APA Files Grievance Against APD

Police Chief Art Acevedo and APA President Ken Casaday during happier times at the Police Lives Matter Rally in September. (by John Anderson)

The Austin Police Association filed a grievance Friday in connection to the indefinite suspension (civil service for “firing”) of Johnny McMiller, a lieutenant with the department who lost his job on Dec. 14 for violating APD policies pertaining to honesty, insubordination, neglect of duty, and the department’s guidelines for secondary employment.

Specifically, McMiller, a 22-year veteran, was terminated for the manner in which he handled the misconduct of Sgt. Nathaniel Roberts. Roberts, who joined the force in Feb. 2000, was suspended for 60 days on Dec. 1 for violating APD’s secondary employment guidelines when on June 6 he clocked in 3.5 hours early for his secondary gig running security for Capital Metro, then proceeded to go home, eat dinner, and handle some home improvement projects – all while remaining clocked in to his assigned shift. Roberts remained at his home and on the clock until 3am the following morning – well past the 1:30am time at which he was supposed to finish. (Roberts was also fired from his job with Capital Metro.)

McMiller was the master contract holder for the Cap Metro job Roberts was working. During an Oct. 29 Internal Affairs meeting concerning Roberts’ actions, it became clear to others within the Department that McMiller had been aware of Roberts’ little time heist and chose not to report it – despite telling Capital Metro Security Manager Blair Spikes and Sgt. David Daniels that he would. APD Secondary Employment Policy dictates that APD officers must report any instances of officer misconduct on non-APD jobs to that officer’s Chain of Command. McMiller, Police Chief Art Acevedo wrote, “vehemently denies” he ever told anyone that he would speak to Assistant Chief Patrick Ockletree prior to the IA investigation into Roberts.

Mounting evidence that McMiller was fully aware of Roberts’ violations led to him being questioned by Internal Affairs about his own inactions. There, Acevedo attests, he “offered a series of evasive, misleading and contradictory statements to Internal Affairs while admittedly omitting pertinent information.” He flip-flopped his assessment of the Capital Metro GPS system’s capabilities; “attempted to minimize his knowledge of the disparity of information” in a memo Roberts issued; and insinuated that another lieutenant would have a greater responsibility to report Roberts than he would.

In subsequent meetings, he went back and forth in his determinations as to whether Roberts violated APD policy, even after, Acevedo notes, Roberts had already accepted his 60-day discipline. Acevedo also wrote that McMiller was insubordinate “on more than one occasion” during the course of these IA investigations, violating Do-Not-Discuss orders and accusing Acevedo of “trying to force Assistant Chief Ockletree” – who, like McMiller, is black – “to retire so that I could promote another officer to Commander.” Acevedo additionally noted that McMiller “improperly attempted to thwart, influence, and interfere” with Roberts’ investigation, and was “disrespectful,” "accusatory,” and "confrontational” with Internal Affairs, his chain of command, and Acevedo’s executive branch throughout both investigations. Citing all that, Acevedo issued his indefinite suspension.

McMiller filed an appeal within the 10-day frame afforded to him through Civil Service. On Dec. 28, with his appeal pending (appeals often take roughly one year to settle), he retired from his position as a lieutenant with APD. Should a third-party arbitrator eventually overturn the indefinite suspension, McMiller would have the status of his discharge go from “dishonorable” to “honorable” (or “regular”), and be paid out for the sick time he’d accrued over his 22 years on the force – a figure APA President Ken Casaday estimates exceeds $100,000. The City’s desire to have officers not burn sick leave at the end of their careers means that it agrees to pay out the monetary equivalent to any officer with 12 years of service who separates in good standing.

Rather than go through with the appeal, however, Acevedo chose to reduce the indefinite suspension to a written reprimand – the lowest official form of punishment handed out to members of Austin’s Civil Service – and in turn accept McMiller’s retirement. In doing so, Acevedo also chose to leave the designation of “dishonorable discharge” in place, thus barring McMiller from getting paid out on his accrued sick leave. (McMiller was issued back-pay for the pay he lost between his Dec. 14 termination and the day that he retired.) The APA’s grievance charges a third-party arbitrator to elect one of three options: reject the filing, demand that Acevedo amend the status of McMiller’s discharge and thus pay him his accrued sick leave, or leave the indefinite suspension in place and send the termination to appeal.

Casaday says that the Association would have filed a grievance for any officer put in McMiller’s situation, but alleged that Acevedo’s vindictiveness is even more apparent because of the race of the individual in question. Charged within the allegations – that Acevedo and the Department “[are] engaged in discriminatory and retaliatory behavior which is indicative of a pattern or practice within the Department.” Between Ockletree, Blayne Williams, Jermaine Hopkins, Acevedo is no stranger to accusations of organizational racism.

“Chief has a very long history now with black officers and the way he treats them,” accused Casaday. “This is just one more jab in the eye. Chief had the power to give him an honorable discharge or a regular discharge and give him his money.”