IN THE MATTER OF ARBITRATION BETWEEN P.0.TIM GARCIA ) ) APPEAL OF INDEFINITE ) ‘SUSPENSION vs. ) > AAA CASE NO. 01-19-0000-1726 CITY OF SAN ANTONIO ) Date of Beginning of Suspension: Sanuary 7,200) Date of Appeal: January 7, 2019 Dates of Hearing: uly 24-25, 2019, Date of Closing of the Record October §, 2019 Date of Decision November 4, 2019, Appearances: Appellant: Morris E Munoz, Esq CLBAT Staff Attorney Logan Lewis, Esq. Assistant City Attorney City of San Antonio Arbitraiors ‘Themas A. Cipolla, Esq. 9 2KER Officer Tim R. Garcia (hereinafter, “Appellant” of “Grievant” ot “Garcia” hes been with the Sen Antonio Polise Department (or “SAPD”) since October of 2007. He was indefinitely suspended by. the Chief of Police ina leter to the Grievant ted January 7, 2019, Excerpts from tha eter ae noted below. n of the City of San Antoni Civil Service Commission Rules (12) Violation ofan app onder 1d Police OFF able fre or police department rule or special tonto Police Depa ent Rules und Regul Rule 3.04 RESPONSIBILITY TO SERVE THE PUBLIC (©) CONDUCT AND BEHAVIOR: Members, on- or off-duty, shell be sgovemed by the ordinary and reasonable rules of good conduct and ‘behavior, and shall not commit any act tending to bring reproach or Aiseredit on themselves orth department Rule 3.26 — TREATMENT OF PRISONERS: Prisoners shall be protected in their legal rights, given humane treatment, and shall not be subjected to verbal abuse or unnecessary phy'eal violence (The factual b forthe indefinite suspension was stated a follows 3) “On July 14, 2018, at approximately 10:45 am, on-duty San Antonio Police Department (hereinafter “SAPD") Officer Tim R. Garcia was dispatched to a call for service at 849 East Commerce Steet (River Center Mall. At that location, Officer Garcia and his partner detained a male for possible Criminal Trespassing among other possible infactions. After handeuffing the male, Officer Garcia ean be heard on his body worn ‘camera engaging in an unnecessary, unwarranted, profane and racially charged verbal exchange with the mal, in public view. His conduct did ‘not conform to the ordinary and reasonable rules of good conduct and ‘behavior and brought reproach and discredit 10 himself and the San Antonio Police Department.” |At the time of the imposition of the indefinite suspension, the Grievant was ‘Working bieyle patrol inthe dowintoum area ofthe City 2ILISSUE Did the Appellant violate civil service rules and if s0, was there just cause to support the in Exhibit 3, COSA OOD1?9, Next, the members voted on whether to sustain the 3.26 allegation against the Appellant; on that vote, the sworn officers found the allegation “inconclusive” by unanimous vote and therefore did ot need vee ‘punishment’ and the civilians voted to unenimously sustain the allegation, and proceeded to recommend a fifteen (15) day suspension plus retraining * 10. Next the recommendations of the CARB are forwatded to Chief MeMamis office for review. 11, Chiet MeManus stated atthe hearing that as pat of his review, he reviews the vote of the ‘CARB, giving ssecial weight tothe sworn officers’ vote since they are the Appellant's peers and they ‘understand the taining he received and can put their fet in his shoes:’ and, he also reviewed the ‘investigative packet and watched the videos with his command staff, and discussed the investigation with the Appellant's chain of command.* 12, Chief MeManus testified thatthe Appellant's behavior was striking, offensive, and otherwise intolerable, especially when considering the fact thatthe Appellant was the oly officer to engage with sitizen Robinson the other officer was able to remove himself ater Robinson was handcuffed” 15. After reviewing the investigative packet, speaking with his command staf as well as the Grievant's chair of command, Chief MeManus decided to exercise his duties as the final sey for ‘personnel decisions within SAPD, and he issued the Appellant an indefinite suspension for voletions of Rules 3,04) and 3.26." 14, When asked at the hearing why he chose to indefinitely suspend the Grievant, Chief McManus responded “This particular incident puts -- would put not only Officer Garcia, but the entire department at rsk. How can you have an officer working in ‘he community that is as diversified as here with Affican Americans «5 pat of the population, afier the public sees that he's out here calling prople the N-word, the fucking N-Word, to quote. I presents a lability to crery officer out here who may hesitate to use force against an African American or person of color because of a charge of ~~ possible charge of bias or being racist or that ths is a racist department. You have oticers roning around using the N-word, telling people they are being anested “eine Exhibit s, COSA o0012 Sia Nol i922 "soi Exit 1, COSA 0001-002because they're a fucking N-word. Thats the most inappropriate language Thave ever heard used during an arrest, especially @ minority.” 15. The Appellant presented very litle in the form of mitigation during his eate in Chief, other than personal apologies, descriptions of how he was having @ bad day and how his emotions got the best of him. 16. ‘The Appellant presented only a few cases as evidence of disparate treatment and they are distinguishable from the curent matter in numerous ways; Appellant presented the disciplinary suspensions of Brian D and Jason O; nether of those cases is factually on point, meaning none of those officers used a racist term, the N-word, directed at an African American person they were arresting: in fact, Officer D did not even arrest anyone in the discipline presented. Furthermore, Officer O's suspension was an agreed suspension and it constitutes a setlement which isnot admissible to prove isparate treatment as there are many factual differences and scenarios are invariably different in every settlement, and further not relevant tothe present mater. 17, The preponderance of credible evidence establishes that Chief MeManus had sufficient cause to indefinitely suspend the Appellant and permanently remove him from the employment rols of the Sen Antonio Police Department. 18. The City further submits that Chief MeManus acted reasonably in discharging the Appellant and there is no evidence that there was any improper moive, bigs or prejudice involved in Chief MeManus’s Aecision to issue the Appellant an indefinite suspension as outlined in Joint Exhibit 3, and that decision should be upheld. B.APPELLANT. 1. The written statement of charges failed to describe the specific actor acts alleged to violate San Antonio Police Department Rule 3.26, and therefore, the charg of violating this policy was not legally ‘brought under Chapter 143 or the CBA. 2. Chief MeManus further admits, despite what the Grievant explained to him duting the Louderill hearing, the main reason that he decided to issue an indefinite suspension was because he was not suze 3, Ina attempt to explain to the Arbitrator what he sian, he explained or 161025 Svoltlies= 11“The medias the public. So essentially, how am I going to justify this? How could I ever justify this to the public? How could I sver explain this to anyone in the public? How ‘ould T explain this to the NAACP board or how could I explain this to the NAACP president?” 4 Furthermore, when questioned on cross-examination by the Grievant's sttomey, Chief MeManus did not disagree that he said, “I don't know how I am going to defend this with the media.” and further when asked ‘on cross-examination, “So basically, you were concerned about the politcal fallout of ‘this? Chief MeManus answered: “My concem was the public's reation to this and how is the department going to deal with it, What i the department going to do to hold this individual responsible? What isthe department going 1 do to make sue its members are not racist?" 5. On dirt examination, the Grievant gave his explanations regaating the statements he made. 6. Officer Garcia's baskground and history: 18) The Grievant is macried with two adult sons, 21 and 24 who ate college students, ') The Grievant atends church, «) Prior to being indefinitely suspended, he worked for SAPD for I-years asa patrolman. 4) He started his law enforcement career with Leow Valley in Tate 1998 and then went to work for the San Antonio Park Rangers in 2000, which evolved to the San Antonio Park Polie and he left the ark Police in 2007 to join the SAPD on October 1, 2007. «) He currently holds a Texas Commission on Law Enforcement (TCOLE) Master's Peace Officer Certification and, he received his Master's Peace Officer Certification through a combination of college hhouts, time on duty, and taining hours £) He lso as a cetfcaton asa TCOLE Instructor and used to teach crisis intervention taining. 8) He's also one ofthe bike instructors for the City since 2005 and isa certified bike officer since 2000." Before being indefinitely suspended, he was asigned tothe downtown bike parol unit, He had ‘been assigned there since September 2009, 1) He has always fet the need to give back and to give more, So he signed up for the Honor Guard and alo joined the Chorin 2013. He volunteered forthe Mobile Feld Force", which played heavily in ‘im being selected fo go tothe presidential inauguration n 2017." Boni iat v8 Meal 4428948412 Voll a33- "10 “Vos Ts Pal S28') Some of is duties as part ofthe bike patrol unit consist of basic patrol duties, patrol districts of downtown, give los of ditestons, help alot of people ~ help fin their ear hotel; make felony arrests; ‘mepand ta hrg ies, sexual assuls, domestic violence.” 7. The Grievant's disciptinary recor consists of the following actions (4) November 3, 2013 - issued written counseling; OM 501.10 (A) Use of Foree; Report Responsibilities. (@) January 3, 2014 ~ issued a writen reprimand; GM $01.10 (A} Use of | Fores; Report Responsibilities, (9) January 27, 2017 ~ issued a written counseling; GM 410.16 (A) Body ‘Wom Cameras; Use of BWC OF Day, () luly 27, 2017 ~ issued a writen reprimand; RAR 4.04 ~ Reporting for Duy (5) October 2, 2018 — isued witten counseling; R&R 3.04 ~ Responsiilty tw Serve the Publi, (6 January 7, 2019 ~ issued Indefinite Suspension; RR 3.04 (C) esponsibility to Serve the Public; Conduct and Behavior, RAR 3.26 — “Treatment of Prisoners; Physical force 8. His immedias supervisor atthe time ofthis incident testified that; 1) the Appellant was an oustanding officer, the Appellant has a stellar reputation among his pers; ©) pact of what happened that day was “bantering” between the Appellant and ctizen Robinson ‘which often occurs during these type of interactions, ‘) nevertieless, some ofthe dislogue went too far that days, «) he beleves thatthe Grievant could return to work and be successful ‘he doss not disagree that some discipline is appropriate 9, The chaplain forthe SAPD testified 8) he hasknown the Grievant for atleast 10 years; ‘be thinks the Grievant is fine officer ©) be has never known the Grievant to use racial slurs towards another person but has heard him hhave to speak language thatthe person will understand and sometimes i i profanity; "Ta Mobi Fil Force MF) na unit ened op sete civil umes. I igre come tthe Chy andthe SAPD teligence uni atte kinda vl unre, hey wil se MME uot veo ca anywhere gm 3,40, 40 oF 0 gigs. Wot 33:10 18 Bat ss 2 Voll p.s6st—9 Seo Ex 8, Bates Stump COSADOSS! 85.{be believes thatthe Grievant was pushed into the confrontation and sid somethings he was not very proud of, 10, The Grievant acknowledges what he sui but didnot use the N-word in racist manne, 11. CARB report and vote indicate that while the first allegation was unanimously sustained, but it took ‘so votes to reach a majority recommendation for an indefinite suspension, 12, Asto the charge of violation of Rule 3.26 vas basicaly inconclusive, 13. Tere was evidence that two other police officers in two other incidents used the word “faggot” ‘owards civilians and neither wa Fired one was issued a threeday suspension and the other was issued 45-day suspension later a reduced to 27 day agreed to suspension. 14, The Grievant asserts the evidence has clearly shown the City and Chief McManus filed to take into consideration his good work history and fled to follow the theory of progressive discipline; the City fled to meet its burden of proof required to support an indefinite suspension; the termination of the Grievant is unfounded and arbitcary and capricious; and, there is no foundation on which the City may rely, withthe testimony and evidence as presented at this hearing, to uphold the termination of the Grievant. 15. WHEREFORE, PREMISES CONSIDERED, the Grievant requests that this Honorable Arbitrator GRANT his appeal and, in ll respects, reinstate him to his job with the San Antonio Police Department; Assign him to his previous positon in the SAPD prior o termination; the records ofthe Grievant shall show no breakin service a a peace officer with the San Antoni Police Department; award itm ll back ‘ay, vacation time, sick time and all other attendant benefits and emoluments of his postion as a Patrolman that he would have enjoyed had he not been temninated, including health benefits; order the City to remove from his personnel files with the City of San Antonio and the San Antonio Police Department, including files inthe Intemal Afurs Division LAD), all documents relating in any manner to the incident giving ise to the arbitration concerning the Grievant; the City should be ordered to submit the required documentation to TCOLE showing Officer Gaia has had continuous service from January 7, 2019 with no break in service and all other relief, at law or equity, which Appellant has shown tobe justly entitled 16. If the Honorable Arbivator determines that there were violations of Civil Service Rules andlor Departmental Policy, ad that discipline is warranted, the Grievant sill maintains the City filed t show bby # preponderance ofthe evidence that he was deserving ofan indefinite suspension and therefore theGrievant requests thatthe indefinite suspension be overtumed and in leu ofthe indefinite suspension ‘and a more reasonable and fair discipline be issued based on the facts as presented in this hering. DISCUSSION AND DECISION (Some of the evidence and some ofthe arguments made may nat be discussed herein where itis not necessary tothe disposition ofthe case.) ‘The issues in the case ctor those found in most disciplinary cases involving police officers — 4id the officer commit the offenses for which he or she was charged? And, if so, was the discipline imposed approprite under ll he circumstances? Let me quickly addres the first ofthese. Based upon the Body Cam videos introduced into evidence (Joint Exhibits #11 and #12), I find credible and convincing evidence that the Appellant Violated SAPD Rules 3.04 and 3.26. His actions and words in public while interacting with citizen Robinson atthe River City Mall on July 14, 2018 were such as to bring to bring reproach and disredit "upon the Appellant as well a the SAPD (Rule 3.04 violation). I simply do not see any other conclusion ‘that can be drawn from an observation ofthese videos. ‘The Appellan’s contrued verbal barrage while detaining and subsequently aresting citizen Robinson constituted verbal abuse which isa violation of Rule 326, Once again thet isa reasonable conclusion to be drawn from the videos. The actual suspension letter quotes Rule 326 accurately when it states that prisoners “...shall not be subjected to verbal abuse” and the factual basis forthe discipline indicates thatthe Appellant engaged in “unnecessary, unwarranted profane and racially charged verbal exchange” which [find tantamount to “verbal abuse.” ‘As a result of violating these two rules, the Grievant violated Subsection C of Rule XII of the City of Sen Antonio Fite Fighters’ and Police Officers’ Civil Service Commission Rule and as result discipline is appropriate ‘What evel of discipine is then is appropritie? ‘This arbitrator has viewed the Body Cam videos ‘again. Whet transpired is beyond the pale of any acceptable dtainment and/or arrest where the detainee ‘of arestee was at best annoying and oecssionally profane, I understand thatthe Appellant did not physically assault him or spit on him or shoot him but what e did and sid as evidenced by the videos is in and of itself wrong, and mo significantly violations of the SAPD rules noted herein. Moreover, it Was not just an excitable utterance or two but a continued barrage of racially charged words apparentlyied to humiliate and desrade citizen Robi typeof behaviors wrong, (On the other hand, donot think there is convincing evidence to conclude that the Appellant i 2 racist. One diatribe does nt automatically denote a racist. Infact, i is just as likely there ae racist in society who are very circumspect about what they say both in public and private but hold views that are nevertheless racist. In the instant ease, there is no evidence that he as ever done this type of thing before or that he might do it again or conclusive proof that he is a racist, However, the bottom line in this case isnot whether the Appellant is «racist, but rather whether his use of racially charged language nd insults inthis ease should result in bis indefinite suspension being upheld on, Everyone involved inthis ease acknowledges that this I have considered the Grievant's past recor, his tenure sith the City his extra activities within the SAPD and his charter witnesses, I have also considered his expression of regret over wht joceured that day. 1 have also considered the other cass cited involving SAPD officers using @ derogatory sexual orientation term who received lesser discipline, albeit indifferent circumstances altogether. Finally, there isthe notion of progressive discipline to consider. (On the other hand, it mast be recognized thet the Appellant has made i dificult for himself to return to duty and bein a position tobe one of the faces of the SAPD ~ and has indeed made it difficult for other SAPD officers who are conscientious and do good work tobe perceived in that way The CARD findingstecommendations cannot be ignored either. These constitute a moment in ‘ime when those police a all levels and civilians in CARB reflected and opined about the Appellant's conduct and the appropri discipline to be administered. Finally, I believe thatthe Chie concems in this mater to be more than just bowing to press pressure. That isnot a fir assessment at all inthis particular case, As the leader ofthe SAPD he isin charge ofthe departments mission and this kind of incident undermines that mission, [find under those «fteumstances his eason fr his imposition of indefinite suspension to be compelling [Atthe end ofthe day however, [find myself coming tothe conclusion tha the Appellant was off that day and said some avful things he should not have sui and is now sorry fr thers, The Appellant ‘was no himself that day end whatever set him off that day needs tobe addressed. Peshaps the chaplain had some insight into the matter in that he believed the Appellant was pushed and goaded by citizen Robinson and ssid a lot of things he should not have said. As a longtime veteran in various police “departments, this should nt have happened to the Appellant. The Appellant should also know he will 10not be given another chance if he crosses this line again and should consider some anger management counseling and lean techniques to control himself My decision herein should not be construed as something coming out of some “church of the second chance.” It comes from the CBA and Chapter 143 ofthe Local Goverament Code, Given the nitgating circumstances noted above, the Appellant's past record, his tenure withthe department, his record with the department, his regret over the incident and othe similar incidents (athough not four Square on all points) where lesser punishment was given, I find that there was no “jst cause” for an indefinite suspension ofthe Appelant However, there is “just cause” for alesse suspension, albeit a severe suspension. [find that the =spproprate suspension is a ten (10) month suspension (January 7 through November 7, 2018) AWARD, ‘Upon thes cts and for these reasons, find thatthe Appellant violated the Civil Service Rules; however, the entire record does not support the imposition ofan indefinite suspension but one less than indefinite. Therefore, the indefinite suspension should be overtumed and in liew of the indefinite suspension a ten (10) month suspension be issued i its place and the Appellant retumed to work atthe ‘nd of sid suspension, No otber remedy is awarded November 2019 FE LA ‘Thomas A. Cipolla, Arbitrator. AY hou hie 4 Wis Gen pons oa n