City of Prosser v. Teamsters Union Local 839

CITY OF PROSSER, Respondent, v. TEAMSTERS UNION LOCAL 839; KENNETH JAMES LATSCH, Appellants.

No. 37889-6-III

Court of Appeals of Washington, Division 3

April 19, 2022

UNPUBLISHED OPINION

SIDDOWAY, C.J.

After investigating allegations that Police Officer Shane Hellyer sexually assaulted one female citizen and sexually harassed three others, the city of Prosser (City) terminated his employment. Mr. Hellyer's union, Teamster's Union Local 839 (Union), filed a grievance that proceeded to arbitration. In an award that focused on one citizen's allegations of sexual assault, the arbitrator found that the investigation by the City's Police Department (Department) was unfair and incomplete, and the Department's conclusion that Mr. Hellyer committed the alleged sexual assault was not supported by clear evidence. The arbitrator ordered that Mr. Hellyer be reinstated as a police officer with full back pay and benefits.

The City applied to the Benton County Superior Court for a writ of certiorari, asking the court to review and vacate the arbitration award on grounds that by finding that Mr. Hellyer may have sexually harassed three other citizens and nonetheless ordering him reinstated with back pay and benefits, the arbitrator violated public policy. Following a remand to the arbitrator and a clarifying award the superior court agreed with the City and vacated the award, leading to this appeal by the Union.

The Union conflates the arbitrator's explanation for rejecting the sexual assault allegation as a basis for discipline (a conclusion never challenged by the City) with the arbitrator's originally unexplained rejection of three citizen complaints of sexual harassment as a basis for discipline. We agree with the superior court that the arbitrator's award on remand-concluding that the interactions reported by the women were neutralized and were only "coarse conversation" that could not be cause for discipline- violates public policy. Clerk's Papers (CP) at 389. We affirm.

FACTS AND PROCEDURAL BACKGROUND

We draw our description of relevant facts leading up to the parties' arbitration from the arbitrator's arbitration award and award on remand. In some cases, we provide detail from exhibits to which the arbitration awards refer.

On August 11, 2017, during the course of an interview by Benton County sheriff's deputies, Alexandra Hart told them that Prosser Police Officer Shane Hellyer touched her inappropriately eight months earlier, during her detention after she had created a disturbance at a local residence. She explained that the prior December 19, after she was handcuffed and placed in the back of his patrol car, Officer Hellyer transported her to the Prosser Junior High School parking lot, where he touched her breasts and her vaginal area without her consent. She claimed that he then drove her to her residence, where, after she stepped out of the patrol vehicle, still handcuffed, he pressed up against her and made her touch his penis through his pants. She told the deputies that on another occasion Officer Hellyer had showed her lingerie, saying he would buy it for her if she wanted. She told the deputies Officer Hellyer had also suggested that they go to a nearby soccer field, which she assumed was because he wanted to have sex with her.

Ms Hart's allegations were investigated by the sheriff's office. On August 30, 2017, after learning of the allegation, Prosser Police Chief Dave Giles placed Officer Hellyer on administrative leave. The City also decided it was necessary to conduct its own investigation.

Officer Hellyer had previously received no formal discipline, but he had been verbally reprimanded on one occasion. An exhibit later submitted in the arbitration was the record of an April 2008 investigation of a female citizen's complaint of unwanted advances from Officer Hellyer. Prosser Police Sergeant (Sgt.) Ed Blackburn had investigated the 2008 complaint, and his investigative report stated that while the complainant told him she did not want to file a formal complaint at that time, she did want Officer Hellyer to leave her alone, failing which she would file a formal complaint. Sgt. Blackburn had recommended that Officer Hellyer be given a chance to defend himself, and if no exculpatory information was forthcoming, he be informally disciplined and warned to have no further interaction with the complainant.

Sgt. Blackburn was assigned to conduct the investigation into Ms. Hart's allegations. Ms. Hart had been taken into custody by Officer Hellyer following a disturbance the prior December 19, and Sgt. Blackburn interviewed two other officers who responded to the incident, Prosser Police Officer Raul Sabalza and Benton County Sheriff's Deputy Mathew Clarke. He also interviewed Ms. Hart, her parents, and other Prosser police officers, only one of whom, Matt Shanafelt, had any information of interest. Officer Shanafelt remembered an incident where Officer Hellyer told him where to observe a woman in a local apartment while she was disrobing. He also recounted a complaint he received about Officer Hellyer from Teresa Gannon, a local business owner.

Teresa^[1] operated a horticulture nursery in Prosser. She often worked late, and Officer Hellyer would come by the business to check on her well-being. She told Sgt. Blackburn that Officer Hellyer would tell her about his sex life with his wife, and that he told her about purchasing a sexual lubricant. He later sent her a picture of the lubricant. Teresa also told the sergeant that Mr. Hellyer would show her photographs of women in risqué clothing, and that his conversations with her would often turn to sexual matters.

Teresa said Officer Hellyer made her so uncomfortable that her husband would often come by the nursery to check on her well-being.

Brandi Gannon, Teresa's daughter-in-law, ^[2] told Sgt. Blackburn that she was present when Officer Hellyer visited her mother-in-law's store.^[3] She specifically complained that Officer Hellyer would often say that she and her mother wore very little, and in one instance he made a comment about the store being cold and that the women should wear more to cover themselves.^[4] Brandi also told investigators that Officer Hellyer would tell her about his sex life with his wife.

Kelli Schutt, who Sgt. Blackburn learned also had complaints about Officer Hellyer, told the sergeant that Officer Hellyer would come to her place of employment, a local winery, and that he often used sexual innuendo in his conversations with her. Ms. Schutt said that Officer Hellyer made her feel uncomfortable, and that he would sometimes stop by her residence in his patrol vehicle.

On December 20, 2017, while Sgt. Blackburn's investigation was ongoing, the Benton County prosecutor provided the county sheriff's office with a written declination to prosecute Officer Hellyer for the alleged assault of Ms. Hart. Its letter stated,

The State does believe that a preponderance of the evidence shows that Officer Hellyer had inappropriate contact with Alexandra Hart (AH), by [sic] given AH's mental state on the night of the alleged incident and how long it took to disclose the allegation, the State does not believe this matter can be proved beyond a reasonable doubt.

CP at 11. Sgt. Blackburn thereafter conducted several more interviews and conducted a second interview of Ms. Hart on January 8, 2018.

Officer Hellyer was called in for a meeting with Chief Giles, Sgt. Blackburn and others the next day, to respond to questions about taking Ms. Hart into custody in December 2016 and about his interactions with Ms. Gannon. He gave conflicting answers to the questions asked, and often responded by not recalling specifics about the events under investigation. He was told that there was no record of his interaction with Ms. Hart in police files. After the meeting, however, Officer Hellyer's union representative found a log that contained details about the disputed events that helped explain Officer Hellyer's actions on December 19. Officer Hellyer provided the additional information to Chief Giles.

The Union would later present evidence that in contacts with Ms. Hart beginning in March 2016, Officer Hellyer became aware that Ms. Hart was becoming involved with the local drug culture. According to Officer Hellyer, his interest in Ms. Hart was nonsexual and intended to help her get on the right track. After Ms. Hart caused the disturbance on December 19 and was taken into custody, it was agreed by responding officers that Officer Hellyer would take her to the police station. While he ended up taking her home instead, Officer Hellyer explained that was because as he and Ms. Hart sat outside the station, speaking and awaiting the arrival of Officer Sabalza, he heard radio traffic about a possible stolen vehicle and believed he should respond. He claims that after driving Ms. Hart home, he removed her handcuffs according to standard procedure, which involved placing her against his patrol car and placing his knee against the back of her leg. He testified that his conversation with Ms. Hart in his patrol car on December 19, and conversations with her in his patrol car two days earlier and thereafter were all about whether she would agree to work as part of the Benton County Anti-Drug Task Force as an informant. He testified that he set up a meeting for her with task force members, but she failed to appear and he had no further contact with her.

Sgt Blackburn's 27-page report on his internal investigation was directed to Chief Giles on January 13, 2018. It itemized possible violations by Officer Hellyer of the Prosser Police Department's personnel policy and procedures manual, described the investigation by the Benton County Sheriff's Office and Sgt. Blackburn's...