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IN ARBITRATION

BEFORE MARK E. BRENNAN, J.D.

CITY OF SPOKANE,

Employer,

and ARBITRATOR’S DECISION AND


CORRECTED AWARD
SPOKANE POLICE GUILD

Union.

(John Gately)

For the Employer:

Thomas W. McLane
Randall Daskin
601 West Riverside Avenue #1500
Spokane, WA 99201-0626

For the Union:

Jeffrey Julius
Erica Shelley Nelson
Vick, Julius, McClure, P.S.
5506 Sixth Avenue South, Suite 201-A
Seattle, WA 98108

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I. INTRODUCTION

This dispute between the City of Spokane (“City”) and Spokane Police Guild (“Union”)

concerns a grievance brought by the Union on behalf of John Gately under the parties’ 2012-2016

collective bargaining agreement (“Agreement”). The parties agreed during the hearing that the

matter was properly before the Arbitrator for decision. The Union contends the City did not have

just cause when it suspended Gately for four weeks and removed him from the Peer Assistance

Team by letter dated February 10, 2017.

At a hearing held in Spokane, Washington on November 20 and 21, 2017, the parties

had full opportunity to present evidence and argument, including the opportunity to cross

examine each other’s witnesses. I reviewed the hearing transcript and the admitted exhibits, along

with notes that I took at the hearing, to analyze the evidence. The representatives electronically

filed post hearing briefs with me on January 8, 2018. With receipt of the briefs, the record was

closed. Having carefully considered the evidence and argument in its entirety, I am now prepared

to render the following Decision and Award.

II. STATEMENT OF THE ISSUE

The parties agreed to the following issue:

Whether the City of Spokane had just cause for the discipline of John Gately? If
not, what is the proper remedy?

The parties also agreed that I should retain jurisdiction over any remedial dispute that might

arise for 60 days following issuance of the Decision and Award.

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III. FACTS

A. Background.

Gately was a sergeant with the City’s Police Department (“Department”). He began

working for the Department on December 16, 1990, as an entry level officer on patrol. He became

a sergeant in January 2014, in special events.

As the special events sergeant Gately was scheduled to work four days per week with

Saturday, Sunday, and Monday off. However, his schedule was fluid and he had permission to

switch days off as his work duties required.

Gately was on the tactical operations squad (“TAC”) squad since 1991, the Peer Assistance

Team (“PAT”) since 1997 and the hostage negotiation team since 2000. The PAT provides

information and support to Department officers who have gone through critical incidents off or on

duty. An officer involved shooting was the most common on-duty critical incident requiring PAT

assistance.

To become a PAT member, officers would express interest to their team commanders and

then go through a vetting process, including meeting with the Department psychologist. An

officer determined to be a good fit becomes a PAT member, only after taking critical incident

stress management training and being certified.

In October 2015, Lieutenant Tracie Meidl was in charge of PAT. Sergeant Dan Waters

was below her in PAT’s chain of command. About ten other officers, a team psychologist and two

Department Chaplains made up PAT.

In the normal course (usually on duty) when a critical incident occurred, the on-duty shift

commander, incident commander or another command level officer activates PAT through a

notification to Radio. Radio in turn calls the PAT sergeant or psychologist. The sergeant then

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calls the PAT Lieutenant and other team members and team members are assigned to the affected

employees.

Discussions between PAT team members and officers receiving PAT assistance are

privileged against disclosure under Washington law. See RCW 5.60.060(6) PAT team members

do not report their interactions with officers to non-PAT Department personnel, including those

above them in the command chain.

Throughout Gately’s employment he received numerous commendations, letters from

citizens and awards. He was disciplined twice with letters in his file in 1994 and 1998.

Gately was active in the Union. He held various elected positions and was President from

2012 at least through the events giving rise to this matter.

Gately had a work issued cell phone that he used for work purposes. He also had a personal

cell phone that he used for personal and Guild calls. His personal cell phone was sometimes used

for PAT related calls.

In October 2015, Frank Straub was Department Chief. He had two Assistant Chiefs below

him in the chain of command, Rick Dobrow, in charge of patrol and Shelby Smith in charge of

investigations. There were about 300 commissioned officers. During the next year there were

various changes in the command structure. By fall 2016, Craig Meidl became Department Chief.

B. Events Leading to Discipline.

1. October 25, 2015

On Sunday October 25, 2015, Assistant Chief Smith learned that a Department officer

(“Alleged Victim” or “AV”) had accused another Department officer (“Alleged Perpetrator” or

“AP”) of digitally raping her at a social function at another officer’s residence on Saturday night.

This was the first time Smith had been involved in one employee alleging criminal assault by

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another employee. 1 Smith learned that AV was at a local hospital undergoing a rape examination

accompanied by Sergeant Mike McNabb, AV’s supervisor, who was communicating with her.

At about 8:30 PM, Smith called Gately on Gately’s personal cell phone. Gately was at

home and off-duty. Smith asked Gately to provide PAT support to AV. Smith explained that AV

had been at a party the evening before and was accusing AP of rape. AV had called Kyle Heuett

who in turn reached out to McNabb.

After some more discussion, during which Smith asked Gately if there was anything else

Gately thought he should be doing, Gately told Smith there was nothing else Smith had to do at

point and that he would talk with McNabb and Heuett to determine if AV wanted PAT support. 2

Gately also said that he would try to contact PAT commander Lieutenant Tracie Meidl. According

to Gately, this was the first time an Assistant Chief had initiated a PAT contact with him.3

Even though Smith asked Gately at the end of their of telephone call if there was anything

else he should be doing, Smith initiated the call for the sole purpose of obtaining PAT assistance

for AV.

According to protocol, Sergeant Dan Waters, second in the chain of command for PAT,

should have been the first PAT member to receive a call. Chaplain Beth Wilson was second and

Lieutenant Tracie Meidl, head of PAT, was third.

1
Smith was a short-term employee with the Department, working under a two-year employment contract that
ended in December 2015. He had worked for the Drug Enforcement Agency for over twenty-five years before working
for the Department. He was not completely conversant with the Department’s policies and procedures.
2
During the criminal proceeding Smith could not “recall” whether he had asked Gately if he should be doing
anything else. Criminal Transcript, p. 76. Considering this non-denial and Gately’s forthright testimony, I credit
Gately.
3
On brief (pp. 6-7), the Guild asserts that Smith did not tell Gately the information was confidential, citing
TR 190:18-192:8. I can find nothing in the cited areas to substantiate that assertion. That section of the transcript
covers other occasions when Gately was told matters were confidential. On the other hand, the City on brief (p. 7)
contends without any record citation “with near certainty” Gately knew a criminal investigation had started.

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This was the first time Gately had been involved in a sexual assault allegation by one officer

against another. He had not received PAT training on how to handle such situations.

Gately phone McNabb. McNabb did not answer, so Gately left a voice mail about reaching

out for PAT support.

While waiting for McNabb to call back, over his personal cell phone Gately called AP.

Gately had known AP for about 15 years as a co-worker. Gately did not have a personal

relationship outside of work with AP.

Gately testified that he contacted AP as the Guild President to warn him not to contact

other witnesses about the alleged rape. About one to one-half years earlier another Guild-

represented employee accused of wrong doing had improperly contacted witnesses.

Since that time, Gately had called two other employees with pending complaints to provide

the same warning. On those occasions, however, a higher-level officer had authorized the contact.

Neither Smith nor any other Department official authorized Gately to call AP.

During his call with AP, Gately told AP that he did not want to know if there had been a

party or what he had done that weekend; that AP should not call anyone until contacted by someone

in an official capacity. AP said that he did not understand, so Gately repeated his warning.

McNabb called Gately back soon after Gately’s call with AP ended. McNabb did not know

if AV wanted PAT assistance. Gately said that he would reach out to Heuett, and not send any

PAT representative to AV until she indicated she wanted assistance. McNabb and Gately agreed

that the situation was going to be messy.

According to Gately, his phone conversation with McNabb was brief. As set forth below,

Chief Meidl wrote in the disciplinary notice that issued to Gately that during this conversation,

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Gately sought to learn details about the underlying sexual assault. From Chief Meidl’s testimony

this apparently was set out in a statement McNabb gave to Spokane Sherriff Deputy Armstrong.

The statement given to Armstrong was not made part of the record in this matter. Nor was

it described with any particularity. In contrast, a memorandum of an interview Detective Drapeau

conducted with McNabb was made part of the record. U-16. It confirms Gately’s testimony that

his conversation with McNabb was very brief and that he did not inappropriately seek out

information about the underlying assault.

After talking with McNabb, Gately called Heuett. Heuett explained that he had first

received a text from AV asking to get together and later had a phone call with her, during which

she related what had occurred at the party and he told her that he would have to report it, which he

did to McNabb. Gately explained that he wanted Heuett to provide PAT support. Heuett was

hesitant. Gately said that he would contact Lieutenant Meidl to assist.

Gately called Lieutenant Meidl and related his calls with Smith, Heuett and McNabb and

asked if she would take over for PAT. Lieutenant Meidl said she was willing to take over but

would wait to hear back if AV wanted assistance from PAT.

Gately then called Guild VP Griffin with whom he shared an office. He told Griffin about

the party and the allegations and that he would be at work on Monday because of the situation

arising out of the party.

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2. October 26, 2015

On October 26, 2015, between 7:00-7:30 AM, Gately went to his office, which he shared

with Griffin. He and Griffin discussed how the Guild was going to assign representatives to the

various actors in the weekend party. Those included AV, AP, and the host of the party. He then

began work on his regular duties.

At 8:00 AM, Internal Affairs Sergeant Staben came into the shared office to speak to a

Guild representative.4 Staben had earlier been told by Captain Olsen about AV’s charge against

AP and that the Spokane Sherriff’s office would handle the investigation.

Olsen directed Staben to go with the County Sheriffs when they served AP with a search

warrant and after service of the warrant place him on administrative leave. Olsen told Staben that

Guild and PAT representatives should go with him when he placed AP on administrative leave. A

Guild representative had regularly gone with a Department representative whenever a Guild

member was put on leave, to support the member and answer any questions he may have.

Before going to the shared office, Staben had talked with Spokane County Deputy

Rosenthal. Rosenthal said that he intended to serve a warrant on AP at about 11:00 AM.

After the 8:00 AM meeting in the shared office, Staben learned the warrant would not be

ready by 11:00 AM. Staben had discussed the situation with Sergeant Paul Carpenter earlier in

the day.

At about 10:30 AM, Carpenter went to the office Gately and Griffen shared. Both were

present. Carpenter explained that he knew about the situation from Staben. Gately told Carpenter,

which Guild officer would be assigned to the officers involved in the situation.

4
Both Griffin and Gately were Guild officers. Staben knew Griffen worked on Monday. He also knew
although Gately was scheduled off on Mondays, that he frequently worked on that day, as well. See Criminal
Transcript, pp. 204-05. J-10

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Staben came to the office around 11:00 AM. Gately told Staben that he was going to go

with Staben as a Guild and PAT representative when the warrant was served on AP. Staben

explained that he had learned the warrant was still not ready for service on AP and that he was

going to lunch. The search warrant was not issued until about 2:30 PM.

Assistant Chief Smith came to the office a short time after Staben left. While Chief Smith

was talking with Gately and Griffin, Public Information Officer Teresa Fuller came into the office

and asked to speak privately with Gately. Fuller and Gately stepped out of the office.

Fuller showed Gately a draft of a press release that the Department intended to issue about

the sexual assault investigation against AP. It was routine, and consistent with past practice, for

Fuller to give the Guild notice that a press release about one of its members was going to issue and

to discuss pre-notification to the member. For some unexplained reason Fuller assumed that AP

already knew about the Sherriff Office’s criminal investigation. Criminal Transcript, p. 301

The release stated that a Spokane Police Sergeant has been placed on administrative leaving

pending the outcome of a criminal investigation involving sexual assault and that the criminal

investigation would be conducted by the Spokane Sherriff’s office. The draft release identified

AP by name.5

Gately told Fuller the release should not be issued. Fuller explained that it was out of her

hands; that she was ordered to issue the release by Captain Olsen and Assistant Chief Smith.

Fuller and Gately discussed who should call AP to inform AP about the release. Gately

agreed to do so as Guild president because he had done so in the past, and Gately had had to answer

questions that he did not think Fuller would have been capable to answer. Fuller left.

5
The actual press release that issued did not identify AP by name. Gately did not learn of this until after it
was issued later in the afternoon.

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Gately went back into the office and questioned Smith about the need for the press release.

Smith stated that it was out of his hands.

Gately understood the press release was going to issue very soon. Gately did not believe

the contents of the press release were supposed to remain confidential because those contents were

going to be released within the Department and to the general public. Gately had been involved

with 10 to 15 earlier press releases about Guild-represented employees. On those occasions either

Gately or another Guild officer contacted the affected employee and read them the press release.

On those earlier occasions, the press release had either just been released or was just about

to be released. A search warrant was not involved in any of those earlier occasions.

Gately left the building and called AP. Gately testified that he did so as a Guild

representative and to ensure that AP would know about the release before it issued so that he would

have time to discuss the release’s contents with his family before it became public.

Gately read AP the draft press release. The draft release read pertinently as follows:

A Spokane Police Sergeant has been placed on administrative leave pending the
outcome of a criminal investigation. The incident happened in Spokane County
and is being investigated by the Spokane County Sherriff’s Office.

Spokane Police Sergeant Gordon Ennis has been placed on paid administrative
leave pending the outcome of a criminal investigation involving sexual assault. The
incident happened in the early hours of Sunday morning, Oct. 25 th, 2015 in Spokane
County. An Internal Affairs Investigation will proceed after the conclusion of the
criminal investigation.

AP asked what it meant. Gately explained that Department and Guild representatives

would be coming to AP’s house to place him on administrative leave. AP asked if they could meet

at another location. Gately answered that the County had chosen the location. Criminal Transcript

pp. 336-38

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AP asked if he needed an attorney. Gately said that he could not give AP advice. Gately

read the draft press release again. AP asked what the County wanted. Gately responded, “probably

DNA.” AP was an evidence technician, so it is beyond dispute that he understood a search warrant

would be issued to collect DNA from him. Gately and AP then discussed work related matters

about upcoming TAC training AP was scheduled to provide. 6

Immediately following Gately’s and AP’s phone call, AP sought to obtain legal

representation as shown by calls and text messages on his cell phone records.

Shortly after noon, Gately received a call from attorney Rob Cossey. Cossey told Gately

that he represented AP, and asked Gately what was Gately’s role and who was in charge of the

investigation against AP. Gately replied that he was acting as a Guild representative and that

Sergeant Rosenthal from the Sherriff’s office was in charge of the investigation, which he had

earlier heard from Staben. Cossey asked for Rosenthal’s phone number, which Gately gave to

him.

On brief, the City asserts that in a “grossly inappropriate telephone call” and ‘[i]n a

complete abdication of his role as a police officer” Gately called Cassey to tell him that AP would

be calling Cassey for help with his defense of the sexual harassment charge. City Post Hearing

Brief, p. 2 The evidence for this assertion is contained in an additional report, dated April 14,

2016, from Spokane Sherriff Detective Michael Drapeau. U-16.

The additional report includes a memorandum of an interview Detectives Drapeau and Bull

had with Cossey and Cossey’s investigator. Cossey acknowledged receiving a call from another

defense attorney and then talking with AP. According to the memorandum, Cossey then states

that he received a call from Gately.

6
The description of what was said comes from the Criminal Transcript and the Hearing Transcript.

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Cossey was not called as witness. Neither were Drapeau nor Bull. Nor was any recording

of the conversation made part of the record. In contrast, Gately testified in a straight forward

manner that Cossey called him on his personal cell phone. Tr. 243 The City reviewed the cell

phone records as part of its investigation. Those records show who initiated each call. Indeed, in

the criminal hearing Sergeant McNabb testified, while reviewing Gately’s phone records, that

Cossey had initiated the call to Gately. Criminal Transcript, pp. 135-6. For these reasons, I

specifically find that Cossey called Gately. Gately did not make a grossly inappropriate call to

Cossey.

Staben came to Gately’s office shortly after Gately’s telephone call from attorney Cossey

ended. Staben told Gately plans had changed; AP had an attorney and the warrant would be served

on AP at the attorney’s office.

Staben said he did not understand how AP knew he was being investigated. Gately

acknowledged that he had told AP. Staben correctly surmised that the Sherriff’s office would not

be happy that AP had learned he was under investigation.

When the search warrant was served upon AP, the Sherriff’s office concluded that AP had

cut his finger nails to eradicate any DNA evidence that might be under his nails. The search

warrant authorized the collection of finger nail clippings. Because AP’s nails were cut so short,

clippings could not be collected without injuring AP.

AP’s nails were cut shorter than required by the City Policy 1044. U-18. That policy

required fingernails to be “trimmed so that no point of the nail extends beyond the tip of the finger.”

Id.

After the search warrant was served in AP’s attorney’s office, Staben served AP with a

notice of administrative leave. Gately was with Staben as a Guild representative.

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3. Criminal Investigation and Trial

Gately was subsequently subjected to a criminal investigation by the Sherriff’s office over

his phone calls to AP. On November 12, 2015, the Department put him on administrative leave

pending an internal affairs investigation.

On December 2, 2015, Spokane County charged Gately with felony rendering criminal

assistance and misdemeanor obstructing justice. On December 9, 2015, the Department placed

Gately on layoff status, pending disposition of the felony charge. Spokane County later added an

additional felony charge of rendering criminal assistance by destruction of evidence.

On April 11, 2016, felony charges against Gately were dismissed, but he was still subject

to a misdemeanor charge of obstructing. On April 13, 2016, the Department reinstated Gately to

paid administrative leave with back pay and notified him that after the misdemeanor charges were

determined the internal investigation would resume.

Gately went to trial on the misdemeanor charge between May 9 and 16, 2016. The trial

resulted in a hung jury, eight jurors in favor of not guilty and four in favor of guilty. Spokane

County elected not to retry Gately.

4. Department’s internal investigation and decision to discipline

On May 21, 2016, the Department resumed its internal investigation against Gately. Gately

was charged with violating the Department’s Code of Ethics. Those provide pertinently as follows

(J-2):

CANON NINE

Members of the Spokane Police Department shall observe the confidentiality of


information available to them through any source, as it relates to law enforcement.

ETHICAL STANDARDS

***

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Standard 9.5:

Members of the Spokane Police Department shall treat as confidential all matters
relating to investigations, internal affairs and personnel.

On November 30, 2016, an Administrative Review Panel (“ARP”) dismissed the internal

investigation complaint against Gately as not sustained. The ARP was composed of two Captains

and three Lieutenants. Chief Meidl was neither on the ARP nor involved in its investigation and

not-sustained decision.

Although the ARP concluded that Gately should not have contacted AP on October 25,

2015, it concluded that Gately did not act with malicious intent in doing so; that he simply acted

with poor judgment caused, in part, by his conflicting roles as a PAT member and Guild

representative. Similarly, it concluded that during the October 26, 2015, telephone call Gately

had with AP, Gately did not intentionally and maliciously relay information to AP about the search

warrant and collection of evidence.

The ARP concluded that Gately did not violate Spokane Police Department Policies

340.3.5(c) and (w) or 340.3.7(a) because Gately did not intentionally release designated

confidential information. Those policies read as follows (U-14):

340.3.5 PERFORMANCE

The following actions are misconduct:

(c) Unauthorized access and/or intentional release of designated confidential


information, personnel file materials, data, forms or reports.

***

(w) Violating any felony statute or any misdemeanor statute where such
violation that may materially affect the employees’ ability to perform official duties
or may be indicative of unfitness for his/her position.

340.3.7 SECURITY

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The following actions are misconduct:

(a) Unauthorized access and/or intentional release of designated confidential


information, materials, data, forms or reports.

On December 27, 2016, Chief Craig Meidl issued a Loudermill Hearing Notice7 to Gately.8

Chief Meidl put Gately on notice that he was considering discipline based upon Gately divulging

to AP “information that [Gately] reasonably should have known was told to [him] in confidence.”

J-9

Following the Loudermill hearing, held on January 26, 2017, Chief Meidl issued Gately a

Case Finding Notice, dated February 10, 2017. Chief Meidl, with approval of the City

Administrator on February 20, 2017, suspended Gately for four weeks and removed him from the

PAT team for violation of Department Policy Standard 9.5. 9 J-3 Chief Meidl testified that he

reviewed the entire investigative file, which included the transcript from the criminal trial, and

thought about what action to take for several weeks before deciding to suspend Gately for four

weeks

Chief Meidl reasoned that Gately became aware of confidential information – namely, that

the Spokane County Sherriff was investigating AP for rape – on October 25, 2015 and was

instructed by Assistant Chief Smith to contact only AV as a PAT representative that night. Instead,

Gately contacted AP. According to Meidl, Gately’s claim that he contacted AP on October 25,

2015, in his Guild President’s role, does not withstand scrutiny because the Guild has no role in

criminal investigations; it is only involved in internal investigations, which do not commence until

7
Loudermill refers to Cleveland Board of Education v. Loudermill, 470 US 532 (1985).
8
Chief Craig Meidl and Lieutenant Tracie Meidl are husband and wife.
9
The removal from the PAT team does not appear to result in any reduction in pay or other economic injury.

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after the criminal investigation ends, and the PAT assistance to AV was the sole topic of the

conversation with Smith. Id.

Chief Meidl reasoned further that Gately had to understand his disclosure to AP on October

26, 2015, that the Spokane County Sherriff was investigating him and that it probably wanted AP’s

DNA, had, in fact, informed AP that the Sherriff was going to issue a search warrant against AP.

Chief Meidl noted that even Gately’s criminal defense attorney agreed that Gately should not have

told AP that the Sherriff wanted his DNA. Id.

Chief Meidl also determined that Gately had acted grossly inappropriately during a follow-

up conversation with Sergeant McNabb on October 25, 2015. Chief Meidl determined that Gately

asked McNabb for details about the underlying sexual assault allegations, something he had no

need to know. Id.

Chief Meidl determined that a four-week suspension, rather than termination, was

appropriate based upon the seriousness of the misconduct, the embarrassment and discredit to the

Department and that admittedly others in the Department bear some culpability by sharing

information with Gately at the outset and involving Gately in a discussion about the press release. 10

Id.

During his testimony, Chief Meidl acknowledged that Assistant Chief Smith did not tell

Gately that a criminal investigation had been initiated against AP, although one had, and that

Gately’s call to AP that night might have only been about an internal investigation. Chief Meidl

10
In part, to support its contention that Gately’s conduct impacted the Department’s standing in the community,
the City attached a newspaper article that ran in the SPOKEMAN-REVIEW on January 14, 2016. At the end of day
two of the hearing, I stated that the evidentiary portion of the hearing had closed. I consider this newspaper article to
be evidentiary material that had to have been submitted during the hearing, to allow parties to object or present contrary
or limiting rebuttal evidence. I, therefore, have not considered this article in making my decision.

CITY OF SPOKANE/SPOKANE POLICE GUILD (John Gately) - 16


also acknowledged that Gately did not learn about the criminal investigation until the morning of

October 26, 2015.

Chief Meidl was not clear about the status of the press release when PIO Fuller and Gately

discussed its release and notification to AP beforehand. He did know that Gately called AP, but

did not know that Gately read the press release drafted by Fuller. Chief Meidl thought Gately told

AP that the Sherriff’s office wanted to contact AP at AP’s home, and in response to a question

from AP asking what the Sherriff wanted Gately said probably your DNA.

The Guild challenged the discipline through the Agreement’s grievance procedure. The

parties could not resolve the matter and it was submitted to arbitration.

IV. PERTINENT CONTRACT PROVISIONS.

ARTICLE 24 – DISCIPLINE

Section B – Forms of Discipline

. . . The City will continue to administer disciplinary actions in accordance with the “Just Cause”
concept. Disciplinary actions may include, but are not limited to, the following actions: oral
reprimand, written reprimand, denial of promotion, demotion, suspension, and discharge for just
cause.

V. PARTIES’ POSITIONS

A. The City.

The City is entitled to hold Gately to a high standard of conduct as a police officer. That

Gately chose to engage in wrongful conduct is obvious. While there is no rule that states the Guild

President cannot contact a suspect in a serious felony investigation, two countervailing facts are

true. The Department has a rule about the confidentiality of investigations in its Code of Ethics.

Nothing excludes Guild representatives from the same rules, canons and ethics that apply to all

commissioned officers.

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Police officers are held to a higher standard of conduct than the public. Under that standard

and the Agreement there is no basis to require the City to prove Gately acted with malicious intent.

The ARP was simply wrong to apply that standard. It also did not apply the correct portion of the

Code of Ethics to judge Gately’s actions. Police Officers must act in a manner that does not bring

disrespect upon their department. Arbitrators should not substitute their judgment for that of

management as to the appropriate discipline imposed unless the arbitrator can find that the

discipline imposed was arbitrary, capricious, discriminatory, or contrary to the terms of the labor

contract.

Gately has offered, and has, no excuse for deciding to tell a rape suspect hours before a

warrant was to be executed that the Sherriff’s Office would probably want to collect his DNA.

There are no exceptions or exemptions to Standard 9.5’s requirement that “[m]embers . . .shall

treat as confidential all matters relating to investigations, internal affairs, and personnel.” This

section is critical to the integrity of investigations and to maintain the Department’s integrity in

the public’s eyes. As Chief Meidl testified Gately told an accused rapist that the Sherriff’s office

was coming, and they had a warrant for DNA – albeit not in those precise words but with sufficient

clarity that the suspect understood – and that was egregious misconduct. This resulted in the

immediate and substantial loss in trust by the Sherriff’s office with the Department.

Gately exploited confidential information shared with him in his role as PAT team member

to act as a union advocate in repeatedly warning or advising the rape suspect. The investigation

in this matter was no different from a normal criminal investigation, except for the occupations of

the victim and accuser. Gately used confidential information gained as a PAT team member to act

as a Guild advocate to warn the suspect.

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Gately went to work on Monday, his day off, to insert himself into the criminal

investigation, used a pending press release as cover to contact the rape suspect before the warrant

was issued and facilitated the rape suspect obtaining legal counsel. Gately showed up on Monday

to assume his role as Guild president, in part, to assign Guild representatives to various actors.

However, the Guild has no role in criminal investigations. Moreover, Gately was involved in this

matter through his PAT team role. There is no reason that his role changed from that to Guild

representative and that negated his obligation to maintain confidentiality. That Gately switched

hats from PAT team member to Guild representative without telling anyone shows significant

deception on his part.

Gately’s refusal to accept any responsibility or admit errors in judgment further justifies

the imposition of corrective discipline in the form of a 30-day suspension.

Any lack of training defense the Union might raise is meritless. The Guild would be wrong

to argue that Gately was faced with such an unusual circumstance when one commissioned officer

was being investigated for alleged criminal activity against another officer that his conduct was

permissible. It is simply wrong to claim that accused officers should be afforded different

treatment during criminal investigations.

B. The Union.

The City did not have just cause for the discipline it imposed on Gately. The City should

be required to show beyond a reasonable doubt or by clear and convincing evidence that it had just

cause to discipline Gately because the City is charging Gately with conduct that constitutes a crime

or stigmatizing behavior and it has imposed severe discipline.

The City bears the burden to prove Gately engaged in misconduct. It must show that Gately

engaged in all the charged allegations. Under any evidentiary standard the City did not prove that

CITY OF SPOKANE/SPOKANE POLICE GUILD (John Gately) - 19


Gately violated Ethics Canon 9.5. The City did not prove that Gately divulged any confidential

information to AP. Instead, the evidence proves that Gately did nothing more than act as a Guild

officer consistent with accepted practice.

Gately did not disclose confidential information. Gately initially learned that AP allegedly

had sexually assaulted AV through his telephone call from Assistant Chief Smith on October 25,

2015 over his personal phone while at home, off-duty. Smith ordered Gately to arrange PAT

support for AV. This required Gately to discuss what he had learned about the allegations that

could be the subject of both a criminal and internal investigation with other Department members.

This alone undermines any claim that the information Smith provided was confidential, since AP

was a Department member.

Second, Smith asked Gately if there was anything else he (Smith) should be doing for the

Department, leading Gately to believe he was also being provided information about the assault

allegations as Guild President, which would allow him to reach out to AP to insure his rights under

the Agreement were protected.

Smith did not tell Gately that the information was confidential, nor did he tell Gately to

step away from his traditional Guild role. On earlier occasions the Department had told Gately

when it expected him to keep shared matters confidential. Moreover, Smith told Gately during the

telephone call that he had spoken with others about the investigation and was not disciplined.

Although Gately reached out to AP on October 25, 2015, as Guild President, he did not

disclose to AP any information that he had received from Smith. Instead, he simply told AP not

to contact any potential witness to protect AP’s rights under the Agreement.

Similarly, Gately did not disclose any confidential information during his October 26,

2015, call with AP. PIO Fuller contacted Gately to (a) tell the Guild about the imminent issuance

CITY OF SPOKANE/SPOKANE POLICE GUILD (John Gately) - 20


of the press release, (b) provide the Guild with a copy of the release and (c) determine whether the

Department or Guild would notify AP about the release and its contents before its issuance. Thus,

Gately only contacted AP as directed by the Department and for no nefarious reason. Gately had

no reason to believe that the information he was going to and did read to AP was confidential.

Gately rightfully believed that he was authorized to share information with AP, to fulfill his role

as Guild President; all consistent with past practice.

The City’s attempts to overcome the conclusion that Gately did not violate Ethical Canon

9.5 by relying on (1) Gately “probably your DNA” response to AP’s question about what the

Sherriff’s office wanted (2) an October 25, 2015, call between Gately and Sergeant McNabb and

(3) Gately’s criminal defense counsel’s opening statement in the criminal trial all must fail as not

supported by law or fact.

“Probably your DNA” was not confidential once it was disclosed through the press release

that AP was subject to a criminal investigation for sexual assault because AP as an evidence

collection specialist would already be acutely aware the Sherriff would be looking to collect his

DNA in such circumstances.

The City did not prove it was grossly inappropriate for Gately to ask follow-up questions

with McNabb. McNabb provided two conflicting statements to two different investigators. Chief

Meidl failed to resolve the conflict and relied upon the statement that cast Gately in the worse light

without reasonable basis for doing so. When McNabb spoke to Detective Drapeau on March 16,

2016, he described his October 25, 2015, conversation with Gately as “very brief” and only dealt

with getting AV services. It appears the City was not interested in finding facts that would mitigate

the discipline it wanted to impose.

CITY OF SPOKANE/SPOKANE POLICE GUILD (John Gately) - 21


The Chief’s reliance upon Gately’s criminal attorneys’ opening statement is misplaced. As

a matter of law opening statements are not evidence.

The City did not prove that Gately’s cell phone calls to AP compromised the criminal

investigation. The Department’s own policies require that fingernails be kept short. It is a leap to

find that AP cut his finger nails to thwart an investigation rather than to comply with policy.

Further, it was not proven when AP cut his fingernails, so the cutting cannot be linked to Gately's

phone call. A second subpoena had to be issued as result of probable contamination, in any event.

In sum, the City failed to show that Gately revealed confidential information. Accordingly,

the discipline must be overturned.

Even if it is determined that discipline is appropriate, the amount levied was unreasonable.

The arbitrator should reverse all discipline imposed on Gately. Even if he does not, the level of

discipline was unreasonable and inappropriate under the circumstances of this case.

The City was at fault in this matter. Where management makes mistakes and those

mistakes caused the misconduct, the disciplinary penalty should be reduced. Here, Assistant Chief

Smith failed to follow procedure and, as a result, involved Gately in the October 25 and 26, 2015,

events for which the City disciplined him. Smith suffered neither discipline nor investigation. It

is unfair that only Gately suffered discipline.

The City ignores PIO Fuller’s premature disclosure of the press release to Gately and her

request that he communicate its contents to AP. It also ignores the long-standing past practice that

the Guild at the Department’s request notified members about the issuance of press releases before

their issuance.

Finally, Chief Dobrow, although out of town, should have more closely supervised the

entire matter, given its scope and seriousness.

CITY OF SPOKANE/SPOKANE POLICE GUILD (John Gately) - 22


The discipline should be overturned because Gately was carrying out his Guild

representational duties. In both calls to AP, Gately was acting in his Guild role.

The City did not engage in progressive discipline. The primary purpose of discipline is to

correct not punish. Punitive measures are appropriate where other lesser discipline has not been

effective. Suspension should be reserved for only the most extraordinary cases where the

employee is a chronic offender who has been repeatedly warned.

Gately’s lengthy service, service record and disciplinary history mitigates the imposition

of any discipline in this case. The discipline in this case is excessive, disproportionate and must

be set aside.

For each of these reasons the arbitrator should reverse or greatly reduce the discipline and

make Gately whole for all losses.

VI. DECISION

A. The Just Cause Standard and Burden of Proof.

The essential elements of just cause in a misconduct case are whether the employee

committed the offense charged, whether the penalty was appropriate under the facts and

circumstances of the case, and whether the employee was afforded due process. The due process

determination includes did the employee violate an express or implied rule, whether the rule was

reasonable and known to employees, whether the employer conducted a fair and adequate

investigation and whether the discipline was equitable in light of the employer’s treatment of other

similarly situated employees. See, Koven and Smith, Just Cause The Seven Tests, (3rd Ed. BNA,

2006); Discipline and Discharge in Arbitration, N. Brand ed., (BNA, 1999).

Employers bear the burden of proving the just cause elements. They must prove just cause

exists based upon the reasons cited at the time for the discipline.

CITY OF SPOKANE/SPOKANE POLICE GUILD (John Gately) - 23


Generally, employers must prove just cause through a preponderance of the evidence. The

Union requests that either a beyond a reasonable doubt or a clear and convincing evidence standard

be used. The Union asks that the beyond a reasonable doubt standard be used because in essence

I am being asked to decide whether Gately engaged in criminal conduct. I am deciding whether

Gately violated the City’s confidentiality standard. I am not deciding if he did so, that his actions

obstructed the Sherriff’s criminal investigation. Accordingly, the beyond a reasonable doubt

standard is not appropriate in this matter.

The clear and convincing evidence standard, however, is appropriate. Arbitrators use that

standard when the conduct involves criminal or socially stigmatizing behavior (Elkouri and

Elkouri, How Arbitration Works, 905 (5th Ed. BNA, 1987)). A violation of the confidentiality

standard is socially stigmatizing in the police officer context. I, therefore, have used the clear and

convincing evidence standard in this matter.

B. The Merits.

The City bears the burden to demonstrate that Gately violated CANON NINE that requires

all Department members to “observe the confidentiality of information available to them through

any source, as it relates to law enforcement” and implementing Ethical Standard 9.5 that reads:

Members of the Spokane Police Department shall treat as confidential all matters
relating to investigations, internal affairs and personnel.

To support its contention that Gately violated these provisions, the City in Chief Meidl’s

discipline letter and, later, on brief rely on four events. Those are (1) Gately’s October 25, 2015,

telephone call to AP, (2) Gately’s October 26, 2015, telephone call to AP, (3) Gately grossly

inappropriately seeking additional information about the underlying sexual assault violations from

Sergeant McNabb on October 25, 2015, and (4) Gately’s grossly inappropriate action in abdication

CITY OF SPOKANE/SPOKANE POLICE GUILD (John Gately) - 24


of his police officer role on October 26, 2015, to call Attorney Cossey to tell Cossey that AP would

be calling him for assistance with the sexual assault charge.

As discussed above, I have found that the City did not prove that Gately acted improperly

during his telephone conversation with Sergeant McNabb on October 25, 2015. He did not

inappropriately or otherwise ask McNabb for details about the underlying sexual assault

allegations.

I also found that the City did not prove that Gately contacted Cossey to tell Cossey that AP

would be calling him. The record is abundantly clear that Cossey called Gately. The City had

Gately’s telephone records that unambiguously showed this. Although they were not placed into

the record during the hearing before me, they were described with precision by Sherriff’s Deputy

Armstrong in the criminal trial, the transcript of which was admitted by the parties as first-hand

evidence for all matters in this proceeding. Reading from the phone records, Armstrong

unequivocally testified that Cossey called Gately on October 26, 2015, confirming Gately’s

testimony before me.

In addition, in the notice of termination the City did not cite Gately calling Cossey as a

reason for discipline. As such, it would not be proper for that allegation to now be used, even if

true, to support the City’s discipline of Gately.

As to the October 25, 2015, telephone call Gately made to AP, I conclude that the City has

proven that Gately violated its confidentiality standards. By telling AP that he did not want to

know if there had been a party, or what AP had done that weekend and that AP should not contact

anyone until contacted in an official capacity, Gately did not directly tell AP that either a complaint

had been received or that an investigation had been started about events at the party the previous

evening and into the morning. Without a doubt, however, Gately’s statement to AP communicated

CITY OF SPOKANE/SPOKANE POLICE GUILD (John Gately) - 25


to AP that a complaint had been received and that an investigation, either internal or criminal, had

been or was going to be initiated AP. There is no other possible reason to prompt Gately’s call.

Such a communication to the alleged perpetrator violated the City’s confidentiality provisions.

I do not find persuasive the Union’s contention the information Gately communicated to

AP was not confidential. That Gately was required to discuss the sexual assault allegations with

other Department members and AP was a Department member made the information non-

confidential when Gately did disclose it to AP fails to account that other Department members

who received the information were entitled to receive it as part of their Departmental duties. The

alleged perpetrator is not entitled to such information as part of his duties or otherwise until

formally charged.

I also am not persuaded that Assistant Chief Smith’s question to Gately whether he should

be doing anything else during the call in which he asked Gately to provide PAT assistance to AV

transformed Gately’s actions after that to his role as Guild President. Even if Smith asked that

question of Gately in Gately’s role as Guild President, Gately was specifically tasked by Smith

only to provide PAT assistance to AV. Any belief that Gately had he could contact AP to protect

AP’s contractual rights does not outweigh his obligation to maintain the confidentiality of AV’s

complaint and any ensuing investigation from AP, the alleged perpetrator.

That Smith did not specifically tell Gately that AV’s sexual assault allegation was to be

kept confidential, when on some past occasions other officers had told Gately certain information

was to be kept confidential, does not transform AV’s sexual assault allegation into non-

confidential status. The code of conduct is unambiguous. “All matters relating to investigations,

internal affairs and personnel” must be treated as confidential. There is no obligation in the rule,

CITY OF SPOKANE/SPOKANE POLICE GUILD (John Gately) - 26


nor does common sense dictate, that matters relating to investigations, internal affairs or personnel

must be designated confidential before they will be treated as confidential.

Nor does Smith telling Gately that he had reached out to other City or Department

employees to discuss the investigation transform the information into non-confidential material.

No showing was made that Smith disclosed information to anyone who was not entitled to receive

it as part of the City’s appropriate efforts to respond to AV’s complaint.

I also conclude that Gately violated the City’s confidentiality standards when he phoned

AP on October 26, 2015. My conclusion is based upon what Gately told AP that was not contained

in the draft press release.

If Gately had simply told AP a press release was going to issue and read that press release,

all of which Gately did during the October 26, 2015, phone call, there would have been no violation

of the confidentiality standards. Gately said more, however.

He told AP that the Department was going to be coming to AP’s house that afternoon and

in response to AP’s question said the Spokane County Sheriff’s office had chosen the location.

Also, in response to AP’s question about what the County wanted, Gately said probably your DNA.

These two statements communicated to AP that the Sherriff’s office was going to serve a search

warrant on AP that afternoon.

Giving that information to AP violated the confidentiality standards. The timing of the

service of a search warrant falls within matters related to an investigation that must be kept

confidential. It is without dispute that it is paramount to maintain the secrecy as to whether and

when a search warrant will be served in a criminal investigation.

The Union’s argument that issuance of a search warrant was not confidential because once

AP learned he was under investigation, he knew a warrant would issue ignores that Gately also

CITY OF SPOKANE/SPOKANE POLICE GUILD (John Gately) - 27


communicated the timing of the warrant. Because I have not found Gately’s communications to

AP about the press release and its content, the Union’s claims that Gately was authorized by PIO

Fuller and past practice to communicate that information do not change my conclusion that Gately

violated the confidentiality standards on October 26, 2015.

As previously discussed, the City did not have to prove that the underlying criminal

investigation was compromised to prove a violation of the confidentiality standards. That needed

to be proved in the obstructing justice criminal proceeding, not here. Thus, the Union’s arguments

about the length of AP’s nails, that it was not proven when he cut them, and a second warrant had

to be issued due to probable DNA contamination do not impact my conclusion that Gately

disclosed confidential information about an investigation during the October 26, 2015, telephone

call with AP.

Having concluded that the City did prove that Gately violated City policy, I must turn to

what is the appropriate level of discipline. The City argues that I cannot substitute my judgment

for that of management unless I find the discipline imposed was arbitrary, capricious,

discriminatory, or contrary to the terms of the labor contract.

While the City did prove Gately violated the confidentiality standards, it reasoned that a

four-week suspension was appropriate not just because Gately called AP on October 25 and 26,

2015. In the disciplinary notice and on brief, the City justified its level of discipline also on

allegations about telephone calls Gately made to Sergeant McNabb and attorney Cossey on

October 25 and 26, 2015. I have found that Gately did not act in the manner alleged during either

of those calls. Accordingly, it is proper for me to examine whether the discipline imposed by the

City conforms with just cause principles.

CITY OF SPOKANE/SPOKANE POLICE GUILD (John Gately) - 28


The Union, on the other hand, contends that I should either reverse all imposed discipline

or reduce it, presumably, to a written warning. To justify this request, the Union raises four points.

Those are (1) fault Department officials committed, (2) that Gately was acting as a Guild

representative, (3) that the City did not engage in progressive discipline, and (4) that Gately’s

lengthy service, service record and disciplinary record mitigates the imposition of discipline in this

case.

I do not accept that any putative improper conduct by City employees requires lessening

of the discipline imposed. The Union’s cites Assistant Chief Smith’s failure to follow procedure

to provide PAT assistance to AV when he contacted Gately on October 25, 2015. Policy provided

that Smith should have contacted other PAT team members, higher in the chain of command,

rather than Gately. That Smith contacted Gately, however, did not directly cause Gately to violate

policy. He did so independently of any causation by Smith.

The Union’s contention is like a situation where management improperly assigns an

employee to a particular shift or job position in violation of a collective bargaining agreement, and

then the employee may engage in misconduct without disciplinary penalty. That makes no sense

to me. Direct causation between any management fault and employee misconduct must be present

to mitigate discipline

Similarly, I do not accept that PIO Fuller’s premature disclosure of the press release to

Gately and her request that he communicate it to AP or that Chief Dobrow, although out of town,

should have more closely supervised the entire matter should cause a reduction in discipline. It

was not shown that any possible failure by Chief Dobrow caused Gately’s misconduct. Nor did

Fuller’s disclosure of the press release to Gately and her request that he communicate it to AP

cause Gately to disclose the timing of the search warrant to AP.

CITY OF SPOKANE/SPOKANE POLICE GUILD (John Gately) - 29


I cannot accept the Union’s contention that because Gately believed he was carrying out

his Guild representational duties discipline is not warranted. The confidentiality standards do not

exempt Guild representatives from their coverage. This is not a case where a union official in the

course of union representational activity is charged with violating a civility standard. Certain

intemperate conduct, normally violate of workplace conduct rules, in those situations is protected

from discipline. That principle does not translate to the instant situation.

I do agree with the Union that principles of progressive discipline, as well as lengthy

service, service record and disciplinary history are all factors to consider when determining the

proper level of discipline. Workplace discipline should be used to reform employee conduct,

rather than to penalize it. Here, all the factors listed by the Union weigh in favor of reducing the

discipline. On the other hand, Gately’s refusal to acknowledge that he acted improperly requires

a level of discipline that will impress upon him that his conduct was improper and that any further

misconduct could lead to additional discipline up to and including discharge.

Weighing these factors, I conclude that just cause principles require that the suspension be

reduced from a four-week to one-week suspension. As to the removal from the PAT team, I cannot

find sufficient record evidence to decide whether that decision should be overturned. It appears

that Gately suffered no economic impact as the result of his removal from the PAT. It is not clear

whether PAT appointment is based upon any set criteria or simply subject to the discretion of

Department management. In any event, if Gately wishes to return to PAT team status, he should

tell the City that is his desire and the City should judge his request under the existing criteria taking

into account the reduction in his suspension from four to one week.

CITY OF SPOKANE/SPOKANE POLICE GUILD (John Gately) - 30


VII. CONCLUSION

As set forth above, I have concluded that the City did not have just cause to suspend the

Grievant John Gately for four weeks. It did have just cause to suspend him for one-week.

CITY OF SPOKANE/SPOKANE POLICE GUILD (John Gately) - 31


CORRECTED AWARD

Having carefully considered the evidence and argument in its entirety, I hereby render the

following Award:

1. The City of Spokane did not have just cause to suspend grievant John Gately for
four weeks;

2. The City of Spokane did have just cause to suspend grievant John Gately for one
week;

3. Spokane Police Guild’s grievance is sustained in part and denied in part;

4. Gately shall be made whole for the loss of any wages, benefits or other contractual
matters connected with any suspension greater than one week and shall considered
for placement on the Peer Assistance Team under existing criteria and that his
suspension has been reduced from four to one week, if he requests to be placed on
it;

5. The parties shall split the costs of this arbitration; and

6. I shall retain jurisdiction of this matter for 60 days from the date of this Award to
resolve any disputes the parties may have over implementation of the Award.

DATED this 12th day of January 2018

Mark E. Brennan, JD
Arbitrator

CITY OF SPOKANE/SPOKANE POLICE GUILD (John Gately) - 32