Termination of police officer for dishonesty overturned, disparate treatment renders discipline excessive

Arbitrator Bruce McIntosh reduced a termination to a six month suspension for a police officer who was alleged to have intentionally defaced a newly painted locker room wall.

Another officer in the locker room heard someone enter and then the sound of someone swiping and scraping at the wall. He walked toward the sound and claimed he saw grievant facing the wall with an object in his hand. The officer claimed he then saw grievant scrape the object across the wall two more times and then state "it's a shame that this new paint is already scratched up."

The officer reported his observations to the Lieutenant who confronted grievant and asked if he knew anything about the marks in the locker room. Grievant denied responsibility but went and wiped the marks off.

A Departmental investigation ensued that included polygraphs of both officers. The polygraph examiner concluded that grievant was found to be deceptive while the other officer was found to be truthful.

Grievant was terminated for violation of Department Orders and Policies for defacing Department property, failing to admit wrongdoing and lying.

Sustaining the grievance in part, Arbitrator McIntosh found that the Department had improperly deprived grievant of certain procedural rights under the cba. However, the arbitrator did find that the Department had established both that grievant had scratched the wall and had falsely denied doing so.  While the department argued that grievant's dishonest denial raised Brady issues warranting his termination, the Arbitrator found that the department had not treated claimed dishonesty in the past as a basis for immediate termination. Arbitrator McIntosh concluded:

Although the Department sustained its burden of proving that Grievant did scratch and mark the locker room wall, the union's evidence of disparate treatment for "dishonesty" was, similarly, persuasive. In September of 2013, an officer was given a written reprimand when it was discovered by a lieutenant that, what  the officer had written could not have been possible since he had not witnessed what he had written. In  July of 2011 another officer was found to have provided a report for a uniform allowance that was not "truthful" and again, in July of 2011, another officer became involved in off-duty conduct but did not truthfully disclose his situation and received an oral reprimand. Reprimands were given to another officer for lying about a domestic situation and, another, for lying because he was embarrassed about a check that was returned for insufficient funds.  Overwhelming evidence of ignoring termination for dishonest conduct was illustrated by one employee who used sick leave formats avoid reporting toward for over a year resulting in forty-eight (48) hours being deducted from his Leave Bank. This conduct was found to be so egregious that it was taken to the Athens County Prosecutor who determined that this conduct was essentially theft in office.  This employee was subsequently given a Last Chance Agreement in December of 2012 and, thereafter, terminated for being in violation of the LCA.
     As previously discussed, the Department has sustained its burden of proof that Grievant defaced the property and denied doing so. As such it was certainly appropriate for the Department to move beyond mere reprimands of progressive discipline. However the disparate treatment given others renders termination excessive. 

The Arbitrator did not specifically address further the Department's Brady claim. Arbitrator McIntosh's award can be found here.

Update: According to a recent article in the AthensNews, grievant testified in a rape prosecution and was questioned about the arbitrator's findings. Alleged victim testifies during continuing rape trial