Two officers of the DeFuniak Springs Police department, Officer Richard Boblitt and Sergeant Anthony Kaiser, claimed they were dismissed in retaliation for having supported the Department Chief's opponent in a municipal election.
The two had been employed by the Department for 17 and 4 years respectively. Both were instrumental in bringing the PBA into the Department in 2010.
The Chief was up for reelection in April 2015. On March 25, 2015 the PBA endorsed the Chief's opponent. On April 2, 2015 several Department employees published a letter in a local newspaper questioning the PBA's endorsement of the Chief's opponent. Also on that date one of the officers who signed the letter filed a complaint against Boblitt and Kaiser alleging racial harassment. An Internal Affairs investigation was initiated on April 8, and the two were notified of the investigation on April 13. The election was held on April 14, and the incumbent Chief prevailed.
On June 2, 2015 the Department notified Boblitt and Kaiser that their employment was being terminated, Boblitt for allegedly having racially harassed the complaining officer and Kaiser for failing to take corrective action. Both grieved their termination and the dispute was submitted to arbitrator Jeanne Charles Wood for resolution.
Largely based on her credibility resolutions and her evaluation of the evidence against the grievants, Arbitrator Wood found the termination of the two not supported by just cause. Regarding the Union's claim that that the terminations were part of a "conspiracy" relating to the reelection of the Chief, and the City's claim that the terminations were compelled by its obligations under Title VII, the Arbitrator noted:
So, the question remains: Why would [the complaining officer] file the complaint when he did? The Union contends that it was part of a conspiracy relating to the election of Chief Weeks whose opponent was supported by the Union. I make no findings regarding this theory. It is, however, concluded that based on the totality of the circumstances present here, Boblitt's comments were not so severe or pervasive too alter the terms and conditions of [the complaining officer's] employment. That being the case, the City has failed to prove that Boblitt engaged in unlawful racial harassment in violation of Title VII. It follows then that Kaiser, was not negligent in failing to report or take corrective action in connection with racially discriminatory harassment in violation of Title VII.
Arbitrator Woods did find, however, that certain conduct of the grievants was contrary to Department policy, even if not severe enough to constitute unlawful harassment. Observing that police officers are held to a higher standard than other employees, and that "use of potentially racially offensive language and clearly inappropriate name calling in reference to a co-worker's national origin is serious enough to warrant a suspension." Reducing the terminations to five day suspensions, Arbitrator Wood noted:
Progressive discipline is an element of the just cause doctrine. The rationale for using a progressive discipline system is that both the employer and the employee "benefit when an employee can be rehabilitated and retained as a productive member of the work force. ..." [footnote omitted]
Finding no evidence that grievants' conduct could not be corrected by discipline less than termination, and also finding some evidence of disparate treatment, Arbitrator Wood ordered that grievants be reinstated subject to the five day suspensions.
Arbitrator Wood's award can be found here.
Monday, June 26, 2017
Sunday, June 18, 2017
Letter of Reprimand and recording of classes didn't violate university professor's academic freedom
Arbitrator Thomas W. Young issued an award in a dispute between the University of Central Florida and one of its professors. The grievant had been employed by the University for 15 years without discipline in his record. At some point, the University conducted an investigation of a series of incidents involving grievant and his students. The investigation was conducted by a team including the University's Assistant Director EOAA, Title IX Coordinator, The Director of Compliance and Ethics, and a Senior Compliance Analyst. That investigation culminated in a report, finding that while grievant's conduct did not constitute sexual harassment under applicable law and policies, grievant "has a long standing pattern of hostility towards women and ... he lacks the ability to conduct himself with civility and professionalism in the classroom and the office."
In response to the report, the Chair of grievant's Department issued a Letter of Reprimand. The letter incorporated ten incidents expressed in the report and admonished grievant to avoid certain behaviors in the future. These behaviors included ceasing any stories or anecdotes which suggested to students that they cannot report complaints about him to the University, a prohibition on profanity directed at students, sexist language in the classroom and discriminatory behavior in the classroom or office. The Letter also advised grievant that his classes would be recorded and reviewed for the Summer and Fall terms.
A grievance was filed over the Letter and related restrictions. Among the professor's claims in the grievance process was an assertion that the University's action restricted "the spirit of intellectual exchange in the classroom" and violated his academic freedom as guaranteed by the cba. That agreement provided:
Academic freedom is the freedom to teach, both in and outside the classroom, to conduct research, and to publish the results of that research. Consistent with the exercise of academic responsibility, employees shall have freedom to present and discuss their own academic subjects, frankly and forthrightly, without fear of censorship, and to select instructional materials and determine grades in accordance with the University policies. Objective and skillful exposition of such subject matter, including the acknowledgment of a variety of scholarly opinions, is the duty of every such employee. Faculty are also free to address any matter of institutional policy or action. As individuals, employees are free to express their opinions to the larger community on any matter of social, political economic, or other public interest, without institutional discipline or restraint due to the content of those messages. Unless specifically authorized by the administration, employees’ opinions do not reflect the policies or official positions of the University of Central Florida.
In response to the report, the Chair of grievant's Department issued a Letter of Reprimand. The letter incorporated ten incidents expressed in the report and admonished grievant to avoid certain behaviors in the future. These behaviors included ceasing any stories or anecdotes which suggested to students that they cannot report complaints about him to the University, a prohibition on profanity directed at students, sexist language in the classroom and discriminatory behavior in the classroom or office. The Letter also advised grievant that his classes would be recorded and reviewed for the Summer and Fall terms.
A grievance was filed over the Letter and related restrictions. Among the professor's claims in the grievance process was an assertion that the University's action restricted "the spirit of intellectual exchange in the classroom" and violated his academic freedom as guaranteed by the cba. That agreement provided:
Academic freedom is the freedom to teach, both in and outside the classroom, to conduct research, and to publish the results of that research. Consistent with the exercise of academic responsibility, employees shall have freedom to present and discuss their own academic subjects, frankly and forthrightly, without fear of censorship, and to select instructional materials and determine grades in accordance with the University policies. Objective and skillful exposition of such subject matter, including the acknowledgment of a variety of scholarly opinions, is the duty of every such employee. Faculty are also free to address any matter of institutional policy or action. As individuals, employees are free to express their opinions to the larger community on any matter of social, political economic, or other public interest, without institutional discipline or restraint due to the content of those messages. Unless specifically authorized by the administration, employees’ opinions do not reflect the policies or official positions of the University of Central Florida.
Grievant maintained that the conditions set forth in the Letter of Reprimand and the decision to record his lectures limited his ability to freely debate and discuss since he did not know how the video of his teaching would be used or who would be viewing it.
Arbitrator Young rejected these claims. Concerning the restrictions contained in the Letter he concluded:
There is nothing in the 6 admonitions, or anywhere else in the Letter of Reprimand, that would require Grievant to alter course content or restrict "the spirit of intellectual exchange in the classroom." Specifically, there is no record evidence that the Letter of Reprimand required or even suggested that Grievant stop teaching his classes using the George Carlin Pacifica monologue. To the contrary, testimony from Beckman at hearing is instructive on this point. Beckman was asked, "[A]t any time, through this document [Letter of Reprimand] do you direct any faculty member to actually alter course content in terms of the delivery of their academic instruction?" Beckman responded:
In my five years as chair I have never once requested a faculty member change course content, change course delivery, change what chapters they’re assigning in a book, what they’re not assigning in a book; . . .
Rather than alter course content, the record instead establishes that the admonitions address Grievant's use of profanity and vulgarity and discriminatory treatment directed at students in his classroom. The Investigative Report establishes that the referenced profanity, vulgarity and discriminatory treatment were not germane to his course material therefore not protected pursuant to section 5.2 of the CBA.
Arbitrator Young rejected these claims. Concerning the restrictions contained in the Letter he concluded:
There is nothing in the 6 admonitions, or anywhere else in the Letter of Reprimand, that would require Grievant to alter course content or restrict "the spirit of intellectual exchange in the classroom." Specifically, there is no record evidence that the Letter of Reprimand required or even suggested that Grievant stop teaching his classes using the George Carlin Pacifica monologue. To the contrary, testimony from Beckman at hearing is instructive on this point. Beckman was asked, "[A]t any time, through this document [Letter of Reprimand] do you direct any faculty member to actually alter course content in terms of the delivery of their academic instruction?" Beckman responded:
In my five years as chair I have never once requested a faculty member change course content, change course delivery, change what chapters they’re assigning in a book, what they’re not assigning in a book; . . .
Rather than alter course content, the record instead establishes that the admonitions address Grievant's use of profanity and vulgarity and discriminatory treatment directed at students in his classroom. The Investigative Report establishes that the referenced profanity, vulgarity and discriminatory treatment were not germane to his course material therefore not protected pursuant to section 5.2 of the CBA.
Concerning the requirement that his classes be recorded, Arbitrator Young noted that Grievant did not object to random observation of his classroom and concluded that failed to explain why monitoring by video would chill "the opportunity for open discourse, whereas monitoring by a human being would not."
The Arbitrator found the restrictions contained in the Reprimand were narrowly tailored to prevent a breach of grievant's academic freedom rights and determined that the recording of classes was not imposed to alter course content but simply to ensure compliance with the restrictions contained in the Letter of Reprimand.
Arbitrator Young's award can be found here.
Arbitrator Young's award can be found here.
Sunday, June 11, 2017
Arbitrator overturns termination of Miami police officer for invocation of Fifth Amendment rights
Arbitrator Donald Spero has issued an award in a dispute between The city of Miami and the Miami Fraternal Order of Police Lodge #20.
Grievant was employed as a police officer for approximately nine years at the time of his termination. Prior to his employment with the police department, grievant had been employed at a PCS Metro store. In October of 2007 Grievant was working at the PCS store when it was robbed and a manager of the store was shot and killed during the course of the robbery.
In December of 2012 the Miami police received a tip implicating grievant in the robbery. In February 2013 Grievant was called in for an interview with a homicide detective concerning the robbery. While the issue was contested, Arbitrator Spero found that grievant invoked his Fifth Amendment rights and left the interview. Grievant was assigned to Relieved of Duty (ROD) status and was required to remain at home, while continuing to be paid, from 8 to 4 every workday.
On April 27, 2016 the City terminated grievant's employment. The City articulated two reasons for the termination. The first was grievant's refusal to answer questions in the February 2013 interview. The second alleged several failures of grievant to comply with the ROD status. The matter was grieved and submitted to Arbitrator Spero for resolution.
Arbitrator Spero described the first issue as :
whether the grievant was protected by the Fifth Amendment and by "Garrity" rights from answering questions propounded to him during a police department inquiry on February 11, 2013.
Answering the question in the affirmative, Arbitrator Spero noted that grievant's lawyer in the criminal case advised the City that grievant would not give a statement unless he was given Garrity rights. The Arbitrator concluded:
[Grievant] was entitled to decline to answer the City's inquiries without being afforded Garrity rights. Through his attorney he offered to do so. If he declined to respond after being afforded Garrity rights he would have been subject to discipline. The City in its judgment determined that it wanted to preserve the rights to prosecute [Grievant] Thus by preserving its opportunity to prosecute based on his statement it abandoned its right to inquire.
Arbitrator Spero rejected the City's argument that grievant had waived his Fifth Amendment rights when he initially took his oath as a new police officer essentially swearing to uphold and defend the law and to faithful perform all of his duties as a place officer. That oath did not expressly waive any rights, and adopting the city's position would mean that no officer had any Fifth Amendment rights.
On the issue of of grievant's failure to adhere to the ROD restrictions, however, the arbitrator found that the City had established one of its claims, justifying "severe" discipline. Accordingly Arbitrator Spero ordered grievant's reinstatement but denied him back pay for his time off.
According to news reports, When Miami fires cops, they usually get their jobs back — even if they’re murder suspects, the City will seek to overturn the award.
Grievant was employed as a police officer for approximately nine years at the time of his termination. Prior to his employment with the police department, grievant had been employed at a PCS Metro store. In October of 2007 Grievant was working at the PCS store when it was robbed and a manager of the store was shot and killed during the course of the robbery.
In December of 2012 the Miami police received a tip implicating grievant in the robbery. In February 2013 Grievant was called in for an interview with a homicide detective concerning the robbery. While the issue was contested, Arbitrator Spero found that grievant invoked his Fifth Amendment rights and left the interview. Grievant was assigned to Relieved of Duty (ROD) status and was required to remain at home, while continuing to be paid, from 8 to 4 every workday.
On April 27, 2016 the City terminated grievant's employment. The City articulated two reasons for the termination. The first was grievant's refusal to answer questions in the February 2013 interview. The second alleged several failures of grievant to comply with the ROD status. The matter was grieved and submitted to Arbitrator Spero for resolution.
Arbitrator Spero described the first issue as :
whether the grievant was protected by the Fifth Amendment and by "Garrity" rights from answering questions propounded to him during a police department inquiry on February 11, 2013.
Answering the question in the affirmative, Arbitrator Spero noted that grievant's lawyer in the criminal case advised the City that grievant would not give a statement unless he was given Garrity rights. The Arbitrator concluded:
[Grievant] was entitled to decline to answer the City's inquiries without being afforded Garrity rights. Through his attorney he offered to do so. If he declined to respond after being afforded Garrity rights he would have been subject to discipline. The City in its judgment determined that it wanted to preserve the rights to prosecute [Grievant] Thus by preserving its opportunity to prosecute based on his statement it abandoned its right to inquire.
Arbitrator Spero rejected the City's argument that grievant had waived his Fifth Amendment rights when he initially took his oath as a new police officer essentially swearing to uphold and defend the law and to faithful perform all of his duties as a place officer. That oath did not expressly waive any rights, and adopting the city's position would mean that no officer had any Fifth Amendment rights.
On the issue of of grievant's failure to adhere to the ROD restrictions, however, the arbitrator found that the City had established one of its claims, justifying "severe" discipline. Accordingly Arbitrator Spero ordered grievant's reinstatement but denied him back pay for his time off.
According to news reports, When Miami fires cops, they usually get their jobs back — even if they’re murder suspects, the City will seek to overturn the award.
Sunday, June 4, 2017
Law Enforcement: Untruthfulness, reinstatement and Brady issues
Post reinstatement Brady issues for law enforcement officers terminated for claimed dishonesty
Several recent cases involve this issue. A news report describes a lawsuit filed by Clay County MN Deputy Ryan Carey seeking to have his name removed from the County's Brady list. Deputy who Clay County once tried to fire sues in hopes of returning to patrol. Deputy Carey had been dismissed by the Clay County Sheriffs Department in July 2012. The notice of termination listed a number of alleged offenses, including one of "Lying while under Garrity/Tennessen Warning."
Arbitrator James A. Lundberg issued an award rejecting most of the claimed violations. Concerning the charge that grievant had lied, the arbitrator concluded:
The statements made ... about text messages were inaccurate but there is no reason to believe that [the] Deputy ... was lying to the investigators. ... The evidence of dishonesty regarding the text message is insufficient. The evidence supporting the claim that grievant lied about whether he apologized to Lt. Morrow for himself or the group and whether he mentioned alcohol as a factoring the conduct on June 10, 2012 is also insufficient. ... The employer did not have just cause to discipline the grievant for dishonesty.
Deputy Carey was reinstated but, according to the news report, he has been removed from patrol duty because his name remains on a Brady list, restricting his ability to testify in court. He has been assigned instead to a courthouse security position. Deputy Carey's suit seeks to have the Brady designation dropped and to have the county barred from refusing to consider him for other positions.
A similar restriction has been imposed by the San Antonio police department on an officer reinstated following a grievance. The officer was placed on "indefinite suspension" (i.e. dismissed) after it was discovered that his report of a drug stop was not entirely accurate. The officer's actions at the scene were captured on the Department's COBAN system. While conducting drug interdiction, the officer stopped a vehicle. He had previously observed several suspicious packages being received by the driver. The officer observed two bags of marijuana between the driver seat and the door. During a conversation with the passenger of the vehicle, the passenger admitted that she also had a bag of marijuana, and removed it from her bra. The officer elected to not arrest the passenger, and his report of the incident claimed that he saw three bags between the driver seat and the door. The driver was arrested. Subsequent review of the COBAN video by the prosecutor's office raised a question about the accuracy of the report and the Department conducted an investigation. As a result of that investigation the officer was placed on indefinite suspension for being "untruthful in his written report concerning where the narcotics were discovered and who had possession of the narcotics."
The case was presented to Arbitrator Don B. Hays who concluded that:
Although obligated by oath and professional position to tell the truth, on this occasion appellant acted and/or spoke untruthfully on many of the subjects that he knew, or reasonably should have known were of material interest to both the district attorney, the city's investigators and to us.
Nevertheless, Arbitrator Hays found sufficient mitigating factors, including an absence of any improper motive for grievant's actions, to warrant reinstatement. Arbitrator Hays' award can be found here.
According to news reports (SAPD officer accused of looking the other way on narcotics arrest gets termination overturned) the officer has been returned to the force but the District Attorney has placed the officer on a Brady disclosure list and the Department has indicated that his assignments going forward will be limited "to an administrative position that will not be affected by his past disciplinary record."
A third situation also involves a Brady designation and a post reinstatement law suit but it is unclear how much the Brady issues relates to the lawsuit. A King County, WA Deputy was dismissed for alleged dishonesty in continuing to receive supplemental pay for a position she no longer held. The County maintained that the Deputy knew or should have known that receipt of the supplemental pay was improper and failed to take steps have it stopped. Because the Sheriff viewed this as a matter of honesty the office notified the prosecutors office that the Deputy was subject to Brady list disclosure.
Arbitrator David Stiteler sustained the grievance in part. His findings on the dishonesty issue are somewhat ambiguous but he did find that in light of evidence of disparity treatment and management failures in connection with its own handling if the overpayment issue, discharge was too severe a penalty. He found just cause for discipline but not for discharge and ordered the grievant's reinstatement. His award can be found here. Subsequent to the award, grievant claimed that she was "shuffled" into several undesirable jobs before she retired prematurely. Ex-deputy sues, accuses King County sheriff of discriminating against female officers. She has sued the County alleging discrimination and retaliation.
Not waiting for reinstatement, the City of Pittsfield, MA has filed suit contesting the arbitrator ordered reinstatement of a police officer dismissed for, inter alia, untruthfulness and falsifying records in connection with a shoplifting arrest. Pittsfield fights arbiter's decision to reinstate fired police officer. Arbitrator Michael Stutz concluded (here) that the officer's "intentional inaccuracy violated [his] obligation to be absolutely truthful." Finding that three words in the officer's report were "untrue, intentionally misleading, and cause for discipline, but less than intentionally false" he concluded that there was just cause for discipline, but not for dismissal. Arbitrator Stutz converted the termination to a three day suspension. The City's suit contends that the reinstatement is contrary to public policy by allowing an untruthful officer to remain employed with the department.
Similar issues are discussed in earlier posts:
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