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Arbitration Award
†
Editor’s Note on 3M™
“Opticom™ Priority Control Systems”
Opticom
systems provide traffic signal dominance for emergency vehicles, by allowing
them to temporarily control an intersection. An emitter on the emergency
vehicle sends a high-energy optical (line-of-sight) signal to a detector
mounted on the traffic signal. An electronic processor (in the equipment
cabinet at an intersection) validates the request and responds by giving a
green light to the approaching emergency vehicle.
In re
City of Broken
Arrow, Oklahoma
and
FOP Local 170
FMCS Case No. 02/04541
117 LA (BNA) 1454
November 2, 2002
Donald P. Goodman, Arbitrator *
Did the City violate the Collective Bargaining agreement by the discipline of the Grievant, B__? If so, what shall be the remedy?
Contract Terms – see the appendix to the Award.
Certain facts are not in dispute. On May 14, 2001 the Grievant was dispatched to respond to a burglar alarm in a residence. As he approached the intersection of South 9th and Kenosha streets he observed he had a red signal light. He stopped his vehicle, turned on his overhead lights (Code 2), and proceeded into the intersection where the vehicle he was driving collided with a vehicle traveling north on 9th Street. The vehicle struck by the Grievant then struck a third vehicle.
The Grievant did not see the vehicle he struck as evidenced by his own testimony and the absence of skid marks at the scene.
After an investigation the City determined that the Grievant violated the City of Broken Arrow Code of Ordinances Section 23-29 and Police Department Operations Policy 104. His captain then recommended the Grievant be disciplined and issued a three-day suspension. The matter followed proper procedures. On August 8, 2001 Chief Kusler informed the Grievant he was suspended for one day.
The Grievant then filed the instant grievance.
The City Codes as well as Oklahoma Statutes provide the standard to be used in evaluating whether discipline imposed, short of discharge, is proper or excessive is that of “good of the service” not cause or just cause. (See Oklahoma Statutes Title 11 Appendix B; Hall v. O'Keefe, 1980 OK 108, 617 P.2d 199; Patrick v. Miller, 953 F.2d 1240; Graham v. City of Oklahoma City, 859 F.2d 142. This is limited only to the extent that discipline can not be arbitrarily or capriciously administered (See Hall supra). The arbitrator may determine whether or not the City has abused its discretion. Here it has not.
The parties have a long history of collective bargaining. Had they intended for a just cause standard to govern they would have included such in the Collective Agreement. See Westvaco, 92 LA (BNA) 1289.
The Grievant alleges that the discipline imposed was too severe, his discipline negatively affects his ability to test for promotion and he has been singled out as an example.
Among other things the Grievant claims a decision was made to discipline him before all the facts were known and without a proper investigation. The facts state otherwise. The accident was properly investigated. No decision was made until after an investigation was complete. Then Captain Adair recommended a three-day suspension. After reviewing the entire file and the recommendation of the Chief, the City Manager determined a one-day suspension was appropriate.
Clearly the Grievant violated both City Ordinance Section 23-29 and Police Department Policy and Procedure Operations 104. Both require the vehicle to have both the lights and siren on when an emergency vehicle violates traffic ordinances. Here the Grievant was driving through a red light. Even the Grievant admitted he did not properly clear the intersection.
Proper procedure was to activate lights and sirens (Code 3) as he approached the intersection. The Grievant admitted he did not activate lights or siren until he arrived at the intersection. Too, he did not properly activate the Opticom device. Nor did he properly clear intersection before entering it. The Opticom should have been activated as he approached the intersection thus causing the Grievant to face a green light. The Grievant originally stated the Opticom was not activated. At three different times prior to arbitration the Grievant never asserted the Opticom was activated prior to arriving at the intersection. He changed his story in regard to activating the Opticom at the arbitration hearing. Clearly, had it been activated the Grievant would have faced a green light.
The Grievant would have the Arbitrator believe the one-day suspension was excessive. He may certainly feel that way but it is the City and not the Grievant or Arbitrator that determines the degree of discipline. The Grievant admitted he violated the Ordinance and the Procedure. Ample evidence was introduced showing that an inordinate number of police officers are killed in traffic accidents. Surely, because of the safety factor a suspension is warranted.
The accident was avoidable.
Operations Policy 102A had been in existence for several years. That policy was revised and numbered 105. Policy 105 was renumber 104. The face of 105 shows it was promulgated April 18, 2001. That Policy was actually in effect on March 9, 2001. The revised Policy 104 was posted on March 9, 2001. By the language of the Collective Agreement the effective date of the Policy was March 9, 2001. The face of 104 reads effective April 18, 2001 because that was the date it was reissued as part of an accreditation process with the International Association of Chiefs of Police. Even if 105 or 102 had been in effect at the time of the incident there would still have been a Policy violation. Failure to use the siren was a violation. Policy 102A reads “under emergency conditions. I.e. Code 3, officers may disregard certain traffic laws”. When Policy 105 was proposed the Grievant signed a letter of protest dated March 5, 2001. The language in 105 as ultimately appeared in 104 states that to disregard traffic laws the Police Officer must be in Code 3. Interestingly, the Grievant he admitted violating Policy but yet claims he did not know what the policy was.
Even if neither Policy 104, 105 nor 102 had been in effect at the time, the Grievant still violated City Code Section 23-29. Even using April 18, 2001 as the effective date of policy 104 that was still a month before the accident, thus Policy 104 was in effect on the date of the accident.
The Grievant claims the discipline adversely affects his chances for promotion in that he is precluded from testing until three years from the date of the discipline. That means he is ineligible to test until May 2004. He is currently on military leave. He would not be eligible at any rate until he had four years of service. He is due to return from leave late in 2003. Any delay in testing would be at the most six months. Even when he test there is no guarantee of promotion. It should be noted that the City offered to waive the restriction on testing but this offer was refused by the Grievant.
The Grievant also claims the City did not follow its progressive discipline policy. The policy does not guarantee that an offense will result in the lowest level of discipline. Discipline depends upon the severity of the offense. Even a first offense, of a very serious violation could result in discharge.
Union
Position
The Grievant was disciplined for alleged violation of City Ordinance 23-29 and Police Department Policy and Procedure Operations 104. Before discipline can be imposed for a violation the document alleged to have been violated must have been adequately communicated to employees.
At the time of the accident Policy 104, a revision of Policy 102, was not in effect. Policy 104 had been proposed but not promulgated. Chief Kusler was asked if Policy 102 was in effect at the time of the accident. She answered in the affirmative. Policy 104 was in the process of review. The Union admits that the Grievant had some knowledge of the proposed revision of Policy 102. He was one of the officers who responded on March 5, 2001 to the City's proposal to revise Policy 102. On March 5, 2001 the City posted a proposed Policy 105. Policy 105 was never implemented as posted.
The language in proposed Policy 105 was similar to that later found in Policy 104 but Policy 105 was never implemented. The Union filed objections to proposed Policy 105 because it believed the language contained thereon conflicted with Oklahoma Statute Title 47 Section 11-106. City Ordinance 23-29 similarly was in conflict with the statute.
The statute allows officers to violate traffic laws when responding to an in-progress situation to use lights only. Proposed Policy 105 required lights and siren. Policy 102 incorporated O.S. 47 Section 11-106 which allowed lights only. The Grievant did not see the final revision of Policy 104 until May 20, 2002.
At the hearing it appeared the Chief was confused about how the policy revisions changed emergency response methods. She stated Policy 104 did not change the methods in Policy 102. If the Chief does not understand the changes how could the Grievant?
At the time of the accident the Grievant was in compliance with O.S. 47 Section 11-106. He did not know that O.S. 47 section 11-106 had been removed from the emergency response procedures. In March 2001 when the Union voiced concerns about the proposed policy conflicts with O.S. Title 47 Section 11-106 the City should have explained the changes to the officers and provided training on the changes. Since it did not do so it cannot in good faith discipline officers for something they did not know of.
When Policy 104 was finally implemented it contained no reference to O.S. 47 Section 11-106. This acknowledged that the City realized there was conflict between the proposed Policy 105 and the statute.
Even had the Grievant been aware of policy 104 there was no violation. The Grievant considered the response on May 14 as a serious in-progress situation. Policy 104 specifically provides that an officer may proceed Code 2 in such a situation.
The Union claims disparate treatment. That will be discussed, infra.
The Grievant is a good officer. Each of his performance appraisals demonstrate this. He has received no prior discipline. They also demonstrate he has the ability to apply policy and make good decisions.
The
Grievant was involved in a collision while responding to a burglar alarm. The
City would have the Arbitrator believe this was a routine response because a
very large number of alarm responses are a result of false alarms. Such is not
the case here.
While enroute he was advised by the dispatcher that the residence in question had a history of valid alarms including a runaway juvenile, domestic violence, vandalism and larcenies. The Grievant thus had every reason to believe this was a serious in progress intrusion alarm. Since it was a rear door trip it could be concluded this was an intrusion by stealth. A backup unit was also dispatched.
As the Grievant approached an intersection he activated his lights and Opticom. He did not activate his siren as he felt there was no need. When he arrived at the intersection he stopped, looked in all directions, determined the intersection was clear and proceeded into the intersection whereupon there was a collision between the Grievant's marked patrol car and another vehicle. There can be question but that the Opticom was activated in that the left turn arrow facing the Grievant was green. That being the situation, cross traffic would have a red or yellow light.
The City would have the Arbitrator believe that the Grievant was required to activate the patrol car overhead lights, siren and Opticom in accordance with Ordinance 23-29 and Policy 104 before entering the intersection. That is incorrect. According to Ordinance 23-29 and policy 104 officers may use discretion in activating devices when responding to emergencies.
Policy 104 was not in effect at the time of the accident.
The grievance should be sustained and the Grievant made whole.
It is necessary to review the notice of discipline to determine what the Grievant is accused of and the reasons therefor. That document reads (in part):
“On June 13, 2001 a pre-disciplinary hearing was held concerning possible disciplinary action being taken against you as the result of a motor vehicle collision you were involved in on May 14, 2001.
The Human Resources Manager Russell Gale and I recommended to the City Manager that you be suspended without pay for one day. The City manager concurs with the recommendation; therefore you will be suspended without pay for 8 hours on August 29, 2001.
You were found to be in violation of Broken Arrow City Ordinance 23-29 and Broken Arrow Police Department Policy and Procedure Operations 104. The specifics of the violations are outlined below.
(b) The driver of an authorized emergency vehicle may:
(2) Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;
(c) The exceptions herein granted to the driver of an authorized emergency vehicle shall apply only when he is making use of audible and visual signals...
(d) The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.
City Ordinance 23-29 requires an emergency vehicle to have both the lights and siren in operation in order to violate traffic ordinances.
Emergency is defined as: A situation in which there is a high probability of death or serious injury to an individual, and action by the emergency vehicle operator may reduce the seriousness of the situation.
Both City Ordinance 23-29 and Operations 104 contain language that requires the use of lights and siren in order to violate traffic ordinances. Ordinance 23-29 (b.2) specifically addresses the issue of red traffic signals. You have admitted that you entered the intersection against a red light and did not have your Opticom† or siren in operation at the time of the collision.
Mr. Gale and I believe your Code 2 (lights only) response to a door trip alarm was inappropriate. Under the circumstances and not in keeping with Operations 104. It is our opinion that a “door trip” alarm call absent unusual circumstances or other information rises to the level of emergency. As you are well aware the vast majority of “door trips” turn out to be false alarms.”
O.S. Title 47 Chapter 11 Article 1 Section 11-106 states “the driver of an authorized emergency vehicle, when responding to an emergency call ...may proceed past a red or stop sign but only after slowing down as may be necessary ...”. It also states such exemption is granted only ...use of audible signal OR flashing red or blue or combination of red and blue lights”. The Grievant claims he was in compliance with the statute because when he entered the intersection he had his overhead lights on.
Ordinance 23-29 reads in relevant part:
5. Guidelines for use of emergency lights only are as follows:
a. When effecting a traffic stop and the use of a siren is unnecessary at the time.
b. When the police unit is used as a stationary warning device.
Obviously Paragraph 5 is not here applicable.
The Grievant claims he violated neither the ordinance nor the policy. He claims he fully complied with Ordinance 23-29 and Policy 102. He claims Policy 104 was not yet in effect at the time of the accident.
The record is clear that the City proposed Policy 102 be revised as Policy 105. Policy 105 was proposed with an effective date of November 15, 2000. A number of officers voiced concerns about the language contained in the proposed policy 105 especially as it contained O.S. title 47 Section 11-106 by reference. Specifically among the concerns raised was that of a possible conflict between the O.S. Title 47 Section 11-106 and Policy 105 in regards to emergency responses. Those concerns were addressed in writing to the Chief by Memo dated March 5, 2001. The Grievant was a signatory on that Memo. It is unclear when or if the City Manager responded to the Union Memo of March 5, 2001 as required by paragraph four Section 1 Article XIV of the Collective Agreement.
The record is clear that Policy 105 was never officially issued.
We do know the City issued Policy 104 with an effective date on its face of April 18, 2001. Policy 104 actually replaces Policy 102 and is a revised version of Policy 105. The City claims Policy 104 was posted on March 9, 2001 and actually became effective that date. The City states April 18, 2001 appears on the document only because it was reissued that date as part of an accreditation process.
The Union claims the Grievant had not knowledge of Policy 104 and was unaware of any changes to the emergency response procedures. By his signature on the March 5, 2001 document he was certainly aware of proposed changes to Policy 102 in the form of Policy 105 (later 104).
By his testimony the Grievant stated “As I'm approaching it (the intersection of 9th and Kenosha) I see that I don't have a traffic light. I see north—there is northbound traffic moving. I come to a stop, wait for a couple of seconds for the traffic to clear, visually clear it, engage my overheads, and advance through the intersection”. He stated he looked up and saw a green left turn light and two red balls.
The Grievant claims he activated the Opticom at the same time as he activated his lights when he stopped at the intersection, and that it must have been functioning as he saw a green left turn arrow. The Opticom activates a sensor on the light to turn it green for the approaching patrol car. That sensor cannot operate if the Opticom equipped vehicle is under the light. It must be activated as the vehicle approaches the light. If he had activated the Opticom appropriately all lights would have been green and not just the left turn arrow.
There can be some question as to whether policy 104 was properly implemented. There was no convincing evidence that Article XIV Section 1 paragraph 4 was complied with in respect to Policy 105. The City is not required to adopt any suggestions yet it must respond to the comments. There is no convincing evidence that Policy 104 was ever posted for the comments of any affected. It could be argued that Policy 104 is nothing more than Policy 105 revised.
We turn now to Ordinance 23-29. That Ordinance reads in part:
“4. Code 2 response, i.e., lights and siren as needed, is to be used only when traffic conditions are such that it is necessary to utilize emergency equipment to allow the officer to clear the congested area without an inordinate delay in response time. Again, the officer must exercise good judgment based on the aforementioned criteria.
5. Guidelines for use of emergency lights only are as follows:
a. When effecting a traffic stop and the use of a siren is unnecessary at the time.
b. When the police unit is used as a stationary, warning device.
Ordinance 23-29 also reads in part:
2. Officers shall activate emergency lights and siren under the following guidelines:
d. When responding to a true emergency. An officer must exercise good judgment based on their training, work experience, policies of file department, state statutes, civil liability, and available information in dictating the need for a code 3 response.
The Grievant claims he was responding to a true emergency. He introduced into evidence FOP Exhibit 4 showing previous to 1401 N. 26th Place including alarms, domestic violence, vandalism and a runaway juvenile. He had been made aware of these by the dispatcher on the way to the scene. He was advised that the alarm was a rear door trip and stated he believed an intrusion was in progress with the possibility of bodily harm to another.
Under Ordinance 23-29 Section 2a he should have activated lights and siren. The Grievant did violate Ordinance 23-29.
The City states the element to be considered is “for the good of the service” and not just cause. The Collective Agreement in Article V Section 2 C does retain to the City the right to suspend or discipline any officer. Section 2-170 of the City Ordinances states discipline may be imposed for any reason for which the city manager believes. In good faith, to be “for the good of the service”. That standard is also contained in Oklahoma Statute Title 1 Section 10-113.
Each party gave cogent arguments as to whether the just cause standard should be applied. Each cited numerous cases (not repeated or commented on here) in support of their relative positions.
Whether the standard to be used is “just cause”, “proper cause”, “cause”or “good of the service” need not be addressed here. Whichever standard is used the outcome would be the same.
There was ample justification to discipline the Grievant.
The Grievant claims the process was just going through the motions in that his fate was pre-determined. I do not find that to be the case. If that were so then the three day suspension recommended by Captain Adair would have been imposed. The accident was investigated, Captain Adair made a recommendation, the Chief made a review of the facts and documentation, a hearing was held with the Grievant, the Chief then made a recommendation and then the City Manager made a determination.
The Union claims the Grievant did operate the Opticom and in support states that when the Grievant entered the intersection the left turn arrow was green. If the Opticom had been activated all lights facing the Grievant would have been green not just the left turn arrow. It is clear to me that the Grievant did not activate the Opticom prior to arriving at the intersection. Had the Opticom been activated prior to arriving at the intersection the light would have been green. The Grievant himself stated the light was red as he entered the intersection.
The one day suspension was not excessive.
The Grievant claims disparate treatment. Officers J—, M— and P— were also involved in accidents. The accidents of M— and P— were dissimilar. Neither P— nor M— were entering intersections. They were not analogous to the Grievant's situation (See Ramsey County Sheriff, 100 LA 208.).
Officer S— was also involved in an accident. S— was inattentive and struck a vehicle in the rear. S— was not disciplined. Officer T— was involved in a collision and failed to report it. Even though there was untruthfulness and deception, S— also received a one day suspension.
It is well settled that employees who commit similar offenses should receive similar discipline all other things being equal. Here the situations of S—, T—, P— and M— were not similar. All had greater service than the Grievant. None of the four were entering intersections.
The accidents involving J— and the Grievant were similar. Both J—and the Grievant were entering intersections. J— was operating Code 3. He entered the intersection traveling more than the posted 45 m.p.h. and did not stop before entering the intersection. The Grievant came to a complete stop before entering the intersection. The Chief may have been under the impression that neither the Grievant nor J— had the right of way. The official police reports indicate the citizen struck by the Grievant failed to yield the right of way as whereas the report of J— accident reveals J—failed to yield. J— also received a one day suspension.
The Union claims the City found the Grievant at fault even though his accident had not been brought before an Accident Review Board before discipline was administered. It claims all other officers were disciplined only after review by such a Board. The better procedure might have been to convene and received the results of an Accident Review Board prior to administering discipline but that is not required by the Collective Agreement.
Since I have ruled that the Grievant violated Ordinance 23-29 I need not making a ruling as to whether he also violated Policy 104 of which he is also accused.
The grievance is denied.
The undersigned arbitrator, having been duly designated in accordance with the arbitration agreement entered into by the Parties and having been duly sworn and having duly heard the proofs and allegations of the Parties, awards as follows:
The Company did not violate the Collective Bargaining Agreement by the discipline of the Grievant, B__.
The grievance is denied.
* Arbitrator selected by the parties, through procedures of the Federal Mediation and Conciliation Service.
Section 1. The Lodge recognizes the prerogative of the Employer to operate and manage its affairs in all respects and in accordance with its responsibilities, and the power or authority which the Employer has not officially abridged, delegated, granted or modified by this Agreement are retained by the Employer, and all rights, powers and authority the Employer had prior to the signing of the Agreement are retained by the Employer and remain exclusively without limitations, within the rights of the Employer.
Section 2. Except as may be limited herein, the Employer retains the rights in accordance with the Constitution, the laws of the State of Oklahoma, and the ordinances and regulations promulgated thereunder:
A. To direct the members of the Police Department, including the right to hire, terminate, suspend, discipline, promote or transfer any police officer;
Section 1. All proposed amendments to the Broken Arrow Police Department Policy and Procedures Manual shall be posted and comment is invited from all officers for a fifteen (15) calendar day period from the date of posting. The Lodge President or his or her designee shall initial each amendment at the time of posting.
The Chief of Police shall give due consideration to all written comments submitted during the fifteen (15) calendar day period, but is not required to adopt or implement any of the comments submitted.
After the fifteen (15) calendar day comment period, the proposed amendment shall be affected or the proposed amendment shall be changed to reflect the language agreed to by the Chief and the commenting party. The final policy shall then be posted prior to implementation on the Police Department bulletin board advising bargaining unit members of the new or amended policy.
If after the amendment has been affected, a member of the department wishes to oppose the amendment, he or she shall so notify the Chief of Police and the issue shall be placed before the City Manager. The City Manager shall receive comment from the parties and support or reject said comments with a written response to all parties within forty-five (45) calendar days of receipt of all comments.
Section 2. Each officer shall receive a copy of the policy amendment within thirty. (30) calendar days of the effective date of the amendment.
Title 47, Chapter 11, Article 1, Section 11-106
A. The driver of an authorized emergency vehicle, when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law or when responding to but not upon returning from a fire alarm, may exercise the privilege set forth in this section, but subject to the conditions herein stated.
B. The driver of an authorized emergency vehicle may:
1. Park, or stand, irrespective of the provisions of this chapter,
2. Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;
3. Exceed the maximum speed limits so long as speeding does not endanger life or property;
4. Disregard regulations governing direction of movement or turning in specified directions.
C. The exemptions herein granted to an authorized emergency, vehicle shall apply only when such vehicle is properly and lawfully making use of an audible signal or of flashing red or blue lights or a combination of flashing red and blue lights meeting the requirements of Section 12-218 of this title, except that an authorized emergency vehicle operated as a police vehicle need not be equipped with or display a red or blue light visible from in front of the vehicle. This subsection shall not be construed as requiring a peace officer operating a police vehicle properly and lawfully in response to a crime in progress to use audible signals.
D. The provisions of this section shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of reckless disregard for the safety of others.
Section 23-29 Mirrors Oklahoma Statute Title 47 Chapter 11 Article 1 Section 11-106
Police Department Procedure 102 A (Eff. Sept. 19, 1996)
Policy: Officers, under normal circumstances, shall respond to calls for police service by obeying all traffic laws of the City of Broken Arrow and the State of Oklahoma. Under emergency conditions, i.e., Code 3, officers may disregard certain traffic laws as provided in title 47 OS 11-106. However, such provisions shall not relieve the driver of an authorized emergency vehicle, operating in the emergency mode, (Code 3), from the duty to drive with due regard for the safety of others, nor shall such provisions protect the driver from the consequences of reckless disregard for the safety of others.
Summary: Procedures and guidelines to be followed in determining response codes.
Applies To: All police personnel
Definitions:
Code 1—Routine operation of police vehicle.
Code 2—Emergency lights and siren as needed.
Code 3—Emergency lights and siren in operation.
True Emergency: A situation in which there is a high probability of death or serious injury to an individual, and action by the emergency vehicle operator may reduce the seriousness of the situation.
Due regard for the safety of others: a reasonably careful person, performing similar duties and under similar circumstances, would act in the same manner.
Procedure:
Officers shall determine the appropriate response code based upon:
a. The policy of the Broken Arrow Police Department.
b. Oklahoma State Statutes applicable to emergency response.
c. The existence of a true emergency, based upon the information available to the officer.
2. Officers shall activate emergency lights and siren under the following guidelines:
a. When responding to a true emergency. An officer must exercise good judgment based on their training, work experience, policies of the department, state statutes, civil liability, and available information in dictating the need for a code 3 response.
b. When in pursuit of a fleeing vehicle, driven by a known or suspected violator of the law.
c. When in any other situation deemed necessary by an on duty police supervisor and with his/her authority to do so.
An on duty police supervisor or other appropriate command personnel has file authority to cancel any Code 3 response when, in their best judgment, the risks outweigh the benefits of a Code 3 response.
3. Officers operating “low profile” Units such as command personnel, and traffic enforcement units without overhead lights, i.e., any marked unit without overhead lights, should not respond Code 3 except in cases of extreme emergency. Officers operating such units should not engage in a pursuit unless officer safety is paramount or in pursuit of a known dangerous felony suspect. If such a pursuit is engaged, the low profile unit must turn the pursuit over to a unit with overhead emergency equipment as soon as possible. Officers operating such vehicles must consider their lack of warning ability in exercising due regard for the safety of others.
Any unmarked police vehicle shall not become involved in a Code 3 response or pursuit situation.
4. Code 2 response, i.e., lights and siren as needed, is to be used only when traffic conditions are such that it is necessary to utilize emergency equipment to allow the officer to clear the congested area without an inordinate delay in response time. Again, the officer must exercise good judgment based on the aforementioned criteria.
5. Guidelines for use of emergency lights only are as follows:
a. When effecting a traffic stop and the use of a siren is unnecessary at the time.
b. When the police unit is used as a stationary warning device.
Effective April 18, 2001 (Superseded 102A).
The Policies and Procedures contained within this manual are intended as guidelines for all Police Department employees. Employees are given the discretion to deviate from these guidelines when reasonably necessary. Violations of rules, regulations, policies, and procedures form the basis for disciplinary action within the Police Department. This manual is not intended to create any higher legal standard of care or liability in an evidentiary sense than is created by law. Violations of law form the basis of civil and/or criminal sanctions to be determined in the proper judicial setting and not through the administrative procedures of the Police Department.
Officers, under normal circumstances, shall respond to calls for police service by obeying all traffic laws of the City of Broken Arrow and the State of Oklahoma. Under emergency conditions, i.e., Code 3, officers may disregard certain traffic laws as provided in City Ordinance 23-29. However, such provisions shall not relieve the driver of an authorized emergency vehicle, operating in the emergency mode, (Code 3), from the duty to drive with due regard for the safety of others, nor shall such provisions protect the driver from the consequences of reckless disregard for the safety of others. City Ordinance 23-29 requires an emergency vehicle to have both the lights and siren in operation in order to violate traffic ordinances.
Definitions:
Code 1—Routine operation of police vehicle
Code 2—Emergency lights only
Code 3—Emergency lights and siren in operation
Emergency:
A situation in which there is a high probability of death or serious injury to an individual, and action by the emergency vehicle operator may reduce the seriousness of the situation.
Due regard for the safety of others:
A reasonably careful person, performing similar duties and under similar circumstances, would act in the same manner.
Procedure:
Officers should determine the appropriate response code based upon:
A. The policy of the Broken Arrow Police Department
B. City of Broken Arrow Ordinances applicable to emergency response
C. The information available to them that leads them to believe an emergency exists.
D. Proximity of other emergency personnel (Police, Fire, Ambulance)
E. Whether or not the responding officer can actually reduce the seriousness of the situation by a rapid response.
F. Visibility to other motorists, especially for officers operating Low Profile Units.
G. Environmental factors
1. Weather
2. Traffic Conditions
3. Time of Day
4. Roadway Characteristics
H. Training, Experience, and Prior Knowledge
2. Officers should activate emergency lights and siren under the following guidelines:
a. When responding to an emergency an officer should exercise good judgment based on their training, work experience, policies of the department, state statutes, city ordinances, civil liability, and available information in dictating the need for a code 3 response.
b. When in pursuit of a fleeing vehicle, driven by a known or suspected violator of the law.
c. When in any other situation deemed necessary by an on duty police supervisor and with his/her authority to do so.
An on duty supervisor or other appropriate command personnel has the authority to cancel any Code 3 response when, in their best judgment the risks outweigh the benefits of a Code 3 response.
3. Code 2 responses, i.e. emergency lights only, should only be utilized when responding to in progress situations where the use of the siren may make the situation worse. For example; when responding to a bank robbery in progress where an armed suspect is still in the bank.
This does not prohibit officers from utilizing their emergency lights only when initiating routine traffic stops (when the siren is not necessary) or when utilizing the police vehicle as a stationary warning device.
Regulations:
1. Officers have the discretion to utilize the response code they deem appropriate based on the circumstances.
2. Vehicles responding Code 3 must have the emergency lights, siren, and Opticom (if equipped) in operation.
3. When operating their vehicle with lights and siren activated officers are required to exercise due diligence. Officers should not assume that the drivers of other vehicles are aware of their presence simply because they have lights and siren activated. Intersections are particularly hazardous. Officers entering intersections “against” traffic signals should slow or stop to ensure they can proceed through the intersection safely. Officers operating Low Profile Units should use extreme caution when responding Code 3.
4. Any unmarked police vehicle shall not become involved in a Code 3 response or pursuit situation.
5. Escorts of civilian vehicles in medical emergencies are prohibited, except with supervisory approval. Officers should summon emergency medical personnel to their location instead.
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