IN THE MATTER OF THE ARBITRATION ) ARBITRATOR’S
)
BETWEEN ) OPINION AND AWARD
)
PORTLAND POLICE ASSOCIATION )
)
“PPA” OR “THE UNION” )
)
AND )
)
CITY OF PORTLAND )
) CHRIS HUMPHREYS/KYLE NICE
) GRIEVANCE
“THE CITY” OR “THE EMPLOYER” )
HEARING: FEBRUARY 13 –17, 2012
HEARING CLOSED: MAY 8, 2012
ARBITRATOR:
Timothy D.W. Williams
2700 4th Avenue #305
Seattle, WA 98121
REPRESENTING THE EMPLOYER:
Stephanie Harper, Deputy City Attorney
Dave Famous, Captain Portland Police Bureau, Mgmt Rep
Darla Collar, Paralegal
REPRESENTING THE UNION:
Anil Karia, Attorney
Sergeant Kyle Nice, Grievant
Office Chris Humphreys, Grievant
Office Daryl Turner, President, Portland Police Assoc.
APPEARING AS WITNESSES FOR THE EMPLOYER:
Michael Poorkley, PPB, Internal Affairs Investigator
Tamara Hergert, AMR Paramedic
Rosie Sizer, Former Chief of Police
Dan Saltzman, Former Commissioner of Police Bureau
Dave Famous, Captain Portland Police Bureau
Dwight Pahlke, Sgt. Portland Police Bureau
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 2
APPEARING AS WITNESSES FOR THE UNION:
Kyle Nice, Sgt. Portland Police Bureau
Chris Humphreys, Former Office Portland Police Bureau
Bob Brown, Officer Portland Police Bureau
Dan Livingston, Sgt. Portland Police Bureau
W. Ken Katsaris, Police Consultant
EXHIBITS
Joint
Sergeant Kyle Nice
1. Nice Proposed Discipline Letter
2. Letter from Aitchison regarding Nice
3. Nice Final Discipline Letter
Office Chris Humphreys
4. Humphreys Proposed Discipline Letter
5. Letter from Aitchison regarding Humphreys
6. Humphreys Final Discipline Letter
Labor Agreement & Grievance
7. PPA Contract 2006-10 excerpts
8. Sergeant Nice Grievance Processing
9. Office Humphreys Grievance Processing
Bureau Directives Reviewed
10. Directive 1051.00 (Taser, Less Lethal Weapon System), 2006
version
11. Detectives Summary Report
12. Detectives Notebook
Internal Affairs Division Investigation
13. Internal Affairs Division Summary – Part One
14. Internal Affairs Division Notebook – Part One
Training Division Documents
15. Captain Famous Memo
Commander Recommended Finding
16. Commander Henderson Memo
Review Board Documents
17. IPR Memo, 10/2/08
18. Detectives/IAD Power Point Presentation
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 3
19. Training Division Presentation
20. Review Board Memo
21. Sizer Follow-up from Use of Force Board Recommendations,
11/14/08.
Documents from Federal Litigation: Chasse, et al v Humphreys,
et al, USDC Case #CV-07-180-HU
22. Nice Deposition Transcript
23. Humphreys Deposition Transcript
24. Hergert Deposition Transcript
25. Stucker Deposition Transcript
EMPLOYER
1. Excited Delirium Roll Call Training Video, March 2006
2. PPB In Custody Death/OIS Process
3. PPB James Chasse Timeline, 9/1706 – 9/23/06
4. AMR Pre-Hospital Care Report (Jt12-, p 582)
5. AMR Refusal to Transport Form, (Jt12, pg 582)
6. Jail Video Tape
7. Internal Affairs/Detectives Power Point Presentation to Use
of Force Review Board, (Jt-18)
8. Follow-up Investigation: District Attorney and Internal
Affairs.
9. Salzman Statement on Proposed Discipline, 11/4/09.
10. Sergeant Nice Final Discipline
11. Office Humphreys Final Discipline
12. Police Bureau Sergeant Job Classification
13. Police Bureau Officer Job Classification
14. Relevant City Charter Provisions
15. Relevant City Code Provisions
16. PPB Directive 330.000 – Internal Affairs, Complaint
Investigation Process, 12/2005
17. PPB Directive 335.00 – Performance Review and Use of Force
Review Boards, 12/2005
18. PPB Directive 341.00 – Discipline Process, 12/2005
19. PPB Directive 343.00 – Criminal Investigations of Police
Bureau Employees
20. Directive 1010.10 – (Deadly Physical Force)
21. Directive 1010.20 (Use of Physical Force)
22. Directive 630.15 (Foot Pursuits)
23. Directive 315.00 (Laws, Rules & Orders)
24. Directive 315.30 (Unsatisfactory Performance)
25. Report to the City of Portland Concerning the In-Custody
Death of James Chasse, 7/2010 (OIR)
26. Saltzman’s Copy Internal Affairs Report
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 4
27. Katsaris Deposition
28. Manual of Policy and Procedure, 2003
29. Manual of Policy and Procedure, 2005
30. Allegation #4 sustained
31. Chronology of Events
32. Civil Court Complaint, 2.8/07
33. Denial of Summary Judgment
34. Settlement, 7/12/10
35. In Custody Death Report
UNION
1. Officer Humphreys Commendations
2. Sgt. Nice Commendations
3. Chris Humphreys Personal Statement
4. Portland Police Bureau News Release
5. Portland Tribune Newspaper Article
6. Chief Sizer Statement
7. Version of Portland Police Bureau Directives 630-45 and
1051.00, 2009
8. Defendants Humphreys, Nice, Sizer Potter, City of Portland
and Tri-Metes Motion for Partial Summary Judgment in
Chasse, et al. v Humphreys, et al. (U.S> Dist Court of
Oregon Case No, 07-CV-189-HU)
9. Expert Witness Statement of Tom S. Neuman, M.D. in Chasse,
et al. v Humphreys, et al. (U.S. Dist Court of Oregon Case
No, 07-CV-189-HU)
10. Reserved
11. Oregon Health Authority Paramedic Education Requirements
12. Portland Tribune Newspaper Article
13. Deputy Bret Burton Deposition Excerpt
14. Reserved
15. Reserved
BACKGROUND
City of Portland (hereafter “City or “the Employer”) and
Portland Police Department Association (hereafter “Local” or
“the Union”) agreed to submit two disputes over officer
discipline to arbitration. A hearing was held before Arbitrator
Timothy Williams in Portland, Oregon on February 13 - 17, 2012.
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 5
At the hearing the Parties had full opportunity to make opening
statements, examine and cross examine sworn witnesses, introduce
documents, and make arguments in support of their positions. A
transcript was made of the hearing which was sent to each Party
and to the Arbitrator.
During the pre-hearing conference the Parties provided the
Arbitrator with a Pre-hearing Agreement which reads as follows:
1. The Parties request that the Arbitrator retain jurisdiction
over any remedial issues for a period of 90 days following
the decision.
2. The Parties agree that the grievances were combined for
hearing efficiency reasons only, and that the Arbitrator is
to consider each grievance on its own merits.
3. As to the Portland Police Bureau Use of Force Review Board:
At the time the Board had been established by the Chief of
Police through Bureau policy as an advisory body to the
Chief of Police. The Board’s purpose was to review the
materials, listen to presentations, discuss the information
in executive session, and make recommendations to the Chief
of Police. The Board proceeding was not adversarial in
nature and did not involve an evidentiary hearing. The
PPA, Sergeant Nice and Officer Humphries did have the right
to attend the non-executive session portions of the Board
meeting. The PPA, Sergeant Nice and Officer Humphreys did
not have a right to call or cross examine witnesses. The
PPA President attended and actively presented information
and posed questions in the non-executive session portions
of the Board meeting.
The PPA, Sergeant Nice and Officer Humphreys did not have a
right to attend or participate in the Board’s executive
session. By Bureau policy, only voting members and certain
advisory members were present during executive session.
At the close of the hearing, the Parties were offered an
opportunity to give closing oral arguments or to provide
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 6
arguments in the form of post-hearing briefs. Both parties
chose to submit written briefs and the briefs were timely
received by the Arbitrator. Thus the award, in this case, is
based on the evidence and arguments presented during the hearing
and on the arguments found in the written briefs.
FACTS
The matter before the Arbitrator consists of two grievances
filed by the Portland Police Association against the City of
Portland. The grievances arose under a Collective
Bargaining Agreement (CBA) effective July 1, 2006 -
June 30, 2010. The matter was timely grieved pursuant to the
terms of the CBA.
The following is a brief summary of the events that led up
to the filing of the grievances. It is based on the
Arbitrator’s understanding of both documentary and testimonial
evidence presented during the hearing. Citations are provided
only when statements or documentary information are specifically
quoted.
At the beginning of his testimony, Sergeant Kyle Nice
provided a brief overview of his work history with the Portland
Police Bureau (PPB). He started working for the PPB in March of
1992. After he completed his police training, he worked as an
officer in various precincts in Portland until he was promoted
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 7
to a Sergeant position in the Central Precinct in October of
2003.
At the time of the incident that led to these proceedings,
Kyle Nice had been a Sergeant in the Central Precinct of
Portland for approximately three years, and had been employed by
the PPB for more than fourteen years. Sergeant Nice had never
been disciplined by the City of Portland prior to this incident.
He was assigned to patrol the Central Precinct on the afternoon
of the incident (Sept 17, 2006). As the patrol Sergeant, he had
the responsibility to “supervise calls” or incidents (Tr 446).
Chris Humphreys testified as to his work history with the
PPB. He was hired by the Portland Police Bureau on February
4th, 1999. He worked there until approximately November, 2010,
when he was medically laid off. At the time of the arbitration
hearing he was residing in a town in Central Oregon. His
testimony was received both by telephone and by way of the
internet and the use Skype.
While employed as an officer with the Portland Police
Bureau, Humphreys was first assigned to patrol the East
Precinct. He was working in the Transit Division, and then was
assigned to the training division. He was also a member of the
rapid response team and the emergency management unit.
On the day of the incident, September 17th, 2006, Officer
Humphreys was assigned to the Transit Police Division and was
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 8
patrolling the downtown or Central District with his then
partner, Deputy Bret Burton. Burton was working for the
Multnomah County Sheriff’s Office and was on assignment to the
Transit District.
The following description of the incident that led to the
death of James Chasse is taken primarily from the testimony of
the three officers that were directly involved in the events.
To the extent that there is contrary evidence as to what
happened, that evidence is discussed in the analysis portion of
this award only where it is relevant with regard to the dispute
over the appropriateness of the discipline imposed on Sergeant
Nice and Officer Humphreys.
On September 17th, 2006 at 17:08 hours, Sergeant Nice
stopped a possibly intoxicated subject on NW 18th and Everett
Street in Portland. This subject was a different person than
Mr. Chasse. Sergeant Nice called for cover, and at 17:09 hours,
Deputy Burton and Officer Humphreys arrived at the scene.
During that time, Officer Humphreys saw Mr. Chasse at 18th and
Everett and described the scene this way:
I saw him standing on the corner of the intersection.
Looked like he was just kind of — I don’t know, acting
strangely, stepping from foot to foot. I thought at first
he was waiting for a bus. Then it looked like he saw us
and he took off in this quick walk, a straight - legged
gait as he headed away. Appearing to me like he was
leaving the area because we were there. (Tr 550)
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 9
At 17:16 hours, Sergeant Nice cleared and left the scene at
18th and Everett, intending to go elsewhere. Burton and
Humphreys also left in their patrol car. At NW 13th and Everett
at 17:18 hours, Officer Humphreys and Deputy Burton observed Mr.
Chasse again, standing near a tree with his back to the
officers. Officer Humphreys described Mr. Chasse this way:
It appeared to me that the way he was standing when we
pulled up at 13th and Everett — or saw him at 13
th and
Everett was that it looked like he was urinating. He was
hunched. He was either urinating or possibly- I mean, one
of the things I’ve seen before is - from a hunched gait, is
that he was using narcotics. (Tr 551)
Deputy Burton whistled or yelled at Mr. Chasse as they
approached him. Officer Humphreys testified that he saw a look
of “sheer terror” on Mr. Chasse’s face when he saw the deputy
and the officer (Tr 602). Mr. Chasse ran eastbound on NW
Everett Street, with Officer Humphreys and Deputy Burton behind
him.
Driving separately eastbound on Everett Street, Sergeant
Nice saw Deputy Burton and Officer Humphreys pull over to the
curb and start chasing Mr. Chasse. Nice wasn’t sure why they
were chasing him. Sergeant Nice parked his car, got out and ran
southbound toward the intersection of 13th and Everett to try to
intercept Mr. Chasse.
Officer Humphreys ran after Mr. Chasse and employed a
takedown technique to get Mr. Chasse to the ground. Officer
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 10
Humphreys also fell to the ground, but does not recall falling
directly on top of Mr. Chasse. Humphreys recalled that the fall
broke the clips that fixed his badge onto his back pocket.
Sergeant Nice described the takedown this way: “As I’m
watching Mr. Chasse, I remembered Officer Humphreys closing in
on him and his hands coming up and then there was contact and
they went down to the ground. And that happened in a split
second” (Tr 465, 466).
Sergeant Nice did not believe that Officer Humphreys had
landed on top of Mr. Chasse because,
…he [Mr. Chasse] had a backpack on and after they had hit
the ground, the backpack went several feet away from us.
So I’m assuming that when Mr. Chasse hit the ground that
backpack came off of him and went flying. And that if
Officer Humphreys had landed on top of Mr. Chasse, that
backpack probably would have been pinned in between them or
at least contained right there, but it went flying.” (Tr
466)
After Mr. Chasse hit the ground, Officer Humphreys saw him
try to get back up, and that was when Sergeant Nice and Deputy
Burton joined in efforts to get Mr. Chasse into custody (put
handcuffs on him and get him under control). Sergeant Nice
estimated the struggle to get Mr. Chasse into custody to last
between two to three minutes, and Mr. Humphreys estimated that
it lasted between two and four.
During the struggle, Sergeant Nice grabbed Mr. Chasse’s
left arm and put it into a reverse wrist lock. Mr. Chasse bit
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 11
Sergeant Nice on the right calf. Sergeant Nice was surprised at
Chasse’s flexibility. Chasse attempted to bite Officer
Humphreys and then attempted to bite Nice again. Sergeant Nice
testified that he tapped/kicked Mr. Chasse in the chest with the
instep of his right boot and said, “Hey, stop biting” (Tr 502).
Sergeant Nice then pulled his fist back in consideration of
throwing a punch at Chasse, but changed his mind because he
didn’t have a “good target area” to land the punch. While Nice
looked at Chasse, he saw that his teeth were “kind of messed
up,” and because he knew that “…striking people in the facial
area can lead to injuries both to the officer by breaking the
hand or punching him in the mouth, getting some type of cut and
getting an infection...,” he did not land a blow on Mr. Chasse
(Tr 503). Sergeant Nice put his foot on Mr. Chasse’s jaw to
hold his jaw to the ground and to keep him from biting.
Officer Humphreys struck Mr. Chasse in the face with a
closed fist during the struggle and Mr. Chasse continued to try
to get loose.
Deputy Burton deployed his Taser on Mr. Chasse in the
‘drive stun’ mode on the upper thigh/ buttock area. Humphreys
and Nice reported that the Taser had no effect on Mr. Chasse and
he continued to struggle.
At 17:20 hours, Sergeant Nice requested cover. “After the
other officers arrived we were able to contain Mr. Chasse and
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 12
get him in handcuffs” (Tr 464). At 17:22 hours, Nice advised
that Mr. Chasse was in custody.
At 17:23 hours, Sergeant Nice requested Code 3 medical
because Mr. Chasse went unconscious. A few moments later,
Sergeant Nice requested Code 1 instead because Mr. Chasse
regained consciousness.
At 17:25 hours, the AMR ambulance arrived. Sergeant Nice
testified that he told lead paramedic Tamara Hergert the
following when she arrived: “I believe I told her that there
had been a short chase, we had struggled with Mr. Chasse, taken
him into custody and he had gone unconscious” (Tr 479). Nice
also noticed that Mr. Chasse had a cut on his lip that was
bleeding.
At 17:26 hours, Portland Fire Bureau Engine 3 arrived. At
this point, the officers stood around while the paramedics
assessed Mr. Chasse. Another officer on the scene, Officer
Weldon, stayed kneeling next to Mr. Chasse to monitor him.
According to Sergeant Nice, Ms. Hergert told Nice that Mr.
Chasse was fine:
When she got done checking Mr. Chasse, she [Ms. Hergert]
came up to me and we had a conversation, and she told me he
was fine. I was actually a little surprised by that. I
expected something, either dilated pupils to indicate drug
use or something. So I double checked with her and I said,
You’re sure he’s fine, because if you’re not going to take
him, we have criminal charges on him and he’ll go to jail.
And I said, You’re sure? And she said, Yeah, he’s fine.
(Tr 484, 485).
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 13
At 17:41 hours after 16 minutes at the location, AMR
Ambulance cleared the scene, as did Portland Fire Bureau after
having been at the scene 15 minutes.
At 17:46 hours, Officer Humphreys and Deputy Burton
transported Mr. Chasse to Multnomah County Detention Center
(MCDC). Mr. Chasse was in maximum restraints in the back seat
of the patrol car. Officer Humphreys described Mr. Chasse’s
condition at that time as:
…he was moving around. He was verbally still kind of going
off on this verbal litany, if I recall. Which he was
moving around in the back and kind of sitting straight up
at that point almost. (Tr 582).
At 17:52 hours, Officer Humphreys and Deputy Burton arrived
at MCDC. When they arrived, a deputy working at MCDC put a spit
hood on Mr. Chasse so that he would not try to bite anyone. Mr.
Chasse was moved to an isolation cell from the patrol car.
Officer Humphreys described his demeanor this way: “More of the
same, still yelling, still struggling with the deputies as they
packed him in” (Tr 584).
Mr. Chasse lost consciousness for a second time in the
holding/isolation cell. The County jail medical staff were
called to check on Mr. Chasse’s well-being. By the time the
nurses arrived the deputies at the scene noticed that he was
breathing again.
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 14
Registered Nurse Patricia Gayman and/ or Sokunthy Eath, RN,
looked through the holding cell door window at Mr. Chasse but
did not enter. Nurse Gayman advised that Mr. Chasse would not
be admitted to MCDC and would have to be taken to the hospital.
Mr. Chasse was put into ankle chains and handcuffs and
loaded back into the police car. Officer Humphreys described
his demeanor as he was being carried: “He was still the same,
the yelling, the screaming, any time he was kind of grabbed,
touched, he was still yelling and screaming” (Tr 591).
At 18:23 hours, Officer Humphreys and Deputy Burton
attempted to transport Mr. Chasse from MCDC to Portland
Adventist Hospital by way of I-84. At 18:29 hours, Officer
Humphreys requested medical to NE 33rd and Clackamas when Mr.
Chasse appeared to lose consciousness again. Deputy Burton, who
was driving the patrol car, pulled off at this exit because
there is no shoulder on that section of I-84.
At 18:32 hours, Officer Humphreys removed Mr. Chasse from
the back seat of the police vehicle, pulled off Mr. Chasse’s
spit hood, advised BOEC he was beginning chest compressions and
requested medical to hurry to the scene. At 18:34 hours, AMR
Ambulance and Portland Fire Bureau Engine 28 arrived. At 18:48
hours, AMR Ambulance transported Mr. Chasse to Providence
Hospital. At 18:51 hours, Mr. Chasse arrived at the hospital.
At 19:04 hours, Mr. Chasse was pronounced deceased.
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 15
Oregon State Medical Examiner Karen Gunson, M.D., performed
the autopsy and concluded that his cause of death was blunt
force chest injuries (J 12, p 275). She told Bureau detectives
that Mr. Chasse’s bones were very brittle and like those of a
50, 60 or 70 year old woman (J 13, p 40).
Mr. Chasse had 14 fractured ribs including 27 separate
fractures, 17 of which were attributed to the struggle with the
officers on NW 13th and Everett and 10 which were CPR related (E
26, p 5). Dr. Gunson opined that when Mr. Chasse was being
moved from place to place the rib fractures from the physical
altercation between Chasse and the officers likely caused a
dislocated rib to perforate the lung, causing substantial
internal bleeding (J 13, p 43). No drugs were found in his
system.
Upon the in-custody death of James Chasse, the City of
Portland initiated three separate investigations: 1) Detectives
were assigned to look for any potential criminal actions; 2)
Training conducted a separate inquiry into questions of the
adequacy of training including whether there were any violations
of instructions received through training and 3) PPB Internal
Affairs investigated for any policy violations by officers.
The results of the detective’s investigation into the cause
of death of Mr. Chasse are in evidence as joint exhibits #11 and
#12. The work of the detectives was ultimately submitted to the
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 16
Office of the District Attorney. On October 3, 2006, a grand
jury hearing was held. Two weeks later, it was concluded that
no charges were warranted against anyone present at the scene.
The Training Division analysis was led by then Lieutenant
Dave Famous. The results of this investigation are in evidence
as joint exhibit #15. The conclusions included a determination
that neither Sergeant Nice nor Officer Humphreys violated their
training. Additionally, the report from training made a number
of recommendations for changes including:
Offer the forty (40) hour Crisis Intervention Team (CIT)
training to all uniformed officers and sergeants in the
Portland Police Bureau. (This has been mandated by the
chief of police and the bureau is currently in the process
of completing this mandate.) (J 15, p 20)
On November 13th, 2006, the Bureau’s Internal Affairs
Division (IAD) began its investigation to determine whether the
officers involved complied with Bureau policies in the Chasse
case. The work of the IAD, as related to the death of James
Chasse, is in evidence as joint exhibits #13 and #14. The IAD
investigation focused on allegations of excessive use of
physical force against Sergeant Nice, Officer Humphreys and
Deputy Burton (J 13, P 1).
The IAD investigation was extensive and included interviews
with a wide ranging group of individuals. On November 14th,
2007, the IAD interviewed Sergeant Nice, and Officer Humphreys
on December 7th, 2007. On July 28
th, 2008, the IAD ended its
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 17
investigation and concluded that there was no evidence that
Sergeant Nice and Officer Humphreys were non-compliant with the
Bureau’s training on the use of the Taser.
As is the practice, the work of IAD proceeds through a
number of different reviews with the purpose of ultimately
determining whether or not discipline of the officers is in
order. On August 28th, 2008, then Commander Dona Henderson
concluded from her Command-level investigations that there were
no violations of Bureau policies by Nice or Humphreys (J 16).
In October 2008, the Use of Force Review Board reviewed the
facts of the case, and on October 11th, issued a recommendation
to Chief Sizer, saying they did not conclusively identify any
policy violations except that Sergeant Nice should have required
transport of Chasse by medics to the hospital under Directive
1051, the Taser directive.
The Board concluded that the Grievants had no reason to
know that Mr. Chasse was in a fragile medical condition and
that:
As soon as the officers observed Mr. Chasse showing signs
of medical distress, officers called for paramedics. At
the time Mr. Chasse was transported to jail, officers had
been told by paramedics Mr. Chasse was medically stable.
There is no evidence in any report or witness statement
that caused members of the UFRB to conclude that any
officer at the scene knew or should have known that Mr.
Chasse had suffered a serious physical injury. (U 4, P 2,
also J 20)
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 18
Complicating proceedings in the Chasse case, in May of
2009, a separate perjury investigation was conducted by the
Internal Affairs Department around the use of the word “tackle”
by Officer Humphreys while describing the incident to another
officer on video at the MCDC. About a month later, the IAD
concluded that Humphreys had no intent to deceive about his
description of Chasse’s takedown. On May 5th, 2009, the
Multnomah County District Attorney declined to prosecute Officer
Humphreys on a charge of perjury. The command-level
investigation of this matter concluded in August 2009 with the
same results (E 8).
The estate of Mr. Chasse also filed a federal lawsuit
against the City of Portland, Officer Humphreys, Sergeant Nice,
Chief Sizer, AMR, the Fire Bureau and a number of other
defendants. Dr. Tom Neuman, a medical expert retained by the
City in that litigation, provided an expert witness statement
that Mr. Chasse’s death was caused by cardiac arrest, and that
“Mr. Chasse suffered the bulk of his rib fractures at the time
of his CPR.” Neuman also found that, “Had Mr. Chasse been more
fully evaluated at the time of his initial arrest, no
significant traumatic injuries would have been discovered on
physical exam which would have mandated paramedic transport” (U
9, P 7). On or about July 12, at 2010 the parties settled
outside of court with the City admitting no wrongdoing (E-34).
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 19
The work of the PPB regarding any possible discipline of
Officer Humphreys and Sergeant Nice was delayed by both the
perjury investigation of Officer Humphreys and the Federal
lawsuit. Ultimately the process moved forward to Chief Sizer.
Upon her review of all the case data including the work of the
IAD and the UFRB, Chief Sizer concluded that “Sergeant Nice
could have done a better job of describing the intensity of the
resistance” (Tr 328). And that she felt it was important to
discipline Sergeant Nice:
because there was a clear policy [Directive 1051]. He was
aware of the physical indicators that led to the activation
of that policy, that is the excited state, the extreme
fighting, the gibberish, so he was aware that those
behaviors were of concern. And the policy was clear, and
in fact, the policy was enacted to save people’s lives, and
he failed to follow the policy. (Tr 326)
Chief Sizer testified to the protocols related to employee
discipline within the PPB. She states:
By charter, the commissioner in charge has authority to
make suspensions, to demote or to terminate. The chief of
police has authority for written reprimand and for command
counseling. So all discipline letters involving a
suspension or greater would go to the commissioner in
charge. (Tr 267)
Chief Sizer recommended to City Commissioner Dan Saltzman
that a 40 hour suspension be imposed on Sergeant Nice for his
violation of Bureau Directive 1051; she did not recommend that
any suspension be imposed on Officer Humphreys. Commissioner
Saltzman testified that he reviewed the case materials, reading
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 20
the detective’s and Internal Affairs Divisions interviews of
Sergeant Nice and Officer Humphreys. Ultimately, he also
narrowed the scope of directives violated or complied with down
to Directive 1051, “Through reading all the materials,
including, well, including the documents in front of me and
coming to the conclusion that that was really the only procedure
that was violated” (Tr 193).
Commissioner Saltzman additionally testified that he
arrived at his conclusion that the Taser policy was violated
because:
To me it’s really quite clear. It says if the Taser is
used and one of certain circumstances apply to the
individual, then EMS transport, that that person shall be
transported by EMS. And there are two circumstances under
which I felt that applied; one was sort of the excited
delirium. The other was potentially the hyperstimulation.
So there was two paragraphs in there as part of the
directive that says EMS will transport. And I felt that
both of those applied.
And just their [Nice and Humphreys] observations, too, that
not only did they think he was high on drugs but they felt
he had mental issues too, and I think that that’s also
cited under rule 1051 as a basis for requiring EMS
transport. (Tr 196, 197)
Commissioner Saltzman arrived at the conclusion that 80
hours suspension-without-pay was an appropriate disciplinary
action for both of the officers because “the overall result of
the violation of 1051 was the fact that somebody died. So I
felt that 80 hours was a minimally appropriate amount of
suspension, and that’s what I went with” (Tr 198). Saltzman did
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 21
not factor the Grievants’ respective ranks into the charges
because in his opinion, “Policy 1051 applies to every sworn
member of the Police Bureau” (Tr 198).
By letter dated November 2, 2009 Sergeant Nice was informed
that the City proposed to suspend him for a total of 80 hours
without pay as discipline for his violation of Directive 1051.
The letter also provided Sergeant Nice with the opportunity to
respond either in writing or through an oral presentation (J 1).
Union attorney Will Aitcheson provided a written response on
behalf of Sergeant Nice setting forth 15 specific objections to
the proposal including the contention that the discipline was
not for just cause (J 2).
By letter dated November 3, 2009 Officer Humphreys was
informed that the City proposed to suspend him for a total of 80
hours without pay as discipline for his violation of Directive
1051. The letter also provided Officer Humphreys with the
opportunity to respond either in writing or through an oral
presentation (J 4). Union attorney Will Aitcheson provided a
written response on behalf of Sergeant Nice setting forth 16
specific objections to the proposal including the contention
that the discipline was not for just cause (J 5).
By letter dated February 2, 2010, Officer Humphreys
received his 80-hour suspension letter from Commissioner
Saltzman and Chief Sizer. He was charged with violating
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 22
Directive 1051- Taser, Less Lethal Weapon System. In his
letter, it says, “You said that you expected that AMR would
transport MR. Chasse, and you should have made sure this
happened” (E-11).
By letter dated February 2, 2010, Sergeant Nice received
his 80-hour suspension letter from Commissioner Saltzman and
Chief Sizer (E 10). He was charged with violating Directive
1051- Taser, Less Lethal Weapon System. In his letter, it says,
“As a supervisor, it was your responsibility to recognize that
Mr. Chasse exhibited conditions and behaviors that required
medical transport.”
On February 24, 2010 the Union filed a grievance on behalf
of Officer Humphreys. The grievance states in pertinent part
that:
Statement of Grievance: On 2/23/10, Grievant received
notice that he was being suspended without pay for 80
hours. The discipline was not for just cause, is
disproportionate to any offense committed by Grievant, is
out of keeping with the standards of discipline in the
Bureau, fails to take into account mitigating
circumstances, violates the principles of progressive
discipline, and was for political reasons.
Articles of Contract Violated: Article 20
Remedy Requested: That the discipline be rescinded, that
all reference to this matter be removed from Grievant’s
personnel files, that Grievant be made whole for all lost
wages and benefits, together with interest,, and that such
other relief as may be appropriate under the circumstances
be awarded. (E 9)
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 23
On April 7, 20101 the Union filed a grievance on behalf of
Sergeant Nice. The grievance states in pertinent part that:
Statement of Grievance: On 4/6/10, Grievant received
notice that he was being suspended without pay for 80
hours. The discipline was not for just cause, is
disproportionate to any offense committed by Grievant, is
out of keeping with the standards of discipline in the
Bureau, fails to take into account mitigating
circumstances, violates the principles of progressive
discipline, and was for political reasons.
Articles of Contract Violated: Article 20
Remedy Requested: That the discipline be rescinded, that
all reference to this matter be removed from Grievant’s
personnel files, that Grievant be made whole for all lost
wages and benefits, together with interest,, and that such
other relief as may be appropriate under the circumstances
be awarded. (E 8)
The Parties processed both grievances through the steps of
the grievance procedure per Article 22 of the Collective
Bargaining Agreement (CBA) but were unable to reach an agreement
that would have resolved their differences. As a result and
consistent with the terms of the CBA, they selected Arbitrator
Timothy Williams to hear the matter. The arbitration hearing
was held from Monday, February 13th
through Friday, February 17th
at the Office of the City Attorney in Portland, Oregon. Both
Parties provided arguments in the form of written briefs. This
Opinion and Award provided by Arbitrator Williams is the final
disposition of the two grievances.
1 While Sergeant Nice’s suspension letter was dated February 2, 2010, he did
not receive the letter until April 6, 2010.
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 24
STATEMENT OF THE ISSUE
The discipline of Sergeant Nice and the discipline of
Officer Humphreys are two separate matters and the Parties
agreed that the issues should be stated as follows:
1a. Was the 80-hour suspension without pay of Sergeant Kyle
Nice for just cause under Article 20 of the collective
bargaining agreement between the City and the Portland
Police Association?
1b. If not, what is the appropriate remedy?
2a. Was the 80-hour suspension without pay of Officer Chris
Humphreys for just cause under Article 20 of the collective
bargaining agreement between the City and the Portland
Police Association?
2b. If not, what is the appropriate remedy?
APPLICABLE BUREAU POLICIES
Conditions and Behaviors Requiring Medical Treatment After
Deployment (1051.00)
EMS will be summoned when the Taser is deployed on the following
individuals. EMS will also transport then to the hospital.
a. Children, who are known to be, or are obviously under
the age of 12.
b. Persons who are known to be, or are obviously older
than 60 years of age.
c. A woman who is known to be or obviously pregnant.
d. A person who is known to be or obviously medically
fragile (i.e., any individual with a chronic medical
illness). Examples include diabetes, seizure
disorder, emphysema, asthma, heart disease (previous
heart attack, chest pain, angina), history of
pacemaker or defibrillator, kidney failure, cancer or
transplant.
e. A person suffering from hyper stimulation (before,
during or after deployment). This includes the
following behaviors such as rapid speech, agitation,
apprehension, excitation, restlessness, verbalization
of impending doom, emotional instability; physical
symptoms such as dilated pupils, headache, teeth
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 25
grinding, clenched teeth, nausea, vomiting, vertigo,
tremor (i.e. twitching of small muscles, especially
facial and fingers), tics, non purposeful movements,
pseudo hallucinations (e.g. cocaine bugs), seizures or
coma; pale skin, racing pulse or increased; skin
temperature hot or very warm to touch.
f. A person suffering from agitated delirium (before,
during or after deployment). This includes the
following: severe agitation, overamped or wired;
paranoia; delirium (an abnormal mental State
characterized by disorientation, fear and
irritability), altered mental status (a change in the
level of consciousness or the content of
consciousness), confusion or disorientation,
restlessness or purposeless movements in the setting
of cocaine use, tremor (i.e. twitching of small
muscles, especially facial and finger).
Other Medical Treatment After Deployment (1051.00)
When the Taser is deployed on a person, other than those
listed above in required medical treatment using:
a. Drive stun mode:
1. EM personnel will not be summoned to the scene
unless medical treatment is necessary.
APPLICABLE CONTRACT LANGUAGE
ARTICLE 20
DISCIPLINE
20.1 Disciplinary action or measures shall include only the
following: written reprimand, suspension, or in lieu thereof,
with the officer’s concurrence, loss of vacation or FLSA
compensatory time. Disciplinary action shall be for just cause
and will be subject to the following grievance procedure. This
section shall not apply to counseling and instruction. Verbal
reprimands will not be used as the basis for subsequent
disciplinary action unless the officer is notified at the time
of reprimand, and if notified at the time of reprimand, and if
notified the matter will be subject to the grievance procedure.
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 26
ARTICLE 22
GRIEVANCE AND ARBITRATION PROCEDURE
22.5.2 Each Party shall be responsible for paying the costs
of presenting its own case in arbitration including the payment
of witness fees, if any. The cost by the Arbitrator, court
reporter (if any) and the hearing room shall be borne by the
losing Party. Following the rendering of the Arbitrator’s
decision, the Parties shall meet and attempt to agree which is
the “losing Party.” If the Parties are unable to so agree, the
question of who is the “losing Party” is shall be submitted to
the Arbitrator who rendered the decision in question. The
Arbitrator’s subsequent designation of the “losing Party” shall
be final and binding. If the Arbitrator cannot designate which
Party is the loser, each Party will pay on-half (1/2) the cost
of the arbitration.
POSITION OF THE EMPLOYER
The Employer argues that the City had just cause to
discipline with 80-hour suspensions-without-pay. Directive 1051
mandates transportation to a hospital under certain conditions
and both Sergeant Nice and Officer Humphreys had been properly
trained to correctly apply the Directive. They ignored the
requirements of the Directive by choosing to take Mr. Chasse to
jail with fatal consequences. The Association’s arguments
irresponsibly attempt to pass the buck rather than ensuring that
the Grievants accept professional responsibility.
Portland police officers must take responsibility for the
people in their custody, even when the subject needs or is being
delivered medical attention, and especially when the officers
suspect that the subject is on drugs.
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 27
Sergeant Nice was disciplined because he failed to
communicate complete information about the struggle to handcuff
Mr. Chasse on NW 13th and Everett St. to the lead paramedic who
arrived shortly thereafter.
Nice should have communicated the full extent of the force
used during the takedown of Mr. Chasse. As a Sergeant, the City
argues that it was also Mr. Nice’s duty under Bureau Directive
1051 to report to the lead paramedic that Mr. Chasse had been
Tased, and to require medical transport of Mr. Chasse because he
had been Tased and was exhibiting signs that various other
medical conditions may be occurring.
Sergeant Nice and Officer Burton, the backup officer on the
scene, noted that they were surprised at the length of the
struggle, and that Mr. Chasse was very agitated, was hollering,
and that his speech was unintelligible.
When the paramedics arrived, Chasse did not acknowledge or
respond to Paramedic Hergert at all, until later, when he asked
about his backpack and all the people standing around him. He
then became more agitated, yelling unintelligible words while
paramedics tried to get a read on his glucose levels.
Paramedic Hergert could not have done an accurate triage of
Chasse without knowing the full extent of the struggle with Mr.
Chasse, and Sergeant Nice failed to disclose that critical
information.
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 28
According to Chief Sizer, Sergeant Livingston and Captain
Famous, when police call medical to a scene, they explain what
happened, why medical was summoned, and officers provide
information they believe is relevant to treating the suspect,
which results in a back-and-forth discussion between police and
medical personnel so that the medical personnel can accurately
do their job.
Neither Sergeant Nice nor Officer Humphreys were expected
to diagnose Mr. Chasse’s condition after the incident, but they
were expected to ensure he received appropriate medical
attention.
Given the observations they did make about his behavior
(Chasse’s surprising strength, flexibility and endurance during
the struggle in spite of his notably slight frame, his excited
state, the unintelligible words he was saying, and the officers’
theory that he might have been using drugs), the City argues
that Nice and Humphreys had all the information needed to
recognize that the suspect might have been in a state of excited
delirium, and should have required medical transport.
Officer Humphreys’ suspension was fair because he had two
opportunities to ensure that Mr. Chasse was taken to a hospital
rather than to jail after this incident, which was Humphreys’
duty as the officer in custody of Mr. Chasse. He was also
bound to comply with Bureau Directive 1051, requiring that
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 29
officers ensure medical transport after tasing with medical
complications, and failed to make sure Mr. Chasse was
transported to the hospital at both 13th and Everett and at the
Multnomah County Detention Center.
Officer Humphreys should have also relayed the information
he knew about the severity of the physical interactions of the
apprehending of Mr. Chasse to the paramedics. Humphreys knew
how hard he hit the pavement with Chasse, knew how long and
vigorous the struggle was until Chasse was hobbled, knew that
the struggle included the suspect being punched, kicked and
tased, knew that Chasse was agitated and yelling incoherently,
and that Chasse lost consciousness. The City argues that the
Lead Paramedic Hergert needed this information to be able to use
appropriate judgment in deciding whether to transport the
suspect to the hospital or send him to jail in custody of the
police.
The City made thoughtful and informed decisions to hold
Nice and Humphreys accountable for the consequences of their
struggle with Chasse. Mayor Potter and Chief Sizer made
organizational decisions that took large amounts of
responsibility for this incident onto the Bureau. The City
provided defenses for Nice and Humphreys, as well as paying a
settlement to resolve the federal litigation. The City
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 30
acknowledged and accepted its responsibility in a tragic event,
Sergeant Nice and Officer Humphreys should do likewise.
The Union’s argument that it was entirely medical’s fault
that Chasse was not transported to the hospital fails because
medical did not have all the information they needed from Nice
and Humphreys to make an accurate assessment of Mr. Chasse’s
medical needs at that time.
Regarding due process considerations, lengthy
investigations for death-in-custody cases are not unusual. The
average length of time for the Bureau’s Review Board process for
such a case was 1.4 years. The Chasse case took 2.4 years, and
another officer-involved shooting took 2.3 years. It is a very
serious matter when a person dies in police custody. Given all
the complications of investigating a case of this complexity and
the complication of the federal litigation, the time-frame of
this case is reasonable.
In sum, the City argues that the Arbitrator should uphold
the disciplines of Sergeant Nice and Officer Humphreys as fair,
just and consistent with the requirements of Article 20 of the
CBA, because Portland Police Officers are responsible for
providing accurate information about suspects in their custody
such that appropriate medical care is ensured. Common sense
should have triggered the Grievants to require medical
transport, especially because they suspected Chasse was on
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 31
drugs. Directive 1051 is a rule in place that should have
protected both the officers and Mr. Chasse, but the Grievants
failed to abide by it, and therefore need to be held accountable
for their mistakes.
POSITION OF THE UNION
The Union, or the Association, argues that the City’s
disciplines of Sergeant Nice and Officer Humphreys were not
just, and that the Grievants should be made whole plus interest.
The burden of proof has not been met by the City that Nice or
Humphreys each engaged in misconduct by violating Bureau Policy
1051.00. The City failed to provide both Nice and Humphreys with
due process (via a full, fair and timely investigation) and the
level of discipline issued by the City is not congruent with the
alleged degree of misconduct by the Grievants.
The Association maintains that the Grievants’ actions were
compliant with applicable Bureau policies and training. Though
the City will argue that the Grievants should have ensured that
Chasse was transported to the hospital under Directive 1051, the
Grievants did not believe that Chasse was suffering from excited
delirium, and therefore, did not trigger a post-Taser medical
transport.
Bureau training on signs of excited delirium included
profuse sweating and high temperature. As they struggled with
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 32
Chasse, the officers did not notice either of these signs, nor
any other sign that would have indicated a medical condition
that required transport.
At the time of the Chasse incident, officers had no duty
to insist that Chasse be transported to the hospital following
use of the Taser. That decision rested with the paramedics.
Lead paramedic Hergert found Chasse’s vital signs to be
within a normal range, and even when Medic Stucker told her that
he’d learned that a Taser had been used on Chasse while they
were leaving the scene, Hergert did not believe that there was
reason to transport Chasse based on his vital signs, and based
on the fact that Chasse did not express that he was injured or
in pain.
Directive 1051 was modified after this incident to say
that “members will ensure that EMS examines the person at the
scene and transports the person to the hospital unless the
person is not in custody, is mentally competent, and refuses
examination and transport” (U-7 at 16). This emphasis on
officers ensuring medical transport was not in effect at the
time of the incident.
The officers deferred to the paramedics based on their
training and the language in Directive 1051 at that time, and
were not required to override paramedics’ opinion that Mr.
Chasse did not need to be medically transported. The Union
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 33
argues that the Grievants cannot be disciplined under the new
policy because it was not in effect at the time of the incident.
Officer Humphreys should not have been disciplined for
failing to ensure that Chasse was taken to the hospital from the
Multnomah County Detention Center because he was simply doing
what he believed he should do, based on the opinion of Nurse
Gayman at MDCD. He was acting consistently with the common
practice at the time, in which police officers notify a
supervisor and transport a suspect to Portland Adventist
Hospital when they are refused to be accepted by the jail staff.
Though the City argues that the Grievants failed to
provide all necessary information to the paramedics that they
would have needed in order to appropriately triage Mr. Chasse,
the Association contends that this argument fails for several
reasons.
First, at the time of the Chasse incident, the Bureau had
no policy around exactly what kind of information officers were
obliged to tell paramedics. Second, the Bureau did not provide
training to its officers on how to communicate with medical
personnel. And finally, the information that the City asserts
Nice and Humphreys did not communicate is incorrect.
Ms. Hergert knew that officers had fought with Mr. Chasse,
and that Officer Humphreys had knocked Mr. Chasse down.
Sergeant Nice didn’t think that Humphreys had landed on Mr.
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 34
Chasse because he saw Chasse’s backpack fly off, and that seemed
to indicate that Humphreys had not landed on Chasse.
Paramedic Stucker knew that Mr. Chasse had been tased with
no effect, and told Paramedic Hergert, who did not return to
transport Mr. Chasse because his vital signs had been in the
normal range, and he seemed fine.
As a final argument for why the Grievants’ conduct did not
merit the City’s discipline, the Union points out that in the
federal litigation brought by the estate of Mr. Chasse, the City
hired an expert witness, Mr. Katsaris, to defend the City and
the Grievants. Mr. Katsaris argued to a Federal Court that the
Grievants had acted reasonably in communicating with the
paramedics and relying on their determination that Mr. Chasse
was medically fit to go to jail.
The Association argues that the Grievants were denied due
process because the investigation into these matters by the City
was untimely, with the discipline imposed on the Grievants more
than three and a half years after the incident.
In addition, the Internal Affairs Division investigation
did not include interviews with all key witnesses. IAD did not
interview the jail nurse Gayman, nor the Portland Fire Bureau
responders who were present at 13th and Everett. Nor did IAD
interview several witness police officers, including Sergeant
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 35
Niiya, who were present to conversations between the Grievants
and the paramedics.
The level of discipline; 80 hours without pay; for each
Grievant, was unreasonable and disproportionate to the conduct
of Nice and Humphreys. Police Commissioner Salzman admitted
that the discipline was not progressive and was meant to send a
punitive message to the Grievants. Both of the Grievants had
received many awards prior to this incident for their excellent
work. Nice had never been disciplined, and Humphreys’ only
prior discipline was a ten-year-old written reprimand for a car
accident. Their work histories should have been considered in
determining the appropriate level of discipline.
In Federal Court, the City argued that the Grievants had
acted reasonably in how they interacted with the paramedics, and
in deciding to take Mr. Chasse to jail. Then the City, in the
disciplinary process, argued that the Grievants’ actions were
unreasonable. Because the City has taken inconsistent positions
on these matters, the Association argues that it is unfair and
unwarranted that the Grievants should have received their
suspensions-without-pay.
Because of the lack of clear policy violations, the
lateness of the discipline related to the incident, and the
City’s prior stance that the Grievants had acted reasonably in
this incident, the Association argues that the Arbitrator should
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 36
rescind the discipline and make the Grievants whole in all ways,
plus interest.
ANALYSIS
The Arbitrator’s authority to resolve a grievance(s) is
derived from the Parties’ Collective Bargaining Agreement (CBA)
and the issue that is presented to him. The pertinent contract
provision is found in Article 20.1 and it reads:
Disciplinary action or measures shall include only the
following: written reprimand, suspension, or in lieu
thereof, with the officer’s concurrence, loss of
vacation or FLSA compensatory time. Disciplinary
action shall be for just cause and will be subject to
the following grievance procedure.
The Parties agreed that the issue in this case is whether
the 80 hours suspension of both Sergeant Nice and Officer
Humphreys fully complied with the just cause standard. The City
asserts that its actions were consistent with the just cause
standard while the Union argues that the two suspensions
violated this requirement.
The Arbitrator notes that in a grievance arbitration
proceeding, the employer is generally assigned the burden of
proof in any matter involving the discipline or discharge of an
employee. In all other matters the union is assigned the burden
of proof. As the instant grievance does involve a matter of
disciplinary suspensions, the burden lies with the Employer.
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 37
Also, this Arbitrator has regularly determined in prior
decisions that where discipline or discharge relates to
questionable circumstances that would create a permanent stain
on the employee’s record (such as sexual harassment or theft),
the applicable standard of proof is “clear and convincing.” The
instant case does not involve such circumstances but rather is
primarily concerned with field decisions as to how a person
taken into custody (James Chasse) would be transported and to
where he would be transported. While the result of the decision
to transport Mr. Chasse to jail was both fatal and tragic, the
charges against the Grievants raise only the question of the
proper application of Directive 1051. This does not, in the
Arbitrator’s view, attack the character of the Grievants nor put
a permanent stain on their employment record. Thus the
Arbitrator determines that the appropriate standard of proof for
both grievances is a preponderance of the evidence.
As previously noted, this arbitration decision involves two
separate inter-related grievances pursuant to employee
discipline. The Parties have chosen for reasons of efficiency
to combine them into one arbitration proceeding. The two
grievances share some but not all of the facts. As a result,
this analysis will proceed first with some general observations
about the case and the facts applicable to both grievances. The
general observations will be followed with a discussion of the
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 38
Sergeant Nice grievance followed by a discussion of the Chris
Humphreys grievance
General Observations
Most grievance arbitration proceedings that arise under a
collective bargaining agreement are quiet affairs particularly
when the matter submitted to the arbitrator involves employee
discipline or discharge. Employee misconduct is usually viewed
as a private matter between the employer and the employee. In
the instant case, the Parties collective bargaining agreement
specifically provides at Article 20.2 that:
If the City has reason to reprimand or discipline an
officer, it shall be done in a manner that is least likely
to embarrass the officer before other officers or the
public. (J 7)
Obviously there is absolutely nothing about this case that
is private including the discipline of the two officers. Google
“James Chasse” and there is an enormous amount of information
available particularly about his death. The Arbitrator is
certainly aware of the controversy surrounding the James Chasse
case. The viral nature of the events that occurred on September
17, 2006 does not, however, change the standards or protocols
that a labor arbitrator uses to resolve a grievance. The
Arbitrator emphasizes that his decision with regard to the
question of whether the discipline imposed on Sergeant Nice and
Officer Humphreys met the just cause standard is entirely based
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 39
on the record created during the arbitration hearing; a record
that is extraordinary in size and exhaustive in detail.
The Arbitrator is also mindful that the evidence was
gathered and analyzed with the knowledge of the end result;
knowing that Mr. Chasse died in police custody. The simple
fact, however, is that Sergeant Nice and Officer Humphreys were
disciplined for making decisions or failing to make decisions
when they did not have that knowledge. The Arbitrator has made
a careful effort to evaluate the actions/inactions for which the
discipline was imposed in the context of the information
available to Nice and Humphreys at the pertinent time.
Additionally, this case is heavily dependent upon the
testimony of key witnesses. Finding the truth in testimony is
often a difficult task. The accuracy of testimony is always an
issue in any arbitration proceeding that is dependent on the
recall of witnesses. What one perceives is influenced by
personal filters, memory fades over time and self-interest can
shape what is stated even when those statements are made under
oath.
Moreover, the arbitration hearing occurred in February of
2012 while the incidents for which discipline was imposed
occurred on September 17, 2006; an interlude of 5½ years.
During the arbitration hearing, witnesses repeatedly commented
on concerns over their memory and acknowledged reliance on prior
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 40
statements they had made in the form of depositions, interviews
with detectives or recorded statements made by Internal Affairs.
Testimony in the instant case has the additional problem
associated with defensiveness created because key individuals
were under public attack; Chief Sizer referred to this as being
unfairly demonized. The Arbitrator, as he reviewed the
transcripts of the hearing and the prior recorded statements,
was particularly mindful that the tragic ending to the events of
September 17, 2006 undoubtedly influenced the transparency of
witnesses’ statements; particularly the statements of those
individuals who had official contact with Mr. Chasse and who
were in positions to make decisions that might have altered the
final outcome.
The Arbitrator took into consideration the problems of
accuracy and forthrightness with the testimony as he evaluated
the record. Ultimately his final conclusions are based on his
best judgments as to what occurred on September 17, 2006, what
key players actually said to each other and what they knew or
did not know at pertinent times.
Another general observation concerns the narrow scope of
this arbitration decision. Sergeant Nice and Officer Humphreys
were both given 80 hours suspensions without pay for performance
failures related to the events of September 17, 2006. Article
20 of the Parties CBA grants the City the right to impose
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 41
disciplinary suspensions so long as they are for just cause.
Article 20 also provides than any discipline imposed by the City
on an officer is subject to the grievance procedure.
Arbitration is the final step of the grievance procedure.
The suspensions were imposed on Sergeant Nice and Officer
Humphreys for violating Directive 1051. Directive 1051 covers
medical treatment after deployment of a Taser and it requires
EMS to be called to the scene and that EMS transport to a
hospital certain individuals who have been tased. EMS was
called to the scene at 13th and Everett but was not directed by
Sergeant Nice to transport. EMS was not called to the scene nor
asked to transport by Officer Humphreys at MCDC when Mr. Chasse
again went unconscious. The Arbitrator emphasizes that the only
issue in front of him is whether Sergeant Nice and Officer
Humphreys were properly discipline for allegedly failing to use
EMS consistent with directive 1051.
Most important, this decision has nothing to do with
questions about the proper use of force when Mr. Chasse was
apprehended. Those issues were separately addressed through the
work of the detectives that ended up in front of the grand jury
and the work of Internal Affairs which went to the Use of Force
Review Board.
As to the just cause standard itself, there are a number of
different tests that arbitrators use to determine whether a
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 42
disciplinary action meets the just cause standard usually found
in a labor agreement. Over the years, this Arbitrator’s
practice has evolved where he now uses the arguments of the
Parties to determine what they consider to be the important just
cause concerns related to the disciplinary action in question.
When the Parties are represented by experienced counsel, as in
the instant case, their arguments will fully vet whatever just
cause issues are pertinent to the matter before the Arbitrator.
Thus the Arbitrator finds no reason to provide a separate
discussion explaining the nature of the just cause standard.
Rather, he will focus this analysis on responding to the
specific arguments raised by the Parties with the confidence
that the question of just cause will be fully addressed through
this process.
Finally, as noted above, the record in this proceeding is
extraordinarily detailed. The Arbitrator has been careful with
his due diligence and thoroughly reviewed the entire proceeding.
The Parties in their briefs raise certain issues and make
specific allegations all related to whether the discipline was
for just cause. The briefs were carefully studied and all
questions raised given thoughtful consideration. For reasons of
time constraints and prudence, the Arbitrator has chosen to
focus the analysis on the key factors that led to his ultimate
decision. That an issue raised by a party is not discussed does
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 43
not mean it was not considered. It does mean that the
Arbitrator did not consider it one of the primary factors in
arriving at his final determination.
Grievance of Sergeant Kyle Nice
The City determined that it had reason to discipline
Sergeant Kyle Nice and imposed an 80 hours suspension. As
previously noted, the City carries the burden of proof to
establish just cause for its decision to discipline Sergeant
Nice. The basis for the City’s contention that it had just
cause, otherwise known as the theory of its case, is spelled out
in the City’s brief. This theory can be summarized as follows:
1. A Taser was used on James Chasse and that required the application of Directive 1051.
2. James Chasse had symptoms similar to those found under sub-paragraphs e and f, therefore medical transport to a
hospital was required by the policy.
3. Sergeant Nice was the officer in charge at the scene and while he called for EMS he did not inform them that they
were required to transport, thus the violation of policy
and the justification for an 80 hours unpaid suspension.
4. The fact that the paramedic cleared Mr. Chasse for
transportation in a police vehicle to MCDC is an invalid
defense since both Sergeant Nice and Officer Humphreys
failed to communicate to the paramedic the full extent of
the force that was used in getting him handcuffed and
hobbled.
The Union counters the Employer’s case by contending first
that Directive 1051 was not violated and second that Sergeant
Nice and Officer Humphreys provided more than sufficient
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 44
information to the paramedic for her to make a proper medical
determination.
The Arbitrator, having carefully reviewed all of the
arguments and the facts in support of the arguments concludes
that the City has not met its burden of proof. As a result, he
will sustain Sergeant Nice’s grievance and order a remedy. The
reasoning behind this conclusion is laid out in the following
multipoint analysis.
First, throughout the hearing and in its brief, the City
connects the use of the Taser on Mr. Chasse with hyper
stimulation (sub-paragraph e) and/or agitated delirium (sub-
paragraph f). The tasing and hyper stimulation and/or agitated
delirium have to both be present for Directive 1051 to require
medical transportation to a hospital.
There is no question that Mr. Chasse was tased. There is
significant evidence, however, that he did not at any time
suffer from hyper stimulation and/or agitated delirium. The
Arbitrator’s reading of the Directive leads him to the
conclusion that it does not require medical transportation for a
symptom but only where there is a reasonable basis to conclude
that hyper stimulation and/or agitated delirium are present.
Thus the City cannot claim that there was a mandatory
requirement for medical transportation to the hospital.
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 45
While the specific evidence in support of this conclusion
comes from a number of different sources, this analysis looks
first at the basic fact that there is some confusion between
Directive 1051 and the recognized medical condition of excited
delirium. The Directive draws a distinction between hyper
stimulation and agitated delirium. The medical community sees
only a single definable problem. Sergeant Livingston sets forth
in his testimony the following explanation:
Q: I notice, first of all, that hyper stimulation and
agitated delirium are separated out as two different
categories. What’s your understanding and what sort of
training do you give officers in terms of those two
conditions? Do you treat them the same? Do you treat them
different? What goes on during training?
A: It’s commonly referred to in every other area of the
Police Bureau policies and training as excited delirium.
So really we teach them as one and the same. They’re
broken down into two sections in the policy for some
unknown reason. I’m not aware of it. The captain at the
time created this policy using a model policy from another
agency. But all the training that I’ve been to regarding
sudden death, in-custody death, refers to it as excited
delirium and doesn’t break them into two. But the
symptoms, if you look at them, are the same. When I read
then and I look at both, I really can’t see much of a
difference between the two, between hyper stimulation and
agitated delirium. (Tr 410, 411)
Dr. Gunson, the medical examiner that performed the
autopsy, in opining that excited delirium was not present she
uses the phrase agitated delirium and excited delirium in the
same fashion. She indicated that his behavior was more
reflective of a “paranoid schizophrenia” and states that “once
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 46
we saw the injuries, it was, it’s then we completely abandoned
that idea of cocaine psychosis or, or some kind of excited
delirium” (J 14, P 95).
Additionally, at the time of the Chasse incident, officers
in the PPB were exposed to a short training video that is in
evidence as Employer exhibit #1. The training video draws no
distinction between hyper stimulation and agitated delirium.
Throughout the presentation the medical condition is given but a
single identity.
Finally, in reaching the determination that excited
delirium was not present, the Arbitrator is mindful of Dr.
Gunson’s analysis of the contributing factors to Mr. Chasse’s
death.
“Well, I think the rib fractures were probably already
there. But, perhaps, the uh. Displacement of those rib
fractures and the perforation of the lungs may have
occurred with the three subsequent carrying positions, or,
or, you know, carrying episodes, if you will. Um, now, I
do know that, at one point, there was noted to be some
blood around his mouth. And that could easily have arisen
from having his lung punctured by one of those ribs. But
it was my understanding this blood did not appear until he
was at the Multnomah county facility. They did not see it
on the street.” (J 13, P 43)
In other words, broken ribs and their interface with the
lungs contribute to Mr. Chasse’s demise; it was not excited
delirium.
Second, the Arbitrator emphasizes, however, that the City’s
case is not without some merit. The fact that Mr. Chasse had
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 47
gone unconscious and the fact that he was yelling gibberish at
times are both symptoms listed in Directive 1051 and thus cause
for considering medical transport to the hospital.
Clearly, everyone directly involved in the Chasse incident
now wishes that a hospital transport had been promptly
undertaken. The Arbitrator again reminds that the issue before
him is not whether medical transport was necessary but rather
whether the failure to do so warrants a suspension for Sergeant
Nice and Officer Humphreys. The Arbitrator’s ultimate
conclusion that it does not justified discipline is
significantly influenced by the training video on excited
delirium by which Sergeant Nice and Officer Humphreys were
trained (E 1).
Two factors from the video are significant for this case.
First, the video directs officers to promptly seek medical help
in the event that excited delirium is present. Sergeant Nice
immediately sought medical assistance when Mr. Chasse lost
consciousness therefore Nice is in compliance with this
directive even though excited delirium was not the cause of the
loss of consciousness.
The other reason that the video is significant for the
instant case is that it provides a clear set of four factors
that will help identify excited delirium: elevated heart rate,
elevated blood pressure, significantly elevated temperature and
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 48
elevated respiration. Paramedic Hergert has never wavered in
her claim that none of the four conditions were present (J 24
and Tr pages 134 to 172). Moreover, while Directive 1051
contains a set of behavioral factors by which an officer can
identify a possible case of excited delirium, the training
received by officers focuses on heart rate, blood pressure, body
temperature and respiration.
Based on the Arbitrator’s conclusion that the mandatory
nature of Directive 1051 was not present in the absence of
excited delirium and based on the fact that the paramedic found
Mr. Chasse medically stable and safe to transport to the jail,
the Arbitrator finds no basis upon which to conclude that
Sergeant Nice committed a disciplinable offense when he had Mr.
Chasse driven to the jail in a police car.
Fourth, the Arbitrator does not find persuasive the City’s
argument that the paucity of information provided by the
officers to the paramedic(s) kept the paramedic(s) from
adequately doing her job. He finds inadequate support for the
City’s contention that the responsibility for the incorrect
decision by the paramedic that Mr. Chasse was safe to take to
jail must be assigned back to Sergeant Nice and Officer
Humphreys; had they fully communicated the extent of the force
used against Mr. Chasse in handcuffing and hobbling him, the
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 49
paramedic would have had a better chance of accurately
diagnosing the seriousness of his condition.
The Arbitrator notes that the Parties are sharply divided
on this issue. The City presents its point of view through the
testimony of Captain Dave Famous who testifies:
Q: Is the description of there is a struggle, there is a
fight, adequate in your view?
A: Well, in this case I don’t believe so. Number one,
you have a prolonged struggle. And by prolonged we’re
talking about minutes, which is a long time. He’s been
tased. He’s been kicked. He’s been punched. He’s been
knocked to the ground. He’s been hobbled. He’s bit
Sergeant Nice. He has this horrible odor about him. He’s
yelling incoherently. They’re thinking he may be high on
drugs. So there is so many factors that have gone on here
that it is unusual and – but we expect our officers and our
sergeants to explain to the paramedics what happened. (Tr
757, 758)
The Union calls expert witness W. Ken Katsaris who has
extensive knowledge of the facts of this case since he was used
as a witness by the City in the civil litigation that resulted
from the death of Mr. Chasse. He testified as follows:
Q: The initial piece of information that Mr. Chasse had
fought with police and gone unconscious, do you believe
based on your training and experience, that that gave the
paramedics sufficient information to cause – to allow them
to do a triage of injuries without any additional blow-by-
blow description of the use of force?
A: Well, I would like to say yes, but you didn’t give me
all the basic information because I believe the basic
information included a foot pursuit. I think the basic
first information included the unconsciousness, which I
indicated, was of course, the key information. It also
included that there was a fight, that they fought. And, of
course, the fact is, they were presented with a person who
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 50
was hobbled and cuffed. And all of that together combines
to indicate, of course, quite a struggle and fight and then
unconsciousness.
All of that is key information that a paramedic would
have and need and is all they would need, because once you
know about unconsciousness, that’s when they do an assessment.
Certainly relating to injury relating to the head or issues of
unconsciousness, because unconsciousness is key. If they are
involved in a fight and there was a struggle and a takedown
and they’re in a hobble, then you know also to palpitate and
check the rest of the body. So they had all the information
that a paramedic would need to engage in a triage of an
individual under those circumstances. (Tr 653, 654)
There is no dispute between the Parties that Sergeant Nice
and Officer Humphreys could have provided substantially more
information to the paramedics. Moreover, in this Arbitrator’s
view, the efforts by the City, since the Chasse incident, to
require better communication between officers and paramedics is
prudent and reasonable. Dotting all the i’s and crossing all
the t’s makes good sense when dealing with medical emergencies
and certainly is essential regarding risk management and the
potential for civil liability.
However, the Arbitrator emphasizes the fact that in the
instant case Sergeant Nice and Officer Humphreys are not being
disciplined for their poor communication. The City is
emphasizing the communication deficiency as a way of disarming
the fact that the lead paramedic twice indicated that it was
safe to transport Mr. Chasse to jail. The basic question the
Arbitrator asks is what difference would it have made if
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 51
Sergeant Nice and/or Officer Humphreys had given more
information to paramedic Hergert. A quick review of Hergert’s
testimony at the arbitration hearing provides the following:
Q. BY MS. HARPER: I know it’s a hypothetical question, but
if you had been told that the Taser had been used, what, if
any, different steps would you have taken?
* * * * *
A. I’m not sure, quite honestly. There is the, if they
had been tasered and they’re acting completely abnormal to
the situation, you transport them in case they have or
develop the excited delirium stuff. But other than
refusing to talk to us much of what Mr. Chasse did was
seemingly appropriate. He saw people standing around him.
He saw what he thought was his backpack. He yelled when
people picked him up. I would like to say positively I
would have transported him, but honestly, I can’t say that
for sure. I wish I had known so we could have added in.
It may have made a difference. It may not I wish I had
known.
Q BY MS. HARPER: Do you wish you had known that he had
fallen to the ground hard?
A. Yes.
(Tr 165, 166)
Paramedic Hergert is more specific in her deposition given
for the civil litigation. There she provides the following
statement:
Q: And what was the conversation that you had at the
scene when you were clearing the scene?
A: `After we had left the scene he mentioned one of the
officers told him that Mr. Chasse had been Tased. And when
I asked him about what do you mean Tased, he says, well,
no, they said he – they tried to Tase him but it hadn’t
taken.
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 52
Q: And did that cause you to change anything that you had
thought about in terms of your care and treatment of the
patient?
A: No. It was a piece of information I would have liked
to have at the – at the time, but it didn’t change the
vital signs or exam I had done on Mr. Chasse [emphasis
added]. (J 24, P 10)
As has been emphasized above and amplified by the
statements made by paramedic Hergert, the criteria used to
determine whether or not it was safe to transport Mr. Chasse to
jail all indicated that he was good to go. The Arbitrator also
turns to statements made by medical examiner Gunson as found in
the IA report:
As a result we reviewed with Dr. GUNSON the vital signs and
commented noted in Ms. TAMI HERGERT’s report, DR. GUNSON
was asked if the reported vital signs, which were
considered “normal,” were consistent with Mr. CHASSE’s
injuries. Dr. GUNSON stated, “No I would have expected all
three parameters, blood pressure, heart beat, and
respiration, to be higher because of this activity, just
this activity. I mean with the fight, with the run for
several blocks, uh, unless you’re a marathon runner, I
would expect these to be much, much higher.” (TRANSCRIPT:
page 5, lines 212-213). Given the circumstances involved
with Mr. CHSSE, Dr. GUNSON was asked if she was aware of
how his vital signs could possibly be normal and accurate.
Dr. GUNSON stated, “Hmm, I, uh, I, I don’t, I’ve never seen
a situation where they would be absolutely normal like they
are, given the situation he was in.” (J 13, P 41)
The important point to the Arbitrator is that Dr. Gunson
focuses on the accuracy of the data, she expresses no opinion
that alternative data should have been collected or that other
protocols should have been used. The Arbitrator concludes that
the accuracy of the data is not a reflection of the amount of
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 53
the information given from Sergeant Nice to paramedic Hergert.
In other words, paramedic Hergert would have gotten the same
blood pressure reading, body temperature, respiration and heart
rate regardless of how much information was given or not given
by Sergeant Nice and Officer Humphreys.
In summation, while Sergeant Nice and Officer Humphreys
could have provided a much more thorough statement of the
observed medical problems related to Mr. Chasse, the evidence is
compelling and indicates that this information would not have
changed paramedic Hergert’s conclusion that Mr. Chasse was safe
to take to jail.
Overall and in hindsight, the Arbitrator finds much that
could have been done differently. However, based on the
training that Sergeant Nice and Officer Humphreys received and
on the conclusions reached by the lead paramedic, the Arbitrator
does not find evidence that the failure of Sergeant Nice to have
Mr. Chasse medically transported to the hospital an offense that
should be subjected to discipline.
Grievance of Officer Chris Humphreys
The City determined that it had reason to discipline
Officer Chris Humphreys and imposed an 80 hours suspension. As
previously noted, the City carries the burden of proof to
establish just cause for its decision to discipline Officer
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 54
Humphreys. The basis for the City’s contention that it had just
cause, otherwise known as the theory of its case, is spelled out
in the City’s brief. This theory can be summarized as follows:
1. A Taser was used on James Chasse and that required the application of Directive 1051.
2. James Chasse had symptoms similar to those found under sub-paragraphs e and f, therefore medical transport to a
hospital was required by the policy.
3. Officer Humphreys was an active participant in catching and acquiring control over James Chasse. He had two
separate opportunity’s, at the scene and at MCDC, to
ensure that Mr. Chasse was transported by the EMT to the
hospital. Thus he twice violated Directive 1051 and the
appropriate discipline is an 80 hours unpaid suspension.
4. The fact that the paramedic cleared Mr. Chasse for
transportation in a police vehicle to MCDC and that he
was told by a MCDC nurse to take Mr. Chasse to the
hospital is an invalid defense since Officer Humphreys
failed to communicate to the paramedic and to the nurse
the full extent of the potential medical problems and
because he was ultimately the person responsible for the
well-being of Mr. Chasse.
The Union counters the Employer’s case by contending first
that Directive 1051 was not violated and second that Officer
Humphreys acted consistent with practice and under the direction
of the appropriate medical authority.
The Arbitrator, having carefully reviewed all of the
arguments and the facts in support of the arguments concludes
that the City has not met its burden of proof. As a result, he
will sustain Officer Humphreys’ grievance and order a remedy.
The reasoning behind this conclusion is laid out in the
following multipoint analysis.
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 55
First, for all the reasons cited under the discussion of
the Sergeant Nice grievance, the Arbitrator also determines that
Officer Humphreys’ failure to insist on a medical transport of
Mr. Chasse from 13th and Everett to a hospital is not a
disciplinable offense. To the prior discussion the Arbitrator
would add the obvious fact that the officer in command at 13th
and Everett was Sergeant Nice. The Arbitrator has no reason to
believe that any police officer in the PPB would override his
commanding officer in a similar situation; to do so would be
contrary to the Officer’s training and to the department’s
command structure.
Officer Humphreys letter of suspension also indicates that
he was at fault when he “had an additional opportunity to insure
appropriate medical care was given in this case when the jail
refused to accept Mr. Chasse” (J 6).
The Arbitrator gave extensive thought to the question of
whether Officer Humphreys should be disciplined for failing to
make a second call for an ambulance when the MCDC nurse refused
Mr. Chasse admission and indicating that Officer Humphreys and
Deputy Burton should transport him to the hospital. Ultimately,
the Arbitrator arrived at the conclusion that the evidence is
insufficient to establish a charge warranting discipline. The
Arbitrator summarizes the reasons for this conclusion as
follows:
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 56
1. Mr. Chasse was cleared by the paramedic for
transportation in the police car a very short time prior
to the nurse directing that he be transported to the
hospital.
2. As was the practice, Officer Humphreys requested the
nurse’s assistance when Mr. Chasse passed out for a
second time in the holding cell at MCDC. It seems to the
Arbitrator that the poor judgment made by the nurse in
directing the transport of Mr. Chasse without providing a
hands-on evaluation is wrongfully being assigned to
Officer Humphreys. The nurse provides the medical
evaluation at the MCDC and officer should be able to rely
on her efforts.
3. Chief Sizer did not see cause to discipline Officer
Humphreys for undertaking the transportation of Mr.
Chasse from jail to the hospital on her initial analysis.
That analysis seems reasonable to the Arbitrator.
4. Officers rely on compliance with policy in order to avoid discipline. MCDC Policy DC 12.100.093 is clear in that
it assigns responsibility to medical with regard to
transporting a prisoner to the hospital. Specifically
that policy requires Corrections Health (the nurse) to
“notify the Intake Sergeant in the event an inmate needs
emergency attention so that the Sergeant may arrange for
the arresting Officer to transport the inmate to the
appropriate hospital emergency room before booking” (J
12, P 536). Consistent with this policy, Officer
Humphreys, as one of the arresting officers, was directed
to transport Mr. Chasse to the hospital. While there is
obviously some conflict between Directive 1051 and MCDC
policy, this conflict should not result in the discipline
of Officer Humphreys but rather needs to be worked out
between the two jurisdictions.
Officer Humphreys was not in command at 13th and Everett.
He transported Mr. Chasse in a police car as opposed to having a
medical transport under the direction of Sergeant Nice and
paramedic Hergert. He further commenced the transport of Mr.
Chasse from the jail to the hospital under the direction of the
MCDC nurse and pursuant to a specific MCDC policy. None of
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 57
these actions, from the Arbitrator’s perspective, warrant
discipline. Thus the Arbitrator will sustain the grievance and
order an appropriate remedy
REMEDY
The Union, in its brief, asks the Arbitrator to “rescind
the discipline and make the Grievants whole in all ways, plus
interest” (U Br 47). The Arbitrator agrees with the Union’s
request with regard to rescinding the discipline and making the
Grievants whole for lost wages. However, this Arbitrator is of
the old school who views grievance arbitration work as part of a
workplace dispute resolution process. Under this theory, where
an employer’s actions are in good faith no money is owed until
the parties disagreements over that action are resolved by
arbitration. The Arbitrator is convinced that the Employer’s
actions in this case were in good faith thus no interest is
owed.
CONCLUSION
Sergeant Kyle Nice and Officer Chris Humphreys each
received an 80 hours unpaid suspension for failing to have James
Chasse transported to a hospital by way of an ambulance.
Sergeant Nice’s discipline arose with regard to his actions on
the corner of 13th and Everett on September 17, 2006. Officer
Humphreys discipline focused on his actions or lack of action at
PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 58
the MCDC also on September 17, 2006. In both cases, the
Grievant’s are charged with breaking PPB policy that mandated
the use of medical transport. Mr. Chasse died in police custody
while being transported to a hospital in a police car.
Ultimately the Arbitrator determined that the City failed
to prove its charges against both Grievants. In the
Arbitrator’s view, the facts of the case do not support a
conclusion that the policy was violated particularly in light of
the fact that competent medical personnel approved or directed
the transportation of Mr. Chasse by police car. Based on this
conclusion, the Arbitrator sustains the grievances and is
directing an appropriate remedy.
An award is entered consistent with the findings and
conclusions provided in the analysis portion of this decision.
IN THE MATTER OF THE ARBITRATION ) ARBITRATOR’S
)
BETWEEN ) AWARD
)
PORTLAND POLICE ASSOCIATION )
)
“PPA” OR “THE UNION” )
)
AND )
)
CITY OF PORTLAND )
) CHRIS HUMPHREYS/KYLE NICE
) GRIEVANCE
“THE CITY” OR “THE EMPLOYER” )
After careful consideration of all arguments and evidence,
and for the reasons set forth in the Opinion that accompanies
this Award, it is awarded that:
1a. The 80-hour suspension without pay of Sergeant Kyle Nice
was not for just cause as required by Article 20 of the
collective bargaining agreement between the City and the
Portland Police Association.
1b. The grievance is sustained and to remedy the violation of
Article 20 the Arbitrator directs the City to remove the
disciplinary action from Sergeant Kyle Nice’s personnel
file and make him whole for lost wages.
2a. The 80-hour suspension without pay of Officer Chris
Humphreys was not for just cause as required by Article 20
of the collective bargaining agreement between the City and
the Portland Police Association.
2b. The grievance is sustained and to remedy the violation of
Article 20 the Arbitrator directs the City to remove the
disciplinary action from Officer Chris Humphreys’ personnel
file and make him whole for lost wages.
3. Per the Parties stipulation, the Arbitrator retains
jurisdiction for a period of ninety (90) days from the date
of this award to resolve any disagreement over the
implementation of the remedy.
Arbitration Award (Humphreys/Nice Grievances) Page -- 2
4. Article 22 in pertinent part provides that the cost of the
Arbitrator shall be borne by the losing Party. It further
provides that “following the rendering of the Arbitrator’s
decision, the Parties shall meet and attempt to agree which
is the ‘losing Party.’” The Arbitrator’s bill is submitted
to both parties with the expectation that they will
promptly make the appropriate decision and that the Party
designated as the loser will process the invoice for
payment.
Respectfully submitted on this, the 9th day of July, 2012 by,
Timothy D.W. Williams
Arbitrator