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Arbitrator denies police union's request for City to pay attorney fees, affirms that dismissal was warranted

The City of West Linn received good news and bad news Oct. 1, when it learned that an appeal it filed over a personnel arbitration was affirmed in some places and denied in others.

The City received an initial arbitration decision in August in the case involving West Linn Police Officer Tom Newberry, who was fired over racist Facebook posts by the longtime officer in 2016. In the ruling, an arbitrator found the City should pay Newberry back pay from the time of his dismissal in February 2017.

But the City appealed the ruling, saying the arbitrator had overstepped his authority by ordering a remedy when the decision also found the City was in the right when it terminated Newberry and was not bound to reinstate him on the police force.

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."

Newberry's salary at the time of his firing was $82,480, making the total of his back pay $116,846.

According to City Manager Eileen Stein, no decisions have been yet on next steps for the City.

"Right now we are just trying to understand the ruling and what it means for the City," she said.

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

The arbitrator, Erick Lundauer, asserted that he had complete authority to award back pay to Newberry, citing legal precedence and scholarly papers about dispute arbitration that supported the awarding of back pay in certain unique circumstances. "Arbitrators may deal with situations in which both the employee — who committed an offense—and the employer , which improperly administered discipline are at fault," Lundauer said in his decision, reaffirming his prior opinion that the City of West Linn was at fault because Newberry's superiors were aware of his misconduct and did nothing.

While West Linn Police Chief Terry Timeus condemned Newberry's posts at the time, an investigation into the incident found that Timeus failed to take appropriate action when he first became aware of the posts. Mere months after the dismissal, Timeus himself retired in the shadow of unsubstantiated DUII claims.

Lundauer did clarify that his decision to award back pay to Newberry did not include PERS or other compensation, just the back pay itself.

Lundauer also denied an appeal by the Clackamas County Peace Officers Association — Newberry's union — to compel the City of West Linn to pay its legal fees in representing Newberry in the dismissal case. The union had asserted that Newberry was just excercising his First Amendment rights with his social media posts, and that the termination was not justified.

The City appeal of the arbitrator's decision was in good faith, Lundauer found, and permitted — so he declined to order the City to pay the legal fees.

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