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Tyisha Miller's Killers reinstated by arbitrator

by reprint from Press Enterprise Saturday, Jan. 19, 2002 at 4:46 PM

Over three years after the tragic shooting of Tyisha Miller by Riverside Police Department officers, an independent arbitrator has ruled that officers Michael Alagna and Wayne Stewart should never have been fired and every attempt should be made to repair their damaged reputations...

errorOfficers should be reinstated, arbitrator says

TYISHA MILLER: Riverside has other options. The lawyer for the two men still dislikes the ruling.
01/18/2002


By LISA O'NEILL HILL and PHIL PITCHFORD
THE PRESS-ENTERPRISE

RIVERSIDE - An arbitrator has found that two of the Riverside police officers who fatally shot Tyisha Miller in 1998 were wrongly fired and should be reinstated for at least six months.

The terminations of Mike Alagna and Wayne Stewart constituted "an abuse of administrative discretion" by then Police Chief Jerry Carroll, according to arbitrator Robert D. Steinberg of Culver City.


Tyisha Miller was fatally shot by Riverside police officers on Dec. 28, 1998.


The officers made some mistakes, but they were minor, correctable with better training and were "understandable" given the events that led up to the killing of the 19-year-old black woman, Steinberg wrote.

Miller's death, which put Riverside in the national spotlight, sparked allegations of racism within the force and precipitated long-term change in the department, including a court-stipulated reform agreement with the state attorney general's office.

Steinberg said the shooting was not racially motivated and the officers believed Miller would have died had they not tried to help her.

"They acted in accordance with their training and experience, and they did not deserve to have their careers and reputations ruined merely because of an adverse result," he wrote in the findings.

But Steinberg's findings, obtained by The Press-Enterprise, are far from a clear victory for the former officers, who have contested their firings for more than two years.

Although the findings spell out why Steinberg believes the decision to fire the officers was wrong, his ruling still allows the city to terminate the officers on or after April 30.

The decision is "the most incomprehensively stupid disposition of a disciplinary action that I have ever seen," said Santa Monica attorney Bill Hadden, who represents Alagna and Stewart.

City Councilman Ameal Moore, who has opposed any possibility that the officers might return to duty, said he remains confident in the decision to fire them, and the reasons Carroll gave in doing so.

"My position certainly has not changed and will not change," Moore said. "I am not for them coming back to the force, at all, period, under any circumstances. I do not believe in rewarding people for bad behavior."

Hadden contends that the facts of the case and the arbitrator's ruling that the officers did nothing substantially wrong and were unjustly fired are inconsistent with his remedy.

"It's obviously an attempt by the arbitrator to offer some kind of political solution to what is an employee discipline case. He's got no right to do that," Hadden said.

Steinberg's final report was issued Dec. 31, after the officers' attorney had appealed an earlier finding that, although the firings were wrong, the city did not have to take the former officers back.

Hadden said Steinberg's jurisdiction already had expired when he made the second ruling.

The decision is the latest twist in a saga that began when Alagna, Stewart and two other officers, Dan Hotard and Paul Bugar, shot Miller, a Rubidoux resident, on Dec. 28, 1998.

Community reaction

The arbitrator's ruling likely will not settle the case. The city or the officers can appeal Steinberg's decision in Superior Court. Hadden said: "Absent some immediate action by the city to bring them back to work, we will be in court very shortly."

City officials declined to discuss the arbitrator's findings, which are scheduled for discussion by the City Council in a Feb. 5 closed session.

Richard Roth, the attorney representing the city in the arbitration, is on military duty and could not be reached. Carroll, the former chief who fired the officers, also could not be reached for comment by phone or at his home.

The Rev. Bernell Butler, who acted as spokesman for Tyisha Miller's family, said the family had not heard anything.

"We'll look for the worst and hope for the best, and try to deal with whichever way it goes," Butler said. "I hope they do not get their jobs back because it would send the wrong message to police officers."

The president of the Riverside Police Officers' Association called the decision a "partial victory" for Alagna and Stewart but said it is unclear what will happen next.

"I think it's still up in the air right now. I don't feel 110 percent confident that it's been resolved," Officer Pat McCarthy said.

Arbitration findings

On Oct. 31, Steinberg ruled that the officers deserve back pay and, if they are not returned to duty, 8 1/2 months of pay as damages. He said the firing of the officers "was not for just cause and was an abuse of administrative discretion." He also found that Alagna deserved a written reprimand for standing in front of Miller's idling car when he could have been hurt or killed.

Steinberg's amended ruling on Dec. 31 determined that:

The former officers must be given "conditional reinstatement" for at least six months, effective Oct. 31, 2001. They also deserve back pay from the date they were fired, July 12, 1999, minus money they have earned since then. Seniority and seniority-related benefits should be restored, and the former officers should be reimbursed for the cost of getting replacement insurance.

If Alagna and Stewart are given "non-disciplinary terminations" effective on or after April 30, they shall receive severance pay at the rate of two months' salary for each full year of service, plus a pro-rated amount for any additional months. The Police Department also would continue to pay the cost of comparable health and welfare coverage for the next year.

Riverside Human Resources Director Judith Griffith said she is not familiar with some of the terms that Steinberg used, such as "conditional reinstatement" and "non-disciplinary termination."

Employees typically leave the city when they retire, are fired for cause, are laid off or quit for personal reasons or because of an injury, she said.

"I don't know what he's talking about," she said.

Terminations are often tougher in government than private business because public employees usually enjoy union-negotiated protections.

Firing a government employee who works in law enforcement is even more difficult because police officers and sheriff's deputies have rights not afforded to non-public-safety workers.

The shooting and fallout

Miller was killed after police, responding to a 911 call, found her unresponsive in a car with a gun on her lap at a gas station at about 2 a.m. The officers tried to rouse Miller, then broke a car window and tried to grab the gun. The officers said they shot Miller when she reached for the weapon.

The Riverside County district attorney's office determined criminal charges were not warranted but said the officers used poor judgment at the shooting scene.

Carroll fired the four officers July 12, 1999, citing a number of tactical errors. He contended that the officers put themselves and Miller in "imminent danger" and formed and executed an "unreasonably dangerous" plan that resulted in Miller's death.

Hotard and Bugar had been with the department less than 18 months at the time of the shooting and were unable to contest their terminations through the arbitration process. They have filed lawsuits contending they were fired for political reasons.

The arbitration hearings

Arbitration proceedings for Alagna and Stewart were held over 15 days between June 28, 2000, and Jan. 26, 2001.

During the proceedings, the city's attorney argued that, despite the unusual situation, the officers failed to use their training and experience and rushed into action without getting information and discussing options.

Hadden argued that Miller would have been worse off had the officers done nothing because she had a medical emergency. The officers were in a "damned if you do, damned if you don't situation," Hadden said.

Steinberg found that Carroll's rationale for firing the officers was unjustified.

The arbitrator found that the officers should have further asked about Miller's medical history, activity that night and possible drug use, and confirmed that medical aid had been dispatched.

Steinberg also faulted Alagna for placing himself in danger by stopping at the front of Miller's car and rocking the vehicle or pounding on the hood. The officer could have been shot or run over, and in both rulings, Steinberg said the former officer should receive a written reprimand.

But, Steinberg determined, none of the officers' failures was significant or contributed to the adverse result. None warranted serious discipline or dismissal, he wrote.

"Of the cited failures, the most serious charge against Grievants is their hastily drawn plan of attack, both as to its formation and its execution," Steinberg wrote. "That charge cannot be sustained and, in retrospect, it is apparent from Chief Carroll's testimony (that) the real issue with him was action vs. inaction, officer safety vs. saving a citizen's life. In this regard, he stood alone."

The officers' plan "was not proven to be an irrational plan," Steinberg noted.

Steinberg also wrote about whether the pair could return to work as officers and be effective, and how the minority community might view that.

"Maybe time has healed, and the minority community will accept that Grievants (the officers) were trying to save Tyisha Miller's life, not take it," Steinberg wrote. "But the community or communities which constitute the City, and in particular the black population or perhaps other racial or ethnic minorities, may not be so understanding or forgiving."

That should have no place in Steinberg's decision, Hadden said.

"He seems to be saying they can't go back because black or other minority members might not like it. It's incredible how insulting that comment is," to members of those communities, he said.

The arbitrator also faulted the former chief's portrayal of the officers as smug, incapable of benefiting from training and unable to grasp mistakes they may have made.

On the contrary, Steinberg said, Alagna and Stewart "over a six-month period, impressed me as outstanding young men and dedicated officers, and they deserve to have their reputations and careers salvaged."

Not the first ruling

Steinberg's decision is not the first arbitration ruling to result from the Miller shooting.

The officers' supervisor, Sgt. Greg Preece, also was fired. Police officials said he had failed to supervise the officers and had made a racial remark and a profane comment at the shooting scene.

In July, an arbitrator's decision that Preece was wrongly fired was made public. The arbitrator determined that Preece's termination was based on public outcry and that he should have been allowed to remain at the Police Department but demoted to the rank of officer.

That arbitration decision is now being fought in court.

Reach Lisa O'Neill Hill at (909) 248-6160 or loneillhill@pe.com

Reach Phil Pitchford at (909) 782-7570 or ppitchford@pe.com
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