Judge OKs arbitration for York City Officer Clayton Swartz, who remains on unpaid leave

Liz Evans Scolforo
York Dispatch
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

A York County judge has granted one request from York City Police Officer Clayton Swartz but denied another.

Swartz remains on unpaid administrative leave after three people publicly accused him of participating in a reenactment of George Floyd's death while at a party held in the York City home of his fiancée's mother. Floyd died while a police officer's knee was on his neck for about 9 minutes in Minneapolis on May 25, 2020.

Swartz maintains he didn't reenact or make fun of Floyd's death, and a three-officer internal trial board cleared him of that and two related allegations last summer.

More:Ex-cop guilty of murder and manslaughter in George Floyd case

However, York City officials appealed that decision in York County Court. York Mayor Michael Helfrich has said he won't return Swartz to active duty unless ordered to by a court, and he doesn't believe Swartz should interact with the public. He wrote in a recent op-ed piece submitted to York's two newspapers:

"Our internal investigation has concluded that Clayton Swartz was not forthcoming and truthful about all of the events surrounding the alleged reenactment of the George Floyd murder. None of us will ever know exactly what happened that night. There is no video or sound recording. But, the point at which Clayton Swartz forfeited his employment was when he was found by our investigation to not be forthcoming and truthful. That in itself is cause for termination. I stand by that until a court forces me to do otherwise."

More:York City cop accused of acting out George Floyd's death at party

More:Trial board clears York City police officer of wrongdoing

More:York City appeals not-guilty finding for cop accused of reenacting George Floyd's death

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

Swartz's attorney, Ed Paskey, has said it was the three complainants who were inconsistent about what they witnessed, including details about where Swartz was standing and who was in the room at the time. Paskey also represents the White Rose Lodge of the Fraternal Order of Police, which is the city police officers' union.

Court filings in the case indicate Paskey maintains Swartz was forthcoming and truthful throughout the investigation and when he testified at the trial-board hearing last summer.

Arbitration approved: On Thursday, Common Pleas Judge Matthew D. Menges granted Paskey's request to compel York City to engage in an arbitration hearing for Swartz, but he declined to compel that arbitration to happen on April 27, as Paskey's motion had requested.

Menges denied Paskey's second request — that the York County Court appeal be stayed, meaning put on hold, during the arbitration process.

"It is solely within this Court's purview to determine the arguments made by Officer Swartz as to whether the petition for review is properly before this Court or not," the judge's order states. "Any determination made by an arbitrator in this area may have persuasive value on the Court but is certainly not binding upon it. Accordingly, there is no reason that the judicial proceeding cannot continue to move forward in a parallel track to the arbitration proceeding."

Paskey did not return a message seeking comment. He stopped speaking with The York Dispatch last fall over the newspaper's coverage of allegations against Swartz.

One of the issues York City cited in its initial appeal was the fact that the trial board did not issue written findings about its determination to clear Swartz as required, and a county judge subsequently ordered that be done.

The board members — Capt. Matthew Leitzel, Lt. Derrick Millhouse and Detective First Class Scott Nadzom — on March 4 issued a written opinion "revised with findings of fact," which York City has attached to the end of its second petition for review, filed in York County Court on April 5.

Police Commissioner Michael Muldrow responded on March 30 by issuing a letter to Swartz saying he rejected the trial board's March 4 written findings.

York City is arguing that the trial board's revised findings should be voided because, allegedly, they are defective and failed to comply with local agency law.

The trial board found Swartz not guilty of conduct unbecoming an officer and not guilty of failing to be truthful, both with a 2-1 vote, according to court records.

It unanimously found that Swartz did not violate the York City Police Department's use-of-alcohol policy, determining that when he texted a family member of his fiancée's the next morning saying he was "blackout drunk," he was not being literal.

Next-day texts: The day after the party, Swartz texted future in-law Ethan Dean that his fiancée "told me this morning that me and Chris (Owens) pissed you off last night. I was blacked out last night, I'm really sorry if I said something to piss you off dude," according to court records.

Swartz then asked in a text, "What did (I and Mr. Owens) say to upset people?" and Dean responded by repeating the complainants' allegations as he had heard them. Dean did not witness anything firsthand, court records state.

"I'm sorry dude. I remember me trying to wake Chris up at one point in the night and shaking him but I don't remember my knee or him yelling. … I really am sorry for my part in upsetting people. Sounds like I was being a drunk idiot."

At Swartz's trial board hearing, several other young officers testified that's a term used figuratively by young people to mean "buzzed."

The trial board's written findings state that the three complainants weren't called to testify at Swartz's hearing, but that during the hearing Paskey pointed out inconsistencies in their accounts. Two of the complainants have told The York Dispatch they weren't subpoenaed for, or even alerted about, the hearing.

"Cross examination is the primary method for testing the believability of a witness and the truthfulness of his/her testimony," the trial board wrote. "Following the hearing, the trial board was very disappointed it did not have the opportunity to hear direct or cross examination testimony of the Complainants."

The trial board also noted that Michael Davis, the police department's Internal Affairs inspector, failed to interview the three complainants separately and allowed them to send emailed statements.

"This further allowed the Complainants to engage in collaboration in the preparation of their statements," the board stated, adding, "Multiple inconsistencies are observed in the Complainants' statements."

The background: The internal trial board's Sept. 10 determination clearing Swartz of wrongdoing came after a nine-hour hearing on Aug. 19.

The FOP has filed a grievance demanding Swartz be reinstated with full back pay, according to court records.

One of Paskey's court motions in the case states that the "plain language of the CBA indicates that the decision of the Trial Board is 'final and binding on both parties.'" CBA is short for collective bargaining agreement, meaning the one between York City and the officers' FOP union.

Three people allege that Swartz and his then-fianceé's uncle, Christopher Owens, reenacted the May 25 Minneapolis Police-custody death of George Floyd during a graduation party in the York City home of the fianceé's family. 

Swartz was 26 years old at the time of the May 30 party; Owens was 48.

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.

All three accusers told The York Dispatch they saw Swartz put his knee against Owens' neck and heard him ask Owens if he could breathe and if he was dead yet while Owens convulsed on the couch.

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