ppbpoliceuniform.jpg

An arbitrator compared Todd Wyatt's discipline to that of other Portland officers in comparable cases, and found a lengthy suspension without pay was more appropriate than a demotion.

(The Oregonian/File)

A year and a half after Portland's police chief demoted Todd Wyatt from captain to lieutenant, an arbitrator has ruled that the demotion was unjust and ordered Wyatt be reinstated to the higher rank and face a 60-day suspension without pay instead.

The arbitrator, in a decision issued late Friday afternoon, also ordered the city to make Wyatt whole for any back pay that he lost from the demotion, retroactive to Dec. 18, 2012. (Read the arbitrator's report.)

Chief Mike Reese had demoted Wyatt after a Portland police review board found he inappropriately touched several female employees and escalated an off-duty road rage confrontation by flashing his gun and badge at another motorist.

Reese did not follow the nearly unanimous recommendation of the Portland Police Review Board to fire Wyatt. The board had questioned Wyatt's ability to perform with integrity and voted 5 to 1 to fire him, "considering the gravity of his untruthfulness/untrustworthiness.''

Arbitrator Anthony D. Vivenzio, of Friday Harbor, Wa., wrote in a 62-page ruling that the evidence and testimony before him during three days of hearings in mid-January established that Wyatt escalated the road rage encounter, and did engage in inappropriate touching. He agreed with the city that Wyatt violated the bureau's directives on professional conduct, use of force, and engaged in unsatisfactory performance and harassment.

More

He also agreed with bureau findings that Wyatt displayed poor judgment, outbursts of defensiveness and unprofessional conduct in his interviews with internal affairs investigators.

Yet Vivenzio found Wyatt's behavior warranted serious discipline but not demotion. He said the demotion amounted to an "indeterminate sentence,'' with no term set and lacked "just cause.'' He likened a demotion to "mere punishment,'' not discipline intended to seek the improvement and development of an employee.

"While these are examples of unprofessional conduct, I believe they are better the subject of counseling and progressive discipline than of demotion,'' Vivenzio wrote.

Todd Wyatt

The arbitrator cited Wyatt's more than 23 years on the force with no prior discipline, and his numerous commendations and awards for service to the community both on- and off-duty, as outlined in 103 pages of documents the union presented. The arbitrator said he also compared Wyatt's demotion to discipline of other officers "in more or less analogous situations,'' and was persuaded that the demotion was too harsh.

"I, like many arbitrators, am interested in discipline that, while holding an employee accountable, promotes their future functioning in the workplace,'' Vivenzio wrote. "Here, the Grievant has already experienced the personal embarrassment of working among his fellows for a significant period of time while openly downgraded to a lower rank.''

The arbitrator found that Wyatt had no prior history of inappropriately touching women before he was assigned to the bureau's Records Division, a unit described as "dysfunctional'' with sick time and overtime abuses by non-sworn civilian employees that Wyatt was directed to "fix.''

Once the chief demoted Wyatt in late 2012, the chief initially reassigned Wyatt to serve as lieutenant in the bureau's sex crimes unit. After The Oregonian publicized that one of the women Wyatt was accused of inappropriately touching worked in the detectives unit, the chief moved him out to work day-shift patrol at North Precinct.

In the ruling, the arbitrator also recommended that Wyatt continue to receive counseling to address "some of the emotional challenges accounting for the behavior'' he's exhibited.

City officials could not be reached immediately for comment.

The ruling also revealed:

- Chief Reese and Mayor Charlie Hales had initially proposed Wyatt's termination, but after Wyatt had a mitigation hearing, they decided to demote him instead.

-Capt. Chris Davis, who oversaw the internal affairs investigation into the road-rage complaint against Wyatt, had found no wrongdoing by Wyatt, and concluded there was no evidence of unprofessional conduct. Mary-Beth Baptista, then the director of the Independent Police Review Division, controverted Davis' findings, and added additional allegations.

- Davis, who led the bureau's internal affairs division, testified before the arbitrator that "display of a gun'' does not constitute use of force or an attempt to use force. That was directly contradicted by Assistant Chief Larry O'Dea, who testified that displaying a gun means the person is prepared to shoot. O'Dea described Wyatt's actions as reckless in the road-rage encounter. O'Dea said he had concerns over Wyatt's ability to serve as captain because Wyatt didn't see where he went wrong, inaccurately described the incident and wrongly assumed the other driver and passenger were gang members.

-Davis further testified there was no evidence Wyatt was uncooperative with the Washington state troopers who pulled him over, and that Wyatt was clear that the other motorist and passenger looked like gang members because the driver had a baseball cap and woman passenger's hair was tinted dark. The evidence, though, showed that the troopers told investigators that Wyatt acted "arrogant and cocky,'' and showed lack of good sense.

-The arbitrator did not find credible Wyatt's assertion that he was too busy to call 911 during the road-rage encounter because he was driving. For over 20 years, the arbitrator noted, Wyatt's job has depended on his ability to multi-task.

-Mike Kuykendall, who served as the Police Bureau's Director of Services before he resigned while under investigation for a series of embarrassing text messages to a female lieutenant, had recommended an "unproven'' finding regarding an allegation of untruthfulness against Wyatt. The allegation stemmed from Wyatt's accounts of where he had touched several female employees - accounts that differed from that of the women and other witnesses.

-In response to internal affairs questions about his alleged inappropriate touching of a female employee during a meeting with the District Council of Trade Unions, Wyatt said, "I don't want to be unkind, but this is an extremely unattractive lady. This is an extremely physically...she was one of the more revolting people in the room. When I greeted her to try to say hello to her it was my attempt to try to be compassionate as I can be for someone who is uneducated, unskilled and I was trying to say hello.'' Wyatt later told the arbitrator that his comment came in response to an IA investigator who asserted that his motive for the touch was sexual. "I took his bait,'' Wyatt told the arbitrator.

--Maxine Bernstein