An arbitrator has reversed a 10-day suspension that had been imposed on a Rockport, Massachusetts police officer in connection with his actions in checking to see if Town Hall was secure.  The arbitrator, Betty Waxman, Esq., concluded that the Town did not have just cause to discipline the officer because he had not committed any misconduct.  The officer is a member of the Rockport Police Association, Local 154 of the Massachusetts Coalition of Police, and was represented by Attorney John M. Becker, of Sandulli Grace, P.C., counsel to MassCOP.

The case involved the procedures used by midnight shift officers to check Town Hall to make sure all doors were locked.  According to one method, an officer who found Town Hall unlocked would drive to the police station, obtain the key, return to Town Hall and lock up.  At some point, the Department prohibited this practice and stated that officers who found the door unlocked should call for another officer to bring the key.  In these cases, officers would have to call the station when arriving at Town Hall and again when leaving it secure.  But the officer who received the suspension had a different method: he usually carried the Town Hall key with him during patrol.  Then if he found Town Hall open, he would make sure it was secure and call in to the police station.  Although the Town argued that the officer violated the rules by not calling in twice, Arbitrator Waxman found that the Department’s directives were ambiguous when it came to how many times an officer with the key must call in.  She further found that the officer’s answers to questions and report were truthful and consistent with the Department’s rules.

In finding the officer’s version of events credible, and giving him the “benefit of the doubt”, Arbitrator Waxman relied on a number of factors.  Even though the Town relied heavily on the officer’s record of prior discipline to justify the punishment, the Arbitrator warned that, in effect, the Town had engaged in a form of discrimination based on prior disciplinary history.  It is permissible to use prior discipline as a rationale for more severe discipline at the next infraction, the Arbitrator implied, but it is not permissible to assume that because an employee has been insubordinate in the past, he will be insubordinate in the future.  This would be, in a sense, robbing the employee of the right to have each case considered on the merits, and relieve the employer of the burden of proving just cause.  The Arbitrator also noted that, while the employee had a significant history of past discipline, the three years immediately prior to the current allegations were discipline-free.