State Attorney's refusal to use police offer because of Brady concerns found insufficient, without more, to support termination of officer

Grievant began his employment with the Marco Island, FL Police Department in October 2006. He was hired 18 months after having been terminated by the Collier County Sheriff's Office after it was claimed he had given misleading testimony during an investigation.

In November 2010 grievant was dispatched to a DUI. He testified in connection with that case at an administrative hearing. In February 2011 the presiding judge at that proceeding received a report of an allegation by another bargaining unit employee that grievant had lied during the hearing. The allegation was reported to the City and a meeting was held between the Police Chief and a representative of the State Attorney Office (SAO). No action was taken by the City, but the SAO independently reviewed the matter. In November 2013 the SAO sent a letter to the Police Chief advising that because of the allegation of untruthfulness during the 2010 hearing, and grievant's earlier dismissal from the Colier County Sheriff's Office, grievant would no longer be used as a witness in the prosecution of criminal cases. Six months later, an Internal Affair's investigation was opened relating to the alleged untruthful testimony in 2010, but the investigation remained uncompleted when the assigned investigator left the Department. 

In February 2015 the SAO sent a second letter to the Department, restating its position that it would not use grievant in the prosecution of criminal cases. A new investigator was assigned to the still open Internal Affairs investigation, and in April 2016 a report was issued sustaining the allegation of untruthfulness in the 2010 testimony. However, because of the length of time that had elapsed, grievant could not be disciplined.  Grievant continued his employment but the SAO declined to prosecute on almost 80% of the cases grievant handled.

In January 2019 a new City Manager was appointed, and, after an article (State attorney's office declined to prosecute multiple Marco Island criminal charges last month due to 'Brady cop') appeared in a local newspaper in February 2019,  the City advised grievant that he would be removed from his position as a police officer. The City  noted the termination was premised solely on grievant's inability to testify, and not on either the allegations raised in connection with his employment by the Collier County Sheriff's Office or the results on the Department's Internal Affairs investigation. It held out the possibility of transfer to a civilian position if one existed, an offer grievant declined.

A grievance was filed, and ultimately submitted to Arbitrator Gerard Fowler for resolution.

Arbitrator Fowler rejected the City's reliance on the management rights provisions of the cba, and its claim that the proposed removal was not a disciplinary action.  He observed:

Whether a party chooses to refer to a grievant's removal as a termination rather than a discharge is a distinction without a difference. Any union member covered by a collective bargaining agreement with a just cause provision must be provided with just cause if the termination is to stand. Accordingly, the Arbitrator finds that based upon all of the evidence and testimony before him Grievant was discharged as that term is set forth in arbitral precedents. Therefore, this arbitration centers on whether the Employer properly discharged Grievant.

 Turning to the merits, Arbitrator Fowler concluded that the City's reliance of the refusal of the SAO to use grievant as a witness, in the absence of any evidence that he had in fact engaged in any dishonest behavior, was insufficient to support the termination. He found:

The record clearly shows the City never attempted to prove or present any proof regarding Grievant's dishonesty. Grievant did present testimony indicating that he did not misrepresent any fact while testifying in 2010 or any other time. Clearly the only basis to terminate Grievant from his position is based upon the letter from the State Attorney. This letter is unsupported by evidence or details of any investigation on the part of the SAO. There is no judicial determination on the record indicating that Grievant has ever been dishonest in his testimony 

Accordingly, the testimony and evidence in this case failed to establish just cause to discharge grievant. The grievance must be sustained. Grievant is entitled to be reinstated to his position of police officer and made whole for all of the losses he suffered as a result of his discharge by the City, and it shall be so ordered.

Arbitrator Fowler's award in City of Marco Island, Florida and Gulf Coast Florida Police Benevolent Association, Inc. can be found here.

Similar issues are addressed in Arbitrator finds police officer did not intentionally lie about warrant application, concludes prosecutor's placement of officer on Brady list and declining to allow him to testify does not provide just cause for termination and Arbitrator upholds termination of "Brady" officer after County Attorney declines to use him as a witness