CRIME

An Officer Punished, A Sergeant Demoted

Both Officers Protest Punishment, But Arbitrator Has Waited 16 Months to Rule

By Mike Sunnucks

Publisher’s Note: We had to edit this story for length; please read the expanded version at thegabber.com.

Officer Cory Smith says he notified the incoming shift of the situation.

Gulfport Police Department

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. In the arbitration hearing, Vincent said he would have preferred to fire Burkhart.

Both actions occurred after internal investigations into the incident.

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.

Grubb has not yet made a decision. She declined to comment on the status of the case or reasons for the lengthy process.

Officer Rob Burkhart discussed the decision to not arrest Nas with Commander Mary Farrand.

Gulfport Police Department

The Dispute

Burkhart started with the Gulfport Police in 2001; before that, he worked as a dispatcher, according to police personnel and arbitration hearing records. Smith joined the agency in 2016.

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.

The resulting discipline centers on whether 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.

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.”

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 the O’Maddy’s St. Patrick’s Day street party downtown) to make the arrest, according to police records and arbitration transcripts provided to The Gabber.

Kenneth Afienko, legal counsel for the Fraternal Order of PolicePinellas Lodge #43 (which represents Gulfport police officers) also declined comment, but questioned GPD’s process and findings.

“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,” Afienko said.

Vincent said the department denied the officers’ appeals after 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.

According to a Mar. 18, 2019 memo, Burkhart said he discussed the situation with GPD Commander Mary Farrand the night of the incident and the decision not to immediately arrest Nas.

“She was in full agreement with the decision,” Burkhart said during arbitration.

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 (potentially) 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, including checking on Nas’ elderly mother who lived at the Gulfport home.

The Gabber asked Farrand if she directed Burkhart to follow-up that same night, but she declined to comment.

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.”

Gulfport City Attorney Andrew Salzman said there was nothing in the record showing Farrand told Burkhart not to go back to the scene that night.

Selective Enforcement?

During the 2020 arbitration hearing, Afienko questioned the city’s disciplinary process and whether it is selectively enforced. He 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 denied assertions from Afienko that the punishment against Burkhart might have stemmed from some kind of retaliation.

Smith said being short 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 impacted staffing during the holiday.

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.

Afienko countered that Smith and Burkhart both reached out to the incoming 4 a.m. shift to arrest Nas. In his arbitration testimony, Smith said he also notified the incoming shift of the situation.

The Gabber has full copies of the lengthy arbitration testimony. Please email editor@thegabber.com if you would like a digital copy.