Crosby Officer Jesse Smith gets job back, again

Crosby Police Officer Jesse Smith got his job back-for a second time.

Smith was placed on paid administrative leave for alleged officer misconduct in August of 2012 and terminated on Jan. 28, 2013. Smith got his job back in 2014 when an arbitrator through the Minnesota Bureau of Mediation Services ruled in his favor.

Smith was terminated a second time on Oct. 6, 2016, when the Crosby City Council met in a special meeting to discuss potential disciplinary action against the officer. The council went into a closed session with Smith and his labor union representative with Teamsters Local 346 and then into an open session, where it voted to terminate Smith.

Smith filed a grievance, protesting his termination and the case-between the city of Crosby and the Teamsters Union-went through arbitration. Marylee Abrams, an attorney in White Bear Lake represented the city and Timothy F. Andrew, an attorney in Duluth represented the union.

On Wednesday, Arbitrator Frank E. Kapsch, Jr., issued a decision overturning Crosby's decision to terminate Smith and ordered the police officer to be reinstated to his previous position. The city has six business days of the arbitrator's decision to reinstate Smith.

The arbitrator's decision and history of the case is 52 pages long and can be found at mn.gov/bms/arbitration/awards on the Minnesota Bureau of Mediation Services website.

It was ruled the city did not have "just cause" to terminate Smith and that it violated the union's labor agreement. The city will have to pay Smith full back pay and fringe benefits and all city records that reference his termination must be expunged.

According to the arbitration document, the city of Crosby allegedly terminated Smith for performing work on the Crosby computers for the Cuyuna and Deerwood police departments while he was on duty and being paid as a Crosby officer. Smith has served on the Cuyuna Police Department since the late 1990s and he also worked for Deerwood. In 2014, Smith was Cuyuna's deputy police chief.

The city of Crosby also alleged Smith was using the city computer for his own personal computer use.

The Teamsters provided a letter June 2 to the Dispatch about the arbitrator's decision, where Roderick Alstead, Local 346 secretary-treasurer, stated he was satisfied with the arbitrator's award, but the discharge never should have happened in the first place.

"What is most disturbing about this case is that (Crosby) Chief (Kim) Coughlin and Lt. (Kevin) Randolph provided a biased and one-sided version of Jesse's conduct to their own city council without giving them all the facts," Alstead stated. "The Crosby City Council relied on that information when it voted to terminate Smith. This is also unfair to the taxpayers of Crosby who are burdened with paying tens of thousands of dollars in attorney fees plus payments to Jesse when he is either on paid administrative leave or receiving back pay. Since 2012, we estimate that the city of Crosby's taxpayers have spent more than $200,000 in pursuing Chief Coughlin's wrongful efforts to fire Jesse Smith. He is an excellent officer who is well liked in the community and simply wants to be treated fairly so he can do his job. As a union, we are happy this decision restores fairness to his work place."

The Crosby Police Department takes all complaints against officers seriously and is committed to thoroughly investigating all complaints, Coughlin stated in an email release.

"The process of taking disciplinary action against an officer is difficult, time consuming and a tremendous drain on the resources of a police department. As such, it is a process that is never entered lightly, and the investigations are thorough and meticulously vetted by numerous professionals," Coughlin stated. "The Crosby Police Department will continue to hold its' officers to the highest standards of conduct and effective productivity for the benefit of Crosby citizens. With the reinstatement of Smith, the department will welcome him back and will work diligently on a constructive reintegration process.

"As anyone who has ever had a disagreement with a coworker or family member knows, they can be painful and difficult. When they are resolved however, they can form stronger bonds than ever before."

The allegations

It came to Coughlin's attention by Randolph on March 7, 2016, that Smith was logged into his Crosby squad computer as a Crosby officer, but had been using a code for Cuyuna. Coughlin did a search of the database and discovered that Smith created about 10 police reports for Cuyuna, while he was on duty for Crosby. On March 12, 2016, Coughlin made a formal request to have the Cass County Sheriff's Office assist with a criminal investigation as to whether Smith was engaged in "double dipping," being paid by two departments at the same time for the same work. The investigator found about three dates where it appeared Smith had been paid by both police departments. However, the investigator rechecked the records with Coughlin and two of the three instances were cleared and there were no problems. The investigator stated the discrepancy could be the result of a simple error by Smith, the document stated. The investigator stated, "I can find no evidence of Officer Smith creating ICRs (incident complaint reports) in order to be paid from both cities of Crosby and Cuyuna."

Coughlin then initiated an Internal Affairs Investigation to determine if Smith's conduct violated any city or other professional policies or rules. Lt. Randolph conducted the investigation. When Randolph questioned Smith about the one instance where there was an alleged discrepancy where Smith had an overlap of one hour with the two departments, Smith said he fills out a timesheet once a month for Cuyuna and he simple made a couple of errors on his shift time entries. The document stated the total "overlap" for the three instances cited by Randolph was five and a half hours over the course of more than two years.

Randolph then questioned Smith about inappropriate computer use by the department. Smith said he had been using his squad computer to listen to music. Randolph asked if Smith thought it was appropriate to use Crosby computers for non-Crosby related purposes and Smith stated, "That's no different than what everybody else in the department does. Facebook, videos, Netflix on the computer. Everyone in the department does that.

"It's been pretty loose in the department, as far as that stuff going on ... The chief has been on EBay and different kinds of videos ... Just been that kind of flavor in the office."

Randolph conducted interviews with the other officers in the department, regarding Smith's assertions that they were also using the city's computers for non-city related purposes. The arbitration document stated that prior to recording the interviews, Randolph advised each one that Smith "... thrown them under the bus" and were told Smith was alleging that there was an open culture of using city computers for personal use "whenever you want." The officers gave the lieutenant no indication that they used their work computer for personal use.

Randolph's internal investigation found Smith in violation of two articles under the "cannon of police ethics" policy; in violation of eight articles under the "general orders governing conduct for Crosby police," which include officer conduct, failing to conduct himself in a professional way, engaging in work for another city while working for Crosby and attempting to mislead the police chief about his computer data usage violations; and violating an article each in the computer network usage and labor agreement between the city and the union.

The decision

After reviewing testimony and evidence and comparing facts and circumstances, Kapsch found:

• The city's administration and enforcement of its computer usage policy was "lax, intermittent, disparate in impact and essentially ineffectual."

• The evidence clearly indicated that the city's Internal Affairs Investigation "failed to meet the requirements that it be fair, objective, complete and impartial and, accordingly, was deeply flawed."

• The record testimony and evidence is more than sufficient to establish the city's administration and enforcement of its computer usage policy has historically resulted in disparate and discriminatory disciplinary impact and effects on employees, for which no cogent rational or reasonable explanations have been offered.

Kapsch stated the city has a computer usage policy in writing stating there are no exceptions to using work computers for personal use. However, after reviewing the record, the city failed to establish any occasion where Smith or other city officers or employee were ever advised of information that violation of the policy would result in immediate discharge. The record clearly showed a number of situations where city officials made it quite evident that the policy doesn't really mean what it says and the violations would not be punished severely, if at all, the document stated, as others used the work computer for personal use.

Kapsch stated the internal investigation, Randolph may have misunderstood his role as the investigator as he was accused of lying by the union when he did the interviews with the officers. Randolph's response was the courts have approved of law enforcement officers lying to get criminal suspects to confess. The union's attorney responded that he was not interviewing suspects.

Based on the arbitrator's review on the internal affairs investigation with Randolph, he also stated "I find it disturbing, disingenuous and possibly untruthful, that in his final IA report, Lt. Randolph apparently purposefully slanted/misconstrued Lt. Thompson's (the Cass County investigator) findings and specifically omitted Thompson's concluding statements regarding the 'double-dipping' allegations (where Thompson stated there was no evidence of double dipping)"

The first arbitration against Smith

At issue the first time was whether Coughlin/city of Crosby had the right to demote Smith from sergeant to police officer; and whether Coughlin/Crosby had the right to terminate Smith. The arbitrator found Coughlin "had just cause to demote the 'grievant' from his position as a police sergeant." However, "evidence was insufficient to support the decision to terminate the 'grievant' as a police officer." The arbitrator also found Coughlin did not have "just cause to discharge him from employment."

Smith was a police intern with Crosby in 1995 and became a part-time police dispatcher in 1998. He was sworn as a full-time licensed police officer in 1999 in Crosby. Smith was promoted as sergeant in 2007.