By Rosemary K. Otzman
David Champagne, who was fired as a Van Buren Township Police Officer Feb. 6, 2012, was put back to work in January 2013 following a 33-page arbitration ruling that said the penalty was too harsh for his infraction.
Arbitrator Stanley T. Dobry reduced the discharge to a 60-hour suspension.
He ordered Champagne reinstated without loss of seniority and that he be made whole in accord with the collective bargaining agreement for all lost wages, benefits, seniority, and other emoluments of office.
The union contract provides that the arbitrator’s decision is final and binding upon the parties and Dobry retains jurisdiction in the event of a dispute as to the meaning or application of the award.
Officer Champagne was accused of perjury for failing to mark a box on a computerized form that had to be changed with each new case when seeking a warrant for a drunk driving arrest blood draw.
In his findings, Arbitrator Dobry said these computerized forms should be “idiot proof” and not require the officers to redo the form with each new case and uncheck boxes that were checked for the last case.
According to Dobry’s findings, Champagne immediately admitted his mistake when it was found and admitted that he (1) failed to comply with the legal requirement that he read a person arrested for suspected OWI his chemical test rights before obtaining a blood, breath or urine test – whether it be of the suspect’s choosing or by court order because the driver refused, and (2) that he had submitted an erroneous document that stated he had read the suspect his chemical test rights. This sworn affidavit was used to secure a search warrant to obtain a blood test.
Director of Public Safety Carl McClanahan found the evidence demonstrated that Officer Champagne falsified paperwork and committed perjury with his affidavit used to secure the search warrant.
“Relying on the VBT PD policies, standards of conduct, and Michigan law, he [McClanahan] decided that there was just cause warranting immediate termination,” Dobry wrote.
Dobry found, “The penalty is clearly punitive, not rehabilitative and corrective, and is disproportionate to the offenses proved.”
He said Champagne, who had worked as a police officer since July 2008 and was a paid-on-call VBT fire fighter for nine years, “has an essentially clean disciplinary record.”
Dobry made his finding after considering all the testimony, the exhibits, and the manner and form of the testimony, and the demeanor of witnesses.
There were seven witnesses: Mark Buckberry, Michael Papin, Ken Toney, Louis Keele, Greg Laurain, McClanahan, and Champagne.
On Jan. 15, 2012 Champagne was on the midnight shift, 6 p.m. to 6 a.m. At about 1:30 a.m., he made a traffic stop for excessive speed.
He smelled the odor of intoxicants on the driver and investigated a suspected drunk driving offense. The driver’s slurred speech and bloodshot eyes were consistent with excessive alcohol consumption and he admitted to consuming six or seven drinks.
In the first field sobriety test – counting backwards – the driver stopped and flatly stated: “I’m not blowing in anything, I’m not taking any more tests, just take me to jail.” He was arrested and transported to the station.
Officer Champagne contacted Sgt. Papin and advised his supervising officer that he had brought in a driver suspected of Operating While Intoxicated 3rd Offense.
He stated his intention to seek a search warrant to obtain a blood sample from the driver since he was up for a third offense and had refused to cooperate with any testing. He and Sgt. Papin conferred about how to best proceed.
Lt. Buckberry walked in on the conversation. The exact timing of his involvement is disputed, as is the precise words, content and meaning of the conversation.
Lt. Buckberry asked Officer Champagne if he had read the arrested suspect the chemical test rights. Officer Champagne replied, “no.” Champagne stated that “he’s already refused everything else, he’s going to refuse the breath test.” Buckberry advised Champagne to read the advice of Chemical Rights to the driver, then to obtain a warrant if necessary.
Buckberry now recalls he told Officer Champagne that if the driver refused the breath test after being read his chemical test rights, then Champagne could proceed with preparing the search warrant and securing a blood sample.
Champagne does not remember it that way. In light of the suspect’s refusal to take any further tests, he interpreted the reading of chemical rights as a vain act; and he believed it would be superseded by the issuance of a search warrant.
He did this based upon recent experience in another OUIL, which was considered to be serious at the time as one of the drivers was considered to be a potential fatality.
Champagne filled out the search warrant template provided by the department. In doing so, he used the last warrant request he had participated in and made changes on the filled-in form. He checked and/or unchecked various boxes and information.
Upon completing the warrant, he sent it via computer to Sgt. Papin who forwarded it to the Wayne County Prosecutor and the Magistrate’s Office. Champagne contacted the Assistant Prosecuting Attorney over the phone and was asked some general questions, but did not review the warrant line by line. The prosecutor OKed the warrant and the Magistrate was then contacted. The Magistrate signed the warrant and returned it to Champagne and Champagne took the driver to obtain the blood to check the driver’s alcohol level based upon the warrant.
After the blood draw, Champagne began filling out the reports for his drunk driving arrest, and he realized he could not complete Secretary of State DI-93 form reporting a refusal to submit to a chemical test. He came to the part where it required acknowledgement that the suspect driver was requested to take a chemical test and realized he could not complete that form because he had not expressly read to the driver his statutory chemical test right.
He took the form to dispatch to have the information entered on the Law Enforcement Information Network (LEIN) and the refusal was discussed and Champagne realized he made a mistake.
He promptly advised Lt. Buckberry of his failure to read the chemical test rights. Lt. Buckberry reviewed the initial reports and told Champagne to add to his report that he had not read the chemical rights to the suspect driver, which he did.
At the start of the next shift it was discovered the search warrant box indicating chemical test rights were read was incorrectly checked on the warrant. In light of all the paperwork, Lt. Buckberry concluded that Champagne lied under oath in his affidavit. He also found Champagne had not completed the DI-93 form, leaving blank the section confirming he read his chemical test rights.
Lt. Buckberry notified the detective assigned to the case of his finding. The prosecutor’s office opted to drop the OWI 3rd Felony prosecution and the arrestee got off with only a misdemeanor ticket for Driving While License Suspended.
Director of Public Safety McClanahan directed Lt. Buckberry to conduct an investigation and Buckberry listed ten charges against Champagne. A hearing followed and then the termination.
McClanahan had sole authority to determine the violations and the penalty. He did not find Champagne guilty of charges 1 through 9, but only upon charge 10, perjury.
But the Arbitrator said it appears Champagne was terminated for a series of events, which explain and culminate in the alleged perjury charge. He said the totality of the transaction, including aggravating and mitigating circumstances, was implicated. All of it was considered.
In his summary, Dobry said there is no evidence that Champagne knowingly and intentionally checked the box that said the chemical rights were read to the suspect.
Filling out the warrant form involved pulling up a prior warrant on Champagne’s file and modifying it for the current case. There is no such thing as a blank form, so it’s very possible old information may remain on a new warrant if the officer mistakenly does not delete it.
Director McClanahan stated that Lt. Buckberry had misunderstood his orders for the investigation. Allegedly, the lieutenant was to state in his investigation that the charges would be “submitted for appropriate discipline”. The lieutenant misunderstood and instead recommended a suspension, not termination, at the end of his original report. The lieutenant was allowed to change his report without further action by the Department stating how the lieutenant failed to follow the Director’s orders.
“Misunderstandings occur,” Dobry wrote. “People, officers and even command officers, misunderstand, mishear and misinterpret discussions. A mistake is a mistake and what the lieutenant and Officer Champagne misunderstood resulted in mistakes. Mistakes should not end the career of anyone.”
Dobry also noted that the document construction process was flawed and, “In part, this is a systemic failure.” Officers should not be encouraged to “get” a filled-in document, but instead should be required to opt in as to each allegation that may apply.
“The document construction process was flawed,” he wrote. “This had a foreseeable result from the method of document assemble: ‘getting’ a document from another matter and cannibalizing it. This method of construction places a premium on reading every line. And proof reading every line, too. The system was not fool proof.”
Dobry said Champagne was being punished for his coming forward and confessing his mistake. In that sense, the employer’s decision terminating him for admitting the mistake is essentially perverse, and in the long term encourages officers to hand tough with recognized mistakes.
“The violation of policy and the negligent failure to hear the instructions warrant a short suspension. They do not justify a termination from employment,” Dobry said.
Director McClanahan resigned from his position at the VBT Public Safety Department on Jan. 23, about two weeks after Dobry submitted his findings. Supervisor Linda Combs said this arbitration case had nothing to do with McClanahan’s resignation.
Editor’s Note: The 33 pages of arbitration findings were released to the Independent following a Freedom of Information Act request that was first denied by Clerk Leon Wright and then granted in part after an appeal to Supervisor Linda Combs. The document, dated Jan. 8, 2013, is redacted, with large portions of pages and sometimes whole pages blacked out, allegedly to conceal operating procedures of the police department.