SAN JOSE — The firing of Officer Phillip White over tweets criticizing the Black Lives Matter movement that devolved into tacit threats of gun violence — and drew national scorn to the San Jose Police Department — was hailed by civic leaders as necessary to reassure minority communities they could trust police.
But news this week that White has returned to the force, after an arbitrator ordered his reinstatement, has left many wondering: How did he get his job back?
The short answer is White convinced an independent arbitrator that while his actions constituted misconduct worthy of punishment, termination was too harsh in light of his length of service, lack of any prior discipline and the tweets being in response to a perceived threat to his family.
“That’s where the department missed the boat. They did not give enough thought to the context of the messaging and his unblemished record,” said Michael Rains, White’s attorney.
Rains, a former police officer who is well known in the Bay Area for representing other officers, added that White already “paid a substantial price” in the form of being off the job since the Twitter postings surfaced in December 2014.
SJPD Acting Chief Eddie Garcia said White will not get back pay for the four months between his firing in October and his official return to work Feb. 10. Prior to that, he had been on paid leave while his actions were investigated.
The city and police brass disagreed with the decision to put him back on the force. Garcia noted that the arbitrator did not challenge the internal investigation but also expressed a need for the department to “move on while recognizing the community’s need to heal.”
Little beyond secondhand accounts is publicly known about how White was reinstated. There is no public record of the arbitration, which led to White’s current assignment of procuring body-worn cameras set to roll out this summer.
White’s most inflammatory tweets, during a heated back-and-forth with other users critical of his string of comments criticizing Black Lives Matter demonstrations, included: “Threaten me or my family and I will use my God given and law appointed right and duty to kill you. #CopsLivesMatter” and “By the way, if anyone feels they can’t breathe or their lives matter, I’ll be at the movies tonight, off duty, carrying my gun.”
William Armaline, associate professor of justice studies at San Jose State University, contends that relegating White to a largely administrative position is little comfort to community members who don’t see a middle ground for an officer who will forever draw their suspicion.
“Just because he’s not on patrol doesn’t mean he’s been stripped of his ability to use force, carry a firearm and other privileges of being a police officer. A desk job doesn’t mean you’re not a cop anymore,” he said. “How can you expect the community to respond in any other way than outrage when this is the series of events?”
Like all San Jose police officers, firefighters and many other city workers, White had the option of pursuing closed arbitration to appeal his firing.
“They have a right to procedural and substantive due process,” said Gregg Adams, general counsel for the San Jose Police Officers’ Association, noting that officers generally prefer professional arbitrators, believing they are less likely to be politically influenced.
Still, critics of the process say its secretive nature raises another question: If the police department’s purpose in firing White was to convey transparency and accountability, especially in light of the intense scrutiny of police misconduct nationwide, how should the community interpret White’s reinstatement amid a nonpublic proceeding?
“This is a very public job paid for with public dollars with a direct public effect,” said Raj Jayadev, director of Silicon Valley De-Bug, one of the city’s most visible police watchdog groups. “One of the subtle impacts of this is it makes everything else theater, in terms of police trying to push accountability.”
Adams said the arbitration process, along with statutory privacy protections for police personnel records, is aimed in part at protecting officers’ personal information against “fishing expeditions” that could jeopardize officer safety or unduly attack their credibility. But open-government advocates argue that it prevents citizens from effectively holding police accountable for misconduct.
The tide on the issue may be turning: state Sen. Mark Leno, D-San Francisco, announced Friday that he is resurrecting long-debated legislation to increase public access to those kinds of records.
Walter Katz, the city’s newly appointed independent police auditor, a role steeped in bridging underserved communities with the police force tasked with their protection, said the lack of public oversight in the case, statutory protections notwithstanding, is troubling.
“A result like this erodes trust in the process,” Katz said. “As people followed the story and became aware of how appalling those words were, they could see that the department was taking it seriously. Suddenly the officer is back, and the public is asking, ‘How can that happen?’ “
And in a case characterized almost entirely by optics, some took a raised eyebrow to the role in which White will serve: caretaker for the department’s body-worn camera program, a key element in law-enforcement’s nationwide push toward more transparency.
“You’re then going to put the guy partially in charge of the program seen as a solution to racist and aggressive behavior by police?” Armaline said. “If it weren’t so tragic, it would be hilarious.”
Garcia said putting White in his current role was a direct answer to those kinds of questions.
“We felt putting an officer in that program that is one of the biggest parts of transparency would lead to some redemption he needs,” he said. “We have him back on the force, and we’re not going to shelve him away. It’s a symbolic gesture to have him involved in what’s important to the community.”
Garcia also made it a point to say that White would be involved through the rollout but would not be involved in such tasks as monitoring footage from the body cameras.
“Good, bad or indifferent, he’s an SJPD officer again,” Garcia said, “and we wanted to put him somewhere where he can learn something.”
Contact Robert Salonga at 408-920-5002. Follow him at Twitter.com/robertsalonga.
