RJA Attorney Andrew Gambaccini recently secured an arbitrator’s reversal of a three day suspension that was imposed upon a New Bedford police officer based upon an allegation that the officer improperly failed to document the disposal of an arrestee’s property.

By way of background, the officer had arrested an individual for various offenses, including the possession of a knife of illegal length. After the arrest, the officer transported the arrestee to the police station for booking. In New Bedford, once an individual has completed the booking procedure, that person is not held at the police station but instead is transported to the Ash Street Jail. Items of personal property belonging to the arrestee accompany the arrestee to the Ash Street Jail in a clear plastic property bag that has attached to it an inventory form listing the items within the bag. The Jail, however, does not accept all personal property items and, for example, will not accept perishable food items or any item that could be used as a weapon.

In this case, when the individual was arrested he had a number of items in his possession, including money, pepper spray as well as bread and fish in a grocery bag. According to the Jail’s intake rules, the pepper spray and food items could not accompany the arrestee to the Jail. Knowing that the items could not go to the Ash Street Jail, the officer asked the arrestee whether he wanted the items to be held at the New Bedford Police Department so that the arrestee later could return to pick them up or if the arrestee wanted the items disposed of; the arrestee indicated that the items could be thrown away because he did not want to return for them. The officer threw the items away but made no notation in the arrest report or the prisoner property inventory form that he had done so.

Learning of the disposal of the property later, the City imposed a three day suspension upon the officer. Specifically, the City claimed that there was an order of the Department that required the officer to document the disposal of the arrestee’s property.

The suspension was appealed to an arbitrator. At the hearing, RJA argued that the order at issue contained no such documentation requirement for property items such as pepper spray and groceries. While there was an elaborate procedure set out in the order relating to the handling and documentation of tobacco products, items that also are not accepted at the Jail, because the items in this case were not tobacco products, that portion of the order was inapplicable. RJA further argued that, while the Department was free to create a policy directing officers on this topic, the Department’s existing policy was insufficient and the Department was not permitted to discipline an officer based upon claimed requirements that were not clearly set out and communicated to members of the Department. RJA lastly argued that the Department had delayed acting to discipline the officer for months and, without adequate explanation, a failure to act diligently in taking disciplinary steps violated just cause principles.

The arbitrator agreed with all of RJA’s arguments in her award. She concluded that the order in fact did not cover the type of property at issue in this case and that, while the Department could create a policy to explain what it expected of officers in terms of documenting the disposal of property, the Department had failed to create such a clear and unambiguous policy to date. The arbitrator further determined that it was improper for the Department to have waited months to impose the suspension on the officer. Based upon those determinations, the arbitrator reversed the suspension, awarded the officer his back pay and lost benefits arising out of the wrongful suspension and ordered that the record of discipline be expunged from the officer’s files.