Gulfport Police and two officers still wait for an arbitration ruling stemming from a 2019 incident.
Cathy Salustri
Arbitration involving two Gulfport Police officers challenging disciplinary actions and a demotion over a March 2019 incident continues to drag on after a hearing more than a year ago.
Gulfport officers Rob Burkhart and Cory Smith requested arbitration after the department disciplined them for their handling of a domestic incident involving two brothers on St. Patrick‘s Day, 2019.
Gulfport Police Chief Robert Vincent demoted Burkhart from sergeant to police officer and suspended him without pay for 84 hours; Vincent also suspended Smith without pay for 24 hours. Both actions occurred after internal investigations into the incident, Vincent said.
City Manager James O’Reilly signed off on the disciplinary actions, according to city documents.
Through their counsel with the Fraternal Order of Police, both officers filed grievances challenging the department’s actions. Vincent said a mutually agreed upon arbitrator, Seminole attorney Kitty Grubb, conducted the arbitration hearing in October 2020.
Afienko said in a grievance response to the city in July 2019 that the punishments and demotion for Burkhart do not mesh with the situation and facts of the case.
The Oct. 22 hearing ran for more than 13 hours, according to arbitration transcripts provided to The Gabber.
Grubb has not yet made a decision.
In an email and telephone conversation with The Gabber, Grubb declined to comment on the status of the case and any causes for the lengthy process.
“No comment,” Grubb said.
Burkhart started with the Gulfport Police in 2001; before that, he worked as a dispatcher, according to police personnel records. Smith joined the agency in 2016.
The Dispute
The dispute centers on the handling of and the department’s response to a March 17, 2019 domestic dispute involving a family. Two adult brothers had an alleged physical altercation; one of the brothers was on the roof of the family’s residence when officers arrived.
Internal reviews, the resulting discipline and arbitration all center on the handling of that incident and whether or not the officers should have done a follow-up visit that same day, and whether they should have arrested the brother who allegedly assaulted his sibling that night instead of waiting until the next day.
The department also looked at how officers documented the incident, according to city documents.
Police arrested David Nas March 18, 2019 for domestic battery and resisting an officer in relation to the incident, according to court records. GPD policy involving domestic violence situations is that “when appropriate probable cause exists, the preferred police response is arrest of the offender.”
Gulfport Police Chief Rob Vincent said he initially wanted to fire Sergeant Rob Burkhart, but bowed to the review board’s recommendations.
Gulfport Police Department
Vincent said that approach “has been incorporated into law and policy since the late 1980s or early 1990s, when every state enacted some sort of pro-arrest legislation in a nationwide effort to reduce domestic violence.”
Vincent said the department has not changed the policy since the 2019 event.
Nas allegedly pushed his brother, “causing scratch marks to his left armpit” and climbed up on the roof. Officers said in reports on the incident that Nas had gone to the roof before when he wanted to be alone, according to his family. He refused to climb down from the roof when officers arrived, and they opted not to approach him on the roof over safety concerns, deciding to come back later (and after St. Patrick’s Day) to make the arrest, according to police records provided to The Gabber.
The sanctions against Burkhart also relate to his supervisory role at the scene.
Smith’s discipline also stemmed from errors — including grammar and an initial misclassification of the potential charges against Nas.
Arbitration
Kenneth Afienko, legal counsel for the Fraternal Order of Police Pinellas Lodge #43 (which represents Gulfport police officers) also declined comment on the matter and the lengthy process pending a decision. But Afienko said in a grievance response to the city in July 2019 that the punishments and demotion for Burkhart do not mesh with the situation and facts of the case.
“Reading the report, there’s a lot of information there that I don’t believe justifies the discipline in this case, so we want this discipline to be overturned to the fact that he gets a written reprimand and he gets his stripes back. That is our position here today, and that is the end of our grievance,” Afienko said in city documents GPD provided to The Gabber.
Afienko questioned the GPD process and its findings.
Chief Robert Vincent stripped Sergeant Rob Burkhart of his stripes over the St. Patrick’s Day incident.
Image via Gulfport Police Department.
“That report is not correct as far as we’re concerned. Therefore, we are asking it be overturned and his sergeant stripes be reinstated and he gets a written reprimand.”
At the 2020 arbitration hearing, Afienko argued the department treated the two officers unfairly.
Vincent said the officers’ appeals were denied via the Gulfport department’s internal processes and arbitration is part of the city’s contract with the officers and their union.
“Both officers filed a grievance in accordance with their collective bargaining agreement (CBA). The grievance was denied at each step, and both officers then elected to take the matter to arbitration, also in accordance with the CBA,” Vincent said.
Gulfport Police conducted an Administrative Review Board hearing and conducted an internal affairs investigation into the incident. The ARB includes the officers’ immediate supervisor, a commander and another GPD supervisor. Burkhart’s ARB panel included Commander Mary Farrand (his immediate supervisor), Commander Joshua Stone and Seargeant Thomas Woodman. Smith’s ARB included Stone and Sgts. Michael Vandenberg and Michael Marotta, according to city documents.
In the ARB transcripts, Smith said the squad was working shorthanded on St. Patrick’s Day, and Stone added in his summary GPD was down one officer and had three officers and one supervisor working that night.
Vincent and O’Reilly made the final determinations of the punishments. Under the officers union’s collective bargaining agreement with the city, they filed grievances related to the sanctions and then proceeded to arbitration.
Afienko objected to the department’s process for handling discipline, especially for Burkhart, indicating the police union’s preference to proceed to arbitration. The FOP attorney also contended in correspondence and meeting with GPD that the punishments against Smith were excessive.
Burkhart said he discussed the situation with GPD Commander Mary Farrand the night of the incident, according to a March 18, 2019 memo.
“David (Nas) is a long-time resident of the same address who we were familiar with, he was not a flight risk, and we felt it would be safer to arrest him later when he was off the roof,” Burkhart wrote in a memo on the incident.
“Based on the totality of the circumstances, we felt the safer option would be to attempt to arrest David at a later time and issue probable cause for domestic battery and resisting an officer without violence,” Burkhart said in the memo.
Farrand said in an April 2019 interview with Vincent that she told Burkhart on the day of the incident that she did not want for officers or the suspect on the roof to get hurt, according to police documents.
“He said that the suspect had climbed up on the roof of the house and was refusing to come down and wasn’t communicating with the officers. And he asked me if I wanted them to go up on the roof and get him, and I told him no I’d rather not see anyone get hurt, or the suspect get hurt,” Farrand said in the internal interview.
Farrand also said during the 2019 internal interview there should have been a follow-up visit that night for a potential arrest and to check on the situation, according to city documents. The Gabber asked Farrand if she told Burkhart to do a follow-up visit that same night, but she declined to comment citing the continued arbitration process.
During the interview Vincent asked Farrand, “Was there anything about that communication you had that, in your opinion, would have led him to believe that there was no reason for anybody to go back to the house to do any follow up?”
Farrand responded “no.”
She declined further comment to The Gabber, citing the ongoing arbitration. She has clarified with The Gabber she would talk about the issue after the arbitration gets resolved.
FOP Lodge #43 President Doug Weaver also declined comment on “pending legal matters” referencing the ongoing arbitration.
The Hearing
The 2020 arbitration hearing featured disagreements over the handling of the incident, as well as contentions from Afienko that the department treated officers unfairly, according to transcripts of the proceedings provided to The Gabber.
Afienko questioned the city’s disciplinary process, whether it is selectively enforced, and whether the St. Patrick’s Day inquiry ran afoul of Police Officer’s Bill of Rights which outlines protocols for review boards and potential sanctions.
The police officers’ attorney brought up other instances where officers and department supervisors were not disciplined for not following procedures.
“…officers do things that are in violation of policy and have absolutely no charges brought against them, no investigation done. Yet my clients are subject to these very serious allegations through an investigation initiated by the Chief,” Afienko said.
Vincent said he initially wanted to fire Burkhart, but put great weight into the review board’s recommendations.
According to the transcripts, Chief Vincent did not discipline Commander Stone for leaving an AR-15 unsecured on his desk in his unlocked office, although he did take the weapon. Stone did not know what happened to the weapon for several days; only when Commander Farrand told him the Chief had the AR-15 did he realize what had happened.
“To teach me a lesson, he picked it up and took it back to his office,” Stone said. The Chief did not tell Stone he had the rifle and, according to the transcripts, Stone “sweated a bunch of days for that,” which Stone said “was the purpose of… what he did.”
Stone told Afienko he did not believe leaving an AR-15 on his desk constituted a policy violation but would not do it again, because “the Chief don’t want me to do it.”
Vincent denied assertions from Afienko that the punishment against Burkhart might have stemmed from retaliation over the sergeant asking for changes to the department’s fitness test policies during collective bargaining discussions.
“It absolutely has not. I’m quite surprised to hear that there is some relationship concern,” Vincent said when asked by the city attorney if retaliation played a role in the punishments. “That’s – that’s news to me. And every single case that – that comes before me for discipline has already been seen by multiple eyes, just so there cannot be. It would have to be a conspiracy to imply that there is some sort of retaliation.”
Other aspects of the arbitration dealt with the response to the domestic situation.
Burkhart said during the arbitration hearing that Gulfport officers had responded to the Nas residence before,
“I’ve dealt with the family several times over the years,” Burkhart said. He said during the hearing the goal was to resolve the situation safely.
“I certainly wanted to remedy it as safely as possible. Officer Smith advised he didn’t feel comfortable climbing up on the roof. And I agreed with him,” Burkhart said.
Officer Cory Smith says he notified the incoming shift of the incident with Nas.
Image via Gulfport Police Department.
He and Smith said GPD was down an officer on the St. Patrick’s Day holiday. Smith said being down an officer on St. Patrick’s Day played a role in the decision not to follow up sooner with Nas. He said arresting Nas would have taken two officers and could have potentially left one officer to patrol the busy waterfront area during the holiday.
Burkhart said during the hearing Farrand was in concurrence with the decision not to go up on the roof to arrest Nas.
“She was in full agreement with the decision,” Burkhart said.
He also defended the decision not to return later that evening to make an arrest.
“I didn’t want to risk having my officers involved in a fight and a potential being injured or having him have to go to the hospital. I thought it was best, let’s wait until he sobers up,” Burkhart said during the hearing.
Farrand countered during her arbitration testimony that the officers should have followed up that night.
“I think that they should have followed up with the suspect,” Farrand said.
That included checking on Nas’ elderly mother who lived at the Gulfport home.
“From a different perspective maybe, I was feeling as though maybe someone should have followed up to make sure she was OK,” Farrand said.
Vincent also said during the hearing the lack of a follow up visit by officers that night was also a problem for him when he arrived at work the next morning and reviewed the previous night’s calls.
“My concerns were that they had not made an arrest, nor made any effort to make an arrest. That in doing so, they left an intoxicated and violent suspect present with a victim, who had already been victimized. That a report was missing information, that the probable cause narratives — the narratives on the probable cause affidavits lacked sufficient detail and had errors,” Vincent said.
Gulfport City Attorney Andrew Salzman also questioned the decision to leave Nas on the roof.
“I’m asking you, when you go to the scene and there is an intoxicated person who you admittedly said was violent is on the roof, you think it was okay in that situation to just leave the scene, have your officers leave the scene, and no one follow up during the shift,” Salzman asked Burkhart who defended the decision.
Afienko countered that Smith and Burkhart both reached out to the incoming 4 a.m. shift to arrest Nas.
“Sergeant Burkhart got with day shift supervisor, Sergeant Vandenberg, and explained the situation. Officer Smith was also involved in a conversation with the day shift about this particular individual,” Afienko said.
Vincent said he did not see anything previously documented on Burkhart’s contention and the arrest was made the next day by another officer on his order. “I didn’t like the fact that the officer assigned to the case did not arrest him,” Vincent said.
Smith said during his arbitration testimony that he notified the incoming shift of the situation.
“Then at the shift change, being 4 a.m., I was in there a little early just to make sure that I could find someone, at least one officer from the next day shift coming in, to alert them, hey, this is what happened. I have PC (probable cause) for David Nas. Arrest him ASAP. That person I spoke to was Officer Pope. He was the first one I saw to walk in. He said, ‘No problem. We’ll take care of it’,” Smith testified during the hearing.
Pope has since left the department.
Vincent said he initially wanted to fire Burkhart, but put great weight into the review board’s recommendations.
Afienko said the decision not to immediately arrest Nas “was ratified and confirmed and authorized and approved by Commander Farrand.”
Salzman said there was nothing in the record showing Farrand told Burkhart not to go back to the scene that night.
Farrand said disciplinary actions against the officers were warranted.
“The report was poorly written, number one. Number two, the affidavits were poorly written. And, number three, the officers never went back to follow up on the case at all,” she said during the arbitration hearing.
To read the full transcripts of the arbitration, please email editor@thegabber.com.