Sunday, July 14, 2013

Arbitrator overturns termination despite finding "unnecessary, unjustified, unreasonable" use of force because of due process considerations

Arbitrator Peter Feuille has sustained in part a grievance filed on behalf of a Des Plaines, IL police officer dismissed for alleged excessive use of force.  The incidents in issue occurred in June of 2009 and January of 2010.

In August of 2011, the Acting City Manager received a letter accusing the grievant of having "brutally beaten" several arrestees. He testified that this was the first he learned of the allegations, and he assigned a Deputy Chief to conduct an investigation. The investigation took place during the last four months of 2011 and concluded in an investigatory report dated December 30, 2011. In accord with the recommendations of the report, the City terminated the employment of grievant in March of 2012, and the Union (Metropolitan Association of Police, Chapter No. 240) brought the dispute to arbitration.

After a lengthy review of the evidence, Arbitrator Feuille concluded that grievant's use of force was "unnecessary, unjustified, unreasonable, and clearly in violation of [General Order] 10.01." He also concluded that grievant had improperly failed to report his use of force, contrary to the Department's reporting mandate. Finally, he determined that grievant's explanation during the investigation of why he had struck an individual he was transporting "not remotely credible" and, as a result, found the grievant was not truthful in his explanation. This untruthfulness, the Arbitrator concluded, violated the Department rule requiring officers "to be truthful at all times, whether under oath or not." The Arbitrator also found a second incident of improper use of force, and two additional instances of failure to report the use of force. Summarizing his findings, the Arbitrator noted:

 Putting this evidence together, it shows the following. First, the Grievant improperly used force ..., in violation of Department policy .... Second, the Grievant failed to report the use of force .... Third, during his November 2011 interrogation  the Grievant was untruthful about why he used unjustified and excessive force ... , also in violation of Department policy. As indicated in the analysis above, the evidence provides very strong proof of the Grievant's egregious misconduct.

Notwithstanding this conclusion, however, the Arbitrator also noted that "there is more to the concept of  discipline for just cause than proof of wrongdoing. The City also must satisfy the due process considerations incorporated into the just cause concept in order to demonstrate that just cause existed for the Grievant's termination." The Arbitrator found that the City failed to meet this element of just cause.

  Arbitrator Feuille concluded that the delay between the incidents in issue and the discipline was unwarranted and potentially harmful to the grievant. He observed:

Ultimately we will never know what information was lost by the lengthy delay in conducting the City's investigation. But the possibility that this delay may have prejudiced the ability of the Union to defend the Grievant in this matter cannot be overlooked. Accordingly, I find that the long delay in the City's investigation of the Grievant's misconduct, and the concomitant delay in disciplining the Grievant, means the City's discharge of the Grievant was procedurally flawed.

He rejected the City's contention that it was unaware of the facts until receipt by the Acting City Manager of the letter in August of 2011. He noted that the Department's Command Staff was aware of, and tolerated, Grievant's use of force, and was therefore "partly at fault" for the Grievant's misconduct. He determined that this tolerance  of misconduct "constitutes a second due process consideration that prevents the Grievant's discharge for being for just cause."

However, the Arbitrator concluded that these procedural shortcomings "do not exonerate" grievant of his serious misconduct. He ordered the grievant reinstated  without back pay, with the time off treated as a disciplinary suspension. He further provided that the reinstatement be on a "last chance" basis for three years from the reinstatement, with any similar violation entitling the City to immediately discharge grievant, with the Arbitrator hearing any arbitration arising from such a termination.

Arbitrator Feuille's Award, with certain names redacted, can be found here.

Update: A Cook County court has overturned Arbitrator Feuille's award  Judge upholds firing of Des Plaines cop

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