angelo, after a two-day
hearing, found that Roberts’ position was correct. This position was
that each conversation between Roberts and the four other POA members
referred to POA issues about which each complaining officer had taken a
public position, and that Roberts was clearly entitled to speak with
each person in their POA activities since they were fellow unit members
and constituents. Moreover, none of these conversations were with an
idle bystander, because each had expressed a viewpoint dealing directly
with Roberts’ performance as POA president. Angelo’s decision
included the following statements:
"There is nothing
‘harassing’ about an elected union official’s efforts to
communicate with unit members over current issues. The grievant may have
gone about it in a less than effective manner, and his language may have
strayed far from words of persuasion, but the fact passionate speech is
involved is not per se proof of harassment. Moreover, while there was
some desire by the different participants to have the conversations
elsewhere, they all tacitly understood that grievant had not randomly
selected them for conversation."
"The officers had
each voiced criticism regarding the grievant’s role as a union
representative, and by involving themselves in the union’s affairs,
they tacitly invited a response by the grievant. As a general
proposition, a union official is entitled to respond to criticism
without the response being labeled ‘harassment.’ Each officer should
have understood that, once he embarked on the path of union debate, he
had to accept the natural consequences of that decision."
Since these contacts and
conversations were not made in Roberts’ capacity as a
"sergeant", but in his capacity as a "POA
president", the charge of conduct unbecoming an officer is not
intended to apply to otherwise lawful POA behavior. Angelo found
specifically as follows:
"However, even
assuming ‘rude’ and ‘non-public profane’ language was
encompassed by the ‘conduct unbecoming’ rule, the grievant’s
comments were not made in his capacity as sergeant, but in his capacity
as a POA president. The focus of the work rule is on the behavior of the
‘employee’ – as indicated by the rule itself – and it is not
intended to apply to otherwise lawful POA behavior. Accordingly, the
work rule would not have been violated because the grievant was not
engaged in departmental duties when discussing POA work. Moreover, the
notion that an employer may ‘correct’ union-related speech is an
anathema under every labor relations system in the country, and the city
clearly did not intend for its work rules to be defined in a way
contrary to law."
Based on that, Angelo
found that there was no evidence to support any cited work rule
violations against Roberts.
More importantly, Angelo,
citing numerous California, federal and NLRB case law, found that
Roberts was engaged in "protected speech", and that no
discipline was, therefore warranted.
Though, under the MOU for
the East Palo Alto Police Department, the decision by Angelo was a
"recommended" decision and award, the city elected not to
contest the matter further.
ABOUT THE AUTHOR: William
R. Rapoport is a sole practitioner in San Mateo, California, and has
defended numerous peace officers in state and federal criminal and civil
cases for over 25 years. At present, he is counsel for one of the
Oakland police officers being criminally prosecuted in "The
Riders" trial.
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