Sunday, June 1, 2014

Recent Developments-Quick Hits

Arbitrator overturns termination of police officer for claimed use of excessive force

Arbitrator Stanley Sergent has overturned the termination of a police officer in Sarasota FL who had been fired for alleged use of excessive force. Grievant had admittedly used several "empty-hand strikes" in an effort to control the individual he was attempting to arrest. The City maintained that the number of strikes, together with the absence of any time between them to determine compliance, rendered the use of force excessive. Initially Arbitrator Sergent noted that the Supreme Court has held that the test for whether the use of force is excessive must be determined from the perspective of a reasonable police officer on the scene, not "with the 20/20 vision of hindsight."  Arbitrator Sergent determined that grievant reasonably believed the subject was continuing to resist. He also found that while the City could have a more restrictive policy, it failed to demonstrate that grievant had violated that policy. While ordering grievant's reinstatement, the arbitrator did find that grievant's use of profane and abusive language and flagrant demonstration of anger and frustration was "clearly inappropriate,' warranting some punishment. Accordingly he replaced the termination with a thirty day suspension. The Sarasota Herald Tribune reports on the decision, Sarasota officer fired in Club Ivory beating to be reinstated, and links to Arbitrator Sergent's award here.

Student Assistance Coordinator who facilitated "refund" of drug transaction properly terminated

 Arbitrator Michael Peckler has upheld a determination of "conduct unbecoming" an educator who allegedly arranged a refund of a cash for marijuana transaction between students after one of the students complained of being shortchanged. After an extensive analysis of the conflicting claims, the Arbitrator concluded:

 [Grievant's] facilitation of the drug/cash exchange to make the controversy go away is contrary to the proactive, vigorous, front-line approach that is required of all teaching staff members. And her brokering of a refund between G.H. and J.C. combined with her position that she was going to report the students but for the school administration being too busy demonstrates such an egregious display of poor judgment and obfuscation that removal is the only appropriate remedy.

Arbitrator Peckler's award can be found here.



Arbitrator upholds suspension for false claim in grievance

Arbitrator Harry Crump has upheld a four day suspension imposed on a Blaine, MN police officer. Grievant had been issued a letter of reprimand for allegedly working private overtime while on call without arranging for appropriate coverage. The Union prepared a grievance on her behalf, which she signed. The grievance asserted that grievant had arranged for a named detective to cover her on call assignment. The City deemed this assertion to be unfounded, and imposed a suspension for grievant's alleged dishonesty. Arbitrator Crump found no evidence that the assertion was not "knowingly or deliberately untruthful" and denied the grievance. He explained:

The undersigned opine that there is no allowance in B.P.D. policies or [the Public Employment Labor Relations Act] for law enforcement officers to make false statements. The right to file a grievance does not provide a law enforcement officer with the right to make a false statement, nor insulate them from disciplinary action for violating B.P.D. policies and expectations relative to truthfulness. The Grievant did not claim on her grievance that she was "treated unfairly." The Grievant make [sic] affirmative representations that were false. The undersigned opines that the Employer has satisfied the Public Policy purpose to promote orderly and constructive relationships between all public employers and their employees.

Arbitrator Crump's award can be found here.


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