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Department's response to racist Facebook posts was found to be flawed; officer will receive $116,846.

An arbitrator ruled last month that the West Linn Police Department was justified in firing Officer Tom Newberry in 2017 after several racist Facebook posts became public, but that Newberry should also receive back pay because the department was aware of the posts and did nothing about them.

Newberry and the Clackamas County Peace Officers' Association filed a grievance with West Linn shortly after he was fired in February 2017, stating that Newberry's employment was terminated without just cause. The City denied the grievance, which prompted arbitration.

Hearings were held Feb. 26 and March 19, 20 and 26 of this year. A final ruling was made July 17 by arbitrator Eric B. Lindauer, and first reported by The Oregonian Thursday evening. The City released a copy of the decision to the Tidings Friday.

"The Department had just cause to terminate Newberry's employment and, based on his Facebook posts, his reinstatement as a West Linn Police Officer would be inappropriate and improper," Lindauer wrote in his ruling. "However, the Arbitrator also concludes that the Department must bear some responsibility for its failure to take active steps, as required by Department Policy, to require Newberry to remove the offending content from his Facebook page. The Department did nothing until contacted by the local media."

Through its inaction, the WLPD had effectively condoned Newberry's behavior, according to Lindauer. Thus, he ruled that Newberry should receive back pay from the date of his firing — Feb. 22, 2017 — through the date of the final ruling, July 17, 2018. Newberry's salary at the time of his firing was $82,480, according to City Manager Eileen Stein, making the total back pay $116,846.

The City plans to appeal the ruling, according to Stein.

"We are questioning the award of back pay," Stein said. "The basis is: How can you award someone back pay when you justified their termination?"

Newberry was placed on administrative leave in July 2016, shortly after several incendiary Facebook posts related to the Black Lives Matter movement came to light. One post stated, "Good luck with that" in response to another user who said, "Take them all out." In another post, Newberry wrote, "When encountering such mobs remember, there are 3 pedals on your floor. Push the right one all the way down."

At the time, then-West Linn Police Chief Terry Timeus condemned the posts and initiated an in-house investigation that would stretch through the end of the year. However, Lindauer determined that Timeus and several of the department's most senior officers — including Captain Neil Hennelly, Sergeant Mike Francis and Sergeant Dave Kempas — were all aware of and at times even "liked" or commented on the Facebook posts in question.

"Although these individuals may not have endorsed the views Newberry expressed on his Facebook page, they were nevertheless aware and did nothing to address the offending content or request that Newberry stop posting such material," Lindauer wrote. "It was only after Newberry's Facebook postings received widespread local media attention on July 14, 2016, that the Department took appropriate action."

Timeus retired last October after an outside investigator declined to press charges on an accusation that Timeus drove drunk. Francis left the department in 2017, while Kempas and Hennelly have both retired.

In his ruling, Lindauer cited WLPD policy on "Prohibited Speech, Expression and Conduct," which states that "Employees must take reasonable and prompt action to remove any content, including content posted by others, that is in violation of this policy from any webpage or website maintained by the employee."

And Lindauer found that Newberry's Facebook posts clearly violated both WLPD policy and the Criminal Justice Code of Ethics. In addition to the posts that prompted Newberry's suspension, Lindauer's investigation also found posts that referenced Black Lives Matter supporters as "malcontent asshats," "morons," "f*cktards," "cockroaches," "b*tches," and "ghetto rats."

"The majority of Newberry's Facebook posts evidence racially biased tendencies and brought discredit to himself, to the West Linn Police Department, and compromised the Department's ability to gain the public trust," he wrote.

Lindauer arrived at these findings despite the Clackamas County Peace Officers' Association's contention that Newberry did not violate the Criminal Justice Code of Ethics or department policy. The union stated that the code and policy were "ambiguous, vague and failed to adequately place Newberry on notice." Further, union representatives argued that West Linn failed to prove the posts were "racially biased or advocated violence," and that they were instead "simply expressions of his political views and were misinterpreted." The union also stated that the posts were protected by the First Amendment.

"The arbitrator has carefully considered the Union's well-argued contentions but reaches a different conclusion as to each of the Union's assertions," Lindauer wrote.

Separately, the union argued that WLPD's internal investigation was "neither fair nor impartial," but Lindauer said he was "not convinced."

Lindauer did note that Newberry's prior employment record — he worked in West Linn for nine years and spent 17 years with the Portland Police Bureau before that — was strong and showed no indication of prior complaints about racial profiling, bias or use of excessive force.

"Generally, an employee's long and favorable employment record is a significant mitigating factor in determining the reasonableness of the penalty in termination cases," Lindauer wrote. "However, seniority and favorable work record count for only so much and cannot offset egregious misconduct. This is such a case."

The Newberry ruling comes on the heels of a lawsuit, filed July 16 at the Multnomah County Circuit Court, against WLPD, Timeus and two other officers, one of whom still works at the department. The lawsuit was filed by an African-American man from Portland named Michael Fesser, who alleges that WLPD illegally investigated him at his Portland workplace in a racially-motivated attempt to have him fired.

Read the full decision here.

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