AMERICAN ARBITRATION ASSOCIAITON

In the Matter of the Arbitration Between AAA Case No:

TOWN OF TISBURY 1139-0314-12 Date Issued:

and February 24, 2013

TISBURY POLICE ASSOCIATION, COALITION OF POLICE, LOCAL 419, AFL-CIO

___________________________________________________________________________________Gr: Officer Scott Ogden

Arbitrator: Sharon Henderson Ellis, Esq.

Appearances:Brian M. Maser, Esq. For the TownJohn M. Becker, Esq. For the

Union

ARBITRATOR’S DECISION AND AWARD

Pursuant to the terms of the collective bargaining

agreement between the Town of Tisbury and the Tisbury

Police Association, an arbitration hearing in the above matter

was held on November 16, 2012 at the Tisbury Town Hall.

Both parties were provided a full and fair opportunity to call

witnesses and submit evidence. The parties’ written

arguments on the issue were received by the Arbitrator on

or about January 25, 2012.

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The Issue

Was the Grievant suspended for just cause? If not,

what shall be the remedy?

SUMMARY OF THE EVIDENCE

The grievance in this arbitration involves the 5-day

unpaid suspension of Police Officer Scott Ogden, a ten-year

member of the Tisbury police force. The issue is whether

the suspension was for

just cause as required by the collective bargaining

agreement between the Town and the Tisbury Police

Association. The Union takes the position that the discipline

is unwarranted and contrary to the contractual just cause

requirement.

On November 28, 2011, Officer Ogden was notified by

Police Chief Daniel Hanavan that he was receiving a

disciplinary 5-day suspension for failing to follow the

Department’s Domestic Abuse Policy on July 23/24, 2011

when he and Sergeant Robt. Fiske prematurely left the

scene of a domestic assault and battery leaving minor

children alone inside the residence.

Shortly after the July 2011 incident occurred, Chief

Hanavan requested an investigation to be conducted by the

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Boston law firm that represents the Town. The investigatory

report was issued on September 29, 2011 and is referenced

in the Chief’s notice of discipline to Ogden. The notice of

discipline reads,

. . . It is noted that you are aware the department has policies and procedures in place regarding domestic violence which you acknowledge reading and understanding. During your deposition. . . you acknowledged that on some shifts you are the senior officer in charge of the shift.

On July 23, 2011 at 22:41 PM you responded to a disturbance at 194 West Spring Street in the Town of Tisbury with Sergeant Fiske and Officer Gately. The disturbance was determined to be a domestic assault and battery and an alleged sexual assault. You stated you were only aware of the domestic assault and battery. You acknowledged [that] you responded to the house and observed a shirtless male running away from the home wearing shorts. You learned the male was named David who physically assaulted his wife. You searched the wooded area near the house and the power lines for the victim’s husband David Thrift. You returned to the house when the Tisbury ambulance arrived to transport the injured wife Erica Thrift to the hospital at 11:39 PM.

Officer Ogden, you entered the home and locked the doors of the house to limit access into the residence. Sergeant Fiske and you then continued searching the nearby area separately for David Thrift until clearing from the call at 00:28 hours unable to locate David Thrift. A fifteen-year old female nanny was left at the house in charge of the Thrift’s three children ages eight, three and two.

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At Sergeant Fiske’s discipline hearing you stated that you decided to leave the Thrift residence on your own volition and did not receive direction from Sergeant Fiske. You stated you observed Sergeant Fiske leave the Thrift property when you left. Knowing both officers were leaving should have raised a question of who was going to remain on the scene. The [investigatory] report concluded leaving one fifteen year old female teenager with the three children ages . . . in the Thrift home unprotected and alone did not follow department policy.Officer Ogden, you acknowledged you were at the house for a domestic assault and were aware there was a previous restraining order [July 4, 2011] taken out against David Thrift.You had knowledge the abuser David Thrift was unaccounted for when you cleared from the residence. Your behavior showed a considerable lack of judgment.

Whenever any law officer has reason to believe that a family or household member has been abused or is in danger of being abused such officer shall use all means to prevent further abuse. The duties of the police officer in responding to reports

of domestic violence are established in M.G.L. 209-A section 6.

Per Tisbury Department domestic abuse policy an officer shall remain on scene where the abuse has occurred or was (or is) in danger of occurring as long as the officer has reason to believe that at least one of the parties involved would be in immediate

serious physical harm without the presence of a police officer.

Tisbury Department domestic abuse policy notes “Where children are present at a domestic dispute their

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welfare and safety must be a major consideration.” The Tisbury domestic abuse policy notes the police should assist the abused person in locating and getting to a safe place. Including but not limited to a designated meeting

place for a shelter or a family member’s or friends residence or a similar place of safety.

The Tisbury Department domestic abuse policy and procedures number 3.01 were not followed. As a graduate in 2001 of a Massachusetts Criminal Justice Police Academy of approximately

Five and one half months, your training included Domestic Violence issues, guidelines and responsibilities. This very same issue was again covered in March 2003 when you attended a one day class on “Beyond the Basics of Domestic Violence” taught by . . . . This Domestic Violence issue was again covered in your 2010

Police in-service training curriculum from the Municipal Police Institute. Your actions in this regard exhibit serious neglect of duty for an officer with 81/2 years of service and being a Senior Officer in charge of shifts on a regular basis in violation of the Department Manual 4.7. Officer Ogden, your actions bring discredit upon yourself and the Tisbury Police Department in violation of Department Manual 4.16. Any further violation of Department policies will result in further discipline up

to and including termination.

Discipline to be imposed:l. A five day suspension without pay.2. Relieved of Officer in Charge duties until further

notice.3. You are ordered to attend a Domestic Abuse

training class.. . . .

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What the letter of discipline above does not state is

that within a few minutes of Officer Ogden’s and Sgt. Fiske’s

return to the police station, the perpetrator [David Thrift]

returned to the house and raped the fifteen year old female

minor who was alone with the Thrift’s three young

daughters. Ogden and Fiske responded to the 911 call by

returning to 194 West Spring Street. At that time the

perpetrator was arrested.

Officer Ogden made the choice to leave the scene and

return to the station of his own accord. It is also the case

that Officer Ogden saw Sgt. Fiske leave the scene

immediately thereafter. Neither officer went inside to tell

the fifteen year old they were leaving.

The Union, on Officer Ogden’s behalf, asserts that the

discipline is unjustified for the several following reasons.

Principally it takes the position that Ogden did not violate

the policy because on the night in question, he was not the

officer in charge. Sergeant Robert Fiske was the superior

officer and by rank, the officer in charge. Indeed, the Town

terminated Sgt. Fiske’s employment and his discharge was

sustained in a prior arbitration.1 The Union asserts that

since Ogden was not the officer in charge, he had no

1� Award by Arbitrator Boulanger, dated October 12, 2012.

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authority to decide whether continued police presence was

necessary at the scene. The Union asserts that without

authority Officer Ogden could not carry out the policy he

allegedly violated and therefore could not violate it.

In response to the Chief’s testimony that Officer Ogden

“should have [at least] spoken up,” the Union claims that

Ogden, the officer least involved and knowledgeable about

what was occurring inside the residence, was not qualified to

question Sgt. Fiske as to whether it was wrong to leave the

minor occupants alone in the house. It asserts that based

on rank alone, Ogden could not have overruled Sgt. Fiske.

Next, the Union asserts that even if Ogden had a duty

to “speak up”, the failure to do so did not violate the

Domestic Violence Policy requiring an officer to remain on

the scene for “a reasonable period of time” or for as long as

the officer has “reason to believe” that someone would be in

“immediate physical danger” without an officer present.

The Union points out that the domestic abuse policy is

subject to the Department’s paramilitary structure and its

principle of chain of command. It asserts that while Officer

Ogden is bound by the abuse policy he is, fist of all, bound

by the principle of chain of command. The Union concludes,

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By disciplining Officer Ogden, the Town seeks to rewrite this rule to give all the officers on the scene responsibility for ensuring that all decisions comply with the Domestic Violence Policy. Such an interpretation would eviscerate the principle of chain of command and undermine the policies that the principle promotes. Compliance with [such] policies. . [does] not require subordinate offices to constantly second guess their commanders’ decisions. . .

Such a requirement would weaken each and every link in the chain of command and ultimately bring chaos to the Police Department. (Union Brief at p. 17).

RELEVANT CONTRACT LANGUAGE

ARTICLE 2EMPLOYER’S RIGHTS

* * * Section 2. The Employer reserves and retains all powers, authority and prerogatives including, but not necessarily limited to, the right . . . to suspend, demote, discharge or take other disciplinary action against employees for just cause; . . .

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ANALYSIS AND CONCLUSION

The Union makes an undisputed and important point.

The principle of chain of command is central to any police

operation and failing to follow the chain of command could

result in chaos and dysfunction.

Also obvious, however, is the reality that an officer at a

crime scene, even when not serving as the officer in charge,

cannot act mindlessly, suspending all judgment and common

sense simply because he is not the ultimate officer in

command.

In the case at hand, Officer Ogden’s departure from the

scene with no thought whatsoever about the wisdom of

leaving four minors alone while a violent household member

was still unaccounted for is nearly incomprehensible. As

Chief Hanavan remarked in his notice of discipline, in

addition to violating the domestic abuse policy, Ogden’s

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action demonstrated a “considerable lack of judgment” as

well as “neglect of duty.”

The consequences of Officer Ogden’s and Sgt. Fiske’s

leaving the scene were tragic. A fifteen-year old minor was

threatened with a knife and raped in the presence of the

perpetrator’s own eight-year old daughter.

During the 28 minutes that followed Ms. Thrift’s

transportation to the hospital, there is no evidence that

Officer Ogden and Sgt. Fiske had any conversation

whatsoever about the welfare of the children inside the

house. When Officer Ogden left the scene the only reported

conversation between himself and Sgt. Fiske is his comment

that he was being “eaten alive” by mosquitoes and a remark

that David Thrift (shirtless and unshod) could not possibly be

in the vicinity. Neither Ogden nor Fiske mentioned anything

related to the well being and safety of the children inside the

residence.

Officer Ogden was trained in the domestic abuse policy.

The evening in question, he walked through the residence to

lock the door(s) and observed there were four children

inside – one the 15-year old babysitter. Ogden departed

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from the scene despite the clear instruction in the Domestic

Abuse Policy and Procedure that states

1. WELFARE OF CHILDRENa. Where children are present at a domestic

dispute, their welfare and safety must be a major consideration.

In spite of the instruction, the children inside 194 West

Spring Street were the last thing on Officer Ogden’s mind.

There is no evidence the children figured in Officer Ogden’s

consideration whatsoever. The Policy Statement continues,

b. Any evidence of neglect or emotional, physical or sexual abuse of children under eighteen shall be carefully noted. 2. ABUSE OF A CHILD

a. A police officer must take action when, in his/her professional capacity, [s]he has reasonable cause to believe

that a child under eighteen is in any of the following situations:

l) Is suffering serious physical or emotional injury resulting from abuse, including sexual abuse.”

A central argument advanced by the Union on Officer

Ogden’s behalf is that of the three responding officers

(Fiske, Gately and Ogden), he was the “least involved and

knowledgeable” about what was occurring in the house.

That being the case, the Union asserts it is unreasonable to

conclude that Ogden should have “spoken up” or that he was

“qualified to question” Sgt. Fiske’s judgment about leaving

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the premises while the children were alone inside the

residence.

Relatively speaking, Officer Ogden probably was the

least knowledgeable about what was occurring inside the

house. Nonetheless, it strains credulity that he and Sgt.

Fiske (good friends) spent most of two hours searching for

David Thrift in the nearby-vicinity and never conversed even

once about the allegation that Thirft’s brutal attack on his

wife was precipitated by Mrs. Thrift finding him hovering

over the 15-year old nanny who was unclothed from the

waist down.2

Officer Ogden himself testified that when the

ambulance arrived to take Mrs. Thrift to the hospital, he

joined Gately and Fiske in the general vicinity of the

ambulance. In fact, while the ambulance was in the

driveway, Officer Ogden walked through the house and

locked the door(s).

Based upon exhibits in this proceeding and testimony

at the Sgt. Fiske’s discharge hearing, Arbitrator Boulanger

concluded that Sgt. Fiske was aware that the 15-year-old

2� At a minimum, Ogden would know that the 8 and 15-year old

when the mother/cousin was brutally assaulted. That by itself could be considered emotional injury.

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babysitter was a possible sexual abuse victim. Arbitrator

Boulanger wrote, “While [Sgt. Fiske] could not know that

David [Thrift] would forcibly rape [the 15 year-old

babysitter] when and if he returned to 194 West Spring

Street, he knew of his violent tendencies and that he had

already sexually assaulted [the sitter] and battered [his

wife] earlier in the evening. . . “ (Award at p. 34).

Additionally, Arbitrator Boulanger made the following

finding: “[Sgt. Fiske] testified that he was also aware that

[the sitter] was a possible sexual assault victim from [Thrift]

herself, and from the Communications Center which

identified a sexual assault call from the Massachusetts State

Police . . . While at 194 West Spring Street, [Sgt. Fiske

became aware that [the sitter] called the Mass. State

Police . . . to report David’s attempted rape of her . . ..

Therefore, while [Sgt. Fiske] was at 194 West Spring Street,

he knew that [the 15-year old] was a possible crime

victim . . . (Award at pp. 14,15)3

Again, it is wholly implausible that Sgt. Fiske never

shared any of the information about the 15-year-old with

Officer Ogden – the only officer also at the scene after the

3� The name of the minor has been redacted.

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ambulance left. Presumably, Officer Ogden heard the same

information from the Massachusetts State Police and

Communications Center, as did Sgt. Fiske. The recording of

the telephone calls was played during the arbitration and

placed in the record as evidence.

In his written report of the July 23, 2011 incident,

Officer Gately wrote, “Erika [Thrift] told me she thought she

saw her husband David Thrift having oral sex with [the

sitter]. I met with Sgt. Fiske and Officer Ogden who were

searching the area for David Thrift. I told Sgt. Fiske that

there is an allegation that David Thrift had possibly

committed an indecent sexual assault on a minor.” (Gately

Incident Report at p. 2)

At the arbitration, Officer Gately was asked about his

incident report. He testified that he told Sgt. Fiske there

was an allegation that Thrift had possibly committed sexual

assault on a minor. When questioned further, he responded,

“I was directing my comments to Sgt. Fiske. Ogden was

standing in the area. That’s probably what I meant. . . No,

I have no recollection of where Ogden was exactly – that

was over a year ago.” At that point, Gately stated regarding

Ogden’s proximity to Fiske at the time, I don’t know in

meters or rods, [he was] “in the area.”

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Officer Gately’s statement that he “met” with Sgt. Fiske

and Officer Ogden, followed by a description of what he told

Sgt. Fiske, suggests that Ogden would have overheard the

statement or, if not, would have naturally followed up by

asking Fiske what Gately had told him.

Officer Ogden’s own testimony did nothing to dispel

the Chief’s stated concern that he demonstrated a lack of

judgment and failed to demonstrate that he applied or even

understood the Department’s domestic abuse policy. After

Sgt. Fiske’s discharge and the aftermath of everything that

resulted from the July 23 occurrence, Officer Ogden

demonstrated no remorse nor did he acknowledge that he

comprehends that the officers’ premature departure from

the scene was a serious error.

When Counsel for the Town asked Officer Ogden if he

acknowledged that when children were present during a

domestic abuse situation it was a more “delicate” situation,

he disagreed. He responded, “They’re all domestics and

they’re all different.”

When asked whether it was a possibility that David Thrift

could return to the residence after he and Sgt. Fiske

departed, he retorted, “Yes, if we’re talking ‘possibilities.”

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He stated that it was also “possible” that Thrift “stole a

plane” and had left the island.

In summary, considering the evidence as a whole, Chief

Hanavan’s issuance of a five-day unpaid suspension to

Officer Ogden is amply supported by just cause. Officer

Ogden did not conform his actions that evening to the

instructions in the Domestic Abuse Policy. He did nothing to

demonstrate that the children at the scene of the domestic

assault and battery were on his mind and, they were

definitely not “a major consideration.” As stated by Chief

Hanavan in his notice of discipline, in addition to not

following policy, Officer Ogden demonstrated a substantial

lack of judgment and was guilty of neglect of duty.

AWARD

For the above stated reasons the grievance is denied.

The record supports a conclusion that there was just cause

for the 5-day suspension issued to the Grievant in November

2011.

Date: February 24, 2013 ________________________________________________

Sharon Henderson EllisArbitrator

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AMERICAN ARBITRATION ASSOCIATION This bill is submitted on behalf of the arbitrator

Arbitrator Sharon Henderson Ellis Case No: 1139-0314-12 Gr. Scott Ogden/Suspension

Address 36 Salisbury Road Brookline, MA 02445-2105

________________________________________________________________

UNION TISBURY POLICE ASSOCIATION

EMPLOYER TOWN OF TISBURY

________________________________________________________________

1 Day of Hearing @ $1300 per diem . . . . . . . . . . . . . . . . . . . . . . . . $1300.00(11/16/13)

2 Days of writing @ $1300 per diem . . . . . . . . . . . . . . . . . . . . . . . . . $2600.00

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½ Day of Travel Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $650.00

FEE TOTAL $4550.00

ARBITRATOR’S EXPENSES$104 Transportation $16 Ferry fare; $88 (160 miles @ .55) $170 Hotel Meals Parking Expenses: $274.00

TOTAL $4824.00

Payable by Employer: $2412.00Payable by Union: $2412.00

Date: February 25, 2013 Signature_______________________________ Social Security No: 533-40-2968

PLEASE MAKE PAYMENT DIRECTLY TO ARBITRATOR

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