Union: York officer 'proven' not guilty of mocking George Floyd's death, says city can't appeal

Liz Evans Scolforo
York Dispatch

York City cannot appeal an internal police trial-board's determination clearing city Officer Clayton Swartz of all allegations against him, according to a letter from the city's police union, but Mayor Michael Helfrich said that's not the case.

Three people allege that Swartz, 26, and his fiancee's uncle, Christopher Owens, 48, reenacted the May 25 police-custody death of George Floyd at a May 30 graduation party in a York City home. A Minneapolis police officer kneeled on Floyd's neck for more than eight minutes as Floyd repeatedly said he couldn't breathe.

Reached Monday, two of them, Marley Dahlheimer and India Maldonado, said they stand by their allegations against the officer and confirmed that they weren't asked to attend the Aug. 19 trial-board hearing or even told about it by city officials. The third accuser, Lexxus Brown, did not respond to a message seeking comment.

"We stand 100% by what we said. We've never faltered," Dahlheimer said. "It's the truth. It's what happened."

Swartz told an internal-affairs inspector he didn't reenact or mock Floyd's death, according to court documents. Owens told investigators and The York Dispatch that he made the comment "I can't breathe" while lying on a couch, but that Swartz — who was standing next to him — did nothing but "chuckle" in a placating way at Owens, who is biracial.

The women allege Swartz put his knee against Owens' neck and asked him if he could breathe and if he was dead yet while Owens convulsed on the couch.

FOP letter: In a letter obtained by The York Dispatch, the White Rose Lodge of the Fraternal Order of Police states that the contract between the union and York City does not allow the city to appeal the internal trial board's determination. 

More:What's an internal police trial board?

"In its entirety, this appeal is improper," according to the letter, signed by Brian Lehman, vice president of the White Rose FOP.

White Rose FOP President Matt Irvin said on Monday that the lodge's full board of officers stands by the letter and that it reflects the sentiments of its members, who support Swartz. He was hired in 2017.

York City Police Chief Troy Bankert, left, and Officer Clayton Swartz as officials investigate a fatal shooting reported near the corner of South West and West Princess Streets in York City, Wednesday, Sept. 26, 2018. York City Mayor Michael Helfrich said the shooting resulted in the death of an adult male and an injured juvenile who was transported to York Hospital. Dawn J. Sagert photo

"Mayor Helfrich and Commissioner (Osborne Robinson III) need to admit that their initial judgment was wrong," the letter reads. "Officer Swartz has proven himself 'Not Guilty' of all the allegations against him through the contractually obligated checks and balances system that was established by the City of York ... ."

The FOP is demanding that Swartz, who remains on unpaid leave, be reinstated with pay and that the police commissioner and York City "stop the defamation of character against Officer Swartz."

Can York appeal? Helfrich said he believes York City has the legal right to appeal the decision to a York County common pleas judge.

"What kind of system would it be if the city has no means to appeal?" the mayor asked.

Helfrich points to Chapter 7 of the state's Title 2 Administrative Law and Procedure rules, headed Judicial Review of Local Agency Action, which states that "any person aggrieved by an adjudication of a local agency who has a direct interest in such adjudication shall have the right to appeal therefrom to the court vested with jurisdiction of such appeals."

It also states that the rule "shall apply to all local agencies regardless of the fact that a statute expressly provides that there shall be no appeal from an adjudication of an agency, or that the adjudication of an agency shall be final or conclusive, or shall not be subject to review."

"This is the Commonwealth's appeal process. It's very clear," Helfrich said. "If the court finds that the trial board made the right decision, I will stand by that."

FOP takes on mayor: The FOP's letter states that York City's argument that the trial board's decision was unjust "rests upon the questionable judgment of Mayor Helfrich who is trying to explain his shortcomings after making statements against Officer Swartz publicly and on social media"  prior to the internal affairs investigation.

Read the full letter here:

More:OP-ED: FOP says York City doesn't have right to appeal decision exonerating officer

Helfrich maintains that in the days after the allegations became public, he didn't say Swartz was guilty.

"What I made was a statement in the midst of trying to keep violence from occurring during the (ongoing police protest) demonstrations, trying not to have York go down the same path as other cities," he said, and replied to a social-media post about the allegations with "smfh," an acronym for "shaking my f—ing head."

"That was my reaction to getting this information that could obviously incite further anger with our police department," the mayor said. "I (replied with) 'smfh' because ... this is not something York needed."

Helfrich said that at one point prior to the completion of the investigation, he specifically told the state's Human Relations Commission, "I don't know what to believe here."

Inconsistencies: Both sides point to what they say are inconsistencies and issues regarding statements made by witnesses on the other side. 

The FOP maintains the city "failed to bring any witnesses to the trial board," but Helfrich noted that the transcribed interviews of the witnesses who spoke to internal affairs, including the three accusers, were submitted as evidence. Those transcribed interviews are attached to the city's petition asking a judge to review the trial board's findings.

The union maintains the trial board "failed to buy into a falsely reported sequence of events" and claims Swartz's accusers aren't credible and gave statements that were inconsistent with each other's. The mayor disagrees.

"During that investigation, the three women's description of the critical actions of the evening remained consistent," Helfrich said. "Testimony and evidence from those defending Officer Swartz did not remain consistent."

York City Mayor Michael Helfrich is joined by York City Police Chief Osborne "Moe" Robinson III, left, during a rally at Continental Square Tuesday, June 2, 2020. Protesters gathered in the city for a second straight day calling for justice after George Floyd died after an altercation with Minneapolis police officers. Over 1,000 people attended the rally. Bill Kalina photo

Cleared by board: After a nearly nine-hour hearing on Aug. 19, the internal trial board — composed of three city officers — cleared Swartz of conduct unbecoming an officer, excessive use of alcohol off duty and not being truthful. The decision was announced Sept. 10.

Osborne notified Swartz in a letter dated Sept. 15 that he rejected the trial board's findings of not guilty on the counts of conduct unbecoming an officer and not being truthful.

Robinson accepted the trial board's not-guilty finding regarding the excessive use of alcohol charge, the letter reads. The petition states the city is not challenging Robinson's determination.

— Reach senior crime reporter Liz Evans Scolforo at levans@yorkdispatch.com or on Twitter at @LizScolforoYD.

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