OAR 265-005-0020: Multiple Instances of Misconduct; Arbitrary and Capricious Discipline

(1) For purposes of an arbitration proceeding concerning multiple instances of alleged misconduct by a law enforcement officer, if the arbitrator finds that a disciplining body has not met its burden of proof by a preponderance of the evidence to show that: (a) The officer engaged in one or more of the instances of alleged misconduct, or (b) That the disciplinary action taken against the officer was with just cause, as defined in ORS 236.350, for one or more of the instances of misconduct, the arbitrator must rescind the disciplinary action imposed on those allegations of misconduct and refer the matter back to the disciplining body. (2) The disciplining body may, at its discretion, amend the disciplinary action on any instances of misconduct upheld by the arbitrator. (3) In determining the reasonableness of a disciplinary action imposed by a disciplining body, including the appropriateness of the discipline imposed, the arbitrator shall rescind the discipline imposed and refer the matter back to the disciplining body if the arbitrator finds that the disciplinary action was arbitrary and capricious. (4) Nothing in this rule precludes the exclusive representative of the law enforcement officer from continuing the arbitration proceeding regarding a disciplinary action imposed after the referral by the arbitrator. (5) An arbitrator who refers a matter back to the disciplining body under paragraph (1) or (3), shall retain jurisdiction over any arbitration proceeding initiated under paragraph (4).