Friday, December 7, 2012

Importance of live witness testimony

The City of Miami terminated the employment of a police officer for conduct he was alleged to have engaged in in connection with the arrest of two individuals. His conduct was also the subject of threatened litigation, an Internal Affairs investigation and a criminal investigation. The officer grieved his termination and the matter proceeded to arbitration. At the arbitration hearing neither of the two arrested individuals testified. The City instead relied on statements that they had made in connection with the other proceedings. Grievant testified and denied any misconduct.

After extensively reviewing the evidence, including the statements of the two arrested individuals, Arbitrator M Scott Milinski concluded that the City had not established just cause for the termination.
Arbitrator Milinski observed that there was "no real justification for [the two arrested individuals] failure to testify subject to cross examination." While a 911 tape was introduced which captured some of the events, the Arbitrator noted the tape ended before the conclusion of the incident, and that "Only the [officer] testified as to what occurred during the 2 minute gap."

The Arbitrator noted:

There is another side to this incident. However, [the two] did not testify at the hearing; and could not be cross examined.
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This Arbitrator fully understands that had [the two] testified in the arbitration hearing his findings may be different. Their testimony is essential to many aspects of the City's case. Just as important, the discharged Grievant was not afforded the opportunity to confront his accusers at the arbitration hearing and test their credibility and demeanor. Further, this Arbitrator was not able to hear critical witness testimony.
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In conclusion, the City has not shown sufficient cause under the Collective Bargaining Agreement to discharge the Grievant.

The Miami Herald reports on the case, Miami Beach cop fired in gay bashing case to get his job back, and links to the full text of the Award here.

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