Quick Hits - Use of force, lack of candor during an investigation, and a public policy challenge to an officer's reinstatement

Termination for excessive use of force converted to a suspension


Grievant, a Chillicothe, OH police officer, had been dismissed for allegedly hitting a prisoner, failing to turn on his body camera, and using inappropriate language.

Grievant had stopped a vehicle for failure to use a turn signal. After running the license plate, he learned there was an outstanding warrant for the vehicle's owner. The driver ran off and was subsequently arrested by other officers. Grievant went to the jail to have him sign the citation for failure to use a turn signal. The driver refused to sign, and after being informed that refusal could lead to an obstruction charge, refused again. Grievant responded "wrong fucking answer" and began to leave. The driver continued to yell at grievant, calling him " a fat black bastard." Grievant turned around, walked toward the driver and became "very demonstrative" toward the driver, using his hands and pointing his finger. The driver continued his verbal harassment and at one point video recorded by one of the jail guards shows grievant making a fist and then lowering his arm . Grievant left the jail and driver claimed grievant had assaulted him.

An internal investigation was conducted which concluded that grievant had struck the driver, had failed to de-escalate the situation, and had been dishonest during the investigation when he denied hitting the driver. Grievant's employment was terminated, and the dispute submitted to Arbitrator Jerry Sellman for resolution.

Arbitrator Sellman found that the evidence uncertain whether grievant actually struck the driver, but concluded that he did "graze" him. He noted that improper use of force "cannot ever be tolerated" by the Department:

Police officers are trained to handle abuse and maintain emotional stability. Police Officers must refrain from using coarse, violent, profane, or insolent language and they must avoid conduct that brings discredit or disgrace upon the Division of Police.

The Arbitrator found that grievant had violated these principles and that "[e]ven though he was racially provoked, his conduct was unjustified." He further found, however, that termination was too severe a penalty in this case and that a lesser suspension was appropriate:

Because he had never been disciplined for this type of behavior before and was a long-term, eighteen year employee of the Police Department, and also in light of the disciplinary treatment given other Police Officers for improper use of force, termination is unreasonable and arbitrary for the offenses committed under the circumstances of this case. Because the conduct of the Grievant was serious and involved violations of several Departmental Rules and Policies, a fifteen-day suspension is warranted.

Arbitrator Sellman's award can be found here. The City has appealed the award.  City has appealed arbitrator report reinstating Chillicothe Officer Reggie Netter

Grievant's "insubordinate refusal" to respond accurately and completely during internal investigation improper, but termination too severe

Arbitrator Don B. Hays has converted the indefinite suspension (termination) of a Port Arthur, Texas police officer into a lengthy suspension.

The Port Arthur PD conducted an internal investigation concerning an allegation that a number of officers were engaging in

misconduct, including allegations that certain officers had "double dipped" i.e. performed private duty vehicle escorts while they were on the clock. During the course of the investigation, grievant was interviewed about his involvement with the off duty escort services, as well as with claims that he improperly accessed law enforcement data bases for non law enforcement purposes and assisted in presenting a false affidavit of probable cause to support getting access to cell phone records for non law enforcement reasons. The Department concluded that grievant had been intentionally "untruthful" in those interviews, and was uncooperative and evasive during the interviews. It terminated his employment.

Arbitrator Hays found that grievant had engaged in "multiple insubordinate acts and omissions." He found:

Judging from the “totality of [Grievant's] testimony," as accurately captured by the official court reporter, we cannot reasonably conclude that [Grievant] did not deliberately take refuge in what we have come to identify as the police officer's “code of silence.” However, in choosing to do so [Grievant] periodically engaged in what can only be described as a insubordinate refusal to testify completely and truthfully on several pivotal subjects, such refusal constituted, in our judgment, a serious violation of department rules and represent a patently obvious deliberate refusal to cooperate with the department's chosen investigator. All of which in our judgement was clearly and willfully intended to and did in fact disrupt and frustrate the department's official pre-discipline investigation -to us a clear example of actionable insubordinate conduct.

Nevertheless, he found termination "patently excessive." Recognizing the need to make a statement "regarding the continuing need for more honest, professional and dedicated approach among all other PAPD officers" the Arbitrator converted the termination to a suspension without back pay and noted it should be considered a "Final and unconditional (last chance) warning."

Arbitrator Hays' award can be found here.

Court rejects public policy challenge to officer's reinstatement


Grievant was alleged to have installed audio-video surveillance devices in the residence he shared with his soon to be ex-wife. One camera was installed in the kitchen and two in the master bedroom. He was alleged to have continued to access the devices after he moved out. He claimed to have installed and monitored the devices to protect himself against false allegations and to protect his children. The Department became aware of the devices and began an investigation. His employment was terminated by the Aurora, IL police department after the Chief concluded that grievant had committed a Class 4 felony by eavesdropping on his wife and that his actions were a "willful and wanton disregard for the law that [he] himself has taken an oath to uphold. "

An arbitrator reversed the termination and decided instead that a one year suspension was appropriate. The City sought to vacate the award as contrary to public policy, and the trial court agreed. It noted particularly that the arbitrator had made no finding as to whether grievant was likely to refrain from similar conduct in the future. The Union appealed, and the Appellate Court of Illinois has reversed, and confirmed the arbitrator's award:

We conclude that the arbitrator's award did not violate public policy. There was no contractual provision mandating termination of police officers for off-duty misconduct, and the arbitrator, in our view, made a rational finding that Wagner was amenable to discipline. ... The CBA contemplates various forms of discipline, specifically noting removal, suspension, and discharge as possible measures for findings of cause. The arbitrator noted that the remedy had to be severe enough that [Grievant] and the community knew that his behavior was not acceptable, but that it also had to take into account the circumstances. Specifically, the arbitrator noted [Grievant's] long work history, his good work performance, and the fact that he was going through "a difficult divorce and his emotions may have clouded his judgment." The arbitrator specifically found that termination would be too harsh and, instead, ordered a one-year suspension, which would not be considered creditable service for department seniority or pension purposes. As this summary of the arbitrator's findings shows, he fashioned an award that considered the seriousness of [Grievant's] acts but also the mitigating circumstances of the case, such as [his] work history and the divorce. "[A]n employee's amenability to discipline is a factual determination which cannot be questioned or rejected by a reviewing court."

The Court also concluded that the arbitrator had at least implicitly found that grievant was unlikely to re-offend. The City of Aurora v. The Association of Professional Police Officers