Arbitrator rules Tisbury chief correctly disciplined officer
File photo by Ralph Stewart
Updated 4:40 pm, Tuesday, March 5, 2013
In sharp, clear terms, an arbitrator has found that Tisbury Police Chief Dan Hanavan was right to suspend Officer Scott Ogden without pay for five days for not following police department policy and neglect of duty, on the night of July 23, 2011, when a teenage babysitter, left alone in a house, was raped by a violent man who was the object of a police search.
In a decision dated February 24, arbitrator Sharon Henderson Ellis, Esq. called Officer Ogden's actions that night "implausible" and "incomprehensible."
"Considering the evidence as a whole, Chief Hanavan's issuance of a five-day suspension to Officer Ogden is amply supported by just cause," Ms. Ellis wrote in her 16-page decision. "He did nothing to demonstrate that the children at the scene of a domestic assault and battery were on his mind. In addition to not following policy, Officer Ogden demonstrated a substantial lack of judgement and was guilty of neglect of duty."
It was the second judgement in favor of the town and against the Tisbury Police Association, the local police union body, in connection with a case that shocked the Island and led to the dismissal of Sgt. Robert Fiske.
Sergeant Fiske was the officer in charge that night when he and Officers Michael Gately and Scott Ogden responded to a report of a domestic assault by a husband, David Thrift, on his now ex-wife, Erika, at a house on Spring Street in Vineyard Haven.
While police searched for Mr. Thrift after he assaulted his wife, he returned to the house and raped a live-in babysitter, left alone in the house with the couple's three children.
The Tisbury selectmen fired Sergeant Fiske on November 2, 2011, following an internal investigation and review of his actions. His dismissal was upheld in a separate arbitration proceeding.
The police union filed a grievance, contending that the disciplinary suspension was unwarranted, and violated the union contract.
Asked to comment on the ruling, Chief Hanavan said, "The decision speaks for itself."
A representative of the Tisbury Police Association could not be reached for comment.
In a section of the ruling titled "Analysis and Conclusion," the arbitrator noted the union argued that Officer Ogden could not have spoken up, and objected to leaving the children alone, because it would have violated the chain of command.
While she called it an important point, the arbitrator said even when not serving as the officer in charge, a police officer cannot act mindlessly and suspend common sense.
"In the case at hand, Officer Ogden's 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," Ms. Ellis wrote. "The consequences of Officer Ogden's and Sgt. Fiske's leaving the scene were tragic."
Her report noted that Officer Ogden was probably the least knowledgeable of the three officers who responded about what was occurring inside the house. But she said it "strains credulity" that Officer Ogden did not talk about the events with Sgt. Fiske, while searching for Mr. Thrift.
The arbitrator said the police reports and testimony during arbitration revealed that Officer Ogden showed little or no concern for the safety of the children.
"Officer Ogden's own testimony did nothing to dispel the chief's stated concern that he demonstrated a lack of judgement and failed to demonstrate that he applied or even understood the department's domestic abuse policy," Ms. Ellis wrote. "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 asked whether it was a possibility that David Thrift could return to the residence after he and Sgt. Fiske departed, he retorted, 'Yes if we're talking possibilities.' He stated that it was also 'possible' that Thrift 'stole a plane' and had left the Island."
The collective bargaining contract between Tisbury and the Tisbury Police Union includes a grievance process before the town administrator and the Tisbury selectmen. If the outcome is not to the employee's satisfaction, the next step is to file an appeal with the American Arbitration Association (AAA).
The arbitration process involved a series of hearings similar to court hearings. The arbitrator serves a role similar to that of a judge.
The arbitrator billed $4,824 for her services, a cost that is split equally between the town and the union.
Both parties were represented by attorneys throughout the arbitration process.
According to testimony presented at Mr. Thrift's trial in Dukes County Superior Court and the police report of the incident, Mr. Thrift, his then-wife Erika Johnson Thrift, and their three young children were living in Vineyard Haven, having moved from their native Arkansas. A teenaged relative of Ms. Thrift was living with them as a baby-sitter.
Ms. Thrift, alerted by one of her children, walked into a bedroom to find her husband sexually assaulting the baby sitter.
Ms. Thrift pulled him away, at which point he assaulted, beat, and threatened her, saying if she called police he would kill her.
Meanwhile, one of the children called 911. When police arrived, they observed Mr. Thrift running into the woods.
Ms. Thrift was transported to the Martha's Vineyard Hospital. Officer Michael Gately left the scene to assist Ms. Thrift in obtaining a restraining order, as Sgt. Fiske and Officer Ogden searched the surrounding area for Mr. Thrift.
According to the arbitrator's report, Officer Ogden was aware that Sgt. Fiske left the scene, and on his own, also decided to return to the police station, leaving the sitter and three young children alone in the home.
The sitter later called 911, reporting that she was scared and had armed herself with a knife, fearing that the defendant would return. The cell phone call ended abruptly with the teenager screaming.
According to court documents, Mr. Thrift returned to the home, and brutally raped the teenager at knife point, in front of his children. Alerted by 9-1-1 dispatchers, officers returned to the Tisbury house where they arrested Mr. Thrift.
Mr. Thrift pleaded guilty October 3, 2012, in Dukes County Superior Court to a total of seven criminal charges, including rape of a child under 16 by force, and rape of a child under 16, aggravated by age difference greater than 10 years. He also pleaded guilty to intimidating a victim, assault and battery, and violating a restraining order.
He was ordered to serve 10 to 13 years in state prison.
This article was updated to reflect a clarification. Officer Michael Gately was not disciplined by the town or Chief Dan Hanavan for failure to follow the department's domestic abuse policy. He was disciplined, in the form of a written warning, for failure to secure or photograph the crime scene, according to town officials. He appealed that written warning to the board of selectmen. The board of selectmen rescinded the warning.