Arbitrator rules against Bainbridge in suspension of police officer
By BRIAN KELLY
Bainbridge Island Review Editor
February 18, 2013 · 2:10 PM
The city of Bainbridge Island was wrong to suspend a police officer who was accused of stalking a councilwoman, an arbitrator called in to settle the long-simmering dispute has ruled.
Janet L. Gaunt issued her arbitration opinion Feb. 14 on the city's discipline of Bainbridge Police Officer Scott Weiss.
Gaunt said city officials did not have "just cause" to suspend Weiss for 160 hours, and said the city should pay Weiss any lost wages or benefits that stemmed from the suspension.
Weiss, the former president of Bainbridge Island's police union and a full-time officer for the city since 1991, had been criticized for following Kim Brackett after the councilwoman left a special budget meeting in October 2010 and went to another council member's home for tea.
Weiss was on duty at the time of the incident, and he later posted online comments using another name on newspaper websites about Brackett meeting with then-councilman Bill Knobloch after the council session.
Brackett told others that she was alarmed someone had followed her after the meeting, and she later asked for an investigation.
Weiss was investigated by the Washington State Patrol for "intimidating a public servant" and "stalking," and the investigation found that Weiss had not committed any crimes.
After a second administrative investigation by the State Patrol, Jon Felhman, the police chief for Bainbridge Island at the time, said Weiss had violated police department rules and its general orders manual.
Weiss was put on administrative leave and was told he was facing discipline for surveilling a city council member for personal reasons while on duty.
At his disciplinary hearing, Weiss said he never had Brackett under surveillance, but had driven down Knobloch's street within an hour of the close of the council meeting while on a routine patrol. He also admitted writing an online post the next day that said Brackett "went straight to 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."
Weiss agreed to apologize to Brackett over the incident — he later gave her a written apology — and the city decided to suspend him without pay for 160 hours.
Weiss filed a grievance against his discipline on Nov. 11, 2011, and said his discipline violated the police union's contract with the city, which requires "just cause," a measure of reasonableness.
In its challenge to Weiss' discipline, the union said the city had not proven Weiss was guilty of any misconduct, and said the evidence showed that he went to the police department after the city council meeting, and did not follow Brackett from city hall to the Knobloch's home after the meeting.
The union also said that Weiss' apology was not an admission that the allegations were true, and claimed the punishment was excessive because of Weiss' history as the president of the police guild.
City officials, however, said the timing suggested that Weiss had followed Brackett to Knobloch's home right after the council meeting ended at 8:38 p.m. and before the officer responded to an alarm call at 8:57 p.m., and noted that Brackett left Knobloch's home by 9:10 p.m. or so to catch a ferry to Seattle.
Officials also pointed out that Knobloch lives at the end of a long, dead-end cul-de-sac, and that Weiss had never given a coherent reason for driving there.
Weiss later said he patrolled the area because of a nearby halfway house that generated many calls to the police department, but city officials said Weiss had never offered that explanation during two meetings with the city manager over the incident or in an interview with the State Patrol.
Bainbridge officials also said the Weiss could have been fired over the incident, but his suspension was appropriate because the alleged misconduct was aimed at a city council member and occurred amid an environment of heightened distrust of island police by some on the council.
In her decision, Gaunt said the city had not convincingly proven that Weiss was guilty of misconduct.
"The city did not prove the alleged misconduct by even a preponderance of the evidence," Gaunt wrote.
She also said Weiss' credibility was key in her decision, and that the city had not shown that Weiss had "surveilled" a council member.
"If that allegation had been sufficiently proven, then I would agree with the city that the misconduct constituted a serious
abuse of authority directed at the highest level of city government," Gaunt said. "It would have thus merited significant disciplinary action. Such behavior would clearly violate various city policies cited in the Notice of Discipline. However, Officer Weiss has consistently denied that he had Council Member Brackett under surveillance or
followed her to Council Member Knobloch’s house after the city council meeting."
"The credibility of that denial is the critical issue in this case," Gaunt said.
The arbitrator said the city's case against Weiss centered on an internet posting he made the day after the council meeting. Weiss had blogged about Brackett being at Knobloch's home under the name Hunter, a name Weiss said he used because of his favorite writer, Hunter S. Thompson.
"The wording of the [Weiss'] blog understandably gave Council Member Brackett reason to fear that she had been followed. I can readily understand her reaction, and City Manager [Brenda] Bauer’s concern that there had been an abuse of police authority," Gaunt wrote.
"However, the evidence presented to this arbitrator provides far more reason to credit Officer Weiss’ denial that he followed Brackett than to credit the city’s contention that he deliberately surveilled Brackett after the meeting," she said.
Gaunt said Brackett had pulled out of the parking lot at city hall just before Weiss, and that while Brackett had seen Weiss following behind her, she no longer saw him after she passed the police station.
That fit with Weiss' explanation, Gaunt said, that he stopped at the police department to check his inbox.
"The city never offered any evidence to refute that assertion," Gaunt said.
She also said the city "failed to provide a convincing reason why Officer Weiss had any motivation to follow Council Member Brackett from city hall."
Gaunt also found problems with Brackett's memory of the incident, and wondered why her recollection of the night was better two years after the incident than it was when she was interviewed earlier.
"Even then, in April 2011, Brackett acknowledged her memory of the evening was not very good. She could not recall the council meeting date or much of what had been discussed at the council meeting," Gaunt said.
The arbitrator said she had "no confidence" in Brackett's revised timeline, and added, "the city failed to convincingly prove that Officer Weiss could have seen Ms. Brackett’s car at Knobloch’s house only if he had followed her there directly after the city council meeting."
The arbitration hearing was held on Bainbridge on Nov. 5, and the witness list included Bracket, Weiss, former city manager Bauer, and two members of the Washington State Patrol who had been involved in investigating the claims against Weiss.
Gaunt, the arbitrator, said in her decision that she found Weiss to be a "very convincing witness."
While Weiss has a right to comment on city business and council member votes, Gaunt said, she also noted that his "objectionable blog" was posted "at a time of heightened tension and controversy regarding police officer actions."
"Because of how Officer Weiss worded his blog posting on Oct. 13, 2010, I can understand the city’s suspicion that City Council Member Brackett had been followed after the council meeting.
"Reason for suspicion does not satisfy the city’s burden of proof," Gaunt concluded.
Gaunt also noted the city did not have specific workplace rules on social media postings, but that was not an issue in her decision because the city had not used Weiss' blog post as a reason for discipline.
"I agree with the city that this case is not about Officer Weiss's right to speak out as a private citizen on local politics. It's about abusing police authority to trail an elected official in order to gossip, embarrass and potentially
"That is the behavior the city alleged but failed to sufficiently prove, so it lacked just cause for [Weiss’] suspension," Gaunt concluded.
Contact Bainbridge Island Review Editor Brian Kelly at firstname.lastname@example.org or 1-206-842-6613.