Sunday, April 26, 2015

Arbitrator reinstates police officer - Police Standards Council revokes his police certificate - Alaska Supreme Court affirms both

Lance Parcell was employed by the Airport Police and Fire Department of the Alaska Department of Transportation. In 2006 he was  investigated  for alleged violation of Department rules "relating to unbecoming conduct, courtesy, sexual harassment, private conduct and truthfulness, immoral conduct (deception) and harassment." After an investigation and an interview with the Chief, his employment was terminated. The dispute proceeded to arbitration, and "by the slimmest of margins" Arbitrator Harry MacLean concluded that Parcell should be reinstated without back pay. The arbitrator determined that Parcell's behavior was contrary to his professional responsibility, sexually offensive, and "as far over the line as one could imagine."  He also found that while the Department had not established that Parcell had lied it did prove that he had been "evasive, misleading and not forthcoming." Nevertheless, he concluded that a penalty less than termination was appropriate.

The Department sought to vacate the award, but the Superior Court denied the request. On appeal to the Alaska Supreme Court, the Court affirmed the denial of the request to vacate. State v. Public Safety Employees Ass'n. The Court observed:

While we may disagree with the arbitrator's ruling, this is insufficient to justify reversing the decision given our deferential standard of review. In his opinion, the arbitrator found the grievant to have engaged in harassing conduct and to have been evasive and misleading during the investigation, but he also found there to be a number of mitigating factors that favored a lesser penalty. If we were reviewing this case in the first instance, or under a less deferential standard, we likely would not have reached this conclusion. But our standard for viewing an arbitrator's decision is very deferential: We review for gross error. And it was not gross error for the arbitrator to conclude that the Department did not have just cause to terminate the grievant and that a lesser but still severe penalty, a sixteen-month suspension without pay, was sufficient discipline.

While the issues relating to the arbitration award were being addressed, the Alaska Police Standards Council was independently seeking to revoke Parcell's police certificate. That effort was stayed while the litigation over the arbitrator's award was proceeding, but after the Court's decision the Council renewed its efforts. The issue before the Council was whether Parcell had been dishonest in connection with the investigation  and lacked "good moral character," a basis for revocation of a police certificate. Relying on the facts as described in the Supreme Court's opinion, a hearing officer found that the Department had not met its burden of proof. While finding Parcell's conduct "egregious, rude, and grossly offensive" the Hearing Officer found the evidence insufficient to establish a lack of good moral character. On review, the Council rejected the conclusion of the Hearing Officer and found that Parcell's inappropriate and sexually offensive remarks and evidence that he had been dishonest during the Department's investigation warranted revocation of his certificate.  Parcell's appealed and the Superior Court reversed. It concluded that it need not defer to the Council's determination  of what constituted good moral character. It agreed with the hearing officer and found the Council's contrary conclusion unreasonable. 

The Alaska Supreme Court has now reversed the Superior Court. Alaska Police Standards Council v. Lance Parcell. It concluded that this case (like the earlier appeal of the arbitrator's award) turned on the level of deference due to the underlying decision. The Court summarized its decision:

A police officer's employment was terminated for abuse of alcohol, sexually offensive remarks made to two female officers, and alleged dishonesty during the subsequent police investigation. An arbitrator concluded that terminating the officer's employment was an excessive penalty and ordered the officer's reinstatement. The superior court affirmed the arbitration decision and we affirmed the superior court based on the deference that must be given to an arbitration decision. However, the Alaska Police Standards Council revoked the officer's police certificate after concluding that the officer was not of good moral character and was dishonest. The superior court reversed the decision to revoke, substituting its judgment for the Council's. But because the Council's decision, like that of the arbitrator, is entitled to deference, we reverse the superior court's decision and affirm the Council's decision to revoke the officer's police certificate.

It found that the Council's decision was not unreasonable and concluded that the fact that the Court had previously held that  there was no legal requirement to terminate a police officer's employment for minor acts of dishonesty  (State v. Pub. Safety Employees Ass'n) did not limit the Council's discretion to terminate the officer's certificate. Applying the same deferential standard of review it had on the appeal of the arbitration award, the Court deemed the Council's decision reasonable and entitled to affirmance.

A somewhat similar situation is discussed at  Fired, reinstated, then fired again - court rejects effort to enforce Arbitrator's award








  

Sunday, April 19, 2015

Arbitrator finds conduct of Sheriff's deputy in stalking former fiancee provides just cause for dismissal

Grievant was employed as a deputy on the Anoka County Sheriff's Office. During his employment he began a romantic relationship with another deputy. After two years, the second deputy resigned her position with the Sheriff's office and accepted other employment. The relationship continued, however, and the two ultimately became engaged and moved in together. A wedding date was set, but approximately one month before the wedding the prospective bride called off the wedding and asked grievant to move out of her home. As described in Arbitrator Eugene C. Jensen's award:

The Grievant’s behavior toward A.P. [the former fiancée] following their “break-up” resulted in a 2/26/2014, Harassment Restraining Order (HRO), an internal affairs investigation by the Employer, a criminal investigation by Chisago County, a 5/13/2014, criminal complaint for stalking, with a judges determination that there was probable cause to support the charge, and the Grievant’s termination on 6/4/2014.

Grievant was accused, inter alia, of sending hundreds of text messages to A.P. the day after the breakup, showing up at her door bearing jewelry he wanted to return to her despite having been told to stay away from her, and violating a Harassment Restraining Order. Grievant was arrested for the violation of the HRO and spent two nights in jail.

Pursuant to a plea agreement grievant agreed to plead guilty to stalking in exchange for dismissal of the HRO violation. The agreement also provided for a stay of adjudication, a stayed jail sentence of 365 days, a mental health evaluation, and two years probation. Upon successful completion of probation, grievant would be able to seek to have the charges expunged.

Despite the Union's arguments that several of the allegations against grievant were not proven, that the stalking with which he was charged was not "stalking in the traditional sense" and that the County erroneously accepted the former fiancée’s claim that she "never wavered" from her decision to end the relationship, Arbitrator Jensen upheld the termination. He found that grievant's actions were of the type to bring discredit to the Sheriff's office and to erode the essential trust between a sheriff's office and one of its sworn peace officers. He also found that while grievant had "gained some insight" into his behaviors and was unlikely to violate probation, he continued to minimize his behavior and to shift responsibility back to the victim.

Finally he concluded that a second chance was unwarranted, observing:

...although I am optimistic that the Grievant would not let this occur again in the future, the actions that led up to the charge of gross misdemeanor stalking -- those actions that were validated by two independent investigations -- are such that the Arbitrator would be remiss if he put the Grievant back to work, either now or following a protracted suspension. His return to work would further violate the Employer’s mission statement: to operate in a “manner that preserves the public trust.” The Anoka County Sheriff’s office did what was necessary to preserve that public trust: it terminated the Grievant’s employment. For the sake of the Sheriff’s Office’s reputation alone, the Employer needed to set distance between itself and the Grievant’s actions. While it is a shame to lose a fully trained and long-serving deputy, the Arbitrator agrees with the Employer’s decision.

Arbitrator Jensen's award can be found here.

Sunday, April 12, 2015

Police officer, special needs child, use of force and a clash of cultures

Grievant was employed as a police officer by the City of Bloomington, Illinois. He responded to an incident at a local school to address an issue with an out of control student. After that issue was resolved, grievant was talking with one of the teachers when he heard "loud screaming and a thumping sound" coming from the teacher's classroom. The officer entered the classroom where a seven year old was being restrained by the school's psychologist. The psychologist first became aware of the officer's entrance when grievant told the student to be quite, he was giving the officer a headache. Following school protocol, the psychologist relinquished control of the student to the officer. Grievant lifted the student and briefly held him against a wall. There was a dispute about whether he lifted the student by his coat or by his neck. He then "very intently" placed the student in a nearby chair. After the student delayed responding to a direction to go to the principal's office grievant carried him there and "very roughly" placed him in a chair. Acting in part on a complaint from the student's father the City terminated grievant's employment for what was alleged to be his "overly aggressive" handling of the student.

The Policemen's Benevolent and Protective Association arbitrated the termination, and Arbitrator Jeanne Vonhof sustained the grievance. Arbitrator Vonhof concluded that grievant's conduct was "objectively reasonable" and that while it would have made sense in retrospect for grievant to have asked more questions and gathered more information before he entered the classroom [grievant was unaware that the student was a special needs child] he was "following his training and acted quickly and instinctively in taking control" of the student. The arbitrator found insufficient evidence that grievant had lifted the student by his neck or restricted his breathing in any way. She found grievant's actions consistent with a "soft-empty-hand technique" authorized by the Department's use of force guidelines and concluded that the dispute arose from a failure of communication and a "clash of cultures" between that of the school staff and that of the police .  Accordingly she sustained the grievance and ordered grievant's reinstatement. She did conclude that a one day suspension was appropriate for grievant's failure to file a use of force report as required by Department policy.

The City moved to set aside the award. It argued, inter alia, that the award violated a well-defined and dominant public policy of protecting the safety of school age children and preventing use of excessive force by police officers. The trial court vacated the award, finding it violated the public policy of ensuring the welfare and protection of minors and that it effectively condoned the actions taken by grievant and indirectly encouraged similar behavior in the future.

The Appellate Court of Illinois has now reversed that decision, effectively confirming the award. While agreeing that there was a strong public policy concerning the protection and welfare of minors, the court noted that the Arbitrator's found as a fact that no misconduct had occurred. Similarly it rejected the City's claim that the Arbitrator had failed to make any findings that the grievant would not repeat his actions or offer any reassurance that grievant posed no future risk. Given the Arbitrator's factual findings, the Court found the City's argument unpersuasive, noting:

Here, no finding regarding grievant's remorse or likelihood to reoffend could be made because no misconduct was found in the first place. Additionally, the arbitrator found (1) grievant would not have intervened had he known more about N.A.'s needs and behavioral issues; (2) Bloomington police officers would rarely encounter an "out-of-control, combative[seven-year-old]," similar to this child; and (3) this incident was largely the result of a "clash of cultures" where, on one hand, school personnel are trained to passively wait for a student to deescalate and, on the other, police officers are trained to act quickly and efficiently to dispel any possible threat to the safety of others and property. Based on these findings, the arbitrator concluded the staff at Stevenson and the Department should reevaluate their policies to make sure an incident such as this one does not recur. By encouraging the two entities to develop better policies for handling disruptive juveniles, the arbitrator provided the reassurance called for under AFSCME, and we are obliged to affirm the award.

The Court's decision can be found here.

Sunday, March 29, 2015

Award of back pay to firefighter who let certification lapse doesn't violate public policy


Grievant was employed as a firefighter by the City of Akron. His employment was terminated because of his failure to comply with the City Charter which required him to reside in the City. After grievant's termination, the Ohio Supreme Court upheld a State statute effectively abolishing residency requirements for municipal employees. The challenge to the statute ultimately upheld by the Supreme Court was being actively pursued at the time of grievant's termination.

Following the Court's decision, the City offered to reinstate grievant without back pay, an offer grievant and his union refused. The grievance was presented to an arbitrator in two stages. In the first the Arbitrator concluded that the termination was without just cause and ordered that grievant be reinstated and made whole for lost earnings. In a second hearing the Arbitrator determined the amount of back pay due was $251,421.01. The arbitrator concluded that had grievant provided better proof and documentation he was undoubtedly entitled to more.

The City filed an action to modify or vacate the back pay award. It challenged the award (unsuccessfully) on several grounds. One of the bases for the City's challenge was its claim that the award violated public policy. This public policy argument was premised on the City's claim that grievant had let his firefighter certification lapse for some period following his termination. The lower court, and now the Court of Appeals of Ohio, rebuffed this effort. The Court of Appeals noted:

In support of its position that the trial court should have vacated the back pay award on public policy grounds, the City directs our attention to various sources that require firefighters and EMTs to maintain certification as a condition of employment. The problem with this position is that the award at issue did not require the City to reinstate [Grievant] despite his lack of certification. Instead, the arbitrator awarded [Grievant] back pay for the period during which he had determined that the City had wrongfully terminated his employment. It is true that [Grievant] allowed his certification to lapse during a portion of this timeframe. This Court must emphasize two things, however. First, there is no documented and well-defined public policy that prohibits the payment of back pay to a wrongfully terminated firefighter whose certification lapsed during his unemployment. Second, and of equal significance in the context of this case, is the fact that the City cannot use the cloak of public policy to seek a review of the merits of the arbitration award. In determining whether an award should be vacated on public policy grounds, the inquiry is focused on the face of the award, and "[a] court is not authorized to revisit or question the fact-finding or the reasoning which produced the award."

The Court noted that testimony about grievant's duty to mitigate his damages and the circumstances under which he had let his certification expire had been presented to the arbitrator. The arbitrator, however, viewing the circumstances together with the "questionable legality" of the City's actions, determined back pay was warranted. 

In a decision here the Court affirmed the judgment of the lower court enforcing the award. 

Sunday, March 22, 2015

Fired, reinstated then fired again - court rejects effort to enforce Arbitrator's award

Two police officers employed by the Washington Metropolitan Area Transit Authority were dismissed for separate incidents One was alleged to have stricken a passenger with a baton and to have been untruthful during an investigation of the incident. The second was alleged to have had a physical altercation with a companion and with having made making false statements about it. The FOP grieved and arbitrated both cases, and the Board of Arbitration reinstated both officers with a lengthy suspension rather than termination. Pursuant to the provisions of Maryland law, both individuals were required to be recertified by the Maryland Police Training Commission. Both officers were placed on paid administrative leave while their request for recertification was pending. The Chief of the Metro Transit PD wrote the Commission, expressing his position "in no uncertain terms" that he did not favor recertification. The Commission subsequently refused to recertify the two officers and their employment was again terminated, this time because they were unsuccessful in recertification.

The Union grieved the terminations but did not pursue the disputes to arbitration. Instead, it brought an action seeking to enforce the Board of Arbitration awards, claiming that the Department had failed to comply with them. The US District Court, in opinions here and here, granted the Union's request and confirmed the awards. The Court concluded that the Chief's letters "sought the very condition, lack of certification, that forms the basis for its argument that it cannot comply with the arbitral awards and reinstate the two officers." The Court also noted that the Chief's repeated references in the letters to the termination of the two officers for just cause "sharply conflict with the conclusions of the Board, which found that neither ... had been terminated for just cause."

The Fourth Circuit has now reversed. Relying in part on decisions of the Seventh and Third Circuits, the Court concluded:

Like the employers in Chrysler Motors and United Food, WMATA relied on independent grounds that were never before the arbitrators when they terminated [the] Officers ... for a second time. The Maryland Commission's denial of the Officers' request for recertification created a new and independent basis for deciding that [they] could no longer serve as MTPD officers. Firing a police officer for a disciplinary infraction is distinct from firing an officer for failing to obtain recertification. And as in Chrysler Motors and United Food, the basis for the second termination was never before the arbitrators. Nothing in the record suggests that the Board of Arbitration considered, or was even aware of the possibility, that the Maryland Commission would deny recertification. We therefore hold that WMATA's decision to terminate the Officers for a second time, following the Maryland Commission's denial of recertification, did not violate the earlier arbitration awards

The Court noted that it was not concluding that the second terminations were for just cause. That decision, it noted, was properly one for an arbitrator to make. It held only that the evidence failed to establish that WMATA's actions "exceeded the bounds of permissible behavior under the arbitration awards."

The opinion of the Fourth Circuit can be found here.



Sunday, March 15, 2015

Court: Arbitrator improperly decided what the contract should say, not what it does say. Award vacated.

A police officer represented by Fort Pitt Lodge 1 of the FOP filed a grievance concerning his compensation for working certain special events. The cba between the Union and the City of Pittsburgh contained a provision concerning "Secondary Employment." This secondary employment consisted of off-duty employees performing safety, peacekeeping or traffic control at large scale events such as concerts or sporting events. The cba provided that no employee would be compelled to perform such employment but that the compensation for employees engaged in such employment would be "the rate of pay ... as agreed upon by and between the City and the Secondary Employer." The City's agreed upon rate of pay was the overtime rate for a fourth year police officer ($42.12 per hour) regardless of the officer's rank or seniority.

Grievant was assigned, as part of his regular on duty shift to direct traffic at a sporting event. Also working at that event for a secondary employer was an off duty officer. Grievant claimed he should have received the higher secondary employment rate of pay. Grievant and another officer filed similar grievances for other instances where both an on duty officer and an off duty officer were working the same event. The grievances did not challenge the right of the Department to assign an officer to the event, but sought to have all employees, both off and on duty, paid the secondary employment rate.

Arbitrator Phillip Parkinson sustained the grievance. He concluded:

[I]t would appear to be inequitable for an on-duty officer to be called to supplement the secondary off-duty officers for an event such as a large concert or an event, for example, at the Consol Energy Center but be paid at a lesser rate of pay.... This raises a valid and legitimate pay concern for an on-duty officer.... It does not appear justifiable for these on-duty officers doing the same work at the same event as the secondary officers yet receiving a lesser rate of pay. Therefore, it is my conclusion, based upon the grievances and the arguments presented, that on-duty officers sent to work special events should be paid at the same rate of pay as the rate being paid to officers working the special events as a secondary employment detail.

The City sought to vacate the award, claiming that the Arbitrator exceeded his authority, that his award unduly infringed on a managerial prerogative of the City and that it mandated the City to carry out an "illegal" act. 

The Common Pleas Court (in a decision that can be found here) upheld the City's appeal and vacated the award. The Court concluded that the arbitrator had in fact exceeded his authority, observing "...the material facts are utterly undisputed and the arbitrator did not interpret the collective bargaining agreement but, rather, explicitly disregarded its clear terms." He also found that the award improperly infringed on the City's managerial prerogative to negotiate the terms and conditions of compensation of on duty officers. He noted:

The arbitrator's award in no respect suggests that the collective bargaining agreement is unclear with regard to the amount of compensation owed to on-duty officers who are reassigned to special events at which off-duty secondarily employed officers will be performing similar or identical work, but rather the arbitrator simply observes that such an arrangement "appear[s] to be inequitable." This plainly constitutes a finding, not that the arbitrator believes that the collective bargaining agreement actually provides for a higher compensation rate for on-duty officers reassigned to special events, but rather that the collective bargaining agreement should provide a higher rate of compensation for on-duty officers reassigned to special events. 

On the Union's appeal, the Commonwealth Court has now affirmed. Applying reasoning substantially similar to that of the lower court, the Commonwealth Court determined:

The purpose of grievance arbitration is to resolve disputes over a provision of an existing contract. The arbitrator explained his award on the grounds that it would be "inequitable" not to give on-duty officers the same wage paid to an off-duty officer. An Act 111 grievance arbitrator does not have jurisdiction or authority to rely on principles of equity to reform the CBA.
Instead of acting solely as a grievance arbitrator, the arbitrator stepped into the shoes of an interest arbitrator by issuing an award applicable to all police officers in the bargaining unit, not just the grievants. The arbitrator decided, apparently, what the CBA should say and did not rely upon what it does say. This he lacked power to do.


 The opinion of the Commonwealth Court can be found here.


Sunday, March 8, 2015

Police Department discipline in Cleveland-20 arbitration awards

Northeast Ohio Media Group recently published an article discussing the Mayor of Cleveland's belief that the arbitration process for police discipline has impeded his ability to terminate problem officers. Cleveland Mayor Frank Jackson says arbitration process keeps bad cops on police force.  As part of its reporting on this issue, Northeast Media Group requested, and received, 20 arbitration awards addressing discipline of police department employees. The report links to the awards. Among the issues discussed by the arbitrators are:

The dismissal of two officers for their involvement in an off duty bar fight with racial overturns. One of the dismissals was overturned here, while the second was upheld here. Both awards are by Arbitrator Michael Paolucci.

The suspension of a Sergeant for her involvement in establishing and managing a "homicide pool" in which participants bet on the number of homicides that would be committed in the city in a year. Arbitrator Burt Griffin's upheld the suspension.

The termination of a detective for, inter alia, texting/sexting crime victims and having personal visits while on duty without authorization. Arbitrator Gary W. Spring awarded the detective reinstatement without backpay and subject to a fitness for duty exam prior to his return to duty.

The suspension of an officer for insubordination in failing to follow an order concerning vacation scheduling. Arbitrator Alan Miles Ruben denied the grievance.

An officer's use of pepper spray to effectuate an arrest. Arbitrator James Mancini reduced  a suspension to a verbal warning.

The dismissal of an officer who had entered a no contest plea to an assault charge arising from her stabbing of her boyfriend. Arbitrator Paul Gerhart awarded reinstatement without back pay.

The suspension of an officer because of comments made in an on line post to the Cleveland Plain Dealer. Arbitrator Hyman Cohen reduced the discipline and, in a portion of the award captioned "Dictum" rejected claims that the discipline violated the officer's first amendment rights and that the officer had been engaged in protected concerted activity.