City Wins Kay Arbitration

A  neutral arbitrator  has found that the City of Vernonia had just cause to discharge police officer Michael Kay and that his grievance against the city should be denied.

The City of Vernonia recently received the sixty-six page ruling from arbitrator James A. Lundberg, which was dated February 18, 2013.

“This closes the personnel matter regarding Michael Kay,” stated Assistant City Attorney, Ruben Cleaveland, in a memo to the Vernonia City Council.

Kay was  a police officer with the Vernonia Police Department from 2004 until his employment was terminated in 2011 for dishonesty.  Kay served as a Patrol Officer, as Sergeant, as Captain and Interim Chief during his tenure with the Vernonia Police Department.  He was also the handler of a K9 officer.

In his ruling, Lundberg stated, “The evidence that Michael Kay engaged in dishonest conduct was overwhelming.  The facts were established in some instances by clear and convincing evidence and in other instances by evidence beyond a reasonable doubt.  The City relied on evidence that exceeds the necessary standard of proof.”

Lundberg presided over a thirteen day evidentiary hearing  to decide the question of  whether the City of Vernonia had just cause to discharge Kay. The hearing was conducted in Portland between August 27 and September 23 of 2012.

Kay was dismissed on July 5, 2011 after several investigations conducted by the City of Vernonia, as well as investigations by the Oregon Department of Public Safety Standards and Training revealed numerous incidents involving untruthfulness and misconduct on the part of Kay.

Kay chose to file a grievance with the Police Union following his termination. When a settlement could not be reached between the City of Vernonia and the police union, Kay chose to force the arbitration hearing and received legal representation through the union.

According to financial records, the City of Vernonia has spent a total of $227,900 in legal fees during the last three years for the termination of Kay, including $99,500 for the recently concluded arbitration.

Prior to Kay’s dismissal, Vernonia City Administrator Bill Haack was fired by the Vernonia City Council for his handling of the Kay case.  Haack’s firing led to the recall of three Vernonia City Councilors and the subsequent rehire of Haack.

In the arbitration hearing process the police union contended that the City of Vernonia failed to meet the burden of proof of wrong doing by Kay,  that  evidence against Kay was corrupted, concealed and disappeared and that the investigations into Kay were neither fair nor even handed.

“The actions for which Michael Kay was discharged were in each instance, one over which Michael Kay alone had control.  The individuals who Michael Kay claims had reasons to dislike him or harm his reputation, did not cause Michael Kay’s dishonest conduct nor is there support for the position that evidence was corrupted or the investigations were conducted unfairly,” said Lundberg in his decision.  “In most cases of discharge a preponderance of credible evidence is sufficient to support a finding of just cause.  In this case, the proof of each element of misconduct met the much higher standards of  ‘beyond a reasonable doubt’ or by ‘clear and convincing evidence.’”