AMERICAN ARBITRATION ASSOCIAITON

In the Matter of the Arbitration Between

TOWN OF TISBURY

AAA Case No:

1139-0314-

12
Date Issued:
and
February 24, 2013
TISBURY POLICE ASSOCIATION, COALITION
OF POLICE, LOCAL 419, AFL-CIO
________________________________________________
___________________________________
Gr: Officer Scott Ogden
Arbitrator: Sharon Henderson Ellis, Esq.
Appearances:
Brian M. Maser, Esq.
John M. Becker, Esq.
Union

For the Town

For the

ARBITRATORS DECISION AND AWARD

Pursuant to the terms of the collective bargaining
agreement between the Town of Tisbury and the Tisbury
Police Association, an arbitration hearing in the above matter
was held on November 16, 2012 at the Tisbury Town Hall.
Both parties were provided a full and fair opportunity to call
witnesses and submit evidence. The parties written
arguments on the issue were received by the Arbitrator on
or about January 25, 2012.
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The Issue
Was the Grievant suspended for just cause? If not,
what shall be the remedy?

SUMMARY OF THE EVIDENCE

The grievance in this arbitration involves the 5-day
unpaid suspension of Police Officer Scott Ogden, a ten-year
member of the Tisbury police force. The issue is whether
the suspension was for
just cause as required by the collective bargaining
agreement between the Town and the Tisbury Police
Association. The Union takes the position that the discipline
is unwarranted and contrary to the contractual just cause
requirement.
On November 28, 2011, Officer Ogden was notified by
Police Chief Daniel Hanavan that he was receiving a
disciplinary 5-day suspension for failing to follow the
Departments Domestic Abuse Policy on July 23/24, 2011
when he and Sergeant Robt. Fiske prematurely left the
scene of a domestic assault and battery leaving minor
children alone inside the residence.
Shortly after the July 2011 incident occurred, Chief
Hanavan requested an investigation to be conducted by the
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Boston law firm that represents the Town. The investigatory

report was issued on September 29, 2011 and is referenced
in the Chiefs notice of discipline to Ogden. The notice of
discipline reads,
. . . It is noted that you are aware the department
has policies and procedures in place regarding
domestic violence which you acknowledge reading
and understanding. During your deposition. . . you
acknowledged that on some shifts you are the senior
officer in charge of the shift.
On July 23, 2011 at 22:41 PM you responded to a
disturbance at 194 West Spring Street in the Town of
Tisbury with Sergeant Fiske and Officer Gately. The
disturbance was determined to be a domestic assault
and battery and an alleged sexual assault. You
stated you were only aware of the domestic assault
and battery. You acknowledged [that] you responded
to the house and observed a shirtless male running
away from the home wearing shorts. You learned the
male was named David who physically assaulted his
wife. You searched the wooded area near the house
and the power lines for the victims husband David
Thrift. You returned to the house when the Tisbury
ambulance arrived to transport the injured wife Erica
Thrift to the hospital at 11:39 PM.
Officer Ogden, you entered the home and locked the
doors of the house to limit access into the residence.
Sergeant Fiske and you then continued searching the
nearby area separately for David Thrift until clearing
from the call at 00:28 hours unable to locate David
Thrift. A fifteen-year old female nanny was left at the
house in charge of the Thrifts three children ages
eight, three and two.
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At Sergeant Fiskes discipline hearing you stated that

you decided to leave the Thrift residence on your
own volition and did not receive direction from
Sergeant Fiske. You stated you observed Sergeant
Fiske leave the Thrift property when you left.
Knowing both officers were leaving should have
raised a question of who was going to remain on the
scene. The [investigatory] report concluded leaving
one fifteen year old female teenager with the three
children ages . . . in the Thrift home unprotected and
alone did not follow department policy.
Officer Ogden, you acknowledged you were at the
house for a domestic assault and were aware there
was a previous restraining order [July 4, 2011] taken
out against David Thrift.
You had knowledge the abuser David Thrift was
unaccounted for when you cleared from the
residence. Your behavior showed a considerable lack
of judgment.
Whenever any law officer has reason to believe that
a family or household member has been abused or is
in danger of being abused such officer shall use all
means to prevent further abuse.
The duties of the police officer in responding to reports
of
domestic violence are established in M.G.L.
209-A section 6.
Per Tisbury Department domestic abuse policy an
officer shall
remain on scene where the abuse has
occurred or was (or is) in
danger of occurring as long as
the officer has reason to believe
that at least one of the
parties involved would be in immediate
serious physical harm without the presence of a police
officer.
Tisbury Department domestic abuse policy notes
Where children
are present at a domestic dispute their
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welfare and safety must be

a major consideration. The
Tisbury domestic abuse policy notes
the police should
assist the abused person in locating and getting
to a safe
place. Including but not limited to a designated meeting
place for a shelter or a family members or friends
residence or a similar place of safety.
The Tisbury Department domestic abuse policy and
procedures
number 3.01 were not followed. As a
graduate in 2001 of a
Massachusetts Criminal Justice
Police Academy of approximately
Five and one half months, your training included
Domestic Violence issues, guidelines and responsibilities.
This very same
issue was again covered in March 2003
when you attended a one
day class on Beyond the
Basics of Domestic Violence taught by . .
. . This
Domestic Violence issue was again covered in your 2010
Police in-service training curriculum from the Municipal
Police
Institute. Your actions in this regard exhibit
serious neglect of duty for an officer with 81/2 years of
service and being a Senior Officer in charge of shifts on a
regular basis in
violation of
the Department Manual
4.7. Officer Ogden, your actions bring
discredit upon
yourself and the Tisbury Police Department in
violation
of Department Manual 4.16. Any further
violation
of Department policies will result in further discipline up
to and including termination.
Discipline to be imposed:
l. A five day suspension without pay.
2. Relieved of Officer in Charge duties until further
notice.
3. You are ordered to attend a Domestic Abuse
training
class.
....

What the letter of discipline above does not state is

that within a few minutes of Officer Ogdens and Sgt. Fiskes
return to the police station, the perpetrator [David Thrift]
returned to the house and raped the fifteen year old female
minor who was alone with the Thrifts three young
daughters. Ogden and Fiske responded to the 911 call by
returning to 194 West Spring Street. At that time the
perpetrator was arrested.
Officer Ogden made the choice to leave the scene and
return to the station of his own accord. It is also the case
that Officer Ogden saw Sgt. Fiske leave the scene
immediately thereafter. Neither officer went inside to tell
the fifteen year old they were leaving.
The Union, on Officer Ogdens behalf, asserts that the
discipline is unjustified for the several following reasons.
Principally it takes the position that Ogden did not violate
the policy because on the night in question, he was not the
officer in charge. Sergeant Robert Fiske was the superior
officer and by rank, the officer in charge. Indeed, the Town
terminated Sgt. Fiskes employment and his discharge was
sustained in a prior arbitration. 1 The Union asserts that
since Ogden was not the officer in charge, he had no
1

Award by Arbitrator Boulanger, dated October 12, 2012.

authority to decide whether continued police presence was

necessary at the scene. The Union asserts that without
authority Officer Ogden could not carry out the policy he
allegedly violated and therefore could not violate it.
In response to the Chiefs testimony that Officer Ogden
should have [at least] spoken up, the Union claims that
Ogden, the officer least involved and knowledgeable about
what was occurring inside the residence, was not qualified to
question Sgt. Fiske as to whether it was wrong to leave the
minor occupants alone in the house. It asserts that based
on rank alone, Ogden could not have overruled Sgt. Fiske.
Next, the Union asserts that even if Ogden had a duty
to speak up, the failure to do so did not violate the
Domestic Violence Policy requiring an officer to remain on
the scene for a reasonable period of time or for as long as
the officer has reason to believe that someone would be in
immediate physical danger without an officer present.
The Union points out that the domestic abuse policy is
subject to the Departments paramilitary structure and its
principle of chain of command. It asserts that while Officer
Ogden is bound by the abuse policy he is, fist of all, bound
by the principle of chain of command. The Union concludes,
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By disciplining Officer Ogden, the Town seeks to rewrite

this rule to give all the officers on the scene responsibility
for ensuring that
all decisions comply with the Domestic
Violence Policy. Such an interpretation would eviscerate the
principle of chain of command and undermine the policies
that the principle promotes. Compliance with [such]
policies. . [does] not require subordinate
offices to
constantly second guess their commanders decisions. . .
Such a requirement would weaken each and every link
in the
chain of command and ultimately bring chaos to
the Police
Department. (Union Brief at p. 17).

RELEVANT CONTRACT LANGUAGE

ARTICLE 2
EMPLOYERS RIGHTS
***
Section 2. The Employer reserves and retains all powers,
authority and prerogatives including, but not necessarily
limited to, the right . . . to suspend, demote, discharge or
take other disciplinary action against employees for just
cause; . . .

ANALYSIS AND CONCLUSION

The Union makes an undisputed and important point.
The principle of chain of command is central to any police
operation and failing to follow the chain of command could
result in chaos and dysfunction.
Also obvious, however, is the reality that an officer at a
crime scene, even when not serving as the officer in charge,
cannot act mindlessly, suspending all judgment and common
sense simply because he is not the ultimate officer in
command.
In the case at hand, Officer Ogdens departure from the
scene with no thought whatsoever about the wisdom of
leaving four minors alone while a violent household member
was still unaccounted for is nearly incomprehensible. As
Chief Hanavan remarked in his notice of discipline, in
addition to violating the domestic abuse policy, Ogdens

action demonstrated a considerable lack of judgment as

well as neglect of duty.
The consequences of Officer Ogdens and Sgt. Fiskes
leaving the scene were tragic. A fifteen-year old minor was
threatened with a knife and raped in the presence of the
perpetrators own eight-year old daughter.
During the 28 minutes that followed Ms. Thrifts
transportation to the hospital, there is no evidence that
Officer Ogden and Sgt. Fiske had any conversation
whatsoever about the welfare of the children inside the
house. When Officer Ogden left the scene the only reported
conversation between himself and Sgt. Fiske is his comment
that he was being eaten alive by mosquitoes and a remark
that David Thrift (shirtless and unshod) could not possibly be
in the vicinity. Neither Ogden nor Fiske mentioned anything
related to the well being and safety of the children inside the
residence.
Officer Ogden was trained in the domestic abuse policy.
The evening in question, he walked through the residence to
lock the door(s) and observed there were four children
inside one the 15-year old babysitter. Ogden departed

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from the scene despite the clear instruction in the Domestic

Abuse Policy and Procedure that states
1. WELFARE OF CHILDREN
a. Where children are present at a domestic
dispute, their welfare and safety must be a major
consideration.
In spite of the instruction, the children inside 194 West
Spring Street were the last thing on Officer Ogdens mind.
There is no evidence the children figured in Officer Ogdens
consideration whatsoever. The Policy Statement continues,
b. Any evidence of neglect or emotional, physical
or sexual
abuse of children under eighteen shall
be carefully noted.
2. ABUSE OF A CHILD
a. A police officer must take action when, in
his/her professional capacity, [s]he has reasonable
cause to believe
that a child under eighteen is in any of the
following
situations:
l) Is suffering serious physical or emotional injury
resulting
from abuse, including sexual abuse.
A central argument advanced by the Union on Officer
Ogdens behalf is that of the three responding officers
(Fiske, Gately and Ogden), he was the least involved and
knowledgeable about what was occurring in the house.
That being the case, the Union asserts it is unreasonable to
conclude that Ogden should have spoken up or that he was
qualified to question Sgt. Fiskes judgment about leaving
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the premises while the children were alone inside the

residence.
Relatively speaking, Officer Ogden probably was the
least knowledgeable about what was occurring inside the
house. Nonetheless, it strains credulity that he and Sgt.
Fiske (good friends) spent most of two hours searching for
David Thrift in the nearby-vicinity and never conversed even
once about the allegation that Thirfts brutal attack on his
wife was precipitated by Mrs. Thrift finding him hovering
over the 15-year old nanny who was unclothed from the
waist down.2
Officer Ogden himself testified that when the
ambulance arrived to take Mrs. Thrift to the hospital, he
joined Gately and Fiske in the general vicinity of the
ambulance. In fact, while the ambulance was in the
driveway, Officer Ogden walked through the house and
locked the door(s).
Based upon exhibits in this proceeding and testimony
at the Sgt. Fiskes discharge hearing, Arbitrator Boulanger
concluded that Sgt. Fiske was aware that the 15-year-old
2

At a minimum, Ogden would know that the 8 and 15-year old

when the mother/cousin was brutally assaulted. That by itself could
be considered emotional injury.

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babysitter was a possible sexual abuse victim. Arbitrator

Boulanger wrote, While [Sgt. Fiske] could not know that
David [Thrift] would forcibly rape [the 15 year-old
babysitter] when and if he returned to 194 West Spring
Street, he knew of his violent tendencies and that he had
already sexually assaulted [the sitter] and battered [his
wife] earlier in the evening. . . (Award at p. 34).
Additionally, Arbitrator Boulanger made the following
finding: [Sgt. Fiske] testified that he was also aware that
[the sitter] was a possible sexual assault victim from [Thrift]
herself, and from the Communications Center which
identified a sexual assault call from the Massachusetts State
Police . . . While at 194 West Spring Street, [Sgt. Fiske
became aware that [the sitter] called the Mass. State
Police . . . to report Davids attempted rape of her . . ..
Therefore, while [Sgt. Fiske] was at 194 West Spring Street,
he knew that [the 15-year old] was a possible crime
victim . . . (Award at pp. 14,15) 3
Again, it is wholly implausible that Sgt. Fiske never
shared any of the information about the 15-year-old with
Officer Ogden the only officer also at the scene after the
3

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The name of the minor has been redacted.

ambulance left. Presumably, Officer Ogden heard the same

information from the Massachusetts State Police and
Communications Center, as did Sgt. Fiske. The recording of
the telephone calls was played during the arbitration and
placed in the record as evidence.
In his written report of the July 23, 2011 incident,
Officer Gately wrote, Erika [Thrift] told me she thought she
saw her husband David Thrift having oral sex with [the
sitter]. I met with Sgt. Fiske and Officer Ogden who were
searching the area for David Thrift. I told Sgt. Fiske that
there is an allegation that David Thrift had possibly
committed an indecent sexual assault on a minor. (Gately
Incident Report at p. 2)
At the arbitration, Officer Gately was asked about his
incident report. He testified that he told Sgt. Fiske there
was an allegation that Thrift had possibly committed sexual
assault on a minor. When questioned further, he responded,
I was directing my comments to Sgt. Fiske. Ogden was
standing in the area. Thats probably what I meant.

. . No,

I have no recollection of where Ogden was exactly that

was over a year ago. At that point, Gately stated regarding
Ogdens proximity to Fiske at the time, I dont know in
meters or rods, [he was] in the area.

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Officer Gatelys statement that he met with Sgt. Fiske

and Officer Ogden, followed by a description of what he told
Sgt. Fiske, suggests that Ogden would have overheard the
statement or, if not, would have naturally followed up by
asking Fiske what Gately had told him.
Officer Ogdens own testimony did nothing to dispel
the Chiefs stated concern that he demonstrated a lack of
judgment and failed to demonstrate that he applied or even
understood the Departments domestic abuse policy. After
Sgt. Fiskes discharge and the aftermath of everything that
resulted from the July 23 occurrence, Officer Ogden
demonstrated no remorse nor did he acknowledge that he
comprehends that the officers premature departure from
the scene was a serious error.
When Counsel for the Town asked Officer Ogden if he
acknowledged that when children were present during a
domestic abuse situation it was a more delicate situation,
he disagreed. He responded, Theyre all domestics and
theyre all different.
When asked whether it was a possibility that David Thrift
could return to the residence after he and Sgt. Fiske
departed, he retorted, Yes, if were talking possibilities.
15

He stated that it was also possible that Thrift stole a

plane and had left the island.
In summary, considering the evidence as a whole, Chief
Hanavans issuance of a five-day unpaid suspension to
Officer Ogden is amply supported by just cause. Officer
Ogden did not conform his actions that evening to the
instructions in the Domestic Abuse Policy. He did nothing to
demonstrate that the children at the scene of the domestic
assault and battery were on his mind and, they were
definitely not a major consideration. As stated by Chief
Hanavan in his notice of discipline, in addition to not
following policy, Officer Ogden demonstrated a substantial
lack of judgment and was guilty of neglect of duty.
AWARD
For the above stated reasons the grievance is denied.
The record supports a conclusion that there was just cause
for the 5-day suspension issued to the Grievant in November
2011.
Date: February 24, 2013
________________________________________________
Sharon Henderson Ellis
Arbitrator

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AMERICAN ARBITRATION ASSOCIATION

This bill is submitted on behalf of the arbitrator
Arbitrator

Sharon Henderson Ellis

Case No: 1139-0314-12

Gr. Scott Ogden/Suspension

Address

36 Salisbury Road
Brookline, MA 02445-2105
________________________________________________________________
UNION

TISBURY POLICE ASSOCIATION

EMPLOYER

TOWN OF TISBURY

________________________________________________________________
1 Day of Hearing @ $1300 per diem . . . . . . . . . . . . . . . . . . . . . . . .
(11/16/13)
2 Days of writing @ $1300 per diem . . . . . . . . . . . . . . . . . . . . . . . . .
17

$1300.00
$2600.00

 Day of Travel Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

FEE TOTAL

$650.00
$4550.00

ARBITRATORS EXPENSES
$104 Transportation $16 Ferry fare; $88 (160 miles @ .55)
$170 Hotel
Meals
Parking
Expenses:
TOTAL

$274.00
$4824.00

Payable by Employer: $2412.00

Payable by Union: $2412.00
Date: February 25, 2013

Signature_______________________________
Social Security No: 533-40-2968

PLEASE MAKE PAYMENT DIRECTLY TO ARBITRATOR

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