No recourse for discredited B.C. police officer

Issue of indemnity not expressly outlined in agreement

Policing the police can be a juggling act, something cops in Saanich, B.C., learned after an officer was found to have abused his authority for what he believed to be a good cause.

Constable David Smit was found guilty by his chief of abusing authority and deceit.

Smit was then suspended without pay for seven days and reduced in rank to third-class constable.

The constable appealed the decision, and while the court dismissed the abuse charge, it upheld the deceit charge.

For this case, Smit filed a grievance through the Saanich Police Association seeking indemnification for the legal fees incurred during the appeal process.

According to the employer, the Saanich Police Board, the judge in the appeal did not reject the chief’s decision and decide that no discipline was warranted.

Instead, he upheld the allegation that the grievor had engaged in an abuse of authority for which discipline was warranted. As such, no indemnification was required.

On the other hand, the police association felt that interpretation was unreasonable.

Because one charge stood and the other did not, applying a fair and reasonable interpretation to the language in the collective agreement meant Smit was entitled to indemnification for the fees incurred during the appeal proceeding.

The collective agreement dictates an employee will be entitled to indemnification for "necessary and reasonable legal costs."

However, the employee will not be eligible for punitive damages, grievances arising from the collective agreement or charges under the Police Act.

The case is a historic one as there was no bargaining history evidence concerning the inclusion of the collection agreement.

A divided success in the appeals case — that is, throwing out the charge of abuse but upholding the charge of deceit — has never before been encountered, noted arbitrator John Kinzie.

"The issue comes down to what the parties intended when they agreed upon the words establishing that condition (in the collective agreement)," Kinzie said.

"In these circumstances, if it was their intention to provide for proportional indemnity, I would have expected them to have said so in express terms."

And because it was not expressly outlined in the collective agreement, nor did the appeal deem the discipline to be unnecessary, Kinzie dismissed the grievance.

Reference: Saanich Police Board and the Saanich Police Association. John Kinzie – arbitrator. Marcia McNeil for the employer, David Blair for the union. Sept. 29, 2014.

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