SEA LE POLICE DEPARTMENT MEMORANDUM TO: Chain of Command DATE: November 21, 2019 Unit 123V FROM: Mike Fields Executive Director of Human Resources SUBJECT: Final Discipline-Matthew Kerby-OPA 19-0168 Attached are the Cover Letter and Final DAR for Of?cer Kerby. The Cover Letter and Final DAR need to be given to Of?cer Kerby via his chain of command. Electronic copies have been or will be provided to all recipients copied on the cover letter. Please have Of?cer Kerby sign in the appropriate place below. My signature below indicates that I have received the Cover Letter and Final DAR in OPA 19-0168. Matthew Kerby, #8445 Date After providing Of?cer Kerby with the documents, please complete the information below as appropriate. Served by: Date: Rank/Printed Name Date(s) Employee will serve suspension: If not served within three days of issuance, provide explanation: A copy of the suspension orders will be sent to the employee upon approval of the proposed day(s). All discipline must be completed within two pay periods absent written approval by the Executive Director of Human Resources. Vacation days may not be used in lieu of suspension without written permission from the Executive Director of Human Resources. Signature: On the day of service, scan the completed, signed receipt and send it to Original receipt should be returned within 7 days to SPD Legal Unit (J IS City of Seattle Seattle Police Department November 21, 2019 Matthew Kerby, #8445 (Hand-delivered) RE: OPA19-0168 Dear Of?cer Kerby: I want to thank you and your representatives for meeting with the Chief of Police on November 1, 2019 to discuss the recommended disciplinary actions arising from the investigation of OPA 19-0168. Based upon the information presented at the meeting, and a review of relevant materials, the Chief has sustained the following allegations: Violation of Seattle Police Manual, Sections: 0 5.001 - Standards and Duties - 6. Employees May Use Discretion 5.001 - Standards and Duties - 10. Employees Shall Strive to be Professional A description of the sustained allegations of misconduct and the ?nal disciplinary action are set forth in the enclosed Disciplinary Action Report. If you have any questions regarding this notice, please feel free to contact me. Sincerely, Carmen Best Chief of Police <60 Mike Fields Executive Director of Human Resources Enclosure cc: Carmen Best, Chief of Police Marc Deputy Chief Eric Greening, Assistant Chief Eric Sano, Captain Andrew Myerberg, Director of OPA Kevin Stuckey, SPOG President Amy Lowen, Employment Counsel Seattle Police Department, 610 Fifth Avenue, PO. Box 34986, Seattle, WA 98124-4986 An equal employment opportunity, af?rmative action employer. Accommodations for people with disabilities provided upon request. Call (206) 233-7203 at least two weeks in advance. Seattle Police Department FILE NUMBER DISCIPLINARY ACTION REPORT OPA 194?? NAME SERIAL NUMBER UNIT Of?cer Matthew Kerby 8445 B123V SUSTAINED ALLEGATIONS: Violation of Seattle Police Department Policy Procedure Manual Sections: 0 5.001 - Standards and Duties - 6. Employees May Use Discretion 5.001 - Standards and Duties - 10. Employees Shall Strive to be Professional Speci?cation: In late May 2018, of?cers assigned to the East Precinct investigated a hit and run collision. The hit and run involved damage to several vehicles; no injuries were suffered by any of the occupants of the cars that were struck. The of?cers determined that the vehicle belonging to a driver who ?ed the scene was associated with a residence in West Seattle. The of?cers requested that an of?cer assigned to the Southwest Precinct go to that residence and attempt to locate and take a statement from the suspect. You and your partner were dispatched. You were aware that the hit and run collision did not involve any injuries and that this involved a misdemeanor cr1me. You and your partner went to the West Seattle residence. Prior to contacting anyone in the residence, you told your partner that you would use a ruse. You then made contact with a woman in the residence. She told you that she knew the driver of the car (the Subject) who was involved in the hit and run. He did not live at the home but was an old friend of hers and she allowed him to register his vehicle using her address because he did not have a ?xed place of habitation. The woman told you that she did not know where the Subject was and that she had not seen him for several days. You asked for the Subj ect?s phone number. The woman said that she would look for his number and asked you to ?wait for one minute? while she went to ?grab it.? She returned with her cell phone in less than one minute, told you that she thought that she had the Subj ect?s number in her phone, and started to look through it. Seconds after the woman started looking through her phone, you told her that the reason that police were looking for the Subject was because: ?he was involved in a hit and run earlier that left a woman in critical condition and he left her.? The woman responded: ?God dammit. When did that happen?? You said that the hit and run occurred earlier that day and that the victim ?might not survive.? The woman was visibly upset and told you that she was shaken, that the information was hard for her to hear, and that she was scared. She provided you with a phone number for the Subject and you left. After you left, the woman called the Subject. She told him that the police had been at her home and had informed her that he was in a hit and run that resulted in an injury. The Subject did not appear concerned and told her that he did not think he had been in an injury collision. The woman told OPA that she spoke to him again the next day and discussed getting a referral to an attorney. They further spoke after she located an attorney. At that time, the woman told OPA that she believed the Subject was growing more concerned about the situation. He expressed alarm that he might have hit a pedestrian without realizing it. The man had been a heroin addict for a time and had prior legal troubles. The woman stated that the Subject appeared to grow increasingly dejected over time about the possibility that he had killed someone. The Subject also spoke with another friend about the hit and run and your ruse that he had critically injured a woman. The friend recounted that, on the last occasion that he saw the Subject, the Subject was crying. The friend stated that the Subject left a bag on a shelf in his garage that contained some personal effects and money, along with a note that read: ?If you don?t see me, keep this stuff.? The Subject?s roommate similarly reported that the Subject became increasingly worried about the hit and run and that he believed that he might have killed someone. The Subject relayed to the roommate that the police indicated that he killed someone during the hit and run. He did not remember the incident and, according to the roommate, was panicked. Several days after the incident, the Subject asked the roommate about suicidal feelings. On the morning of June 3, 2018, the Subject was found deceased. Of?cers responded to the scene and investigated the death. The of?cers documented the following in their report concerning the account provided by the roommate: ?She and [the Subject] were talking yesterday afternoon, and he seemed sad. He said he was in trouble with police and needed to get a lawyer. He also made the statement, ?13 it normal to feel suicidal?? The Subject committed suicide. Several witnesses interviewed by OPA expressed their opinion that your ruse contributed to the Subject?s suicide. Employee Response: You stated that you used the ruse because you did not have time to stand around and wait for the information. You believed that the ruse was reasonable, appropriate and consistent with policy. Speci?cally, you asserted that the ruse was needed to get information relevant to a criminal investigation and, while there was no exigency, there was an ongoing threat to public safety. During your Loudermill meeting, you spoke thoughtfully about your understanding of the impact that police of?cers can have on the lives of community members. You stated that your goal in using a ruse was to use available tools to capture an individual involved in a crime, not to cause stress. You stated that you were not trying to escalate the situation. Policies at Issue: Of?cers are required by Department Policy 5.001 (6) to ?use discretion in a reasonable manner consistent with the mission of the department and duties of their of?ce and assignment.? While an of?cer may use a ruse under certain circumstances, they must exercise reasonable discretion in doing so. Policy 5.001 (6) notes that ?[t]he scope of discretion is proportional to the severity of the crime or public safety issue being addressed.? Here, your investigation involved a misdemeanor hit and run that caused property damage. You were tasked with contacting the Subject to assist with the investigation and potentially obtain insurance information. You were not tasked with taking immediate action to apprehend the Subject, and there was no indication of a need to do so. There was no information suggesting that the Subject was an active threat to harm anyone or that he was armed. The woman who answered the door was cooperative; she volunteered to get her phone, returned within one minute, and was ?ipping through her phone for 15 seconds prior to the ruse being used. Once you obtained the contact information you used the ruse to obtain, you did not take any further action. You did not prepare a supplemental report, pass the contact information along to another of?cer, or attempt to contact the Subject. You did not take any action to calm the woman?s concern about her friend purportedly causing someone harm. There was no pressing law enforcement need to undertake the ruse. This ?ruse? was inconsistent with the Department?s policy that you use discretion in a reasonable manner. Department Policy 5.001 (10) requires that employees ?strive to be professional at all times.? The policy further instructs that ?employees may not engage in behavior that undermines public trust in the Department, the of?cer, or other of?cers.? When you told the woman that the Subject had likely killed someone, you engaged in unprofessional behavior. This ruse was well outside of what was permissible. As discussed above, there was simply no need to use a ruse under the circumstances and, even if there was, the ruse utilized evidenced poor judgment. Further, this incident undermined public trust in the Department and in you. Determination of The Chief: Of?cers are afforded signi?cant discretion in doing their jobs but must use it in a manner that is reasonable and proportional to the situation at hand. Video of the encounter does not support your claim that the woman was uncooperative and showed a hesitation to provide information you requested. The woman had every right to simply decline to answer questions and/or close the door. Instead, she answered your inquiries, went to get her phone, and began searching for the Subj ect?s information. Your interaction had lasted only moments before you escalated the situation, concocting a story about her friend?s involvement in a likely imminent death. Further, the fact that you did not follow through with the information obtained to assist with bringing the Subject into custody shows that your ruse went beyond the situation at hand. While it would be speculative to conclude that your actions contributed to the Subj ect?s death, there was no need for your actions. Your ruse, under these facts and circumstances, was not a reasonable use of discretion or consistent with the standards of professionalism of this Department. The imposed discipline in this case takes into account several factors. This is your second disciplinary event in less than one year. Less than one month before this incident, you were suspended for two days because of another incident involving your professionalism and decision making. In that case, your overly aggressive approach signi?cantly escalated an interaction, contributing to the need to use force. Similarly, your actions here were unnecessarily aggressive. At the same time, I am cognizant of the fact that you are a newer of?cer, and I expect you to learn from this discipline. Should a similar incident occur in the future, a higher level of discipline will result. Final Discipline Six (6) Day Suspension DATE E. 01mm OF a l- CHIEF OF POLICE APPEAL OF FINAL DISPOSITION Appeals to a Commission: SWORN EMPLOYEES: Public Safety Civil Service Commission See Seattle Municipal Code 4.08.100. Employee must ?le written demand within ten (10) days of a suspension, demotion or discharge for a hearing to determine whether the decision to suspend, demote or discharge was made in good faith for cause. Information on the process for ?ling a claim with the Public Safety Civil Service Commission may be found on the Commission?s website. CIVILIAN EMPLOYEES: Civil Service Commission Before ?ling an appeal with the Civil Service Commission regarding suspension, demotion, or termination an employee must ?rst go through the Employee Grievance Procedure provided by Personnel Rule 1.4. In order to comply with Rule 1.4, the employee must ?le the grievance within 20 calendar days of receiving the notice of the appointing authority?s decision to impose discipline. After exhausting the Employee Grievance Procedure, if the employee is still dissatis?ed, the employee must ?le his/her appeal with the Civil Service Commission within 20 calendar days of the delivery of the Step Three grievance response. See also SMC 4.04.240, 4.04.260, and Personnel Rules 1.4. PROBATIONARY EMPLOYEES: Pursuant to SMC 4.04.030 and 4.04.290, employees who have been appointed to a position within the classi?ed service but who has not completed a one (1) year period of probationary employment are ?probationary employees? and are subject to dismissal without just cause. An employee dismissed during their probationary period shall not have the right to appeal the dismissal. SMC 4.04.290 and City of Seattle Personnel Rule 1 .3 .2E. Alternative Appeal Options for Represented Employees: Consult your collective bargaining agreement or union representative to determine eligibility, notice periods, and details of the disciplinary grievance process. Any remedy available through a collective bargaining agreement is an alternative remedy and not in addition to an appeal to the Public Safety Civil Service Commission or Civil Service Commission.