When former Bainbridge Police Chief Jon Fehlman suspended Officer Scott Weiss (who, because of department rotation rules, is now serving as a Detective in the department) for 160 hours, he determined it was to be without pay. That’s because he intended it as a reprimand for Weiss’s alleged on-duty surveillance in 2010 of then-City Councilmember Kim Brackett. But the Police Guild filed a grievance on behalf of Weiss, and now, per arbitration, the City is required to pay Weiss for the days of suspension.
A hearing was held on November 5 at which the attorney for the Guild and the attorney for the City questioned numerous witnesses: Weiss, Brackett, former City Manager Brenda Bauer, Washington State Patrol Detective John Huntington, and Washington State Patrol Lieutenant Tim Coley. At issue was whether Weiss had deliberately followed Brackett in his patrol car on the night of October 12, 2010, or whether he had simply seen Brackett’s car parked later in the evening.
Backstory
Arbitrator Janet Gaunt reviewed Weiss’s blog postings on the Kitsap Sun during the years he served as Guild president. Using a pseudonym, Hunter, Weiss frequently criticized the City and especially Councilmembers Brackett and Bill Knobloch. Gaunt described how at the October 12, 2010, City Council meeting, Brackett and Knobloch presented a motion to reduce the general fund by 10 percent. This motion, which would have negatively affected the BIPD, failed to pass. After the meeting, Brackett and Knobloch drove separately to Knobloch’s home to have tea with Knobloch’s wife.
The next day, as Hunter, Weiss posted a comment on the Sun in which he wrote, “I am told that Kim Brackett went straight to Bill Knobloch’s house after the council meeting no doubt to commiserate and plan the attack to try & sway or undo the council decisions.” When Brackett found out about the comment she became alarmed, believing that someone had followed her after the meeting.
Because Brackett’s husband was hospitalized at the time in Seattle, she was preoccupied and made no further mention of the incident until an emergency drill conducted at City Hall in February of 2011. During the drill, Bauer overheard Brackett saying to others that she did not trust the police. Bauer followed up with an investigation. Brackett did not respond to Bauer’s requests for information until early March, at which time Brackett told Bauer that two other female City Councilmembers had also experienced intimidation. These others did not choose to file formal complaints.
The Washington State Patrol was asked to conduct an investigation into whether Weiss had followed Brackett to Knobloch’s home. Weiss admitted to the blog posting but denied following Brackett. He said he had made the assumption about her going to Knobloch’s house after seeing her car there later in the evening during routine patrol. When the WSP submitted their report to the Prosecuting Attorney’s Office for review, the Prosecuting Attorney concluded no crime had been committed and declined to file criminal charges.
The City then requested the WSP conduct an investigation into whether Weiss had violated the Department’s Code of Conduct or other City policies. Their fact-finding report was submitted to Fehlman who decided that Weiss had violated several Department rules of conduct. On October 24 of 2011, he placed Weiss on administrative leave and gave him notice of potential disciplinary action.
In a subsequent hearing at which Weiss was given the opportunity to present his side of the story, Weiss again denied following Brackett and apologized for the impression given by the blog posting that he had followed her. He offered to apologize directly to Brackett. Bauer sustained the allegations made previously, and she and Fehlman issued a joint statement in which they concluded that Weiss had followed Brackett to Knobloch’s home. They placed him on unpaid suspension for 160 days, from November 9 through December 3.
Weiss immediately filed a grievance. He also sent an apology letter to Brackett. The City denied the grievance, and the Guild invoked arbitration.
Gaunt’s Decision
In her decision, Gaunt determined that the City failed to prove the alleged misconduct. However, she added that, if the City had proven the misconduct, it would be grounds for “significant disciplinary action.” She also wrote that she could “readily understand” Brackett’s reaction to the blog post and the City Manager’s “concern that there had been an abuse of police authority.”
Gaunt believed that Bauer’s final decision about discipline was based partly on her misreading of a WSP report and its conclusion about whether Weiss had had time to follow Brackett before responding to an alarm at the Police Station. She also wrote that the City failed to “provide a convincing reason why Officer Weiss had any motivation to follow” Brackett.
Gaunt examined Weiss’s more than 20-year BIPD career, which she referred to as “exemplary.” She pointed out that he had only received one previous disciplinary action—a verbal warning after a traffic accident near the beginning of his tenure with the Bainbridge Police. He had also been made Officer of the Year in 2008.
Gaunt also supported Weiss’s “right to express his opinions” in blog posts and supported his decision to use a pseudonym as a way to prevent any suggestions that his views represented those of the City. She cited a decision and a memorandum that indicate employers should exercise caution “when basing adverse employment actions on social media postings.”
She agreed that Weiss’s wording was “ill advised” since it created the impression that surveillance had occurred. But she found Weiss’s subsequent apology and promise to avoid such behavior in the future as “an appropriate way to address the behavior.”
She concluded that Weiss should be paid for the 160 days of suspension. In addition, the City now faces legal fees from the hearing ($14,7771) and $3,540, which is half of the arbitrator’s fees (the Guild will pay for the other half.). The City is in the process of calculating the totals.
