A former Grand Forks officer fired by the mayor lost an appeal to get his job back Monday.
The five-member Grand Forks Civil Service Commission unanimously ruled that the mayor had sufficient grounds to terminate David O'Toole, a nine-year vet of the city's police department who was convicted of reckless endangerment after a cold-weather traffic stop in February 2008.
Mayor Mike Brown fired O'Toole in April, citing two factors that caused him to fall short of the requirements of an officer: 1) A judge has prohibited O'Toole from using firearms while serving a two-year probation term, which ends in December 2010. 2) O'Toole's peace officer's license has been suspended during that same period.
At Monday's hearing, attorney Michael Geiermann said the mayor has already demoted his client from the rank of master officer to officer and required him to serve a 60-day suspension for the incident that reportedly left 25-year-old Jason Hickman with frostbitten ears.
"David O'Toole has been disciplined twice for the same conduct, which, to me, is fundamentally unfair," Geiermann said. "He made a seven-minute mistake, and he has paid the price."
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Qualifications
Leading up to his firing, O'Toole spent five months temporarily assigned to the police department's records division, not wearing a uniform and not carrying a gun. During that time, O'Toole held the title of officer and received an officer's wage, which is higher than a records clerk, human resources director Darryl Hovland told the commission.
Hovland said the city's budget limits the number of officers it can employ and keeping O'Toole in the records department prevented the city from putting an officer on the street.
Geiermann wondered about the timing of the mayor's decision.
"Why, after five months of good service to the city of Grand Forks, do we have to terminate him?" he asked the commission. "We would ask not that he be reinstated as a police officer ... but I think you reinstate him to the records division because he did a good job."
City Attorney Howard Swanson, representing Brown who was not at the hearing, said O'Toole was ousted not because of his criminal conviction but because he did not meet the requirements of an officer.
Background
During the February 2008 traffic stop, Hickman was made to stand in a 42-below-zero wind chill with no jacket, hat or gloves as O'Toole and another officer, Eric Straus, sat nearby in heated squad cars exchanging computer messages.
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After an outside investigation into the incident, Brown disciplined O'Toole and Straus resigned.
Straus pleaded guilty to disorderly conduct and was sentenced to 20 hours of community service and a year of probation. A jury convicted O'Toole of reckless endangerment, and he was sentenced to 40 hours of community service and two years of probation.
Hickman reached a $100,000 settlement with the city in February 2009. A civil rights complaint filed by Hickman has led the U.S. Department of Justice to investigate the incident.
O'Toole is appealing his criminal conviction to the North Dakota Supreme Court. If justices overturn the conviction, O'Toole would be able to carry a gun and there's a possibility he would regain his peace officer's license. The court could issue a decision as early as July, Geiermann said.
Asked to comment Monday as he left the hearing and headed for the elevator, O'Toole said, "My only statement is that you'll get a statement at a later point in time -- probably after my appeal."
Reach Ingersoll at (701) 780-1269; (800) 477-6572, ext. 269; or send e-mail to aingersoll@gfherald.com .
