Double jeopardy, public policy and a filing on the Seattle consent decree

Dismissal overturned because of suspension for same offense

Arbitrator Michael Paolucci sustained, in substantial part, a grievance filed on behalf of a Euclid, Ohio police officer. The City of Euclid, Ohio and Fraternal Order of Police Lodge 18.

The grievances involved three separate incidents, all arising from grievant's off duty conduct and included allegations of domestic violence, violation of a protective order  and theft or failure to pay for certain appliances grievant allegedly took from a house he was renting. Arbitrator Paolucci found that two of the three incidents was either unproven or termination too severe for the alleged offenses. On the third, the arbitrator found that grievant's plea of guilty to a charge of persistent disorderly conduct made serious discipline "fair." However, because the Chief had already suspended grievant for 15 days, the limit of the Chief's disciplinary authority, the subsequent action of the Mayor terminating grievant was barred by principles of double jeopardy. He observed:

If the Chief believed that discharge was appropriate, it was incumbent on him to not issue discipline and to make the recommendation to preserve the issue. He did not do that here. He issued a very specific discipline that was directly responsive to the alleged offense. He issued discipline that was the maximum permitted under his authority, and he did so even though he believed harsher discipline was justified. Despite this belief, he acted with finality. This was not discipline pending or conditioned on further investigation. It was the maximum allowed, it was in response to allegations, it was after a full and complete investigation, and it was with the full authority allowed. Based on all the foregoing, it must be found that the City's administrative method exposed the Grievant to double jeopardy. He was disciplined first for fifteen (15) days, and was then also discharged.

It is fair to recognize that employees are often “suspended pending discharge” or “suspended pending investigation.” That is not what occurred here. As noted, the discipline was formalized, imposed and completed; and only then was it referred to the Mayor for additional consideration. If the Chief thought discharge was appropriate, then a full and final discipline should not have been issued. Based on the record submitted here, the procedure was improper and violated just cause standards.

Arbitrator Paolucci upheld the fifteen day suspension originally imposed by the Chief.

Minnesota Supreme Court rejects public policy challenge to reinstatement of police officer

Reversing the Court of Appeals, the MN Supreme Court has found no public policy basis for vacating an arbitrator's award reinstating an officer who had been dismissed for allegedly failing to report his use of force. City of Richfield v. Law Enforcement Labor Services, Inc.   The Court held:

The City argues that the court of appeals correctly held that enforcing this arbitration award violates "public polic[ies] in favor of police officers demonstrating self-regulation by being transparent and properly reporting their use of force" and "against police officers using excessive force" and would interfere with the City's "legal obligation" to enforce conduct standards for its police officers. City of Richfield, 910 N.W.2d at 477. The Union argues that the court of appeals focused unduly on Kinsey's conduct rather than on enforcement of the arbitration award, and reinstatement of Kinsey does not violate any public policy. We agree with the Union.
Assuming without deciding that a public-policy exception permits courts to vacate arbitration awards, the facts here do not support applying the exception. It is difficult to conclude that the arbitration award violates public policy given the finding that excessive force was not used. Kinsey's failure to report does not provide a basis for applying the public-policy exception because the arbitrator found that, even though Kinsey should have reported the incident, the City's policy was not clear on that question. The factual findings of the arbitrator, findings that we give deference to, do not support overturning the arbitration award on the basis of a rarely used public-policy exception.

The Court further held that the award did not undermine the Department's authority to enforce its policies, noting that the Arbitrator did uphold discipline (short of termination) because of the officer's failure to  report the incident. 

The Court of Appeals decision is discussed here. 

Community Police Commission response to Seattle OSC

Last week's post addressed the response filed by the Department of Justice to a Judge's inquiry whether Seattle was in compliance with a  consent decree concerning police use of force. Department of Justice says Seattle not violating consent decree on police use of force - new burden of proof language no impediment to effective discipline. The City's Community Police Commission has now filed its own response. It challenges the analysis of DOJ and is critical of what it describes as the heightened standard of review by arbitrators set forth in the City's most recent cba with the police union. It requests the Court "to convey that the Consent Decree will not be resolved until the City establishes that the accountability system reforms have in fact been secured."

The CPC's position is summarized in an article Citizen panel accuses Seattle police of backtracking on reforms, violating federal agreement, and the submission to the Court is available here.