For 2nd time, arbitrator says officer wrongly denied promotion

For the second time in as many months, an independent arbitrator has ruled that Austin Police Chief Art Acevedo wrongly withheld the promotion of a officer last year.

In a strongly worded opinion,

arbitrator Chuck Miller of Austin on Wednesday ordered city officials to immediately promote Sgt. Kevin Leverenz to lieutenant, nearly three months after Acevedo declined to elevate him a rank because of the officer's disciplinary history and work performance.

Leverenz should also receive wages lost during that time, Miller said.

Miller said that in bypassing Leverenz, Acevedo ignored "the plain wording" of state law and called one of the city's arguments in the case "a nice try."

In a move that both sides said is unusual, Miller issued the ruling based on written arguments from the city and Leverenz's attorney, weeks before the dispute was set for a formal hearing.

"I felt the law was very clear, and the arbitrator has also ruled that the state law was very clear," said attorney Tom Stribling, who represented Leverenz and sought the early ruling. "It is important that the department follow the rules, just like individual officers have to follow the rules."

Acevedo said the ruling was based on a technicality, not the merits of his decision. "We thought it was important to pursue the bypass, based on the

totality of the facts in this case," he said. "Now the parameters have been clearly identified, and going forward, we will be able to use the tool more effectively."

The case marks the second time that Acevedo's decision to bypass an officer for promotion has been overturned on appeal. A third case is set for a hearing next month.

State law allows chiefs to withhold promotions if they have a "valid reason," but officials have said Texas chiefs rarely exercise that right.

Acevedo has said he would like to use the law to make sure that only officers with solid performance histories are in the top tier of the department.

An arbitrator ruled in December that Acevedo should have promoted then-Lt. Wayne Demoss to commander.

Acevedo in July declined to promote Demoss, citing prostitution-related allegations while on a trip abroad. An internal affairs investigation found that those charges were "unfounded."

With no vacancies at that rank, City Council members had to create a position for Demoss in January. However, police officials said a position for Leverenz is expected to open in the near future.

Among other factors in his decision not to promote Leverenz, Acevedo cited a 2005 incident in which Leverenz did not activate his patrol car camera during a stop and lied about his encounter with the suspect, according to documents.

Leverenz was suspended for 15 days, a decision that was upheld on appeal. He also has been repeatedly counseled more recently for being late to work and for speaking negatively to his subordinates about other sergeants, according to a memo.

According to Miller's ruling, Acevedo promoted Leverenz to lieutenant in June, the same day that City Council members cut several vacant positions amid budget reductions.

To legally slash those jobs, however, the city had to first promote officers into those vacancies — state civil service law said they were legally entitled to the jobs — then demote them and place their names on a list for reinstatement.

Leverenz's lawyer Stribling argued that Leverenz could not be legally bypassed for promotion in November once he had already been elevated a rank and was on that reinstatement list.

However, department attorney Michael Cronig said Acevedo had not considered Leverenz's one-day promotion "viable."

"The position was being abolished immediately, and he would not be performing lieutenant duties," Cronig said.

According to Miller's ruling, city officials also argued that Acevedo was not responsible for knowledge about Leverenz's performance and discipline history when he promoted him in June.

"The idea that Acevedo is not charged with knowing everything within his department about a promotion candidate is a nice try, but point in fact he IS charged with that knowledge absent (foul) play on someone's part," Miller wrote. "See President Harry Truman's quote 'The buck stops here.'"

Sgt. Wayne Vincent, president of the Austin Police Association, said he was pleased with the outcome in the case.

"These were all ill-advised personnel actions, and I'm just glad fairness and equity prevailed on this."

tplohetski@statesman.com; 445-3605