Police officer "wasted" second chance. Domestic violence and related publicity supports termination

Grievant began his employment as a police officer with the City of Coral Springs, FL in 2005. In 2010 he was arrested and convicted of two counts of battery on a detainee and his employment was terminated. An arbitrator subsequently ordered his reinstatement but found significant discipline to be warranted and awarded no back pay for the approximately two years he was off the job. He returned to employment in December 2013.

On April 22, 2015, while off duty, grievant was involved in a "heated argument" with his wife. During the course of the argument grievant punched a hole in the wall and used a crowbar to deflate the tires on his wife's car.  Grievant was arrested for domestic battery and a "no contact" order was entered against him. The altercation was covered by the local news station, and the story included reference to his prior conviction and the current charge of domestic violence.

On April 28, 2015 a neighbor called 911 to report that grievant had entered the marital home. The Sheriff's Office arrived shortly after grievant's wife also arrived. The wife falsely informed the Sheriff's officers that her husband was not on the premises. Nevertheless, a SWAT team was deployed  and remained on the scene after an initial aborted contact with grievant. There was conflicting testimony about the amount of further contact with grievant. Grievant claimed he had not been aware that the SWAT team was outside the house. The City maintained that local officers had talked and texted with grievant and informed him that SWAT was outside the house and had advised him to cooperate with the Sheriff's officers. Ultimately grievant's wife texted him and persuaded him to come out of the house. Grievant was arrested for violation of the no contact order and was formally served with a restraining order for the April 22 incident.

Once again, local news stations were on the scene throughout and took pictures of the deployed SWAT team.

In early May, grievant's wife dropped all criminal charges against him and he was never convicted of domestic violence/battery.

Following an investigation, the City terminated grievant's employment, and that action was ultimately submitted to Arbitrator Martin O. Holland for review.

Arbitrator Holland upheld the termination.  He noted initially the importance of public trust in its police officers:

Police Officers have a widespread respect from the general public. The public recognizes the significant hazards and risks police officers face every day. Police officers are the first line of defense from attacks or criminal conduct. A police career provides good wages, pension and benefits. Public trust is paramount as police officers provide service and protection to their citizens. 

Addressing the conflicting testimony, Arbitrator Holland found grievant's claim that the had not been aware that the SWAT team was outside his residence "absurd." He also found grievant's testimony "flippant" and "pugnacious." Reviewing grievant's disciplinary history, the Arbitrator observed that following his earlier termination an arbitrator had reinstated him but found his past discipline "significant" and a "major infraction." Nevertheless, that arbitrator had given grievant a "second chance" to save his career.

On the merits of the current discipline, Arbitrator Holland also addressed the fact that the conduct in issue had occurred while grievant was off duty. Notwithstanding that, the Arbitrator found discipline appropriate:

Generally, off-duty conduct is not a basis for discipline. ThyssenKrupp Budd Co., 121 LA 164 (Goldberg, 2005)   Arbitrators consistently hold off-duty conduct as outside an employer's realm. However, because of the special nature of police employment, municipalities may impose discipline. Kitsap County, 118 LA 1173 (Gaba, 2003)   A police officer is always a police officer whether on or off duty. They often carry firearms and are expected to be a steward of public safety even off-duty. The City, here, enacted reasonable Rules and Regulations in General Order-4 spelling out the on-duty and off-duty expectations of its police officers.   Those rules and regulations are well-founded and universally applied throughout the United States. There is no surprise when a city enacts standards of conduct for both on duty and off duty conduct. Professional conduct is expected of all police personnel, 365 days per year and 24 hours per day. 

He also found that the absence of a criminal conviction was not dispositive of the grievance, noting that "Just cause is not defined by a criminal statute."

Upholding the termination, Arbitrator Holland concluded that grievant had "wasted" his second chance, finding:

The City's reputation was harmed by the actions of the Grievant. Widespread media reports of aberrant behavior by a police officer is conduct unbecoming.
 The seriousness of [grievant's] infractions of General Order - 4 warrants discharge. Multiple police calls, multiple arrests, and multiple investigations outweigh any mitigating factors. 

Arbitrator Holland's award can be found here.

Arbitrator finds no contractual basis for claimed "constructive resignation"

Arbitrator Bruce McIntosh upheld a grievance filed by the Dayton Education Association on behalf of a teacher whose employment was terminated because of her alleged "constructive resignation."

Grievant was involved in  an "altercation" with her principal which included "some physical interaction" between her and the principal. Following this altercation, grievant was placed on paid administrative leave. In May of 2016 the Dayton Board of Education notified grievant that it had received information that while on leave she had accepted employment with a local charter school effective April 1 of that year. The Board deemed the acceptance of a position with the charter school while grievant was on administrative leave a "constructive resignation." It notified grievant that it was terminating the leave and would be seeking reimbursement for all payments it made to her after April 1.

The Association grieved this action, arguing that there was no contractual basis for a "constructive resignation," that there was no prohibition on grievant accepting alternate employment while she was on leave, and that the District's actions amounted to a termination without the procedural protections of the collective barging agreement and was without just cause. The Board maintained that in seeking and accepting a position with an incompatible work schedule grievant had "indisputably abandoned" her job with the Board of Education and that she therefore had constructively resigned her position. It asserted that it was therefore not required to show just cause or otherwise provide notice to the grievant.

Arbitrator McIntosh agreed with the Union. He noted:

       A review of the CBA reveals that there [sic] it does not deal with paid administrative leave nor with constructive resignation. Additionally, there was no evidence of any restrictions placed on Grievant while on Leave except that she could not report to work and her presence on school grounds would be considered trespass. To assert that her employment by the charter school prevented her from being available for work with her former employer with the direction by it not to venture on the school's property, appears to be, at best, an anomaly.
       The Arbitrator is unable to finds any contractual basis for Grievant's acceptance for a separate school contract to be "good and just cause" for termination pursuant to [the cba].

Arbitrator McIntosh ordered the School Board to pay grievant for whatever wages she did not receive for the balance of the school year, less any sums she received from the charter school. The Arbitrator's award can be found here.

Court: Employer waived interim earnings offset of back pay award by failing to raise the issue with the arbitrator

The Fraternal Order of Police, Lodge 10 grieved the termination of an employee of the State of Delaware. An arbitrator converted the termination to a suspension, ordered grievant's reinstatement, and directed the State to "[m]ake Grievant whole for all lost wages, benefits and seniority from the date of her termination, less the ninety (90) day period of time represented by the suspension."

Approximately nine months later the union filed a Petition to enforce the arbitrator's award. The State filed a Motion to Dismiss. The State did not seek to vacate or overturn the award. Rather, it sought a declaration from the Court that the term "make whole" used by the arbitrator required an offset of interim earnings. Alternatively, it requested that the issue be remanded to the arbitrator for clarification.  The Delaware Court of Chancery denied both of these requests. Noting the absence of any Delaware cases addressing the issue before it, which it described as "whether an arbitration award that is silent on the matter of the offset of interim wages should include an offset," the Court elected to follow the reasoning of the Seventh Circuit in International Union of Operating Engineers, Local No. 841 v. Murphy Co. 

The Court summarized the holding of the Seventh Circuit:

...if an arbitrator does not "mention offsets in his ruling it means that no offset was granted," especially when the defendant "knew or should have known that the issue of damages was before the arbitrator."... "To hold otherwise would only encourage employers to withhold evidence or comment on important issues, thereby undermining arbitration as a valuable tool for expeditiously and inexpensively resolving employer-employee disputes."[footnotes omitted]

The Court noted that the State had had ample opportunity to raise the offset issue but failed to address it other than to request that all of the Unions requested remedies be denied. The Court declined to adopt the State's argument that offsets of interim earnings is common in arbitration and the Court should assume that a "make whole" remedy includes an offset.

The Court also declined to order remand to the arbitrator, finding no ambiguity in the award. It concluded:

Defendant failed to ask the arbitrator to offset the back-pay award, and the arbitrator's silence as to offset in the Arbitration Award means that none was granted. Thus, there is no ambiguity that would allow me to remand the case back to the arbitrator for clarification.

The Court's opinion can be found here. A similar decision was reached by the Fifth Circuit in International Chemical Workers Union, Local 683C v. Columbian Chemicals Co.

Update: The Chancery Court denied the State's Motion for Reargument, concluding that it had failed to establish either that the award was contrary to public policy or failed to draw its essence from the cba. here.

Termination of police officer for off duty DWI upheld

Grievant was employed as a Sergeant on the Litchfield, MN police department. The department consisted of a Chief and eight licensed officers. In the early morning of October 27, 2016, grievant, while driving off duty, was stopped by a Sheriff's Deputy. The Deputy administered a preliminary blood test that registered grievant's blood alcohol content at .146. He questioned grievant concerning whether he had drinking. According to the Deputy, grievant initially denied having been drinking but later claimed to have had two, or maybe three, beers a couple of hours earlier. Grievant was arrested and charged with "driving while impaired" (DWI). A blood alcohol test approximately two hours later placed grievant's blood alcohol content at .186.

Following an investigation, grievant's employment was terminated for violation of several Department policies, including "criminal, dishonest, or disrespectful conduct, whether on or off duty that adversely affects the members relationship with the department,"failure to maintain a current drivers license {grievant's license had been administratively revoked following the incident], giving false or misleading statements [related to grievant's denial of having been drinking when questioned by the Deputy], and conduct unbecoming.

The termination was grieved and ultimately submitted to Arbitrator Carol Tidwell for decision.

Initially, Arbitrator Tidwell found that the policies in issue were reasonable ones. She noted:

The arbitrator finds that the policies, principles, and procedures cited above which the Employer asserts were violated by the Grievant are all eminently reasonable, including the provisions that relate to off duty conduct. Police officers are charged with enforcing the law and their violation of the law, especially when this occurs in a public setting as is the case with a DWI violation on a public road, is especially harmful to the reputation and ability of the police to maintain law and order among the general population. This is just as true when the behavior occurs off duty. It is accurate, as the City’s rules state, that an officer’s ability to do his or her job is dependent upon the respect and confidence the local population has in the police. It is highly reasonable for the City to consider the potential effect that an officer’s behavior at any time, on or off duty, has on the community’s opinion of the officer and by extension the local police department, and to promulgate rules that require exemplary behavior of its officers at all times. 

She also found that grievant had in fact violated the rules. While the criminal charges against grievant remained pending, she found that the Department had established that grievant "was indeed driving his vehicle on a public road having consumed a large quantity of alcoholic a state of impairment ...," and had given false information to the Deputy who stopped him. Similarly she found that grievant's loss of his driver's license and the subsequent conditional reinstatement subject to an ignition interlock device posed legitimate safety concerns and would engender a negative reaction in the community. Grievant's actions, concluded the Arbitrator, were egregious and the impact that conduct  in a small community particularly severe.

Arbitrator Tidwell also found that the City had established that grievant "lied repeatedly" to the arresting Deputy. While agreeing with the Union that the existence of a Brady/Giglio disclosure obligation does not automatically require an officer's termination, "it does not mean that a Brady/Giglio officer must be retained in the Department if the Department cannot accommodate that officer."

Turning to potential mitigating factors, the Arbitrator noted grievant's prior alcohol related issues and his apparent unwillingness to confront his problem with alcohol. The Arbitrator also remarked on the absence of any other officer of the Department testifying in his behalf. She did, however, reject Department's contention that grievant's plea of not guilty to the DWI charge, and his action in contesting the validity of the claimed consent to a blood test, evidenced a refusal on his part to "take responsibility" for his actions, concluding:

The arbitrator is convinced ... that employees such as the Grievant in this case should not be effectively forced to forego their Constitutional right to a trial and to contest evidence against themselves in a criminal proceeding in order to maintain or regain their employment.

Finally the Arbitrator considered and rejected potential remedies short of termination. Demotion, she concluded, would remove his leadership responsibilities but would not address the violation of the standards of conduct expected of him. Reinstatement on a last chance basis, or after completion of an alcohol abuse program would of necessity be based on grievance's recognition of the need for such treatment and a willingness to undertake it, something she concluded he was not ready to do. In light of this she noted:


It is well-settled in labor matters concerning discipline that the punishment must fit the crime. The arbitrator concludes that upholding the Grievant’s termination meets this standard; indeed she concludes that it is the only appropriate remedy in this case.

Arbitrator Tidwell's award can be found here.  A case also addressing whether an officer's denial of acts of misconduct provide a basis for a charge of dishonesty is discussed at Police officer's denial of misconduct insufficient to establish untruthfulness