Sunday, October 30, 2016

Social media, adverse publicity and just cause

The Clark County, Ohio Sheriff's office is responsible for County wide law enforcement and operates the county jail. The jail shares a building with the Springfield police department with a common lobby between the two. Grievant was one of two Sheriff's Office Sergeants on duty at the jail on May 13, 2015. On that evening a former deputy, who had been fired for alcohol related misconduct, entered the lobby. While there was some dispute about his initial condition he became increasingly inebriated as the evening progressed. The former deputy approached the window of the Sheriff's office and asked to speak with a Sergeant. One of the Sergeants on duty (not the grievant) responded. The former deputy claimed there was an incident down the street requiring attention, but could not provide any details. After being advised that there was nothing that could be done without additional information. Nevertheless the former deputy remained in the lobby, at one point lying next to the door. The responding Sergeant notified the Springfield police that the former deputy was in the lobby but instructed her deputies to leave him alone.

Approximately a half hour later an individual entered the lobby to turn himself in on an outstanding warrant. This individual recognized the former deputy from a prior jail stay and began videoing him on his phone. His recording showed the former deputy stumbling severely and urinating in the lobby. After the individual left then office he posted his recording on Facebook and contacted the local media to report what he had observed.

The following morning the Sheriff was faced with numerous media accounts of the incident and the Facebook posting and spent considerable time responding to media inquiries. He also asked the County prosecutor to conduct an investigation to determine if criminal charges against any Sheriff's Department employees were warranted.

After an investigation the prosecutor recommended the pursuit of misdemeanor charges against the  sergeant who first interacted with the former deputy and who directed the staff to leave him alone. The Sheriff decided not to pursue criminal charges but conducted an internal investigation. That investigation resulted in the termination of three sergeants, the responding sergeant, the grievant and a sergeant who came on duty while the former deputy was still in the lobby. All of the terminations were grieved. The termination of the responding sergeant was upheld (Termination upheld for fired Clark Co. sheriff’s sergeant). A hearing on the termination of the third sergeant has not yet been held. Arbitrator Tobie Braverman addressed the termination of the second.

Arbitrator Braverman concluded that the evidence supported a charge of conduct unbecoming, neglect of duty and unsatisfactory performance. She concluded that she should have, at a minimum, questioned the other Sergeant's decision to let the former depart remain in the lobby and should have called someone to check on the former deputy's mental state and possible need for assistance.  As to the penalty, however, Arbitrator Braverman concluded that termination was too severe. She addressed the impact of the negative publicity caused by the posting of the video to Facebook, but found this by itself insufficient to support termination. She observed:

Having determined that the Grievant committed the offense with which she is charged, the remaining question is that of whether the penalty meted out for her offense is appropriate in the circumstances present in this case. There can be no doubt that the decision to terminate the Grievant was influenced in significant part by the fact that video of the incident was posted on Facebook and covered by local media. This clearly reflected poorly on the Employer. It resulted in accusations of both favoritism, since [ ] was a former deputy, and indifference due to the lack of concern for his safety and that of the public. The publicity, however, cannot be the sole determinant in assessing the propriety of the discipline to be meted out to the Grievant. In this day and age when virtually everyone has a video camera in his pocket, it must be presumed that there is a real and present possibility that the events are being recorded and that those recordings will be posted to social media. While it is important that law enforcement personnel in particular be mindful of this fact, the mere fact of the additional attention cannot exclusively drive the penalty for misconduct.

In light of grievant's seventeen year discipline free history, and the principle of progressive discipline, the arbitrator ordered grievant's reinstatement without back pay. WDTN reports on the decision, and Arbitrator Braverman's award can be found here.

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