in the matter of the arbitration ) arbitrator’s · in the matter of the arbitration )...

IN THE MATTER OF THE ARBITRATION ) ARBITRATOR’S

)

BETWEEN ) OPINION AND AWARD

)

PORTLAND POLICE ASSOCIATION )

)

“PPA” OR “THE UNION” )

)

AND )

)

CITY OF PORTLAND )

) CHRIS HUMPHREYS/KYLE NICE

) GRIEVANCE

“THE CITY” OR “THE EMPLOYER” )

HEARING: FEBRUARY 13 –17, 2012

HEARING CLOSED: MAY 8, 2012

ARBITRATOR:

Timothy D.W. Williams

2700 4th Avenue #305

Seattle, WA 98121

REPRESENTING THE EMPLOYER:

Stephanie Harper, Deputy City Attorney

Dave Famous, Captain Portland Police Bureau, Mgmt Rep

Darla Collar, Paralegal

REPRESENTING THE UNION:

Anil Karia, Attorney

Sergeant Kyle Nice, Grievant

Office Chris Humphreys, Grievant

Office Daryl Turner, President, Portland Police Assoc.

APPEARING AS WITNESSES FOR THE EMPLOYER:

Michael Poorkley, PPB, Internal Affairs Investigator

Tamara Hergert, AMR Paramedic

Rosie Sizer, Former Chief of Police

Dan Saltzman, Former Commissioner of Police Bureau

Dave Famous, Captain Portland Police Bureau

Dwight Pahlke, Sgt. Portland Police Bureau

PPD/PPOA Grievance Arbitration (Humphreys/Nice Grievances) Page -- 2

APPEARING AS WITNESSES FOR THE UNION:

Kyle Nice, Sgt. Portland Police Bureau

Chris Humphreys, Former Office Portland Police Bureau

Bob Brown, Officer Portland Police Bureau

Dan Livingston, Sgt. Portland Police Bureau

W. Ken Katsaris, Police Consultant

EXHIBITS

Joint

Sergeant Kyle Nice

1. Nice Proposed Discipline Letter

2. Letter from Aitchison regarding Nice

3. Nice Final Discipline Letter

Office Chris Humphreys

4. Humphreys Proposed Discipline Letter

5. Letter from Aitchison regarding Humphreys

6. Humphreys Final Discipline Letter

Labor Agreement & Grievance

7. PPA Contract 2006-10 excerpts

8. Sergeant Nice Grievance Processing

9. Office Humphreys Grievance Processing

Bureau Directives Reviewed

10. Directive 1051.00 (Taser, Less Lethal Weapon System), 2006

version

11. Detectives Summary Report

12. Detectives Notebook

Internal Affairs Division Investigation

13. Internal Affairs Division Summary – Part One

14. Internal Affairs Division Notebook – Part One

Training Division Documents

15. Captain Famous Memo

Commander Recommended Finding

16. Commander Henderson Memo

Review Board Documents

17. IPR Memo, 10/2/08

18. Detectives/IAD Power Point Presentation


19. Training Division Presentation

20. Review Board Memo

21. Sizer Follow-up from Use of Force Board Recommendations,

11/14/08.

Documents from Federal Litigation: Chasse, et al v Humphreys,

et al, USDC Case #CV-07-180-HU

22. Nice Deposition Transcript

23. Humphreys Deposition Transcript

24. Hergert Deposition Transcript

25. Stucker Deposition Transcript

EMPLOYER

1. Excited Delirium Roll Call Training Video, March 2006

2. PPB In Custody Death/OIS Process

3. PPB James Chasse Timeline, 9/1706 – 9/23/06

4. AMR Pre-Hospital Care Report (Jt12-, p 582)

5. AMR Refusal to Transport Form, (Jt12, pg 582)

6. Jail Video Tape

7. Internal Affairs/Detectives Power Point Presentation to Use

of Force Review Board, (Jt-18)

8. Follow-up Investigation: District Attorney and Internal

Affairs.

9. Salzman Statement on Proposed Discipline, 11/4/09.

10. Sergeant Nice Final Discipline

11. Office Humphreys Final Discipline

12. Police Bureau Sergeant Job Classification

13. Police Bureau Officer Job Classification

14. Relevant City Charter Provisions

15. Relevant City Code Provisions

16. PPB Directive 330.000 – Internal Affairs, Complaint

Investigation Process, 12/2005

17. PPB Directive 335.00 – Performance Review and Use of Force

Review Boards, 12/2005

18. PPB Directive 341.00 – Discipline Process, 12/2005

19. PPB Directive 343.00 – Criminal Investigations of Police

Bureau Employees

20. Directive 1010.10 – (Deadly Physical Force)

21. Directive 1010.20 (Use of Physical Force)

22. Directive 630.15 (Foot Pursuits)

23. Directive 315.00 (Laws, Rules & Orders)

24. Directive 315.30 (Unsatisfactory Performance)

25. Report to the City of Portland Concerning the In-Custody

Death of James Chasse, 7/2010 (OIR)

26. Saltzman’s Copy Internal Affairs Report


27. Katsaris Deposition

28. Manual of Policy and Procedure, 2003

29. Manual of Policy and Procedure, 2005

30. Allegation #4 sustained

31. Chronology of Events

32. Civil Court Complaint, 2.8/07

33. Denial of Summary Judgment

34. Settlement, 7/12/10

35. In Custody Death Report

UNION

1. Officer Humphreys Commendations

2. Sgt. Nice Commendations

3. Chris Humphreys Personal Statement

4. Portland Police Bureau News Release

5. Portland Tribune Newspaper Article

6. Chief Sizer Statement

7. Version of Portland Police Bureau Directives 630-45 and

1051.00, 2009

8. Defendants Humphreys, Nice, Sizer Potter, City of Portland

and Tri-Metes Motion for Partial Summary Judgment in

Chasse, et al. v Humphreys, et al. (U.S> Dist Court of

Oregon Case No, 07-CV-189-HU)

9. Expert Witness Statement of Tom S. Neuman, M.D. in Chasse,

et al. v Humphreys, et al. (U.S. Dist Court of Oregon Case

No, 07-CV-189-HU)

10. Reserved

11. Oregon Health Authority Paramedic Education Requirements

12. Portland Tribune Newspaper Article

13. Deputy Bret Burton Deposition Excerpt

14. Reserved

15. Reserved

BACKGROUND

City of Portland (hereafter “City or “the Employer”) and

Portland Police Department Association (hereafter “Local” or

“the Union”) agreed to submit two disputes over officer

discipline to arbitration. A hearing was held before Arbitrator

Timothy Williams in Portland, Oregon on February 13 - 17, 2012.


At the hearing the Parties had full opportunity to make opening

statements, examine and cross examine sworn witnesses, introduce

documents, and make arguments in support of their positions. A

transcript was made of the hearing which was sent to each Party

and to the Arbitrator.

During the pre-hearing conference the Parties provided the

Arbitrator with a Pre-hearing Agreement which reads as follows:

1. The Parties request that the Arbitrator retain jurisdiction

over any remedial issues for a period of 90 days following

the decision.

2. The Parties agree that the grievances were combined for

hearing efficiency reasons only, and that the Arbitrator is

to consider each grievance on its own merits.

3. As to the Portland Police Bureau Use of Force Review Board:

At the time the Board had been established by the Chief of

Police through Bureau policy as an advisory body to the

Chief of Police. The Board’s purpose was to review the

materials, listen to presentations, discuss the information

in executive session, and make recommendations to the Chief

of Police. The Board proceeding was not adversarial in

nature and did not involve an evidentiary hearing. The

PPA, Sergeant Nice and Officer Humphries did have the right

to attend the non-executive session portions of the Board

meeting. The PPA, Sergeant Nice and Officer Humphreys did

not have a right to call or cross examine witnesses. The

PPA President attended and actively presented information

and posed questions in the non-executive session portions

of the Board meeting.

The PPA, Sergeant Nice and Officer Humphreys did not have a

right to attend or participate in the Board’s executive

session. By Bureau policy, only voting members and certain

advisory members were present during executive session.

At the close of the hearing, the Parties were offered an

opportunity to give closing oral arguments or to provide


arguments in the form of post-hearing briefs. Both parties

chose to submit written briefs and the briefs were timely

received by the Arbitrator. Thus the award, in this case, is

based on the evidence and arguments presented during the hearing

and on the arguments found in the written briefs.

FACTS

The matter before the Arbitrator consists of two grievances

filed by the Portland Police Association against the City of

Portland. The grievances arose under a Collective

Bargaining Agreement (CBA) effective July 1, 2006 -

June 30, 2010. The matter was timely grieved pursuant to the

terms of the CBA.

The following is a brief summary of the events that led up

to the filing of the grievances. It is based on the

Arbitrator’s understanding of both documentary and testimonial

evidence presented during the hearing. Citations are provided

only when statements or documentary information are specifically

quoted.

At the beginning of his testimony, Sergeant Kyle Nice

provided a brief overview of his work history with the Portland

Police Bureau (PPB). He started working for the PPB in March of

1992. After he completed his police training, he worked as an

officer in various precincts in Portland until he was promoted


to a Sergeant position in the Central Precinct in October of

2003.

At the time of the incident that led to these proceedings,

Kyle Nice had been a Sergeant in the Central Precinct of

Portland for approximately three years, and had been employed by

the PPB for more than fourteen years. Sergeant Nice had never

been disciplined by the City of Portland prior to this incident.

He was assigned to patrol the Central Precinct on the afternoon

of the incident (Sept 17, 2006). As the patrol Sergeant, he had

the responsibility to “supervise calls” or incidents (Tr 446).

Chris Humphreys testified as to his work history with the

PPB. He was hired by the Portland Police Bureau on February

4th, 1999. He worked there until approximately November, 2010,

when he was medically laid off. At the time of the arbitration

hearing he was residing in a town in Central Oregon. His

testimony was received both by telephone and by way of the

internet and the use Skype.

While employed as an officer with the Portland Police

Bureau, Humphreys was first assigned to patrol the East

Precinct. He was working in the Transit Division, and then was

assigned to the training division. He was also a member of the

rapid response team and the emergency management unit.

On the day of the incident, September 17th, 2006, Officer

Humphreys was assigned to the Transit Police Division and was


patrolling the downtown or Central District with his then

partner, Deputy Bret Burton. Burton was working for the

Multnomah County Sheriff’s Office and was on assignment to the

Transit District.

The following description of the incident that led to the

death of James Chasse is taken primarily from the testimony of

the three officers that were directly involved in the events.

To the extent that there is contrary evidence as to what

happened, that evidence is discussed in the analysis portion of

this award only where it is relevant with regard to the dispute

over the appropriateness of the discipline imposed on Sergeant

Nice and Officer Humphreys.

On September 17th, 2006 at 17:08 hours, Sergeant Nice

stopped a possibly intoxicated subject on NW 18th and Everett

Street in Portland. This subject was a different person than

Mr. Chasse. Sergeant Nice called for cover, and at 17:09 hours,

Deputy Burton and Officer Humphreys arrived at the scene.

During that time, Officer Humphreys saw Mr. Chasse at 18th and

Everett and described the scene this way:

I saw him standing on the corner of the intersection.

Looked like he was just kind of — I don’t know, acting

strangely, stepping from foot to foot. I thought at first

he was waiting for a bus. Then it looked like he saw us

and he took off in this quick walk, a straight - legged

gait as he headed away. Appearing to me like he was

leaving the area because we were there. (Tr 550)


At 17:16 hours, Sergeant Nice cleared and left the scene at

18th and Everett, intending to go elsewhere. Burton and

Humphreys also left in their patrol car. At NW 13th and Everett

at 17:18 hours, Officer Humphreys and Deputy Burton observed Mr.

Chasse again, standing near a tree with his back to the

officers. Officer Humphreys described Mr. Chasse this way:

It appeared to me that the way he was standing when we

pulled up at 13th and Everett — or saw him at 13

th and

Everett was that it looked like he was urinating. He was

hunched. He was either urinating or possibly- I mean, one

of the things I’ve seen before is - from a hunched gait, is

that he was using narcotics. (Tr 551)

Deputy Burton whistled or yelled at Mr. Chasse as they

approached him. Officer Humphreys testified that he saw a look

of “sheer terror” on Mr. Chasse’s face when he saw the deputy

and the officer (Tr 602). Mr. Chasse ran eastbound on NW

Everett Street, with Officer Humphreys and Deputy Burton behind

him.

Driving separately eastbound on Everett Street, Sergeant

Nice saw Deputy Burton and Officer Humphreys pull over to the

curb and start chasing Mr. Chasse. Nice wasn’t sure why they

were chasing him. Sergeant Nice parked his car, got out and ran

southbound toward the intersection of 13th and Everett to try to

intercept Mr. Chasse.

Officer Humphreys ran after Mr. Chasse and employed a

takedown technique to get Mr. Chasse to the ground. Officer


Humphreys also fell to the ground, but does not recall falling

directly on top of Mr. Chasse. Humphreys recalled that the fall

broke the clips that fixed his badge onto his back pocket.

Sergeant Nice described the takedown this way: “As I’m

watching Mr. Chasse, I remembered Officer Humphreys closing in

on him and his hands coming up and then there was contact and

they went down to the ground. And that happened in a split

second” (Tr 465, 466).

Sergeant Nice did not believe that Officer Humphreys had

landed on top of Mr. Chasse because,

…he [Mr. Chasse] had a backpack on and after they had hit

the ground, the backpack went several feet away from us.

So I’m assuming that when Mr. Chasse hit the ground that

backpack came off of him and went flying. And that if

Officer Humphreys had landed on top of Mr. Chasse, that

backpack probably would have been pinned in between them or

at least contained right there, but it went flying.” (Tr

466)

After Mr. Chasse hit the ground, Officer Humphreys saw him

try to get back up, and that was when Sergeant Nice and Deputy

Burton joined in efforts to get Mr. Chasse into custody (put

handcuffs on him and get him under control). Sergeant Nice

estimated the struggle to get Mr. Chasse into custody to last

between two to three minutes, and Mr. Humphreys estimated that

it lasted between two and four.

During the struggle, Sergeant Nice grabbed Mr. Chasse’s

left arm and put it into a reverse wrist lock. Mr. Chasse bit


Sergeant Nice on the right calf. Sergeant Nice was surprised at

Chasse’s flexibility. Chasse attempted to bite Officer

Humphreys and then attempted to bite Nice again. Sergeant Nice

testified that he tapped/kicked Mr. Chasse in the chest with the

instep of his right boot and said, “Hey, stop biting” (Tr 502).

Sergeant Nice then pulled his fist back in consideration of

throwing a punch at Chasse, but changed his mind because he

didn’t have a “good target area” to land the punch. While Nice

looked at Chasse, he saw that his teeth were “kind of messed

up,” and because he knew that “…striking people in the facial

area can lead to injuries both to the officer by breaking the

hand or punching him in the mouth, getting some type of cut and

getting an infection...,” he did not land a blow on Mr. Chasse

(Tr 503). Sergeant Nice put his foot on Mr. Chasse’s jaw to

hold his jaw to the ground and to keep him from biting.

Officer Humphreys struck Mr. Chasse in the face with a

closed fist during the struggle and Mr. Chasse continued to try

to get loose.

Deputy Burton deployed his Taser on Mr. Chasse in the

‘drive stun’ mode on the upper thigh/ buttock area. Humphreys

and Nice reported that the Taser had no effect on Mr. Chasse and

he continued to struggle.

At 17:20 hours, Sergeant Nice requested cover. “After the

other officers arrived we were able to contain Mr. Chasse and


get him in handcuffs” (Tr 464). At 17:22 hours, Nice advised

that Mr. Chasse was in custody.

At 17:23 hours, Sergeant Nice requested Code 3 medical

because Mr. Chasse went unconscious. A few moments later,

Sergeant Nice requested Code 1 instead because Mr. Chasse

regained consciousness.

At 17:25 hours, the AMR ambulance arrived. Sergeant Nice

testified that he told lead paramedic Tamara Hergert the

following when she arrived: “I believe I told her that there

had been a short chase, we had struggled with Mr. Chasse, taken

him into custody and he had gone unconscious” (Tr 479). Nice

also noticed that Mr. Chasse had a cut on his lip that was

bleeding.

At 17:26 hours, Portland Fire Bureau Engine 3 arrived. At

this point, the officers stood around while the paramedics

assessed Mr. Chasse. Another officer on the scene, Officer

Weldon, stayed kneeling next to Mr. Chasse to monitor him.

According to Sergeant Nice, Ms. Hergert told Nice that Mr.

Chasse was fine:

When she got done checking Mr. Chasse, she [Ms. Hergert]

came up to me and we had a conversation, and she told me he

was fine. I was actually a little surprised by that. I

expected something, either dilated pupils to indicate drug

use or something. So I double checked with her and I said,

You’re sure he’s fine, because if you’re not going to take

him, we have criminal charges on him and he’ll go to jail.

And I said, You’re sure? And she said, Yeah, he’s fine.

(Tr 484, 485).


At 17:41 hours after 16 minutes at the location, AMR

Ambulance cleared the scene, as did Portland Fire Bureau after

having been at the scene 15 minutes.

At 17:46 hours, Officer Humphreys and Deputy Burton

transported Mr. Chasse to Multnomah County Detention Center

(MCDC). Mr. Chasse was in maximum restraints in the back seat

of the patrol car. Officer Humphreys described Mr. Chasse’s

condition at that time as:

…he was moving around. He was verbally still kind of going

off on this verbal litany, if I recall. Which he was

moving around in the back and kind of sitting straight up

at that point almost. (Tr 582).

At 17:52 hours, Officer Humphreys and Deputy Burton arrived

at MCDC. When they arrived, a deputy working at MCDC put a spit

hood on Mr. Chasse so that he would not try to bite anyone. Mr.

Chasse was moved to an isolation cell from the patrol car.

Officer Humphreys described his demeanor this way: “More of the

same, still yelling, still struggling with the deputies as they

packed him in” (Tr 584).

Mr. Chasse lost consciousness for a second time in the

holding/isolation cell. The County jail medical staff were

called to check on Mr. Chasse’s well-being. By the time the

nurses arrived the deputies at the scene noticed that he was

breathing again.


Registered Nurse Patricia Gayman and/ or Sokunthy Eath, RN,

looked through the holding cell door window at Mr. Chasse but

did not enter. Nurse Gayman advised that Mr. Chasse would not

be admitted to MCDC and would have to be taken to the hospital.

Mr. Chasse was put into ankle chains and handcuffs and

loaded back into the police car. Officer Humphreys described

his demeanor as he was being carried: “He was still the same,

the yelling, the screaming, any time he was kind of grabbed,

touched, he was still yelling and screaming” (Tr 591).

At 18:23 hours, Officer Humphreys and Deputy Burton

attempted to transport Mr. Chasse from MCDC to Portland

Adventist Hospital by way of I-84. At 18:29 hours, Officer

Humphreys requested medical to NE 33rd and Clackamas when Mr.

Chasse appeared to lose consciousness again. Deputy Burton, who

was driving the patrol car, pulled off at this exit because

there is no shoulder on that section of I-84.

At 18:32 hours, Officer Humphreys removed Mr. Chasse from

the back seat of the police vehicle, pulled off Mr. Chasse’s

spit hood, advised BOEC he was beginning chest compressions and

requested medical to hurry to the scene. At 18:34 hours, AMR

Ambulance and Portland Fire Bureau Engine 28 arrived. At 18:48

hours, AMR Ambulance transported Mr. Chasse to Providence

Hospital. At 18:51 hours, Mr. Chasse arrived at the hospital.

At 19:04 hours, Mr. Chasse was pronounced deceased.


Oregon State Medical Examiner Karen Gunson, M.D., performed

the autopsy and concluded that his cause of death was blunt

force chest injuries (J 12, p 275). She told Bureau detectives

that Mr. Chasse’s bones were very brittle and like those of a

50, 60 or 70 year old woman (J 13, p 40).

Mr. Chasse had 14 fractured ribs including 27 separate

fractures, 17 of which were attributed to the struggle with the

officers on NW 13th and Everett and 10 which were CPR related (E

26, p 5). Dr. Gunson opined that when Mr. Chasse was being

moved from place to place the rib fractures from the physical

altercation between Chasse and the officers likely caused a

dislocated rib to perforate the lung, causing substantial

internal bleeding (J 13, p 43). No drugs were found in his

system.

Upon the in-custody death of James Chasse, the City of

Portland initiated three separate investigations: 1) Detectives

were assigned to look for any potential criminal actions; 2)

Training conducted a separate inquiry into questions of the

adequacy of training including whether there were any violations

of instructions received through training and 3) PPB Internal

Affairs investigated for any policy violations by officers.

The results of the detective’s investigation into the cause

of death of Mr. Chasse are in evidence as joint exhibits #11 and

#12. The work of the detectives was ultimately submitted to the


Office of the District Attorney. On October 3, 2006, a grand

jury hearing was held. Two weeks later, it was concluded that

no charges were warranted against anyone present at the scene.

The Training Division analysis was led by then Lieutenant

Dave Famous. The results of this investigation are in evidence

as joint exhibit #15. The conclusions included a determination

that neither Sergeant Nice nor Officer Humphreys violated their

training. Additionally, the report from training made a number

of recommendations for changes including:

Offer the forty (40) hour Crisis Intervention Team (CIT)

training to all uniformed officers and sergeants in the

Portland Police Bureau. (This has been mandated by the

chief of police and the bureau is currently in the process

of completing this mandate.) (J 15, p 20)

On November 13th, 2006, the Bureau’s Internal Affairs

Division (IAD) began its investigation to determine whether the

officers involved complied with Bureau policies in the Chasse

case. The work of the IAD, as related to the death of James

Chasse, is in evidence as joint exhibits #13 and #14. The IAD

investigation focused on allegations of excessive use of

physical force against Sergeant Nice, Officer Humphreys and

Deputy Burton (J 13, P 1).

The IAD investigation was extensive and included interviews

with a wide ranging group of individuals. On November 14th,

2007, the IAD interviewed Sergeant Nice, and Officer Humphreys

on December 7th, 2007. On July 28

th, 2008, the IAD ended its


investigation and concluded that there was no evidence that

Sergeant Nice and Officer Humphreys were non-compliant with the

Bureau’s training on the use of the Taser.

As is the practice, the work of IAD proceeds through a

number of different reviews with the purpose of ultimately

determining whether or not discipline of the officers is in

order. On August 28th, 2008, then Commander Dona Henderson

concluded from her Command-level investigations that there were

no violations of Bureau policies by Nice or Humphreys (J 16).

In October 2008, the Use of Force Review Board reviewed the

facts of the case, and on October 11th, issued a recommendation

to Chief Sizer, saying they did not conclusively identify any

policy violations except that Sergeant Nice should have required

transport of Chasse by medics to the hospital under Directive

1051, the Taser directive.

The Board concluded that the Grievants had no reason to

know that Mr. Chasse was in a fragile medical condition and

that:

As soon as the officers observed Mr. Chasse showing signs

of medical distress, officers called for paramedics. At

the time Mr. Chasse was transported to jail, officers had

been told by paramedics Mr. Chasse was medically stable.

There is no evidence in any report or witness statement

that caused members of the UFRB to conclude that any

officer at the scene knew or should have known that Mr.

Chasse had suffered a serious physical injury. (U 4, P 2,

also J 20)


Complicating proceedings in the Chasse case, in May of

2009, a separate perjury investigation was conducted by the

Internal Affairs Department around the use of the word “tackle”

by Officer Humphreys while describing the incident to another

officer on video at the MCDC. About a month later, the IAD

concluded that Humphreys had no intent to deceive about his

description of Chasse’s takedown. On May 5th, 2009, the

Multnomah County District Attorney declined to prosecute Officer

Humphreys on a charge of perjury. The command-level

investigation of this matter concluded in August 2009 with the

same results (E 8).

The estate of Mr. Chasse also filed a federal lawsuit

against the City of Portland, Officer Humphreys, Sergeant Nice,

Chief Sizer, AMR, the Fire Bureau and a number of other

defendants. Dr. Tom Neuman, a medical expert retained by the

City in that litigation, provided an expert witness statement

that Mr. Chasse’s death was caused by cardiac arrest, and that

“Mr. Chasse suffered the bulk of his rib fractures at the time

of his CPR.” Neuman also found that, “Had Mr. Chasse been more

fully evaluated at the time of his initial arrest, no

significant traumatic injuries would have been discovered on

physical exam which would have mandated paramedic transport” (U

9, P 7). On or about July 12, at 2010 the parties settled

outside of court with the City admitting no wrongdoing (E-34).


The work of the PPB regarding any possible discipline of

Officer Humphreys and Sergeant Nice was delayed by both the

perjury investigation of Officer Humphreys and the Federal

lawsuit. Ultimately the process moved forward to Chief Sizer.

Upon her review of all the case data including the work of the

IAD and the UFRB, Chief Sizer concluded that “Sergeant Nice

could have done a better job of describing the intensity of the

resistance” (Tr 328). And that she felt it was important to

discipline Sergeant Nice:

because there was a clear policy [Directive 1051]. He was

aware of the physical indicators that led to the activation

of that policy, that is the excited state, the extreme

fighting, the gibberish, so he was aware that those

behaviors were of concern. And the policy was clear, and

in fact, the policy was enacted to save people’s lives, and

he failed to follow the policy. (Tr 326)

Chief Sizer testified to the protocols related to employee

discipline within the PPB. She states:

By charter, the commissioner in charge has authority to

make suspensions, to demote or to terminate. The chief of

police has authority for written reprimand and for command

counseling. So all discipline letters involving a

suspension or greater would go to the commissioner in

charge. (Tr 267)

Chief Sizer recommended to City Commissioner Dan Saltzman

that a 40 hour suspension be imposed on Sergeant Nice for his

violation of Bureau Directive 1051; she did not recommend that

any suspension be imposed on Officer Humphreys. Commissioner

Saltzman testified that he reviewed the case materials, reading


the detective’s and Internal Affairs Divisions interviews of

Sergeant Nice and Officer Humphreys. Ultimately, he also

narrowed the scope of directives violated or complied with down

to Directive 1051, “Through reading all the materials,

including, well, including the documents in front of me and

coming to the conclusion that that was really the only procedure

that was violated” (Tr 193).

Commissioner Saltzman additionally testified that he

arrived at his conclusion that the Taser policy was violated

because:

To me it’s really quite clear. It says if the Taser is

used and one of certain circumstances apply to the

individual, then EMS transport, that that person shall be

transported by EMS. And there are two circumstances under

which I felt that applied; one was sort of the excited

delirium. The other was potentially the hyperstimulation.

So there was two paragraphs in there as part of the

directive that says EMS will transport. And I felt that

both of those applied.

And just their [Nice and Humphreys] observations, too, that

not only did they think he was high on drugs but they felt

he had mental issues too, and I think that that’s also

cited under rule 1051 as a basis for requiring EMS

transport. (Tr 196, 197)

Commissioner Saltzman arrived at the conclusion that 80

hours suspension-without-pay was an appropriate disciplinary

action for both of the officers because “the overall result of

the violation of 1051 was the fact that somebody died. So I

felt that 80 hours was a minimally appropriate amount of

suspension, and that’s what I went with” (Tr 198). Saltzman did


not factor the Grievants’ respective ranks into the charges

because in his opinion, “Policy 1051 applies to every sworn

member of the Police Bureau” (Tr 198).

By letter dated November 2, 2009 Sergeant Nice was informed

that the City proposed to suspend him for a total of 80 hours

without pay as discipline for his violation of Directive 1051.

The letter also provided Sergeant Nice with the opportunity to

respond either in writing or through an oral presentation (J 1).

Union attorney Will Aitcheson provided a written response on

behalf of Sergeant Nice setting forth 15 specific objections to

the proposal including the contention that the discipline was

not for just cause (J 2).

By letter dated November 3, 2009 Officer Humphreys was

informed that the City proposed to suspend him for a total of 80

hours without pay as discipline for his violation of Directive

1051. The letter also provided Officer Humphreys with the

opportunity to respond either in writing or through an oral

presentation (J 4). Union attorney Will Aitcheson provided a

written response on behalf of Sergeant Nice setting forth 16

specific objections to the proposal including the contention

that the discipline was not for just cause (J 5).

By letter dated February 2, 2010, Officer Humphreys

received his 80-hour suspension letter from Commissioner

Saltzman and Chief Sizer. He was charged with violating


Directive 1051- Taser, Less Lethal Weapon System. In his

letter, it says, “You said that you expected that AMR would

transport MR. Chasse, and you should have made sure this

happened” (E-11).

By letter dated February 2, 2010, Sergeant Nice received

his 80-hour suspension letter from Commissioner Saltzman and

Chief Sizer (E 10). He was charged with violating Directive

1051- Taser, Less Lethal Weapon System. In his letter, it says,

“As a supervisor, it was your responsibility to recognize that

Mr. Chasse exhibited conditions and behaviors that required

medical transport.”

On February 24, 2010 the Union filed a grievance on behalf

of Officer Humphreys. The grievance states in pertinent part

that:

Statement of Grievance: On 2/23/10, Grievant received

notice that he was being suspended without pay for 80

hours. The discipline was not for just cause, is

disproportionate to any offense committed by Grievant, is

out of keeping with the standards of discipline in the

Bureau, fails to take into account mitigating

circumstances, violates the principles of progressive

discipline, and was for political reasons.

Articles of Contract Violated: Article 20

Remedy Requested: That the discipline be rescinded, that

all reference to this matter be removed from Grievant’s

personnel files, that Grievant be made whole for all lost

wages and benefits, together with interest,, and that such

other relief as may be appropriate under the circumstances

be awarded. (E 9)


On April 7, 20101 the Union filed a grievance on behalf of

Sergeant Nice. The grievance states in pertinent part that:

Statement of Grievance: On 4/6/10, Grievant received

notice that he was being suspended without pay for 80

hours. The discipline was not for just cause, is

disproportionate to any offense committed by Grievant, is

out of keeping with the standards of discipline in the

Bureau, fails to take into account mitigating

circumstances, violates the principles of progressive

discipline, and was for political reasons.

Articles of Contract Violated: Article 20

Remedy Requested: That the discipline be rescinded, that

all reference to this matter be removed from Grievant’s

personnel files, that Grievant be made whole for all lost

wages and benefits, together with interest,, and that such

other relief as may be appropriate under the circumstances

be awarded. (E 8)

The Parties processed both grievances through the steps of

the grievance procedure per Article 22 of the Collective

Bargaining Agreement (CBA) but were unable to reach an agreement

that would have resolved their differences. As a result and

consistent with the terms of the CBA, they selected Arbitrator

Timothy Williams to hear the matter. The arbitration hearing

was held from Monday, February 13th

through Friday, February 17th

at the Office of the City Attorney in Portland, Oregon. Both

Parties provided arguments in the form of written briefs. This

Opinion and Award provided by Arbitrator Williams is the final

disposition of the two grievances.

1 While Sergeant Nice’s suspension letter was dated February 2, 2010, he did

not receive the letter until April 6, 2010.


STATEMENT OF THE ISSUE

The discipline of Sergeant Nice and the discipline of

Officer Humphreys are two separate matters and the Parties

agreed that the issues should be stated as follows:

1a. Was the 80-hour suspension without pay of Sergeant Kyle

Nice for just cause under Article 20 of the collective

bargaining agreement between the City and the Portland

Police Association?

1b. If not, what is the appropriate remedy?

2a. Was the 80-hour suspension without pay of Officer Chris

Humphreys for just cause under Article 20 of the collective

bargaining agreement between the City and the Portland

Police Association?

2b. If not, what is the appropriate remedy?

APPLICABLE BUREAU POLICIES

Conditions and Behaviors Requiring Medical Treatment After

Deployment (1051.00)

EMS will be summoned when the Taser is deployed on the following

individuals. EMS will also transport then to the hospital.

a. Children, who are known to be, or are obviously under

the age of 12.

b. Persons who are known to be, or are obviously older

than 60 years of age.

c. A woman who is known to be or obviously pregnant.

d. A person who is known to be or obviously medically

fragile (i.e., any individual with a chronic medical

illness). Examples include diabetes, seizure

disorder, emphysema, asthma, heart disease (previous

heart attack, chest pain, angina), history of

pacemaker or defibrillator, kidney failure, cancer or

transplant.

e. A person suffering from hyper stimulation (before,

during or after deployment). This includes the

following behaviors such as rapid speech, agitation,

apprehension, excitation, restlessness, verbalization

of impending doom, emotional instability; physical

symptoms such as dilated pupils, headache, teeth


grinding, clenched teeth, nausea, vomiting, vertigo,

tremor (i.e. twitching of small muscles, especially

facial and fingers), tics, non purposeful movements,

pseudo hallucinations (e.g. cocaine bugs), seizures or

coma; pale skin, racing pulse or increased; skin

temperature hot or very warm to touch.

f. A person suffering from agitated delirium (before,

during or after deployment). This includes the

following: severe agitation, overamped or wired;

paranoia; delirium (an abnormal mental State

characterized by disorientation, fear and

irritability), altered mental status (a change in the

level of consciousness or the content of

consciousness), confusion or disorientation,

restlessness or purposeless movements in the setting

of cocaine use, tremor (i.e. twitching of small

muscles, especially facial and finger).

Other Medical Treatment After Deployment (1051.00)

When the Taser is deployed on a person, other than those

listed above in required medical treatment using:

a. Drive stun mode:

1. EM personnel will not be summoned to the scene

unless medical treatment is necessary.

APPLICABLE CONTRACT LANGUAGE

ARTICLE 20

DISCIPLINE

20.1 Disciplinary action or measures shall include only the

following: written reprimand, suspension, or in lieu thereof,

with the officer’s concurrence, loss of vacation or FLSA

compensatory time. Disciplinary action shall be for just cause

and will be subject to the following grievance procedure. This

section shall not apply to counseling and instruction. Verbal

reprimands will not be used as the basis for subsequent

disciplinary action unless the officer is notified at the time

of reprimand, and if notified at the time of reprimand, and if

notified the matter will be subject to the grievance procedure.


ARTICLE 22

GRIEVANCE AND ARBITRATION PROCEDURE

22.5.2 Each Party shall be responsible for paying the costs

of presenting its own case in arbitration including the payment

of witness fees, if any. The cost by the Arbitrator, court

reporter (if any) and the hearing room shall be borne by the

losing Party. Following the rendering of the Arbitrator’s

decision, the Parties shall meet and attempt to agree which is

the “losing Party.” If the Parties are unable to so agree, the

question of who is the “losing Party” is shall be submitted to

the Arbitrator who rendered the decision in question. The

Arbitrator’s subsequent designation of the “losing Party” shall

be final and binding. If the Arbitrator cannot designate which

Party is the loser, each Party will pay on-half (1/2) the cost

of the arbitration.

POSITION OF THE EMPLOYER

The Employer argues that the City had just cause to

discipline with 80-hour suspensions-without-pay. Directive 1051

mandates transportation to a hospital under certain conditions

and both Sergeant Nice and Officer Humphreys had been properly

trained to correctly apply the Directive. They ignored the

requirements of the Directive by choosing to take Mr. Chasse to

jail with fatal consequences. The Association’s arguments

irresponsibly attempt to pass the buck rather than ensuring that

the Grievants accept professional responsibility.

Portland police officers must take responsibility for the

people in their custody, even when the subject needs or is being

delivered medical attention, and especially when the officers

suspect that the subject is on drugs.


Sergeant Nice was disciplined because he failed to

communicate complete information about the struggle to handcuff

Mr. Chasse on NW 13th and Everett St. to the lead paramedic who

arrived shortly thereafter.

Nice should have communicated the full extent of the force

used during the takedown of Mr. Chasse. As a Sergeant, the City

argues that it was also Mr. Nice’s duty under Bureau Directive

1051 to report to the lead paramedic that Mr. Chasse had been

Tased, and to require medical transport of Mr. Chasse because he

had been Tased and was exhibiting signs that various other

medical conditions may be occurring.

Sergeant Nice and Officer Burton, the backup officer on the

scene, noted that they were surprised at the length of the

struggle, and that Mr. Chasse was very agitated, was hollering,

and that his speech was unintelligible.

When the paramedics arrived, Chasse did not acknowledge or

respond to Paramedic Hergert at all, until later, when he asked

about his backpack and all the people standing around him. He

then became more agitated, yelling unintelligible words while

paramedics tried to get a read on his glucose levels.

Paramedic Hergert could not have done an accurate triage of

Chasse without knowing the full extent of the struggle with Mr.

Chasse, and Sergeant Nice failed to disclose that critical

information.


According to Chief Sizer, Sergeant Livingston and Captain

Famous, when police call medical to a scene, they explain what

happened, why medical was summoned, and officers provide

information they believe is relevant to treating the suspect,

which results in a back-and-forth discussion between police and

medical personnel so that the medical personnel can accurately

do their job.

Neither Sergeant Nice nor Officer Humphreys were expected

to diagnose Mr. Chasse’s condition after the incident, but they

were expected to ensure he received appropriate medical

attention.

Given the observations they did make about his behavior

(Chasse’s surprising strength, flexibility and endurance during

the struggle in spite of his notably slight frame, his excited

state, the unintelligible words he was saying, and the officers’

theory that he might have been using drugs), the City argues

that Nice and Humphreys had all the information needed to

recognize that the suspect might have been in a state of excited

delirium, and should have required medical transport.

Officer Humphreys’ suspension was fair because he had two

opportunities to ensure that Mr. Chasse was taken to a hospital

rather than to jail after this incident, which was Humphreys’

duty as the officer in custody of Mr. Chasse. He was also

bound to comply with Bureau Directive 1051, requiring that


officers ensure medical transport after tasing with medical

complications, and failed to make sure Mr. Chasse was

transported to the hospital at both 13th and Everett and at the

Multnomah County Detention Center.

Officer Humphreys should have also relayed the information

he knew about the severity of the physical interactions of the

apprehending of Mr. Chasse to the paramedics. Humphreys knew

how hard he hit the pavement with Chasse, knew how long and

vigorous the struggle was until Chasse was hobbled, knew that

the struggle included the suspect being punched, kicked and

tased, knew that Chasse was agitated and yelling incoherently,

and that Chasse lost consciousness. The City argues that the

Lead Paramedic Hergert needed this information to be able to use

appropriate judgment in deciding whether to transport the

suspect to the hospital or send him to jail in custody of the

police.

The City made thoughtful and informed decisions to hold

Nice and Humphreys accountable for the consequences of their

struggle with Chasse. Mayor Potter and Chief Sizer made

organizational decisions that took large amounts of

responsibility for this incident onto the Bureau. The City

provided defenses for Nice and Humphreys, as well as paying a

settlement to resolve the federal litigation. The City


acknowledged and accepted its responsibility in a tragic event,

Sergeant Nice and Officer Humphreys should do likewise.

The Union’s argument that it was entirely medical’s fault

that Chasse was not transported to the hospital fails because

medical did not have all the information they needed from Nice

and Humphreys to make an accurate assessment of Mr. Chasse’s

medical needs at that time.

Regarding due process considerations, lengthy

investigations for death-in-custody cases are not unusual. The

average length of time for the Bureau’s Review Board process for

such a case was 1.4 years. The Chasse case took 2.4 years, and

another officer-involved shooting took 2.3 years. It is a very

serious matter when a person dies in police custody. Given all

the complications of investigating a case of this complexity and

the complication of the federal litigation, the time-frame of

this case is reasonable.

In sum, the City argues that the Arbitrator should uphold

the disciplines of Sergeant Nice and Officer Humphreys as fair,

just and consistent with the requirements of Article 20 of the

CBA, because Portland Police Officers are responsible for

providing accurate information about suspects in their custody

such that appropriate medical care is ensured. Common sense

should have triggered the Grievants to require medical

transport, especially because they suspected Chasse was on


drugs. Directive 1051 is a rule in place that should have

protected both the officers and Mr. Chasse, but the Grievants

failed to abide by it, and therefore need to be held accountable

for their mistakes.

POSITION OF THE UNION

The Union, or the Association, argues that the City’s

disciplines of Sergeant Nice and Officer Humphreys were not

just, and that the Grievants should be made whole plus interest.

The burden of proof has not been met by the City that Nice or

Humphreys each engaged in misconduct by violating Bureau Policy

1051.00. The City failed to provide both Nice and Humphreys with

due process (via a full, fair and timely investigation) and the

level of discipline issued by the City is not congruent with the

alleged degree of misconduct by the Grievants.

The Association maintains that the Grievants’ actions were

compliant with applicable Bureau policies and training. Though

the City will argue that the Grievants should have ensured that

Chasse was transported to the hospital under Directive 1051, the

Grievants did not believe that Chasse was suffering from excited

delirium, and therefore, did not trigger a post-Taser medical

transport.

Bureau training on signs of excited delirium included

profuse sweating and high temperature. As they struggled with


Chasse, the officers did not notice either of these signs, nor

any other sign that would have indicated a medical condition

that required transport.

At the time of the Chasse incident, officers had no duty

to insist that Chasse be transported to the hospital following

use of the Taser. That decision rested with the paramedics.

Lead paramedic Hergert found Chasse’s vital signs to be

within a normal range, and even when Medic Stucker told her that

he’d learned that a Taser had been used on Chasse while they

were leaving the scene, Hergert did not believe that there was

reason to transport Chasse based on his vital signs, and based

on the fact that Chasse did not express that he was injured or

in pain.

Directive 1051 was modified after this incident to say

that “members will ensure that EMS examines the person at the

scene and transports the person to the hospital unless the

person is not in custody, is mentally competent, and refuses

examination and transport” (U-7 at 16). This emphasis on

officers ensuring medical transport was not in effect at the

time of the incident.

The officers deferred to the paramedics based on their

training and the language in Directive 1051 at that time, and

were not required to override paramedics’ opinion that Mr.

Chasse did not need to be medically transported. The Union


argues that the Grievants cannot be disciplined under the new

policy because it was not in effect at the time of the incident.

Officer Humphreys should not have been disciplined for

failing to ensure that Chasse was taken to the hospital from the

Multnomah County Detention Center because he was simply doing

what he believed he should do, based on the opinion of Nurse

Gayman at MDCD. He was acting consistently with the common

practice at the time, in which police officers notify a

supervisor and transport a suspect to Portland Adventist

Hospital when they are refused to be accepted by the jail staff.

Though the City argues that the Grievants failed to

provide all necessary information to the paramedics that they

would have needed in order to appropriately triage Mr. Chasse,

the Association contends that this argument fails for several

reasons.

First, at the time of the Chasse incident, the Bureau had

no policy around exactly what kind of information officers were

obliged to tell paramedics. Second, the Bureau did not provide

training to its officers on how to communicate with medical

personnel. And finally, the information that the City asserts

Nice and Humphreys did not communicate is incorrect.

Ms. Hergert knew that officers had fought with Mr. Chasse,

and that Officer Humphreys had knocked Mr. Chasse down.

Sergeant Nice didn’t think that Humphreys had landed on Mr.


Chasse because he saw Chasse’s backpack fly off, and that seemed

to indicate that Humphreys had not landed on Chasse.

Paramedic Stucker knew that Mr. Chasse had been tased with

no effect, and told Paramedic Hergert, who did not return to

transport Mr. Chasse because his vital signs had been in the

normal range, and he seemed fine.

As a final argument for why the Grievants’ conduct did not

merit the City’s discipline, the Union points out that in the

federal litigation brought by the estate of Mr. Chasse, the City

hired an expert witness, Mr. Katsaris, to defend the City and

the Grievants. Mr. Katsaris argued to a Federal Court that the

Grievants had acted reasonably in communicating with the

paramedics and relying on their determination that Mr. Chasse

was medically fit to go to jail.

The Association argues that the Grievants were denied due

process because the investigation into these matters by the City

was untimely, with the discipline imposed on the Grievants more

than three and a half years after the incident.

In addition, the Internal Affairs Division investigation

did not include interviews with all key witnesses. IAD did not

interview the jail nurse Gayman, nor the Portland Fire Bureau

responders who were present at 13th and Everett. Nor did IAD

interview several witness police officers, including Sergeant


Niiya, who were present to conversations between the Grievants

and the paramedics.

The level of discipline; 80 hours without pay; for each

Grievant, was unreasonable and disproportionate to the conduct

of Nice and Humphreys. Police Commissioner Salzman admitted

that the discipline was not progressive and was meant to send a

punitive message to the Grievants. Both of the Grievants had

received many awards prior to this incident for their excellent

work. Nice had never been disciplined, and Humphreys’ only

prior discipline was a ten-year-old written reprimand for a car

accident. Their work histories should have been considered in

determining the appropriate level of discipline.

In Federal Court, the City argued that the Grievants had

acted reasonably in how they interacted with the paramedics, and

in deciding to take Mr. Chasse to jail. Then the City, in the

disciplinary process, argued that the Grievants’ actions were

unreasonable. Because the City has taken inconsistent positions

on these matters, the Association argues that it is unfair and

unwarranted that the Grievants should have received their

suspensions-without-pay.

Because of the lack of clear policy violations, the

lateness of the discipline related to the incident, and the

City’s prior stance that the Grievants had acted reasonably in

this incident, the Association argues that the Arbitrator should


rescind the discipline and make the Grievants whole in all ways,

plus interest.

ANALYSIS

The Arbitrator’s authority to resolve a grievance(s) is

derived from the Parties’ Collective Bargaining Agreement (CBA)

and the issue that is presented to him. The pertinent contract

provision is found in Article 20.1 and it reads:

Disciplinary action or measures shall include only the

following: written reprimand, suspension, or in lieu

thereof, with the officer’s concurrence, loss of

vacation or FLSA compensatory time. Disciplinary

action shall be for just cause and will be subject to

the following grievance procedure.

The Parties agreed that the issue in this case is whether

the 80 hours suspension of both Sergeant Nice and Officer

Humphreys fully complied with the just cause standard. The City

asserts that its actions were consistent with the just cause

standard while the Union argues that the two suspensions

violated this requirement.

The Arbitrator notes that in a grievance arbitration

proceeding, the employer is generally assigned the burden of

proof in any matter involving the discipline or discharge of an

employee. In all other matters the union is assigned the burden

of proof. As the instant grievance does involve a matter of

disciplinary suspensions, the burden lies with the Employer.


Also, this Arbitrator has regularly determined in prior

decisions that where discipline or discharge relates to

questionable circumstances that would create a permanent stain

on the employee’s record (such as sexual harassment or theft),

the applicable standard of proof is “clear and convincing.” The

instant case does not involve such circumstances but rather is

primarily concerned with field decisions as to how a person

taken into custody (James Chasse) would be transported and to

where he would be transported. While the result of the decision

to transport Mr. Chasse to jail was both fatal and tragic, the

charges against the Grievants raise only the question of the

proper application of Directive 1051. This does not, in the

Arbitrator’s view, attack the character of the Grievants nor put

a permanent stain on their employment record. Thus the

Arbitrator determines that the appropriate standard of proof for

both grievances is a preponderance of the evidence.

As previously noted, this arbitration decision involves two

separate inter-related grievances pursuant to employee

discipline. The Parties have chosen for reasons of efficiency

to combine them into one arbitration proceeding. The two

grievances share some but not all of the facts. As a result,

this analysis will proceed first with some general observations

about the case and the facts applicable to both grievances. The

general observations will be followed with a discussion of the


Sergeant Nice grievance followed by a discussion of the Chris

Humphreys grievance

General Observations

Most grievance arbitration proceedings that arise under a

collective bargaining agreement are quiet affairs particularly

when the matter submitted to the arbitrator involves employee

discipline or discharge. Employee misconduct is usually viewed

as a private matter between the employer and the employee. In

the instant case, the Parties collective bargaining agreement

specifically provides at Article 20.2 that:

If the City has reason to reprimand or discipline an

officer, it shall be done in a manner that is least likely

to embarrass the officer before other officers or the

public. (J 7)

Obviously there is absolutely nothing about this case that

is private including the discipline of the two officers. Google

“James Chasse” and there is an enormous amount of information

available particularly about his death. The Arbitrator is

certainly aware of the controversy surrounding the James Chasse

case. The viral nature of the events that occurred on September

17, 2006 does not, however, change the standards or protocols

that a labor arbitrator uses to resolve a grievance. The

Arbitrator emphasizes that his decision with regard to the

question of whether the discipline imposed on Sergeant Nice and

Officer Humphreys met the just cause standard is entirely based


on the record created during the arbitration hearing; a record

that is extraordinary in size and exhaustive in detail.

The Arbitrator is also mindful that the evidence was

gathered and analyzed with the knowledge of the end result;

knowing that Mr. Chasse died in police custody. The simple

fact, however, is that Sergeant Nice and Officer Humphreys were

disciplined for making decisions or failing to make decisions

when they did not have that knowledge. The Arbitrator has made

a careful effort to evaluate the actions/inactions for which the

discipline was imposed in the context of the information

available to Nice and Humphreys at the pertinent time.

Additionally, this case is heavily dependent upon the

testimony of key witnesses. Finding the truth in testimony is

often a difficult task. The accuracy of testimony is always an

issue in any arbitration proceeding that is dependent on the

recall of witnesses. What one perceives is influenced by

personal filters, memory fades over time and self-interest can

shape what is stated even when those statements are made under

oath.

Moreover, the arbitration hearing occurred in February of

2012 while the incidents for which discipline was imposed

occurred on September 17, 2006; an interlude of 5½ years.

During the arbitration hearing, witnesses repeatedly commented

on concerns over their memory and acknowledged reliance on prior


statements they had made in the form of depositions, interviews

with detectives or recorded statements made by Internal Affairs.

Testimony in the instant case has the additional problem

associated with defensiveness created because key individuals

were under public attack; Chief Sizer referred to this as being

unfairly demonized. The Arbitrator, as he reviewed the

transcripts of the hearing and the prior recorded statements,

was particularly mindful that the tragic ending to the events of

September 17, 2006 undoubtedly influenced the transparency of

witnesses’ statements; particularly the statements of those

individuals who had official contact with Mr. Chasse and who

were in positions to make decisions that might have altered the

final outcome.

The Arbitrator took into consideration the problems of

accuracy and forthrightness with the testimony as he evaluated

the record. Ultimately his final conclusions are based on his

best judgments as to what occurred on September 17, 2006, what

key players actually said to each other and what they knew or

did not know at pertinent times.

Another general observation concerns the narrow scope of

this arbitration decision. Sergeant Nice and Officer Humphreys

were both given 80 hours suspensions without pay for performance

failures related to the events of September 17, 2006. Article

20 of the Parties CBA grants the City the right to impose


disciplinary suspensions so long as they are for just cause.

Article 20 also provides than any discipline imposed by the City

on an officer is subject to the grievance procedure.

Arbitration is the final step of the grievance procedure.

The suspensions were imposed on Sergeant Nice and Officer

Humphreys for violating Directive 1051. Directive 1051 covers

medical treatment after deployment of a Taser and it requires

EMS to be called to the scene and that EMS transport to a

hospital certain individuals who have been tased. EMS was

called to the scene at 13th and Everett but was not directed by

Sergeant Nice to transport. EMS was not called to the scene nor

asked to transport by Officer Humphreys at MCDC when Mr. Chasse

again went unconscious. The Arbitrator emphasizes that the only

issue in front of him is whether Sergeant Nice and Officer

Humphreys were properly discipline for allegedly failing to use

EMS consistent with directive 1051.

Most important, this decision has nothing to do with

questions about the proper use of force when Mr. Chasse was

apprehended. Those issues were separately addressed through the

work of the detectives that ended up in front of the grand jury

and the work of Internal Affairs which went to the Use of Force

Review Board.

As to the just cause standard itself, there are a number of

different tests that arbitrators use to determine whether a


disciplinary action meets the just cause standard usually found

in a labor agreement. Over the years, this Arbitrator’s

practice has evolved where he now uses the arguments of the

Parties to determine what they consider to be the important just

cause concerns related to the disciplinary action in question.

When the Parties are represented by experienced counsel, as in

the instant case, their arguments will fully vet whatever just

cause issues are pertinent to the matter before the Arbitrator.

Thus the Arbitrator finds no reason to provide a separate

discussion explaining the nature of the just cause standard.

Rather, he will focus this analysis on responding to the

specific arguments raised by the Parties with the confidence

that the question of just cause will be fully addressed through

this process.

Finally, as noted above, the record in this proceeding is

extraordinarily detailed. The Arbitrator has been careful with

his due diligence and thoroughly reviewed the entire proceeding.

The Parties in their briefs raise certain issues and make

specific allegations all related to whether the discipline was

for just cause. The briefs were carefully studied and all

questions raised given thoughtful consideration. For reasons of

time constraints and prudence, the Arbitrator has chosen to

focus the analysis on the key factors that led to his ultimate

decision. That an issue raised by a party is not discussed does


not mean it was not considered. It does mean that the

Arbitrator did not consider it one of the primary factors in

arriving at his final determination.

Grievance of Sergeant Kyle Nice

The City determined that it had reason to discipline

Sergeant Kyle Nice and imposed an 80 hours suspension. As

previously noted, the City carries the burden of proof to

establish just cause for its decision to discipline Sergeant

Nice. The basis for the City’s contention that it had just

cause, otherwise known as the theory of its case, is spelled out

in the City’s brief. This theory can be summarized as follows:

1. A Taser was used on James Chasse and that required the application of Directive 1051.

2. James Chasse had symptoms similar to those found under sub-paragraphs e and f, therefore medical transport to a

hospital was required by the policy.

3. Sergeant Nice was the officer in charge at the scene and while he called for EMS he did not inform them that they

were required to transport, thus the violation of policy

and the justification for an 80 hours unpaid suspension.

4. The fact that the paramedic cleared Mr. Chasse for

transportation in a police vehicle to MCDC is an invalid

defense since both Sergeant Nice and Officer Humphreys

failed to communicate to the paramedic the full extent of

the force that was used in getting him handcuffed and

hobbled.

The Union counters the Employer’s case by contending first

that Directive 1051 was not violated and second that Sergeant

Nice and Officer Humphreys provided more than sufficient


information to the paramedic for her to make a proper medical

determination.

The Arbitrator, having carefully reviewed all of the

arguments and the facts in support of the arguments concludes

that the City has not met its burden of proof. As a result, he

will sustain Sergeant Nice’s grievance and order a remedy. The

reasoning behind this conclusion is laid out in the following

multipoint analysis.

First, throughout the hearing and in its brief, the City

connects the use of the Taser on Mr. Chasse with hyper

stimulation (sub-paragraph e) and/or agitated delirium (sub-

paragraph f). The tasing and hyper stimulation and/or agitated

delirium have to both be present for Directive 1051 to require

medical transportation to a hospital.

There is no question that Mr. Chasse was tased. There is

significant evidence, however, that he did not at any time

suffer from hyper stimulation and/or agitated delirium. The

Arbitrator’s reading of the Directive leads him to the

conclusion that it does not require medical transportation for a

symptom but only where there is a reasonable basis to conclude

that hyper stimulation and/or agitated delirium are present.

Thus the City cannot claim that there was a mandatory

requirement for medical transportation to the hospital.


While the specific evidence in support of this conclusion

comes from a number of different sources, this analysis looks

first at the basic fact that there is some confusion between

Directive 1051 and the recognized medical condition of excited

delirium. The Directive draws a distinction between hyper

stimulation and agitated delirium. The medical community sees

only a single definable problem. Sergeant Livingston sets forth

in his testimony the following explanation:

Q: I notice, first of all, that hyper stimulation and

agitated delirium are separated out as two different

categories. What’s your understanding and what sort of

training do you give officers in terms of those two

conditions? Do you treat them the same? Do you treat them

different? What goes on during training?

A: It’s commonly referred to in every other area of the

Police Bureau policies and training as excited delirium.

So really we teach them as one and the same. They’re

broken down into two sections in the policy for some

unknown reason. I’m not aware of it. The captain at the

time created this policy using a model policy from another

agency. But all the training that I’ve been to regarding

sudden death, in-custody death, refers to it as excited

delirium and doesn’t break them into two. But the

symptoms, if you look at them, are the same. When I read

then and I look at both, I really can’t see much of a

difference between the two, between hyper stimulation and

agitated delirium. (Tr 410, 411)

Dr. Gunson, the medical examiner that performed the

autopsy, in opining that excited delirium was not present she

uses the phrase agitated delirium and excited delirium in the

same fashion. She indicated that his behavior was more

reflective of a “paranoid schizophrenia” and states that “once


we saw the injuries, it was, it’s then we completely abandoned

that idea of cocaine psychosis or, or some kind of excited

delirium” (J 14, P 95).

Additionally, at the time of the Chasse incident, officers

in the PPB were exposed to a short training video that is in

evidence as Employer exhibit #1. The training video draws no

distinction between hyper stimulation and agitated delirium.

Throughout the presentation the medical condition is given but a

single identity.

Finally, in reaching the determination that excited

delirium was not present, the Arbitrator is mindful of Dr.

Gunson’s analysis of the contributing factors to Mr. Chasse’s

death.

“Well, I think the rib fractures were probably already

there. But, perhaps, the uh. Displacement of those rib

fractures and the perforation of the lungs may have

occurred with the three subsequent carrying positions, or,

or, you know, carrying episodes, if you will. Um, now, I

do know that, at one point, there was noted to be some

blood around his mouth. And that could easily have arisen

from having his lung punctured by one of those ribs. But

it was my understanding this blood did not appear until he

was at the Multnomah county facility. They did not see it

on the street.” (J 13, P 43)

In other words, broken ribs and their interface with the

lungs contribute to Mr. Chasse’s demise; it was not excited

delirium.

Second, the Arbitrator emphasizes, however, that the City’s

case is not without some merit. The fact that Mr. Chasse had


gone unconscious and the fact that he was yelling gibberish at

times are both symptoms listed in Directive 1051 and thus cause

for considering medical transport to the hospital.

Clearly, everyone directly involved in the Chasse incident

now wishes that a hospital transport had been promptly

undertaken. The Arbitrator again reminds that the issue before

him is not whether medical transport was necessary but rather

whether the failure to do so warrants a suspension for Sergeant

Nice and Officer Humphreys. The Arbitrator’s ultimate

conclusion that it does not justified discipline is

significantly influenced by the training video on excited

delirium by which Sergeant Nice and Officer Humphreys were

trained (E 1).

Two factors from the video are significant for this case.

First, the video directs officers to promptly seek medical help

in the event that excited delirium is present. Sergeant Nice

immediately sought medical assistance when Mr. Chasse lost

consciousness therefore Nice is in compliance with this

directive even though excited delirium was not the cause of the

loss of consciousness.

The other reason that the video is significant for the

instant case is that it provides a clear set of four factors

that will help identify excited delirium: elevated heart rate,

elevated blood pressure, significantly elevated temperature and


elevated respiration. Paramedic Hergert has never wavered in

her claim that none of the four conditions were present (J 24

and Tr pages 134 to 172). Moreover, while Directive 1051

contains a set of behavioral factors by which an officer can

identify a possible case of excited delirium, the training

received by officers focuses on heart rate, blood pressure, body

temperature and respiration.

Based on the Arbitrator’s conclusion that the mandatory

nature of Directive 1051 was not present in the absence of

excited delirium and based on the fact that the paramedic found

Mr. Chasse medically stable and safe to transport to the jail,

the Arbitrator finds no basis upon which to conclude that

Sergeant Nice committed a disciplinable offense when he had Mr.

Chasse driven to the jail in a police car.

Fourth, the Arbitrator does not find persuasive the City’s

argument that the paucity of information provided by the

officers to the paramedic(s) kept the paramedic(s) from

adequately doing her job. He finds inadequate support for the

City’s contention that the responsibility for the incorrect

decision by the paramedic that Mr. Chasse was safe to take to

jail must be assigned back to Sergeant Nice and Officer

Humphreys; had they fully communicated the extent of the force

used against Mr. Chasse in handcuffing and hobbling him, the


paramedic would have had a better chance of accurately

diagnosing the seriousness of his condition.

The Arbitrator notes that the Parties are sharply divided

on this issue. The City presents its point of view through the

testimony of Captain Dave Famous who testifies:

Q: Is the description of there is a struggle, there is a

fight, adequate in your view?

A: Well, in this case I don’t believe so. Number one,

you have a prolonged struggle. And by prolonged we’re

talking about minutes, which is a long time. He’s been

tased. He’s been kicked. He’s been punched. He’s been

knocked to the ground. He’s been hobbled. He’s bit

Sergeant Nice. He has this horrible odor about him. He’s

yelling incoherently. They’re thinking he may be high on

drugs. So there is so many factors that have gone on here

that it is unusual and – but we expect our officers and our

sergeants to explain to the paramedics what happened. (Tr

757, 758)

The Union calls expert witness W. Ken Katsaris who has

extensive knowledge of the facts of this case since he was used

as a witness by the City in the civil litigation that resulted

from the death of Mr. Chasse. He testified as follows:

Q: The initial piece of information that Mr. Chasse had

fought with police and gone unconscious, do you believe

based on your training and experience, that that gave the

paramedics sufficient information to cause – to allow them

to do a triage of injuries without any additional blow-by-

blow description of the use of force?

A: Well, I would like to say yes, but you didn’t give me

all the basic information because I believe the basic

information included a foot pursuit. I think the basic

first information included the unconsciousness, which I

indicated, was of course, the key information. It also

included that there was a fight, that they fought. And, of

course, the fact is, they were presented with a person who


was hobbled and cuffed. And all of that together combines

to indicate, of course, quite a struggle and fight and then

unconsciousness.

All of that is key information that a paramedic would

have and need and is all they would need, because once you

know about unconsciousness, that’s when they do an assessment.

Certainly relating to injury relating to the head or issues of

unconsciousness, because unconsciousness is key. If they are

involved in a fight and there was a struggle and a takedown

and they’re in a hobble, then you know also to palpitate and

check the rest of the body. So they had all the information

that a paramedic would need to engage in a triage of an

individual under those circumstances. (Tr 653, 654)

There is no dispute between the Parties that Sergeant Nice

and Officer Humphreys could have provided substantially more

information to the paramedics. Moreover, in this Arbitrator’s

view, the efforts by the City, since the Chasse incident, to

require better communication between officers and paramedics is

prudent and reasonable. Dotting all the i’s and crossing all

the t’s makes good sense when dealing with medical emergencies

and certainly is essential regarding risk management and the

potential for civil liability.

However, the Arbitrator emphasizes the fact that in the

instant case Sergeant Nice and Officer Humphreys are not being

disciplined for their poor communication. The City is

emphasizing the communication deficiency as a way of disarming

the fact that the lead paramedic twice indicated that it was

safe to transport Mr. Chasse to jail. The basic question the

Arbitrator asks is what difference would it have made if


Sergeant Nice and/or Officer Humphreys had given more

information to paramedic Hergert. A quick review of Hergert’s

testimony at the arbitration hearing provides the following:

Q. BY MS. HARPER: I know it’s a hypothetical question, but

if you had been told that the Taser had been used, what, if

any, different steps would you have taken?

* * * * *

A. I’m not sure, quite honestly. There is the, if they

had been tasered and they’re acting completely abnormal to

the situation, you transport them in case they have or

develop the excited delirium stuff. But other than

refusing to talk to us much of what Mr. Chasse did was

seemingly appropriate. He saw people standing around him.

He saw what he thought was his backpack. He yelled when

people picked him up. I would like to say positively I

would have transported him, but honestly, I can’t say that

for sure. I wish I had known so we could have added in.

It may have made a difference. It may not I wish I had

known.

Q BY MS. HARPER: Do you wish you had known that he had

fallen to the ground hard?

A. Yes.

(Tr 165, 166)

Paramedic Hergert is more specific in her deposition given

for the civil litigation. There she provides the following

statement:

Q: And what was the conversation that you had at the

scene when you were clearing the scene?

A: `After we had left the scene he mentioned one of the

officers told him that Mr. Chasse had been Tased. And when

I asked him about what do you mean Tased, he says, well,

no, they said he – they tried to Tase him but it hadn’t

taken.


Q: And did that cause you to change anything that you had

thought about in terms of your care and treatment of the

patient?

A: No. It was a piece of information I would have liked

to have at the – at the time, but it didn’t change the

vital signs or exam I had done on Mr. Chasse [emphasis

added]. (J 24, P 10)

As has been emphasized above and amplified by the

statements made by paramedic Hergert, the criteria used to

determine whether or not it was safe to transport Mr. Chasse to

jail all indicated that he was good to go. The Arbitrator also

turns to statements made by medical examiner Gunson as found in

the IA report:

As a result we reviewed with Dr. GUNSON the vital signs and

commented noted in Ms. TAMI HERGERT’s report, DR. GUNSON

was asked if the reported vital signs, which were

considered “normal,” were consistent with Mr. CHASSE’s

injuries. Dr. GUNSON stated, “No I would have expected all

three parameters, blood pressure, heart beat, and

respiration, to be higher because of this activity, just

this activity. I mean with the fight, with the run for

several blocks, uh, unless you’re a marathon runner, I

would expect these to be much, much higher.” (TRANSCRIPT:

page 5, lines 212-213). Given the circumstances involved

with Mr. CHSSE, Dr. GUNSON was asked if she was aware of

how his vital signs could possibly be normal and accurate.

Dr. GUNSON stated, “Hmm, I, uh, I, I don’t, I’ve never seen

a situation where they would be absolutely normal like they

are, given the situation he was in.” (J 13, P 41)

The important point to the Arbitrator is that Dr. Gunson

focuses on the accuracy of the data, she expresses no opinion

that alternative data should have been collected or that other

protocols should have been used. The Arbitrator concludes that

the accuracy of the data is not a reflection of the amount of


the information given from Sergeant Nice to paramedic Hergert.

In other words, paramedic Hergert would have gotten the same

blood pressure reading, body temperature, respiration and heart

rate regardless of how much information was given or not given

by Sergeant Nice and Officer Humphreys.

In summation, while Sergeant Nice and Officer Humphreys

could have provided a much more thorough statement of the

observed medical problems related to Mr. Chasse, the evidence is

compelling and indicates that this information would not have

changed paramedic Hergert’s conclusion that Mr. Chasse was safe

to take to jail.

Overall and in hindsight, the Arbitrator finds much that

could have been done differently. However, based on the

training that Sergeant Nice and Officer Humphreys received and

on the conclusions reached by the lead paramedic, the Arbitrator

does not find evidence that the failure of Sergeant Nice to have

Mr. Chasse medically transported to the hospital an offense that

should be subjected to discipline.

Grievance of Officer Chris Humphreys

The City determined that it had reason to discipline

Officer Chris Humphreys and imposed an 80 hours suspension. As

previously noted, the City carries the burden of proof to

establish just cause for its decision to discipline Officer


Humphreys. The basis for the City’s contention that it had just

cause, otherwise known as the theory of its case, is spelled out

in the City’s brief. This theory can be summarized as follows:

1. A Taser was used on James Chasse and that required the application of Directive 1051.

2. James Chasse had symptoms similar to those found under sub-paragraphs e and f, therefore medical transport to a

hospital was required by the policy.

3. Officer Humphreys was an active participant in catching and acquiring control over James Chasse. He had two

separate opportunity’s, at the scene and at MCDC, to

ensure that Mr. Chasse was transported by the EMT to the

hospital. Thus he twice violated Directive 1051 and the

appropriate discipline is an 80 hours unpaid suspension.

4. The fact that the paramedic cleared Mr. Chasse for

transportation in a police vehicle to MCDC and that he

was told by a MCDC nurse to take Mr. Chasse to the

hospital is an invalid defense since Officer Humphreys

failed to communicate to the paramedic and to the nurse

the full extent of the potential medical problems and

because he was ultimately the person responsible for the

well-being of Mr. Chasse.

The Union counters the Employer’s case by contending first

that Directive 1051 was not violated and second that Officer

Humphreys acted consistent with practice and under the direction

of the appropriate medical authority.

The Arbitrator, having carefully reviewed all of the

arguments and the facts in support of the arguments concludes

that the City has not met its burden of proof. As a result, he

will sustain Officer Humphreys’ grievance and order a remedy.

The reasoning behind this conclusion is laid out in the

following multipoint analysis.


First, for all the reasons cited under the discussion of

the Sergeant Nice grievance, the Arbitrator also determines that

Officer Humphreys’ failure to insist on a medical transport of

Mr. Chasse from 13th and Everett to a hospital is not a

disciplinable offense. To the prior discussion the Arbitrator

would add the obvious fact that the officer in command at 13th

and Everett was Sergeant Nice. The Arbitrator has no reason to

believe that any police officer in the PPB would override his

commanding officer in a similar situation; to do so would be

contrary to the Officer’s training and to the department’s

command structure.

Officer Humphreys letter of suspension also indicates that

he was at fault when he “had an additional opportunity to insure

appropriate medical care was given in this case when the jail

refused to accept Mr. Chasse” (J 6).

The Arbitrator gave extensive thought to the question of

whether Officer Humphreys should be disciplined for failing to

make a second call for an ambulance when the MCDC nurse refused

Mr. Chasse admission and indicating that Officer Humphreys and

Deputy Burton should transport him to the hospital. Ultimately,

the Arbitrator arrived at the conclusion that the evidence is

insufficient to establish a charge warranting discipline. The

Arbitrator summarizes the reasons for this conclusion as

follows:


1. Mr. Chasse was cleared by the paramedic for

transportation in the police car a very short time prior

to the nurse directing that he be transported to the

hospital.

2. As was the practice, Officer Humphreys requested the

nurse’s assistance when Mr. Chasse passed out for a

second time in the holding cell at MCDC. It seems to the

Arbitrator that the poor judgment made by the nurse in

directing the transport of Mr. Chasse without providing a

hands-on evaluation is wrongfully being assigned to

Officer Humphreys. The nurse provides the medical

evaluation at the MCDC and officer should be able to rely

on her efforts.

3. Chief Sizer did not see cause to discipline Officer

Humphreys for undertaking the transportation of Mr.

Chasse from jail to the hospital on her initial analysis.

That analysis seems reasonable to the Arbitrator.

4. Officers rely on compliance with policy in order to avoid discipline. MCDC Policy DC 12.100.093 is clear in that

it assigns responsibility to medical with regard to

transporting a prisoner to the hospital. Specifically

that policy requires Corrections Health (the nurse) to

“notify the Intake Sergeant in the event an inmate needs

emergency attention so that the Sergeant may arrange for

the arresting Officer to transport the inmate to the

appropriate hospital emergency room before booking” (J

12, P 536). Consistent with this policy, Officer

Humphreys, as one of the arresting officers, was directed

to transport Mr. Chasse to the hospital. While there is

obviously some conflict between Directive 1051 and MCDC

policy, this conflict should not result in the discipline

of Officer Humphreys but rather needs to be worked out

between the two jurisdictions.

Officer Humphreys was not in command at 13th and Everett.

He transported Mr. Chasse in a police car as opposed to having a

medical transport under the direction of Sergeant Nice and

paramedic Hergert. He further commenced the transport of Mr.

Chasse from the jail to the hospital under the direction of the

MCDC nurse and pursuant to a specific MCDC policy. None of


these actions, from the Arbitrator’s perspective, warrant

discipline. Thus the Arbitrator will sustain the grievance and

order an appropriate remedy

REMEDY

The Union, in its brief, asks the Arbitrator to “rescind

the discipline and make the Grievants whole in all ways, plus

interest” (U Br 47). The Arbitrator agrees with the Union’s

request with regard to rescinding the discipline and making the

Grievants whole for lost wages. However, this Arbitrator is of

the old school who views grievance arbitration work as part of a

workplace dispute resolution process. Under this theory, where

an employer’s actions are in good faith no money is owed until

the parties disagreements over that action are resolved by

arbitration. The Arbitrator is convinced that the Employer’s

actions in this case were in good faith thus no interest is

owed.

CONCLUSION

Sergeant Kyle Nice and Officer Chris Humphreys each

received an 80 hours unpaid suspension for failing to have James

Chasse transported to a hospital by way of an ambulance.

Sergeant Nice’s discipline arose with regard to his actions on

the corner of 13th and Everett on September 17, 2006. Officer

Humphreys discipline focused on his actions or lack of action at


the MCDC also on September 17, 2006. In both cases, the

Grievant’s are charged with breaking PPB policy that mandated

the use of medical transport. Mr. Chasse died in police custody

while being transported to a hospital in a police car.

Ultimately the Arbitrator determined that the City failed

to prove its charges against both Grievants. In the

Arbitrator’s view, the facts of the case do not support a

conclusion that the policy was violated particularly in light of

the fact that competent medical personnel approved or directed

the transportation of Mr. Chasse by police car. Based on this

conclusion, the Arbitrator sustains the grievances and is

directing an appropriate remedy.

An award is entered consistent with the findings and

conclusions provided in the analysis portion of this decision.

IN THE MATTER OF THE ARBITRATION ) ARBITRATOR’S

)

BETWEEN ) AWARD

)

PORTLAND POLICE ASSOCIATION )

)

“PPA” OR “THE UNION” )

)

AND )

)

CITY OF PORTLAND )

) CHRIS HUMPHREYS/KYLE NICE

) GRIEVANCE

“THE CITY” OR “THE EMPLOYER” )

After careful consideration of all arguments and evidence,

and for the reasons set forth in the Opinion that accompanies

this Award, it is awarded that:

1a. The 80-hour suspension without pay of Sergeant Kyle Nice

was not for just cause as required by Article 20 of the

collective bargaining agreement between the City and the

Portland Police Association.

1b. The grievance is sustained and to remedy the violation of

Article 20 the Arbitrator directs the City to remove the

disciplinary action from Sergeant Kyle Nice’s personnel

file and make him whole for lost wages.

2a. The 80-hour suspension without pay of Officer Chris

Humphreys was not for just cause as required by Article 20

of the collective bargaining agreement between the City and

the Portland Police Association.

2b. The grievance is sustained and to remedy the violation of

Article 20 the Arbitrator directs the City to remove the

disciplinary action from Officer Chris Humphreys’ personnel

file and make him whole for lost wages.

3. Per the Parties stipulation, the Arbitrator retains

jurisdiction for a period of ninety (90) days from the date

of this award to resolve any disagreement over the

implementation of the remedy.

Arbitration Award (Humphreys/Nice Grievances) Page -- 2

4. Article 22 in pertinent part provides that the cost of the

Arbitrator shall be borne by the losing Party. It further

provides that “following the rendering of the Arbitrator’s

decision, the Parties shall meet and attempt to agree which

is the ‘losing Party.’” The Arbitrator’s bill is submitted

to both parties with the expectation that they will

promptly make the appropriate decision and that the Party

designated as the loser will process the invoice for

payment.

Respectfully submitted on this, the 9th day of July, 2012 by,

Timothy D.W. Williams

Arbitrator