Sunday, May 14, 2017

Public policy, police use of force, condonation and the likelihood of recidivism

It took an arbitration, two court decisions and a second arbitration, discussing issues of police use of force, condonation of misconduct, due process, public policy and potential recidivism, but former Des Plaines, IL police officer John Bueno may once again be returning to the force.

Officer Bueno began his employment with the Des Plaines PD in April, 2002. He was considered a hard working officer who received repeated commendations for his performance. He generally received good performance reviews, both before and after the incidents in issue.

In June 2009, he pushed an arrestee who was confined in the station holding cell after hearing the individual make vulgar comments about his daughter. In January 2010 he punched an arrestee in the nose while inside the police station, and in August 2010 he punched a handcuffed prisoner who was seated in the back of his parol car. Grievant did not report the use of force in any of these incidents, as he was required to do by Department policy. Superiors in the Department were aware at least of the later two incidents but took no action.

Almost a year later, in August 2011, the Acting City Manager received letter from an attorney alleging that Bueno had "brutally beaten" prisoners. The Acting Manager subsequently testified that this was the first he became aware of these allegations. He asked the Deputy Chief to conduct an investigation and, following that investigation, the City terminated Bueno's employment in March of 2012. The allegations against Bueno included both the improper use of force and dishonesty during the investigation. The parties agreed to submit the propriety of that termination directly to arbitration, and on May 3, 2013 Arbitrator Peter Feuille issued an award (
here) upholding, in part, the grievance. Arbitrator Feuille concluded that the City had established the improper use of force and that Bueno had not been truthful during the investigation. Nevertheless he found that the City had deprived him of due process by delaying the investigation for so long, and that the Department had condoned the use of force by failing to take any action against Bueno despite knowledge of the incidents. He ordered Bueno's reinstatement without back pay and imposed a three year last chance provision for any future violation of the use of force policy or the Department's truthfulness policy. The award is discussed at Arbitrator overturns termination despite finding "unnecessary, unjustified, unreasonable" use of force because of due process considerations

The City sought to vacate the award, claiming that reinstating Bueno despite the findings of improper use force and dishonesty was contrary to public policy. The circuit court agreed and vacated the award. It also denied the Union's request to remand the dispute back to the arbitrator for a factual finding concerning the likelihood that Bueno would reoffend.

The Union appealed, and the Appellate Court concluded that it could not decide the appeal without evidence of "whether Bueno is likely to engage in similar misconduct upon reinstatement." City of Des Plaines v. Metropolitan Alliance of Police, Chapter No. 240. In reaching this conclusion, the Court first addressed the public policy issue raised by the City. It noted that the Illinois Supreme Court (in AFSCME v. Department of Central Management Services) held that the public policy analysis on a challenge to an arbitration award required a two step process. First, the Court must determine if there is a "well-established and dominant policy implicated by the arbitrator's award."

In this case, the court found that there was:

we find that the arbitration award here implicates a well-defined and dominant public policy, namely, the public policy against police officers unnecessarily using force against prisoners and being dishonest about that use of force during a subsequent investigation.

The second prong then an analysis of "whether the arbitrator's award, as reflected in his interpretation of the agreement, violated the public policy."

Applying that second prong to the case before it, the Appellate Court described the issue as :

whether the arbitrator's award, i.e., reinstatement of Bueno as a police officer under the terms and conditions attached to his reinstatement, resulted in a violation of the established public policy of ensuring that law enforcement officers refrain from using unnecessary or unreasonable force, failing to report such incidents if they occur, and being untruthful during investigations of the incidents.

The court determined that the record, including the arbitrator's award, was devoid of any finding on the "likelihood of recidivism" and that without such a finding it couldn't determine whether reinstatement was contrary to public policy. Accordingly it ordered the remand of the case to the arbitrator an express finding on this question.

Arbitrator James R. Cox (appointed after the death of Arbitrator Fuille) has now concluded that Bueno is unlikely to engage in similar conduct in the future. Arbitrator Cox's award can be found here.

Arbitrator Cox noted that since the incidents in question the apartment has a new Chief. He noted changes in both the environment of the police department and the unlikelihood of future offenses by the grievant:

That conclusion is based not only on the positive recognition of his performance as a Des Plaines Police Officer, but upon Steps the City has taken after the 2011 disclosures of Bueno's misconduct in the [redacted] cases. Those Steps changed his working environment by eliminating the previous climate of condonation within the City of Des Plaines Police Department.
John Bueno now knows without question, that the City of Des Plaines and their Police Department do not approve of use of excessive force towards prisoners.

Arbitrator Cox also noted that the last chance provision that was part of Arbitrator Feuille's reinstatement order makes it unlikely that Bueno would engage in similar acts in the future.

According to news reports, while the City has not made a final decision on whether it will appeal the case once again, grievant will likely be returning to the department. Bueno Might Be Back By August.

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