By Everton Bailey Jr. The Oregonian
WEST LINN, Ore. — An arbitrator denied the city of West Linn’s appeal of his ruling ordering the city to pay lost wages to a police officer fired last year for posts on Facebook.
The city was ordered in July to pay at least $100,000 in back pay to former officer Tom Newberry. The arbitrator, Portland-based attorney Eric Lindauer, concluded that Newberry’s firing in February 2017 was justified. But he also ruled that the city should bear some financial burden because Newberry’s social media use was common knowledge in the police department. The then-police chief and several other high-ranking officers did nothing to address the behavior until it was reported by the media in July 2016.
The inaction violated the city’s own policies, Lindauer determined in his initial ruling.
The city appealed his decision in August. Lindauer upheld his ruling in an Oct. 1 memo and said the payment shouldn’t include Newberry’s retirement contributions and other benefits.
Newberry, 65, earned an annual salary of $82,480 when he was fired, according to the city. He was ordered to receive back pay from February 2017 to July 2018. At 17 months, that works out to Newberry being owed nearly $116,850 in salary alone.
West Linn City Manager Eileen Stein said Friday the city is still trying to get clarification from the Public Employees Retirement System and hoped to know more next week.
“At this point, we are still trying to understand what the decision means for the city of West Linn,” she said.
The city could appeal the latest ruling to the Oregon Employment Relations Board and then up to the Court of Appeals. It was not clear Friday if the city plans to appeal again.
In its August motion for reconsideration, the city of West Linn claimed the arbitrator didn’t have the authority to award back wages because the parties hadn’t agreed to the possibility of an award if Newberry’s firing was found to be justified.
In the October memo, Lindauer said past cases have established that an arbitrator has discretion to impose a wide range of remedies in cases.
“This is particularly true when, as in this case, the city failed to take appropriate disciplinary action when it was clearly aware of (Newberry’s) misconduct,” Lindauer wrote. He said he could have used that as a basis to order the city to reinstate Newberry, but didn’t think it would be appropriate.
Lindauer did side with the city’s stance that it shouldn’t have to provide retirement contributions and other fringe benefits. The city contended that Newberry wasn’t entitled to benefits because he wasn’t a West Linn officer at the time.
“Awarding benefits as part of back-pay is a make-whole remedy, and there is no precedent or rationale for making whole an employee like Mr. Newberry who was terminated for just cause,” the city’s motion for reconsideration said.
The Clackamas County Peace Officers’ Association, the police union that filed a grievance over Newberry’s firing in March 2017, said Newberry’s award should include PERS contributions and other benefits because those funds are typically understood to be part of back pay awards.
Lindauer wrote that while employees who are reinstated would earn benefits accrued on leave, Newberry was fired, and his termination was upheld.
Lindauer also denied a union request to be reimbursed for attorney fees, saying the city had a legitimate basis to file its appeal.
Before making his July ruling, the arbitrator reviewed 131 Facebook posts made by Newberry while on and off duty from February to July 2016. Lindauer found that some posts showed racial bias against African Americans and hostility toward the Black Lives Matter movement, and reinforced public perception that police officers are biased against black people. Some of the posts included references to African Americans and Black Lives Matter supporters as “ghetto rats,” “cockroaches,” “morons,” and other insults.
Newberry once commented that he considered it a “badge of honor” to be called a racist by someone “in the hood.” Lindauer wrote. On the day before being placed on leave in July 2016, Newberry posted a story about a potential Black Lives Matter protest and wrote, “So day of target practice?”
Newberry, who is white, admitted that he posted the content and denied to investigators that he is racist. The postings violated the police department’s social media policy, which banned speech or expression that damaged the agency’s reputation, Lindauer wrote in July. The police department’s rules required Newberry to remove the comments from his Facebook page.
But the arbitrator found that Newberry’s immediate supervisor, Sgt. Dave Kempas, expressed approval of some of Newberry’s posts and didn’t tell him to delete them. Then-Chief Terry Timeus, Capt. Neil Hennelly and Sgt. Mike Francis “liked” or replied to some of the posts.
Timeus, Hennelly and Kempas have all since retired from the West Linn Police Department. Francis now works as an officer with the Portland Police Bureau.
Newberry was hired by West Linn police in November 2008. He was there for eight years before he was fired after a seven-month internal investigation that reviewed the same Facebook posts as the arbitrator that upheld his firing.