Sunday, April 24, 2016

Another unsuccessful public policy challenge to an arbitrator's award

The City of Cleveland terminated the employment of a police officer for her essentially undisputed actions of stabbing a romantic partner.

 Grievant had been dating and, for a time, living with the partner. He had a criminal history of convictions for a number of offenses including drug possession, sexual battery, attempted kidnapping and  gross sexual imposition. On March 12, 2012 the two engaged in an argument and grievant, while intoxicated, stabbed the partner several times and fled the scene. She was found in her vehicle with a cord that was suspended from the ceiling of the car wrapped around her neck. Grievant was arrested and charged with felonious assault. She was subsequently charged with a reduced offense and sentenced to county jail for six months. The sentence was suspended but her employment was terminated.

In an award (discussed here) Arbitrator Paul Gerhart ordered her reinstatement. He concluded that while grievant had engaged in "particularly egregious" conduct the temination was not for just cause. Arbitrator Gerhart relied on evidence that other officers who had engaged in arguably similar behavior had not been terminated and found that this evidence of disparate treatment undermined the City's case. He noted also a number of mitigating factors and reinstated her (without back pay) subject to her refraining from alcohol  and her compliance with any requirements imposed by the City's Employee Assistance Program.

The City sought to set aside the award but the trial court refused to do so. The Court of Appeals of Ohio has now affirmed that decision and upheld the award. City of Cleveland v. Cleveland Police Patrolmen's Association. The City claimed that the award was contrary to public policy, a claim that the Court quickly rejected. The Court observed that the City had failed to state a well defined public policy argument and noted:

The arbitrator acted within his discretion, and the City did not effectively argue how his decision is in conflict with public policy. The City only argues that the public should be able to have the confidence in police officers and that officers should hold themselves to the highest ethical standard. However, there are many cases where police officers have not held themselves to such a high standard, and yet they were not terminated from their jobs. 

The Court also rejected the City's claims that the arbitrator improperly required it to use progressive discipline and did not issue a "final" award because he essentially deferred to the City's Employee Assistance Program to decide what, if any, continuing counseling was appropriate.

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