CHAPTER 143 LABOR ARBITRATION HEARING DECISION

Police Officer Jason Chiappardi )

) Review of Austin Police
) Department IA # 2016-0336
Vs. ) conducted pursuant to Chapter 143 of the
) Local Government Code
)
The City of Austin )

PROLOGUE

This matter came on for arbitration before the Honorable Chuck Miller on
stipulated facts and written briefs and, by agreement of the parties, without a
hearing. Briefs and joint exhibits were submitted on or about June 28, 2017. Chuck
Miller, serving as Arbitrator chosen by the parties, is a member in good standing
with the Federal Mediation and Conciliation Service. Police Officer Jason
Chiappardi was represented by CLEAT attorney Nadia Stewart. The City of Austin
was represented by City attorney Michael Cronig. This arbitration was the result of
an appeal by Chiappardi of a three day suspension imposed upon him by Chief of
Police for the City of Austin, Art Acevedo, on August 17, 2016. Upon
consideration of the stipulated facts, briefs and exhibits presented by the parties the
Arbitrator renders the following decision.

ISSUES

The issues submitted by Chiappardi are, verbatim:

1. Did Detective Chiappardi correctly presume that his social media postings in
question were made pursuant to his Constitutional right to engage in
protected speech under the First Amendment to the Constitution of the
United States?
2. Does the Austin Police Department policy on social media, Policy 972.4(b),
constitute a prior restraint on speech which voids any discipline issued in
this case?
3. If the Arbitrator determines that the acts do not constitute protected speech,
did the City prove by a preponderance of the credible evidence that one or
more of the allegations charged in the written statement of suspension are
1
 true1?
4. If the Arbitrator finds that one or more of the allegations charged are “true”,
what is the appropriate discipline?

The issues submitted by the City, being somewhat convoluted, are rephrased as
follows:

1. Does the Arbitrator have the authority/jurisdiction to declare a department

policy unconstitutional?
2. If the Arbitrator does have such jurisdiction, is Austin Police Department
Policy 972.4(b) Employee Speech, Expression, and Social Network, an
impermissible prior restraint on speech?
3. If Police Department Policy 972.4(b) constitutes a prior restraint on speech,
does that finding void the Appellant’s discipline under the specific facts of
this case?
4. If not, are the postings at issue protected speech under the First Amendment
to the United States Constitution?
5. If the Arbitrator does not have the authority/jurisdiction to declare a
department policy unconstitutional or if the Appellant’s speech is not
protected speech, did the City prove by a preponderance of the credible
evidence that one or more of the allegations charged in the written statement
of suspension are true [did that speech violate APD Policy 972.4(b)]?
6. If the Arbitrator finds the Appellant violated APD Policy 972.4(b), does the
Arbitrator have the authority to mitigate punishment?2 3
7. If the Arbitrator has such authority, what is the appropriate remedy under the
Just Cause standard?

1
LGC Section 143.053 provides:
(g) The commission may suspend or dismiss a fire fighter or police officer only for violation of civil
service rules and only after a finding by the commission of the truth of specific charges against the
fire fighter or police officer.
LGC Section 143.057 provides:
(f) In each hearing conducted under this section, the hearing examiner has the same duties and powers as
the commission …
2
Article 18, Section 1 (a) (2) of the 2013 Meet and Confer Agreement between the City and the Austin Police
Association provides that the Hearing Examiner has “no authority to mitigate the punishment” (But see footnote 3
supra).
3
LGC Section 143.053 provides: (e) In its decision, the commission shall state whether the suspended fire fighter or
police officer is: (1) permanently dismissed from the fire or police department; (2) temporarily suspended from the
department; or (3) restored to the person's former position or status in the department's classified service. (f) If the
commission finds that the period of disciplinary suspension should be reduced, the commission may order a
reduction in the period of suspension. (emphasis supplied)

2
The issue as phrased by President Casaday:

“We look forward to doing the arbitration. Not because there wasn’t an issue
with what he said, but we’re interested in what an arbitrator would say about
what First Amendment rights do officers have and not have.” Austin Police
Association President Ken Casaday quoted in a local FOX News article
dated August 19, 2016.

FACTUAL BACKGROUND

On March 21st, 2016, Austin Chief of Police Art Acevedo Indefinitely

suspended Police Officer Geoffrey Freeman for events leading up to and including
the shooting by Freeman of David Joseph on February 8, 2016. Freeman and
Chiappardi were good friends at the time. In the early evening of March 21st
Chiappardi, having become aware of the indefinite suspension of his friend and
fellow officer, began posting a series of social media statements using pseudonyms
instead of his real identity.

At 7:14 pm on March 21st, he posted the following Twitter message under

the fictitious name of “Frank Vincent”:

“My family and friends are glad to hear that the high school dropout, drug
using, neighborhood terrorizing, naked guy will never scare anybody else
again.”

Later on March 21s, the Appellant posted the following messages on his Facebook
account using the fictitious name of Jason Paul:

“I emailed the boss in support of Geoff. I made it clear that a firing was not
necessary and would be a major blow to the department. The boss replied
saying Geoff was lucky to have the support of friends like me. It’s too
fucking bad that the boss has no support for his officers. I hope he leaves
soon. He better not ask me how my daughter or family are since I know it
doesn’t really matter if another political group gets his attention. As a union
rep I will support Geoff forever.”

“I just watched the video of the press conference. Very telling that the boss
is feeling for the dropout’s family but makes no mention of Geoff’s family.”

***
3
On March 24th Chiappardi posted the following messages on his Facebook
account using the fictitious name of Jason Paul:

“A couple of days ago I made a statement in support of my good friend. I’m

saddened by the fact that someone had to be childish and tattle tailed on me.
It’s a shame that whoever did it, does not have a pair. Time to grow up.
Guess someone never learned that bringing an apple to the teacher doesn’t
always work.

Saddest part is now I must delete most, if not all, my work “Friends.” No
disrespect meant to anyone. Just want to keep thought to those that matter
most.”
***
“People can’t seem to mind their own business. Once again, I was notified
that someone brought last night’s post to the attention of one of my
supervisors. Really? WTF was so special about it? Nothing. The earlier
‘Test’ message was testing the privacy of my account. So here is some
advice to those who thing being an adult tattle tale is cool.

Get a life.
Wipe the shift off your nose.
Call yourself Jermain H. He tried the same things. He lost. You will too.
Go ahead and tattle. Yes I said it. I don’t want to deprive you of your daily
dose of ass kissing.
Say something directly to me. Have a backbone. Send me a message and I’ll
send you my phone number so we can actually speak.

I have received so much support the last two days. I’ve been shocked with
all the texts, calls, and messages from real friends. Thank you.”

These pseudonyms or aliases were used by Chiappardi to hide his identity

from people in general and a police watchdog group in particular. It is noted
however that his posts were read and sometimes responded to via Facebook
“Likes” or comments by Chiappardi’s Facebook “Friends” (but not the general
public) including APD officers and civilians. Chippardi’s list of Facebook friends
numbered in excess of 800 (he purged the list and deleted his Facebook posts on
the morning of March 22nd.). It should be noted that neither Chiappardi’s Facebook
page nor his twitter account identifies him by his full name or photograph, nor does
it allude to the fact that he is an Austin Police Officer.
4
 To put these posts in context, the shooting of David Joseph by Austin Police
Officer Geoffrey Freeman was a highly controversial and publicized event in
Central Texas because Joseph, who was a black man, was clearly unarmed when
shot. This country had just been through a series of highly controversial and
publicized deaths of unarmed black men perceptively at the hands of police. The
day after the shooting Chief Acevedo help a press conference surrounded by
members of the black community presumably to assuage the situation and avoid
the type of demonstrations/riots that had occurred elsewhere following such events.
To say the least, feelings ran strong among some citizens at the event’s occurrence.

On March 28th a complaint concerning Chiappardi’s social media posts

narrated above was filed with APD Internal Affairs by Lieutenant Michael Eveleth
and assigned to Lieutenant Justin Newsom. This complaint asserted that the posts
may have compromised or damaged the mission, function, reputation or
professionalism of the Austin Police Department in violation of departmental
policy.

The complaint was followed by two Internal Affairs interviews of

Chiappardi on April 20th and June 15th. On July 27th Chiappardi’s Chain of
Command sustained the allegation against Chiappardi, violation of APD Policy
972.4(b) – Prohibited Speech, Expression and Conduct, and recommended a 3 day
suspension. Immediately following a disciplinary meeting on August 17th Acevedo
temporarily suspended Chiappardi for three days. Just as immediately on August
17th Cleat attorney Grant Goodwin appealed the suspension in a letter, jointly
signed by Chiappardi, to a third party hearing examiner [Arbitrator].

APD Policy 972.4(b), titled: Employee Speech, Expression and Social

Networking: Prohibited Speech, Expression and Conduct, states the following:
To meet the Department’s safety, performance, and public-trust needs, the
following is prohibited:

(b) Speech or expression that, while not made pursuant to an

official duty, is significantly linked to, or related to, the Austin Police
Department and tends to compromise or damage the mission,
function, reputation or professionalism of the Austin Police
Department or its employees.4

4
In the new APD Police Manual, issued July 20, 2017, Policy 972.4(b) remains unchanged. See July 20, 2017
edition of The Austin Police Department Policy Manual, p. 704.

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 THRESHOLD ISSUE

May an Arbitrator decide the constitutional issues concerning whether the policy
constitute a prior restraint on speech (See Chiappardi’s issue #2) which voids any
discipline issued in this case, or whether the policy AS APPLIED does the same
(See Chiappardi’s issue #1)?

Determination of Chiappardi’s issues number 1 and 2 involves an arbitrator

in a constitutional determination of the APD Policy 972.4(b)’s validity. Also
involved are the City’s issues number 1, 2, 3 and 4. Before undertaking the
Herculean task of deciding these matters, some wisdom from our Texas court
system is in order.

Historically and for various legal reasons Texas courts do not decide matters
of constitutionality of a law unless they just have to. “We are reluctant to decide
constitutional questions unless absolutely necessary.” See Meshell v. State, 739
S.W.2d 246, 250 (Tex.Crim.App.1987); See also Burton v. State, 805 S.W.2d 564,
574 (Tex.App.--Dallas 1991, pet. ref'd). As a prudential matter, courts generally
refrain from passing on constitutional questions unless necessary to the disposition
of a case. See In re B.L.D., 113 S.W.3d 340, 349 (Tex.2003) (“As a rule, we only
decide constitutional questions when we cannot resolve issues on non-
constitutional grounds."). See also Turner v. State, 754 S.W.2d 668, 675
(Tex.Crim.App.1988) (providing that the constitutionality of a statute is not to be
determined in any case unless such a determination is absolutely necessary to
decide the case in which the issue is raised).

Such wisdom from both of our state’s “Supreme Courts” deserves respect in
and of itself. It is of no moment that arbitration is governed by different rules, or at
least is not subject to or bound by this judicial practice. Decision making wisdom
is wisdom, regardless of the forum. Here this Arbitrator will adhere to the
judicially imposed practice of Texas appellate law and will not decide the above
referenced issues that involve either a constitutional question or the question of the
Arbitrator’s authority to decide the above referenced issues that involve
constitutional law unless absolutely necessary.

By absolutely necessary in this case means that Chiappardi’s suspension

would be upheld absent determination of those issues. It then becomes incumbent
upon the Arbitrator to make that determination and resolve Chiappardi’s issues
number 3 and 4, and the City’s issues 5, 7 and potentially 6.
6
 Therefore in order to determine whether it is absolutely necessary to decide
the constitution related issues it is necessary to discover if Chiappardi, assuming
for the moment that the APD Policy 972.4(b) is constitutionally sufficient per se
and as applied, can be disciplined because of alleged violation of the policy. This
question involves determination under the time honored “Just Cause” standard of
review of any employee discipline. If his suspension survives the Just Cause
analysis, then a determination of whether the policy itself is void (if you will) as
unconstitutional or unconstitutional as applied and the determination of whether
the Arbitrator has the power and/or jurisdiction to do so becomes ripe for
determination.

STANDARD OF REVIEW UNDER THE JUST CAUSE TEST.

In the public sector the criteria used in the review of discipline and discharge
is much the same criteria as that used in the non-public or private sector, assuming
the absence of statutory restriction to that criteria. See Public Employee Discharge
and Discipline, Silver, Wiley Law Publications, 1989, Sec. 3.18 Arbitration, P3.31-
32.
The standard of review in non-public sector proceedings is the “Just Cause”
standard. A discharge or discipline is justified if it is for “Just Cause.” In those
non-public employee discipline cases the Company must show Just Cause for both
the finding of culpability and the punishment assessed. Just Cause therefore
requires at least two primary determinations: (1) Whether there is a reasonable
basis under the collective bargaining agreement to impose discipline on the
employee in the first instance, and (2) if there is a reasonable basis upon which to
impose discipline and whether the penalty imposed is reasonable under the totality
of the circumstances. These are two distinct inquires and must be dealt with
separately.

“Just cause” consists of a number of substantive and procedural elements.

Primary among its substantive elements is the existence of sufficient proof that the
employee engaged in the conduct for which he or she was discharged or
disciplined. Other elements include a requirement that an employee know or
reasonably be expected to know ahead of time that engaging in a particular type of
behavior will likely result in discipline or discharge, the existence of a reasonable
relationship between an employee’s misconduct and the punishment imposed, and
a requirement that discipline be administered even-handedly, that is, that similarly
situated employees be treated similarly and disparate treatment be avoided.

7
 Commonly cited elements of this standard are roughly phrased as follows:5

Factual support to show a basis for discipline;

Reasonable rules within the employer’s discretion about which the employee
has been given fair notice;
Did the employer, before administering discipline to an employee, make an
effort to discover whether the employee violated or disobeyed a rule or
order of management (i.e. was there an investigation);
Was the employer’s investigation conducted fairly and objectively;
At the investigation, was there substantial evidence or proof that the
employee committed the conduct as charged;
Equal and consistent treatment of employees (but see discussion ante in
footnote 12); and
Progressive, corrective discipline related to the nature of the offense and to
the employees personnel record, with discharge for serious wrongdoing,
or, in other cases, as a last resort when improvement cannot be foreseen
(but see discussion ante in footnote 12)

See Federal Mediation and Conciliation Service Institute: Putting Theory Into
Practice, Revised.

A more modern trend is to get away from a formulistic approach to Just

Cause in favor of a more principled analysis wherein the objectives of the
Company, the employees, and the union are weighed. The Company‘s interests
may be boiled down to securing satisfactory work from its employees. The
employee and the union’s interest are in securing a fair wage and job security. In a
given case, the Company’s actions in disciplining an employee must relate to a
legitimate business interest such as rehabilitation, deterrence and/or protection of
the Company's Good Will. The Union’s opposition to that action is grounded in
obtaining industrial due process, industrial equal protection, and individualized
treatment. See “Toward a Theory of ‘Just Cause’ in Employment Discipline
Cases,” Abrams and Nolan, 1985 Duke L.J. 594, 611-12 (1985).

The Standard of Review of a police chief's decision to suspend a police

officer is not well addressed in the Texas statute. See Local Government Code,
Sec. 143.053 (f), (West Supp. 2005). That section of the code, dealing with
punishment (germane here) states only that "If the [appellate body] finds that the
period of disciplinary suspension should be reduced, the [appellate body] may

5
The wording of the elements is often differently set out, but the concept of each of the seven always remains intact.

8
order a reduction of the period of suspension." See Id. If anything, the scant case
law interpreting TEX. LOCAL GOV'T CODE ANN. § 153.053(f) seems to give
unbridled discretion to the reviewing authority. See City of Laredo v. Leal, 161
S.W.3d 558, 563 (Tex. App.-San Antonio 2004, writ denied)(“So far as we have
been able to determine, this authority is not limited by any statutory provision; and
it has not been limited by any court decision.”).

Because the Texas Legislature has not restricted the reviewing criteria to be
used by an Arbitrator hearing a suspension case, it is therefore the consistent
determination of the Arbitrator that the standard of review of a Chief’s decision to
suspend an officer is the Just Cause standard. See Id., Public Employee Discharge
and Discipline.

For the quantum of proof necessary for the employer to meet in employee
discipline cases, there are three possible: Preponderance of the evidence, clear and
convincing evidence, and beyond a reasonable doubt. As between preponderance
of the evidence or clear and convincing evidence, disagreement can be found even
in the same treatise over which should apply in a given arbitration. See The
Common Law of the Workplace: The Views of Arbitrators, National Academy of
Arbitrators, St. Antone, BNA (1998). St. Antone's compilation of various
contributing authors is meant, says the Preface, to put forth some generally
recognized approaches to common problems as well as alternative ways of
thinking about them. On the subject of amount or quantum of proof necessary, one
contributing author stated that it is:

“... often said to be by a preponderance of the evidence in contract

interpretation cases and either clear or convincing evidence or, less often,
evidence beyond a reasonable doubt in discipline and discharge cases." (at
page 50)

A few chapters later, another contributing author stated:

"For most arbitrators, the normal quantum of proof required in disciplinary

cases is ‘preponderance of the evidence.’ For a minority, it is 'clear and
convincing evidence."

When the employees alleged offense would constitute a serious breach of the
law or would be viewed as moral turpitude sufficient to damage an
employee’s reputation, most arbitrators require a higher burden of proof,
typically expressed as 'clear and convincing evidence.'" (at page 178).
9
 Although preponderance of the evidence is the historical burden of proof and
is applied in most cases, some see a trend to apply a higher burden of proof where
alleged conduct is especially stigmatizing or seriously criminal (such as theft,
sexual harassment, selling drugs, industrial sabotage, etc.). See How Arbitration
Works, Volz & Goggan, BNA Supp. 199, p. 143; Discipline and Discharge in
Arbitration, Brand, BNA 1999, p. 335. Though this is not a universal trend, many
legal scholars seem to support requiring preponderance of the evidence or clear
and convincing evidence, but not beyond a reasonable doubt, where the activity is
punishable by criminal law. See How Arbitration Works, Volz & Goggan, BNA
5th ed. 1985, p. 907-08 and footnotes.

Therefore the City’s burden of persuasion is carried by showing, at a

minimum, that a preponderance of the evidence justifies the discharge or
discipline. “Preponderance of the evidence” has been historically defined as the
greater weight and degree of credible testimony. See Compton v. Elliott, 126 Tex.
232, 88 S.W.2d 91, 95 (Tex. 1935). At a maximum, the City must show that the
discipline imposed is justified by clear and convincing evidence. Clear and
convincing evidence has been defined as that measure or degree of proof which
will produce in the mind of the trier of fact a firm belief or conviction as to the
truth of the allegations sought to be established. This is an intermediate standard,
falling between the preponderance standard of ordinary civil proceedings and the
reasonable doubt standard of criminal proceedings. See State v. Addington, 588
S.W.2d 569, 570 (Tex.1979).

Either burden may be met by circumstantial evidence as well as direct

evidence, for “Circumstantial Evidence may have as much probative value as
testimonial or direct evidence.” See Problems of Proof in Arbitration, Proceedings
of the 19th Annual Meeting of the NAA, BNA Books, 1967, p. 98.

Assuming that an employee’s misconduct is successfully proven, on the

issue of discipline the Just Cause standard as it relates to punishment goes on a
different track. The concept that the hearing examiner should not merely substitute
his or her own judgment for that of the employer is often misapplied in the Just
Cause analysis. Its proper place is in that part of the Just Cause analysis relating to
discipline imposed. See for example BHP Glasco, 102 LA 321, 326-27
(1994)(“Finally, on the penalty of discharge ... the City’s decision to discharge
Grievant must be sustained.” [citing as authoritative on the question of discharge as
the appropriate action, the language in Standard Oil Company, 14 LA 516, 521
(1950)(Where Management testified that it would be extremely dangerous to retain
10
grievant the arbitrators concluded “It is our considered opinion that under all the
circumstances of this case, we should not attempt to substitute our own judgment
for that of Management’s expert knowledge and judgment ....”)].

Under the topic of non-public sector proceedings it is popularly understood

then that the hearing examiner should not merely substitute his or her own
judgment for that of the employer. Put another way, it is not enough to support a
negative finding in the Just Cause test that the examiner, were he or she the
employer, might have made a different decision. The true question is whether the
employer was within the bounds of reasonableness and whether there is compelling
evidence that the employer abused its discretion. See Labor Arbitrator
Development, Barreca, Miller and Zimny, ABA Section on Labor and
Employment Law, 1983, p.418.

The above discussions of burden of proof are generalized. Specific to this

case, given that Chiappardi’s alleged actions do not amount to conduct that is
societarily unusually stigmatizing or seriously criminal, the City’s burden should
be preponderance of the evidence.

BACKGROUND FACTS, APD POLICY PROVISIONS

AND CIVIL SERVICE PROVISIONS

Chiappardi was charged with violating the following statutory and code
provisions of the respective documents:

Texas Local Government Code, Chapter 143, Section 143.051:

Cause for Removal or Suspension
A commission rule prescribing cause for removal or suspension of a
fire fighter or police officer is not valid unless it involves one or more of the
following grounds:
(12) Violation of an applicable fire or police department rule
or special order.

Sec. 143.052. DISCIPLINARY SUSPENSIONS.

(b) The head of the fire or police department may suspend a fire
fighter or police officer under the department head's supervision or
jurisdiction for the violation of a civil service rule.

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 Civil Service Commission Rule 10.03:

“No employee of the classified service of the City of Austin shall

engage in, or be involved in, any of the following acts or conduct, and
the same shall constitute cause for suspension of an employee from
the classified service of the City:
Violation of any of the rules and regulations of the Fire
Department or Police Department or of special orders, as
applicable.”

Again, the written Memorandum of suspension alleges that Officer Chiappardi

violated the following Austin Police Department policy provisions:

Austin Police Department Policy 972.4(b): Employee Speech, Expression

and Social Networking: Prohibited Speech, Expression and Conduct:

To meet the Department’s safety, performance, and public-trust needs, the

following is prohibited:

(b) Speech or expression that, while not made pursuant to an official

duty, is significantly linked to, or related to, the Austin Police
Department and tends to compromise or damage the mission,
function, reputation or professionalism of the Austin Police
Department or its employees.

The specific acts of misconduct alleged concerned the posts beginning with
“My family and friends are glad …” and “It is too fucking bad that the boss …”
The memorandum also asserts that Chiappardi stated that members of the
Department and general public were aware that he was an Austin Police
Department Officer when he made the posts. These two actions were the factual
grounds upon which the suspension was premised.

DISCUSSION

Returning then to the Just Cause factors set out infra, several may be
momentarily set aside in this analysis since the case is based on stipulated facts.
Factual support to show a basis for discipline;

12
 Did the employer, before administering discipline to an employee, make an
effort to discover whether the employee violated or disobeyed a rule or order
of management (i.e. was there an investigation);
Was the employer’s investigation conducted fairly and objectively;
Equal and consistent treatment of employees; and
Progressive, corrective discipline related to the nature of the offense and to
the employees personnel record, with discharge for serious wrongdoing, or,
in other cases, as a last resort when improvement cannot be foreseen.

At least two of the factors rather jump out:

Reasonable rules within the employer’s discretion about which the employee
has been given fair notice;
At the investigation, was substantial evidence or proof furnished that the
employee committed the conduct as charged;
Reasonable rules and fair notice will be discussed first.

The City points out that Policy 972.4(b) is not just made up locally out of
whole cloth,6 but rather is from the Lexipol created standardized policy manual. In
fact the policy seems to be pulled virtually verbatim from Lexipol Policy 1030.4
which states:

PROHIBITED SPEECH, EXPRESSION AND CONDUCT

To meet the safety, performance and public trust needs of the Texas State
Master Policy Manual, the following are prohibited unless the speech is
otherwise protected (for example, a member speaking as a private citizen …
on a matter of public concern):
(b) Speech or expression that, while not made pursuant to an official
duty, is significantly linked to, or related to, the Department and tends
to compromise or damage the mission, function, reputation or
professionalism of the Department or its members. Examples may
include:
1. Statements that indicate disregard for the law or the state or
U.S. Constitution,
2. Expression that demonstrates support for criminal activity,

6
“Something made completely new, with no history, and not based on anything else.” See www.Wiktionary.org.

13
 3. Participation in sexually explicit photographs or videos for
compensation or distribution.7

The obvious implication from the City is that the policy 972.4(b) carries an
imprimatur of validity because it was created by Lexipol. So what about Lexipol
and is such validity warranted? From the Lexipol web site:

Customizable, Up-to-Date Risk Management Policies

Lexipol is America’s leading provider of defensible policies and training for
public safety organizations, delivering our services through a unique, web-
based development system. Lexipol offers state-specific policy manuals,
regular policy updates and daily scenario based training against policy.
Gordon Graham and Bruce Praet founded Lexipol. Since 2003, our proven
policy and training solutions have helped public safety agencies across the
country reduce risk and avoid litigation. The Lexipol system helps public
safety organizations reduce risk and stay ahead of litigation trends, while
communicating clear and concise policy guidance to their personnel. Lexipol
is the only company that offers this level of customization and value in
managing, disseminating and tracking a public safety organization’s policies
and training.

Setting aside for a moment that Lexipol’s employees only give the company
as 2.6 out of 5 stars as a place of employment,8 with comments ranging between
great company to work for and company has a toxic environment, the Arbitrator
notes that no court case has been found where Lexipol was even mentioned, much
less judged according to its policy manual. In fact, the Pasadena Independent
newspaper did an in depth analysis (read: hatchet job) of the for-profit company
and the reliability of its manual vis-a-vis constitutionality and its “real” mission.9
So even though many police departments pay money for the use of Lexipol’s
policy guidance, the fact that the City did so in promulgating policy 972.4(b) gives
no weight to the policy’s ability to survive the Just Cause test.

7
Note that the examples given, while assumedly not exhaustive, are by nature exceedingly egregious (disregard for
the law, support for criminal activity, participation in sexually explicit photographs or videos). A far cry from the
nature and tenor of Chiappardi’s posts.
8
https://www.glassdoor.com/Overview/Working-at-Lexipol-EI_IE279493.11,18.htm.
9
See review by newspaper: http://www.pasadenaindependent.com/opinion/lexipol-constitutional-villain/ Volume I
and II et seq.

14
 Returning to stipulated facts in the case at bar, Chiappardi pulled down the
March 21st Facebook posts the next morning (March 22d) as they were drawing
the kind of attention Chiappardi didn’t want. At that point Chiappardi’s direct
supervisor, a Sergeant Vineyard, advised him that he did not think that the posts
were a violation of policy but that Chiappardi’s chain of command wanted to see
him the next morning. After that meeting, with a Sargent White, Vineyard and
Lieutenant Justin Newsom, Chiappardi had the clear impression that Lieutenant
Newsom also believed that he had not violated policy. Chiappardi was however
cautioned against making future posts of the same nature as not a smart thing to do.
The Arbitrator points this out as a factor to be considered in answering the Just
Cause fair notice question/issue.

Also of note are quotes attributed to Austin Police Monitor Margo Frasier in
an Austin Chronicle newspaper story about Chiappardi’s suspension written on
August 26th, 2016. In the article Frasier is quoted discussing the APD policy
pertaining to Prohibited Speech, Expression and Conduct. Frasier is quoted as
saying that she has noticed a significant “inconsistency in terms of what gets you
in trouble and what doesn’t. … The problem is that I can’t talk about the ones who
don’t get disciplined.” Frasier is further quoted as recommending to Chief
Acevado “either tighten up the language or tighten up the way [he] applies this
policy.” (referring to APD policy Prohibited Speech, Expression and Conduct).

The Office of the Police Monitor was created and developed to promote
mutual respect between the Austin Police Department (APD) and the community it
serves. The OPM is an independent City of Austin administrative office that works
exclusively with APD as opposed to any other Travis County or State of Texas law
enforcement agency. The OPM is not a part of APD. The OPM deals exclusively
with cases related to alleged violations of APD departmental policy, and is charged
with, among other things, monitoring APD policies and practices and making
recommendations on policy, procedures and discipline. Yet in spite of Frasier’s
demonstrated concerns about the language and enforcement of APD Policy
972.4(b), in the new APD Police Manual, issued July 20, 2017, Policy 972.4(b)
remains unchanged.10

As previously mentioned, Chiappardi took great pains to hide his identity

and conceal that he was an Austin Police Officer. His immediate chain of
command, two sergeants and one Lieutenant, did not believe that he had violated
policy (else they should have and would have filed an IA investigation complaint).

10
See footnote 4 concerning the July 20, 2017 edition of The Austin Police Department Policy Manual, p. 704

15
The IA only got involved days later when an extraneous Lieutenant, Michael
Evelith, a Violent Crimes Commander, filed a complaint. Chiappardi further points
out that the Internal Affairs investigation report dated June 1, 2016, did not
mention anything about the general public being aware of Chiappardi’s posts or
that they were made by a police officer.
Returning for a moment to the APD Policy Manual, Policy 972.4(b) begins
with the following caveat:

EMPLOYEE SPEECH, EXPRESSION, and Social Networking

972.1 PURPOSE AND SCOPE
This policy is intended to address the issues associated with employee’s use
of social networking sites and TO PROVIDE GUIDELINES for the
regulation and balancing of employee speech and expression with the
legitimate needs of the Department. (emphasis supplied)

Guidelines. Does 972.4(b) provide guidelines? Lexipol attempted to give

guidelines in their publication of the rule when they set out as examples posts that
indicate disregard for the law or that demonstrates support for criminal activity or
that constitute participation in sexually explicit filming. If this was Lexipol’s idea
of the breadth of 972.4(b) then Chiappardi’s actions fall way short of a violation of
that policy.

As previously stated, the civilian Police Monitor herself criticized the policy
as too vague to give notice of what conduct constituted a violation, and further
complained that the policy is inconsistently interpreted. Additionally three of
Chiappardi’s immediate superiors did not believe his posts violated policy (lest
they would have had a duty to file a complaint with Internal Affairs). So just how
definitive must a policy be in order to pass the Just Cause requirement of fair
notice of what is prohibited? Perhaps some guidance from the appellate court
system would be helpful in answering that question.

In looking at the criteria employed in determining the constitutional validity

of a law it is popularly stated that the “void for vagueness” concept applies to a
statute that fails to give a person of ordinary intelligence fair notice that his
contemplated conduct was forbidden AND its vagueness promotes arbitrary or
erratic application by superiors. As stated by the Houston Court of Appeals:

The vagueness doctrine is an outgrowth not of the First Amendment, but

rather of the Due Process Clause of the Fifth Amendment. Under the void-
for-vagueness doctrine, a statute will be invalidated if it fails to give a
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 person of ordinary intelligence a reasonable opportunity to know what
conduct is prohibited.
* **
Laws do not require mathematical precision, as long as they give fair
warning in light of common understanding and are sufficiently definite to
avoid arbitrary and erratic enforcement. (citations omitted)

See State v. Stubbs, 502 S.W.3d 218, 235-236 (Tex. App.-Houston [14th Dist.]
2016, pet. ref'd). The Dallas Court of Appeals states the constitutional concept this
way:

A criminal conviction fails to comport with the Due Process Clause of the
Fifth Amendment, as applied to the states by the Fourteenth Amendment, if
the statute of conviction fails to provide a person of ordinary intelligence fair
notice of what the statue prohibits, or it authorizes or encourages seriously
discriminatory enforcement. A statute is unconstitutionally vague if persons
of common intelligence must necessarily guess at its meaning and differ
about its application. All criminal laws must give fair notice about what
activity is made criminal. However, a statute need not be mathematically
precise; it must only provide fair warning in light of common understanding
and practices. (citations omitted)

See Ex parte Bradshaw, 501 S.W.3d at 677-78. (Tex App Dallas 2016)

This is criteria for a challenge to a law because it runs afoul of the U.S.
Constitution. Here we have a policy that potentially runs afoul of a critical part of
the Just Cause test. Can it be argued that criteria for a Just Cause violation is a
higher standard than the Constitution’s? No. The Just Cause standard is a creature
of labor/management relations. It is born out of fairness and the respective goals of
both factions, securing satisfactory work from employees and securing a fair wage
and job security from employers. See the discussion of Toward a Theory of Just
Cause infra. It seems beneficial to know the Constitutional test verbiage, but no
authority has promoted the idea that meeting the Just Cause test of notice is as
stringent as the test for constitutional violation due to vagueness.

Policy 972.4(b), in prohibiting any speech or expression that … is

significantly linked to, or related to, the Austin Police Department and tends to
compromise or damage the mission, function, reputation or professionalism of
the Austin Police Department or its employees is so obscure that persons of
common intelligence must necessarily guess at its meaning. (emphasis supplied).
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On its face the policy fails to give a person of ordinary intelligence a reasonable
opportunity to know what conduct is prohibited. Facially it authorizes or
encourages seriously discriminatory enforcement because the possibilities of
violating the policy are endless. A violation is potentially anything the Chief says it
is, or at least the policy gives the Chief that much latitude.11

CONCLUSION OF THE ARBITRATOR

The Arbitrator finds that Police Monitor Margo Frasier was more right than she
knew. Under the Just Cause Standard of labor relations APD Policy 972.4(b),
renewed July 20, 2017, fails the crucial criteria of fair notice of just what the
Department prohibits. As such. Officer Chiappardi cannot be faulted for his posts
relied upon in the memorandum of suspension.

DECISION OF THE ARBITRATOR12

The grievance is granted.

11
Citing a current police related issue important enough to have attracted the press; what if 8 months ago an officer
had complained to his doctor that the Department continued to make him ride in a Patrol Ford SUV that was making
him sick, and then posted his doctor’s advice on a social media page that ended up alerting other officers. Violation
of 972.4(b)?
12
One additional issue needs to be discussed because it will be a recurring one and is therefore not moot.
ISSUE
The authority of the hearing examiner to reduce the 3 day suspension.
Article 18 of the Agreement between the City of Austin and the Austin Police Association, Section 1. a) (2)
clearly states (as set out in footnote 2) that suspensions of three days or less may not be mitigated by the Hearing
Examiner if the charges against the officer are found to be true.
Texas Local Government Code Sec. 143.053. APPEAL OF DISCIPLINARY SUSPENSION, Section
143.053(f) clearly states “If the [Hearing Examiner]12 finds that the period of disciplinary suspension should be
reduced, the [Hearing Examiner] may order a reduction in the period of suspension. Appellate courts agree. The
issue in an appeal of disciplinary suspension pursuant to section 143.053 is the "propriety of a disciplinary
suspension or the length of the suspension." See City of Waco v. Bittle, 167 S.W.3d 20, 30 (Tex.App.-Waco 2005,
pet. denied).
However, consider the following: Texas Local Government Code CHAPTER 174. FIRE AND POLICE
EMPLOYEE RELATIONS, Sec. 174.109. EFFECT OF AGREEMENT. An agreement under this chapter is
binding and enforceable against a public employer, an association, and a fire fighter or police officer covered by the
agreement.
Harmonizing the two sections of the Texas Local Government Code would seem to mean that while police
officers have the right to have a Hearing Examiners reduce a 3 day suspension if the Examiner deems it appropriate,
that right can be bargained away in an agreement contemplated by LGC Chapter 174.
Logical conclusion: A Hearing Examiner may not lower a three day suspension to a lesser punishment. The
issue was not joined in this arbitration and the Arbitrator makes no decision on the matter, but the issue should be
decided when properly joined by both parties.

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The three day suspension of Chiappardi is set aside and it is ordered that the
Department make him whole from this experience.13

Signed and entered on this the 26th day of July, 2017

/S/

Chuck Miller, Arbitrator Assigned

13
The Arbitrator retains jurisdiction for 30 days from the issuance of this award in order to settle any dispute over
the relief granted.

19