POA PRESIDENT REINSTATED AFTER ARBITRATOR AGREES DISHONESTY CHARGES REQUIRE HIGHER STANDARD OF PROOF
By Lance M. Davis

Livingston Police Officer Ray Fong, president of the Livingston Police Officers Association, was reinstated with full back pay and benefits by arbitrator Christopher Burdick after the arbitrator found the City lacked just cause to fire Fong on allegations of discrimination, neglect of duty, and dishonesty. Officer Fong and his association are members of the Operating Engineers Local Union No. 3, Public Safety Division.

In reaching his decision, Burdick agreed with my argument that in arbitration hearings, a law enforcement employer must support stigmatizing charges such as dishonesty with "clear and convincing evidence" rather than “preponderance of the evidence.” He found the City of Livingston had failed to meet either standard and dismissed all charges against Officer Fong.

City Alleged Officer 'Discriminated' in Domestic Violence Arrest

The allegations against Fong stemmed from a domestic violence complaint and arrest. In the early morning on March 23, 2004, while Fong was the lone officer on duty, a woman entered the police station to complain her husband had thrown a video game console at her, injuring her arm. Fong examined the injuries and learned the husband was still at home. He left the victim at the station while he went to her house to meet with the husband.

The husband agreed to accompany Fong back to the station for questioning. While enroute, he told Fong the wife had injured him with the game first. Fong re-interviewed the victim, who repeated her complaint the husband had purposely thrown the game at her. She denied attempting to harm him. She told Fong she did not want her husband returning to the house because he had frightened her.

Under questioning at the station, the husband admitted to throwing the game controller at his wife after she had thrown the game to the ground during an argument. He said his injury came when the game bounced off the floor and scratched his ankle. Fong arrested the husband for domestic violence. The husband threatened to harm Fong and his family, so Fong added a charge of making terrorist threats. He booked the husband into the Merced County Jail.

Later that same morning, the suspect’s mother arrived at the police station and asked Fong when she could bail out her son. He told her he was uncertain what the county's policy was on bailing out domestic violence suspects, and that it might take up to 72 hours. The mother bailed out her son later that day and returned with him to the station to file a complaint against Fong. Their complaint claimed Officer Fong discriminated against the husband because he did not also arrest the wife. They also complained Fong intentionally misled the mother concerning the bail policy.

The City alleged Fong had discriminated against the husband based on his gender; had failed to investigate the complaint properly before arresting the husband; and had been "knowingly untruthful" both to the mother and in the internal affairs interrogation. He was fired August 2, 2004.

Ray Fong was elected Livingston POA president shortly after he was hired by Livingston in 2001. Prior to his termination, Fong had been very assertive, challenging the City on issues affecting the POA members' pay and promotional opportunities. While there was no "smoking gun" evidence his termination was in retaliation for his outspoken union activity, the police chief and City administrators seemed all too pleased to have an opportunity to fire Officer Fong.

Arbitration Testimony Supported Officer

But the City's case did not survive binding arbitration. At the hearing, the suspect admitted he had purposely harmed his wife and threatened Fong. He even admitted he deserved to be arrested and that Fong was doing his job. The mother also testified Fong treated her son fairly. Several officers testified that after Fong’s termination, the mother had bragged she had "gotten an officer fired" and could get other officers fired.

Fong's testimony was consistent with department policy and state law requiring him to determine who the primary aggressor was in a domestic violence altercation and to avoid arresting both husband and wife. Other officers, testifying for both the City and for Fong, acknowledged dual arrests are rare and discouraged. Officer Fong testified he arrested the husband based on his interviews with the parties and the husband’s admission.

The internal affairs investigator testified Fong had lied during the interrogation concerning when he saw the scratch on the suspect’s ankle. However, under cross-examination she was unable to find Fong’s "lie" anywhere in the interrogation transcript.

The arbitrator ultimately ruled the City failed to prove any of its charges and there was no just cause for termination. The Award ordered the city to return all lost back pay and benefits and ordered Fong reinstated.

Stigmatizing Charges Require "Clear and Convincing" Standard

At the close of the hearing, the arbitrator asked counsel to brief whether the "clear and convincing" standard of proof, rather than "preponderance of evidence," should apply to the dishonesty charges. I argued charges like dishonesty require proof by clear and convincing evidence because they are highly stigmatizing and, if sustained, will end a peace officer's career.

Courts have required the higher standard of proof to revoke the licenses of other professionals such as lawyers, doctors, and dentists, because such a revocation ends their ability to practice a profession requiring special training and skills. Likewise, law enforcement professionals should not be barred from their chosen careers without proof by clear and convincing evidence. Arbitrator Burdick agreed, ruling the City must prove its charges of "knowing untruthfulness" by clear and convincing evidence.

City Loses Court Challenge to Arbitration Award

Rather than comply immediately with the arbitrator’s award, however, the city petitioned the Merced County Superior Court to vacate the award. I filed a petition to confirm the award, granting it the same force and effect as a judgment in a civil action. The City argued the arbitrator exceeded his authority by requiring a higher standard of proof for the dishonesty charges. The City claimed the parties stipulated to the lower standard and the stipulation limited the arbitrator from requiring more proof of dishonesty from the City. At a hearing on April 8, 2005, the judge ruled the City had failed to show the arbitrator exceeded his authority and confirmed the award.

The Court ordered the City to return all lost back pay and benefits and reinstate Officer Fong. Ray Fong returned to duty — and to the POA presidency — on April 18, 2005.

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