City of Seattle appeals arbitrator’s order to reinstate fired SPD officer

The city of Seattle has appealed an arbitrator’s decision ordering the Police Department to compensate an officer fired after she and a colleague unloaded dozens of rounds at a fleeing car in a crowded neighborhood.

The city has filed pleadings in King County Superior Court asking that the decision by an outside arbitrator be overturned and that the department’s original decision to fire former Officer Tabitha Sexton complied with legal precedent and was justified by her actions.

The pleadings point out apparent contradictions in the decision by arbitrator Stanley H. Michelstetter, who concluded Sexton violated the department’s use-of-force policies but also acted in “good faith” and “in the city’s best interest” in doing so. Michelstetter, who lives in Wisconsin, decided then-interim Chief Carmen Best’s 2018 decision to fire Sexton was overly harsh and instead imposed a 60-day suspension and ordered the city to provide her back pay, which could amount to nearly $600,000.

The arbitrator upheld the termination of another officer, Kenneth Martin, who also fired more than a dozen rounds from a high-powered rifle at the fleeing car.

“The arbitrator’s decision violated the explicit, well-defined and dominant policy against a police officer’s use of excessive force,” established in a similar appeal in a case involving a Seattle police officer, Adley Shepherd, who was fired, then ordered reinstated by an arbitrator, after punching an intoxicated and handcuffed woman in the back of his patrol car, breaking bones in her face, according to the pleadings.

Eventually a Superior Court judge, and later the state Court of Appeals, overturned the arbitrator and upheld Shepherd’s termination.

“Here, the circumstance are analogous but also more egregious because the level of force improperly used was deadly force,” wrote attorney Mike Bolasina, whose firm, Summit Law Group, has been hired to handle the city’s appeal.

The Seattle Police Officers Guild, which represents rank-and-file officers, didn’t respond to a message seeking comment.

In a December order, the arbitrator concluded Sexton and Martin violated SPD’s policies relating to de-escalation and use of force, which he found to be confusing and ambiguous.

Martin fired more than 20 rounds from his high-powered patrol rifle at the fleeing car as it careened down a narrow alley in the Eastlake neighborhood. Sexton fired at least 11 rounds from her service sidearm at the car, according to the ruling.

“It’s our central mission to keep the public safe,” Best wrote in her order firing the officers. “Your actions and decisions did the opposite: they created a deadly force situation that unnecessarily threatened public safety.”

The ruling has underscored difficulties city and SPD officials have had with forced arbitration of police disciplinary cases. Deputy Mayor Tim Burgess has said the city will ask the Legislature to address the issue this session. A measure that would have sharply limited arbitration in such cases failed last session amid organized labor concerns.

The issue has also impeded the city’s efforts to persuade a federal judge to release it from the last vestiges of nearly a dozen years of court oversight stemming from a Department of Justice investigation that in 2012 concluded Seattle officers routinely used excessive force.

U.S. District Judge James Robart has retained jurisdiction over the department’s reforms involving use of force and officer accountability – both the topics of the arbitration ruling, which underscores that those areas remain troublesome for the department.

In 2019, the city was on the cusp of full compliance with reforms when – in a remarkably similar ruling to Michelstetter’s – an arbitrator overturned the termination of Shepherd.

Robart cited the decision in the Shepherd arbitration, along with broader concerns over the agency rank-and-file’s resistance to reforms, as the reasons he found the department had partially fallen out of compliance with the federal oversight agreement in 2019.

At the time, Robart questioned the use of labor arbitrators whose livelihoods depend on being selected to overturn or modify discipline imposed by an experienced police chief. He questioned whether that portion of the contract between the city and the SPOG complies with the Constitution and state law.

Binding arbitration in police discipline cases – often included in collectively bargained contracts – has been a controversial practice that’s garnered local and national attention after research showed arbitrators reduced or overturned officer discipline in more than half the cases they hear on appeal.

Seattle Mayor Bruce Harrell decried Michelstetter’s decision and said it’s reflective of “a larger issue that impacts police accountability systems across the state.

“When arbitrators can agree with the department on violations of policy – especially serious and deadly uses of force – but discount the decision of the police chief on discipline, our accountability system is undermined and public trust is eroded,” he said.

The city and SPOG have been negotiating a new contract since their last one expired roughly three years ago, and Robart has made it clear he expects any new contract to address the issues of officer accountability and arbitration.