A recent award, and the reaction to it, highlight the sometimes conflicting expectations involved in arbitration proceedings. While conflicting expectations may not be uncommon, they take on greater significance in matters of police discipline.
Arbitrator William Serda issued an award (here) overturning the termination of Ft. Pierce police Sergeant Brian MacNaught. Sergeant MacNaught had been dismissed following his involvement in the fatal shooting of Demarcus Semer.
Semer was involved in a police stop. During the course of the stop Sergeant McNaught approached the vehicle, which was till running, to open the passenger side door. At some point Semer put the car in gear. While the facts are not clear from the arbitration award, Sergeant McNaught was able to get in to the vehicle. The other officer involved in the stop began shooting at the vehicle. Sergeant McNaught believed the shots were coming from the driver. In an ensuing foot chase, Sergeant McNaught fatally shot Semer. According to McNaught he believed Semer had a weapon and was preparing to use it. In fact, Semer did not have a weapon but was found with a cell phone. (This description comes from a report of the Department's Internal Investigation summarized in an article on TCPalm.com Fort Pierce Police Department internal investigation reveals more details)
The shooting generated significant publicity, and a grand jury was empaneled to investigate. The grand jury returned a no bill, finding the officers' actions objectively reasonable. (here)
Ultimately the Department's internal investigation recommended that Sergeant MacNaught's employment be terminated, a recommendation the City adopted.
The termination did not involve the shooting directly. However, the City did claim that there was a "procedural issue" regarding the actions of the grievant during the traffic stop, and that, separately, the City had discovered during its investigation that he had retained a Department issued body camera despite orders that all body cams be returned to storage until a policy for their use could be developed.
The termination was grieved and submitted to Arbitrator Serda for decision. According to the award:
The Parties agreed in general, and the Arbitrator articulates the issue before us as:
Did the City, Ft. Pierce, FL., have just cause to terminate/discharge Grievant MacNaught on May 8, 2016, for the "body camera incident of April 23/24 2016?"
If not, what shall be the remedy
Notwithstanding this limited issue, the City did argue that:
The totality of the events, the shooting and the body cameras, cumulatively create clear just cause for termination and meet the requirements of the commonly used "seven management tests for just cause."
It acknowledged that there was no policy or methodology violated by grievant, but asserted that "an experienced officer, applying common sense, should never have created and placed himself in, such a situation." It argued that the Sergeant's entering the vehicle while it was still running created a vulnerable situation should the driver move the car.
Arbitrator Serda rejected the City's reliance on "common sense" concerning the actions surrounding the stop, and concluded that grievant's failure to return the body cam to storage was not an intentional effort to disobey an order but was based on the mistaken belief that his use of the camera for demonstration in his meetings with the public on behalf of the department was exempt from the order.
Arbitrator Serda overturned the dismissal, ordering grievant's reinstatement subject to a one day suspension for his lapse in judgment concerning the return of the body cam.
The reaction of Ft. Pierce City Commissioner Sessions to the award indicates what was perhaps an erroneous expectation by him, and possibly by members of the public, concerning the issue before the arbitrator. A report in TCPalm.com (Fort Pierce commissioner wants police to buy out officer reinstated after death of Demarcus Semer) quotes Sessions as saying:
I was really devastated because based on the information that I received, that I was privy to, that it was a slam dunk to have him terminated," Sessions said. "Looking at the arbitrator's ruling, I think what happened was the ball was dropped with regard to what the real issues were. The real issue was this young man being killed where there was not a gun.
Commissioner Sessions called for the City to attempt to buy out Sergeant MacNaught in lieu of reinstatement, expressing concern about his safety should he return to patrol.
The family of Demarcus Semer has also questioned the fairness of the result, and expressed their lack faith in the system, and the family's attorney indicated that they were pursuing a civil action relating to the shooting. Fort Pierce police officer fired after fatal shooting of unarmed man ordered to be reinstated
Update: Arbitrator Sergio Delgado has issued an award in connection with the termination of the other officer involved in this incident. Officer Robert Hughes was dismissed, not for the shooting itself, but for certain claimed policy violations in the manner in which the traffic stop was conducted, as well as claims that he improperly had a private long gun/rifle in the trunk of his patrol vehicle, and that he had been insubordinate in failing to follow an order to have the vehicles dash cam inspected to make sure it was properly functioning. Arbitrator Delgado sustained the grievance in part and ordered grievant’s reinstatement without back pay. In addition to questions about the severity of the claimed policy violations, the Arbitrator found a denial of due process in the untimely furnishing of information to Union counsel in connection with grievant’s Pre-Determination Hearing. Noting that the grievant was medically unable to return to patrol duties, he “directed that [grievant] be put on paid administrative leave until his application for disability retirement benefits is approved.” Arbitrator Delgado’s award can be found here.
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