ATWATER SERGEANT BACK TO WORK AFTER ARBITRATOR OVERTURNS SECOND UNJUSTIFIED TERMINATION
By Lance M. Davis

Fired for the second time in four years, Michael Keeler is returning to his duties as a patrol sergeant for the Atwater Police Department thanks to the efforts of Operating Engineers Local Union No. 3 and its law firm, Mastagni, Holstedt, Amick, Miller, Johnsen, & Uhrhammer. Keeler prevailed in binding arbitration, overturning the second termination and receiving lost seniority, wages and benefits.

Police Chief Refuses Prior Reinstatement Order

Sergeant Keeler was first dismissed on June 12, 2001, after Police Chief Jerry Moore, now retired, sustained charges the sergeant had violated the Atwater Police Manual and the department's "guiding principles." Operating Engineers Local Union No. 3 appealed the first termination. On July 27, 2002, arbitrator Catherine Harris dismissed all the charges but one and reinstated Sergeant Keeler without back pay. Her award included a "last chance" clause which stated Keeler could be summarily discharged if, during an 18- month period, he violated a department general order prohibiting disreputable conduct.

Rather than return Sergeant Keeler to active duty following Harris' award, however, Chief Moore immediately put him on paid administrative leave. Moore justified the leave by claiming it was necessary while the department conducted a new internal affairs investigation into allegations Sergeant Keeler had misappropriated a go-cart from the department's evidence room. Moore also imposed a "gag order" prohibiting members of the Police Department from discussing anything about Sergeant Keeler or his reinstatement.

Chief Fires Keeler for Violating Agreement

Less than a month after Keeler was reinstated and put on administrative leave, another officer in his department claimed Keeler had told him privately that a department commander had been investigated for criminal misconduct. The officer also claimed Keeler had made a derogatory comment about the commander.

Nearly four months later, Sergeant Keeler was interviewed by an internal affairs investigator about the officer's allegations. Keeler had done nothing more than put the commander's ex-wife in touch with an investigator in the Merced District Attorney's office, and with a private attorney, to assist her in filing criminal and administrative complaints against the commander.

Sergeant Keeler acknowledged he had spoken to other people about the allegations against the commander, but he had never discussed the allegations with the officer who reported him. Nonetheless, Chief Moore fired Keeler for violating the last chance agreement by discussing the criminal investigation with the other officer and unnamed "others."

Parties Dispute Appointment of Arbitrator

When Operating Engineers Local Union No. 3 appealed the second termination to binding arbitration, the City insisted Catherine Harris should retain jurisdiction over the appeal because Keeler was fired based on her "last chance" clause. The union argued a new arbitrator should hear the case and moved in Superior Court to compel arbitration on the issue. The court granted the motion to compel arbitration on the sole issue of who should hear Sergeant Keeler’s appeal.

A second arbitrator, Bonnie Bogue, ruled Catherine Harris retained jurisdiction to hear the second termination case because Harris alone could determine whether Sergeant Keeler's alleged misconduct violated the "last chance" clause. Arbitrator Harris once again received the assignment to hear Sergeant Keeler's a termination appeal.

Before Sergeant Keeler's second appeal could be heard, however, the Atwater Police Officers Association retained another provider for union representation. That group assured Keeler he would be provided legal representation; however, after reviewing his case, they declined to cover him. Keeler notified Kurt Benfield, Director of the Public Safety Division of Operating Engineers Local Union No. 3, of this loss of legal defense coverage. Mr. Benfield contacted Mastagni, Holstedt, Amick, Miller, Johnsen & Uhrhammer, the Union’s new law firm, and we gladly accepted Sergeant Keeler’s case.

Second Arbitration Shows Allegations Untrue

At arbitration, Sergeant Keeler faced allegations he had misappropriated a go-cart and had brought the department into disrepute by discussing the criminal allegations against the commander. Keeler’s defense demonstrated investigators had violated his POBR rights by failing to provide proper notice of the charges and showed dishonest and arbitrary conduct by the Chief of Police.

I presented evidence other officers in the department, unlike Sergeant Keeler, had been allowed to remain on the job while being investigated for serious criminal allegations. The commander involved in Keeler's case even had been made acting chief in Moore's absence while the criminal investigation was ongoing. Thus, Keeler should not have been placed on administrative leave but allowed to return to work.

I also presented evidence Moore himself was involved in the "misappropriation" of the go-cart and had lied about it in an attempt to have Sergeant Keeler prosecuted. The evidence showed that after the District Attorney refused to prosecute, and the administrative investigation into the go-cart issued proved inadequate to support a termination, Moore began the new investigation into the complaint about the commander.

On that issue, we showed the officer who was the primary witness against Keeler was not credible. He was a close friend of the commander and his testimony at the hearing was inconsistent with statements he made during the internal affairs interview. Keeler credibly testified he never spoke to the officer, and testified the "other people" he had spoken to about the matter were in-laws who lived in a distant locale. An officer from another agency testified Sergeant Keeler even refused to talk about the commander when asked.

Merced County District Attorney Testifies for Keeler

Gordon Spencer, the longtime District Attorney in Merced County, testified he believed Sergeant Keeler was fired because of a vendetta by Chief Moore. He also testified Moore tried to press charges against Sergeant Keeler but Spencer refused to do so. Spencer revealed Moore had lied to the grand jury on another matter.

Mr. Spencer's testimony, along with the testimony of Assistant District Attorney Bruce Gilbert, contradicted the testimony of the City Manager, Greg Wellman, who had acted as the pre-disciplinary Skelly hearing officer. This damaged Wellman's credibility as a witness. Spencer also testified Sergeant Keeler was an "outstanding professional police officer." Mr. Gilbert testified Sergeant Keeler was a "huge benefit to the department" and "the single best detective that I have worked with in my fourteen and a half years" working with the Atwater Police Department.

Arbitrator Harris determined the City failed to prove its charges against Keeler. She found the investigation into the misappropriation of the go-cart, which was the reason for putting Sergeant Keeler on administrative leave after being reinstated, damaged the City's credibility. She determined Chief Moore had authorized the transfer of the go-cart from the evidence room and that he later alleged Keeler had improperly transferred the property.

Harris also determined the City had failed to provide Sergeant Keeler a fair and impartial investigation into the allegations of violating the "last chance" agreement. She noted neither the Chief nor the City Manager properly questioned the credibility of the complaining administrator and the accusing witness, and she found inconsistencies in their testimony. Harris also determined Sergeant Keeler was truthful throughout all the investigations and during his testimony in both arbitration hearings.

The arbitrator's award reinstated Sergeant Keeler to his former post and ordered him made whole for lost seniority, wages, and benefits. Michael Keeler returned to his duties as a patrol sergeant in August.

Lance M. Davis represents public safety officers throughout California in discipline actions and administrative appeals.