Arbitrator upholds termination of "Brady" officer after County Attorney declines to use him as a witness

Arbitrator Rolland Toenges upheld the termination of a Cloquet, MN police officer fired after the County Attorney notified the City that she would not use him as a witness. Arbitrator Toenges' award can be found here.

Grievant was employed as a police officer for the City of Cloquet, MN since June 1997. On February 25, 2019, the Carlton County Attorney notified the City that grievant was a "Brady Cop." This designation was premised on three incidents of alleged misconduct reflecting dishonesty and credibility issues. These incidents took place on December 22, 2004, January 3, 2005 and July 24, 2017.

On June 4, 2019, the City terminated grievant's employment "based on his inability to perform essential duties of his position." The termination was grieved and submitted to Arbitrator Rolland Toenges for resolution.

The city argued that because the County Attorney determined that grievant was an unacceptable witness to testify in court proceedings, and that she would not prosecute cases where the grievant would be a witness, it would put public safety at risk to continue to employ him. It argued further "[w]hether the County Attorney's determination is righter wrong is not a matter within the Police Department's authority. The Police Department must accept that Grievant is not qualified to perform the essential duties of a Police Officer.  ... The only remedy available to the Employer is termination of the Grievant."

The Union questioned the County Attorney's decision to bar grievant from testifying, asserting that it was premised on her personal animosity toward grievant, and noting that a judge or jury could determine whether grievant's testimony was credible. It also claimed  that termination of grievant for the three earlier incidents, for which he had already been disciplined, constituted double jeopardy. Finally it argued that "Brady designation does not require discharge."

Arbitrator Toenges denied the grievance, concluding that "the City Attorney's position to not prosecute in situations where the Grievant would be a witness, renders him unable to perform an essential part of police officer duties." He rejected the Union's double jeopardy claim, noting that he was not terminated because of the prior misconduct "but due to the County Attorney's position not prosecute cases where the Grievant would be a witness." He concluded that the small Department had no other position for which it could use grievant.

The Arbitrator's decision is summarized in his Findings:

FINDINGS

1. Court testimony is an essential duty of a police officer.

2. Essentially all police arrests or investigations either will, or will likely, involve court testimony.

3. Based on the Grievant’s disciplinary record involving untruthfulness, the County Attorney will not prosecute cases where the Grievant’s testimony would be involved.

4. The effect of the County Attorney’s decision renders the Grievant unable to perform an essential duty of a police officer position.

4 The UNION in its Post Hearing Brief acknowledges there is “No mechanism to challenge Brady designation.”

5. The Police Department does not have the resources necessary to employ an officer who cannot perform essential duties.

6. The Police Department is without authority to change the County Attorneys position.

7. The County Attorney, as a member of the Citizens Advisory Board, has direct knowledge of the Grievant’s misconduct and disciplinary history.

8. It is axiomatic that the County Attorney having direct knowledge of the Grievant’s misconduct and discipline history is qualified to assess the effect application of the Brady Law may have on the Grievant’s creditability as a witness.

9. The County Attorney has confirmed that the decision to not prosecute cases where the Grievant would be a witness is final and not subject to reconsideration.

10. The County Attorney’s decision is not subject to the Arbitrator’s review. 

Brady issues are also discussed in  the following posts:

Police dishonesty, public policy and reinstatement - Mass SJC upholds arbitrator's award reinstating police officer who filed ""intentionally misleading" report 

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

Termination of police officer for off duty DWI upheld

Law Enforcement: Untruthfulness, reinstatement and Brady issues

Police officers, Brady/Giglio, dishonesty, exoneration and just cause

Update: Grievant has filed a complaint in federal court challenging the County's Brady policy and its application to him.  Available here.

Police dishonesty, public policy and reinstatement - Mass SJC upholds arbitrator's award reinstating police officer who filed "intentionally misleading" report

The Massachusetts Supreme Judicial Court has rejected a public policy challenge to the reinstatement of a police officer found by an arbitrator to have made "intentionally misleading ...but less than intentionally false" statements in a police report. City of Pittsfield v. Local 447 International Brotherhood of Police Officers.

Grievant had arrested an individual who had been identified by a supermarket's security department as having  engaged in shoplifting. He placed the individual in the back of his cruiser, In his report of the incident, grievant wrote that the individual began trashing about and so "for her safety" he removed her from the vehicle and placed her on the ground to control her. He also noted that store security wanted to get a photo of her as part of its normal process.

In his award, Arbitrator Michael Stutz found that grievant's report was inaccurate and that the three words in issue "for her safety," were "[u]ntrue, intentionally misleading, and cause for discipline, but less than intentionally false."  He concluded that grievant removed the individual from the vehicle to allow store security to photograph her and that his report was not a mistake or an error, but "knowingly inaccurate." He found:

the grievant wanted to conceal the real reason for removing the prisoner by falsely reporting that it was safety-related, and that the reason for this was the public disturbance that resulted when he removed, photographed and returned the prisoner to his car. The grievant should have waited to take the photograph outside public view at the station. He could have gotten assistance from his nearby colleague. I believe the grievant referred to safety to deflect the readers of his report away from his bad judgement. This intentional inaccuracy violated the grievant’s obligation to be absolutely truthful.

Nevertheless, Arbitrator Stutz found termination too severe, and ordered grievant reinstated with a three day suspension.

The City sought to vacate the award, arguing that "any lie, be it big or small, absolutely disqualifies a police officer from continuing to serve in his position, and that any act of dishonesty, no matter the circumstances, requires dismissal."

The Superior Court rejected this request, and the Massachusetts Supreme Judicial Court accepted he case on direct review. The trial court opinion, and the parties briefs before the SJC are discussed at Is there a "bright line" requiring the termination of a police officer found to have been untruthful in a police report?

In its decision, the SJC refused to adopt a bright line rule that any dishonesty by a police officer would compel termination. In doing so it noted grievant's 'intentionally misleading" statements "did not lead to a wrongful arrest or prosecution, or result in any deprivation of liberty or denial of civil rights."

Accepting the arbitrator's factual conclusion that grievant's statement was not made with the intent "to impede, obstruct, or otherwise interfere with any criminal investigation or proceeding," but was instead an effort to avoid discipline for his poor judgment, the Court found no public policy requiring the termination of the grievant. Reinforcing the limited nature of its decision, the Court concluded:

In making these employment decisions, police chiefs who are responsible for maintaining the integrity of their departments and for preserving public trust in their officers need clear lines. It requires commitment and courage for a police chief to terminate the employment of a police officer; it is generally easier to avoid doing so. Termination of an officer's employment means that the police department almost invariably will need to incur the expense of arbitration, including the substantial attorney's fees from litigating such an arbitration. And if the arbitrator disagrees with the decision to terminate, the officer will be reinstated and the police department will be required to make the officer whole with respect to lost benefits under the collective bargaining agreement, including back pay, compensation for lost income from overtime and details, and the return of seniority rights. If there are no clear public policy lines supporting termination, it is extremely difficult for a police chief to risk such a decision where it might be undone by an arbitrator whose decision cannot be reversed by a court even when it is plainly wrong as a matter of fact or as a matter of law.

Where a police chief decides to terminate an officer in circumstances in which the officer's false statements violated G. L. c. 268, § 6A or 13B, or which otherwise resulted in an unjustified arrest or prosecution, or in a deprivation of liberty or denial of civil rights, an arbitration award finding no just cause for such a dismissal and reinstating the officer would violate public policy. We affirm the arbitrator's award here only because it did not cross this public policy line.

In a footnote, the Court acknowledged that the local District Attorney had informed the City that he would no longer call grievant as a witness in any criminal matter. Finding this "very troubling" the Court noted that this was not part of either the City's or the arbitrator's decision. It noted further however,

... although it is required to abide by the results of this arbitration, the city is, of course, not prohibited from pursuing any additional appropriate discipline based on the district attorney's letter or any other newly acquired information

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

Termination of police officer for off duty DWI upheld

Grievant was employed as a Sergeant on the Litchfield, MN police department. The department consisted of a Chief and eight licensed officers. In the early morning of October 27, 2016, grievant, while driving off duty, was stopped by a Sheriff's Deputy. The Deputy administered a preliminary blood test that registered grievant's blood alcohol content at .146. He questioned grievant concerning whether he had drinking. According to the Deputy, grievant initially denied having been drinking but later claimed to have had two, or maybe three, beers a couple of hours earlier. Grievant was arrested and charged with "driving while impaired" (DWI). A blood alcohol test approximately two hours later placed grievant's blood alcohol content at .186.

Following an investigation, grievant's employment was terminated for violation of several Department policies, including "criminal, dishonest, or disrespectful conduct, whether on or off duty that adversely affects the members relationship with the department,"failure to maintain a current drivers license {grievant's license had been administratively revoked following the incident], giving false or misleading statements [related to grievant's denial of having been drinking when questioned by the Deputy], and conduct unbecoming.

The termination was grieved and ultimately submitted to Arbitrator Carol Tidwell for decision.

Initially, Arbitrator Tidwell found that the policies in issue were reasonable ones. She noted:

The arbitrator finds that the policies, principles, and procedures cited above which the Employer asserts were violated by the Grievant are all eminently reasonable, including the provisions that relate to off duty conduct. Police officers are charged with enforcing the law and their violation of the law, especially when this occurs in a public setting as is the case with a DWI violation on a public road, is especially harmful to the reputation and ability of the police to maintain law and order among the general population. This is just as true when the behavior occurs off duty. It is accurate, as the City’s rules state, that an officer’s ability to do his or her job is dependent upon the respect and confidence the local population has in the police. It is highly reasonable for the City to consider the potential effect that an officer’s behavior at any time, on or off duty, has on the community’s opinion of the officer and by extension the local police department, and to promulgate rules that require exemplary behavior of its officers at all times. 

She also found that grievant had in fact violated the rules. While the criminal charges against grievant remained pending, she found that the Department had established that grievant "was indeed driving his vehicle on a public road having consumed a large quantity of alcoholic a state of impairment ...," and had given false information to the Deputy who stopped him. Similarly she found that grievant's loss of his driver's license and the subsequent conditional reinstatement subject to an ignition interlock device posed legitimate safety concerns and would engender a negative reaction in the community. Grievant's actions, concluded the Arbitrator, were egregious and the impact that conduct  in a small community particularly severe.

Arbitrator Tidwell also found that the City had established that grievant "lied repeatedly" to the arresting Deputy. While agreeing with the Union that the existence of a Brady/Giglio disclosure obligation does not automatically require an officer's termination, "it does not mean that a Brady/Giglio officer must be retained in the Department if the Department cannot accommodate that officer."

Turning to potential mitigating factors, the Arbitrator noted grievant's prior alcohol related issues and his apparent unwillingness to confront his problem with alcohol. The Arbitrator also remarked on the absence of any other officer of the Department testifying in his behalf. She did, however, reject Department's contention that grievant's plea of not guilty to the DWI charge, and his action in contesting the validity of the claimed consent to a blood test, evidenced a refusal on his part to "take responsibility" for his actions, concluding:

The arbitrator is convinced ... that employees such as the Grievant in this case should not be effectively forced to forego their Constitutional right to a trial and to contest evidence against themselves in a criminal proceeding in order to maintain or regain their employment.

Finally the Arbitrator considered and rejected potential remedies short of termination. Demotion, she concluded, would remove his leadership responsibilities but would not address the violation of the standards of conduct expected of him. Reinstatement on a last chance basis, or after completion of an alcohol abuse program would of necessity be based on grievance's recognition of the need for such treatment and a willingness to undertake it, something she concluded he was not ready to do. In light of this she noted:


It is well-settled in labor matters concerning discipline that the punishment must fit the crime. The arbitrator concludes that upholding the Grievant’s termination meets this standard; indeed she concludes that it is the only appropriate remedy in this case.

Arbitrator Tidwell's award can be found here.  A case also addressing whether an officer's denial of acts of misconduct provide a basis for a charge of dishonesty is discussed at Police officer's denial of misconduct insufficient to establish untruthfulness

Police officers, Brady/Giglio, dishonesty, exoneration and just cause

A recent award by Arbitrator Micheal Falvo addresses all of these topics. Arbitrator Falvo sustained a grievance filed on behalf of a Champaign, Ill. police officer terminated after the State's Attorney declared that she did not believe she could use him as a witness because of his disciplinary history, including  an allegation of dishonesty overturned in an earlier arbitration.

Officer Matt Rush began his employment with the City of Champaign in February 2010. Over the course of his employment he was the subject of several disciplinary actions. In March 2014 he was suspended for one day for failing to turn in a citation he had issued in connection with a traffic stop. He admitted he forgot to turn the ticket in and did not challenge the suspension. A second incident occurred in April 2014. Officer Rush was alleged to have engaged in unprofessional conduct in connection with his handling of a disturbance. He admitted using profanity and acknowledged he did not act professionally during this encounter. During the encounter Officer Rush twice kicked in the legs an individual who was refusing to get into the police vehicle. The Department agreed that the first kick was a reasonable use of force but maintained that the second was inappropriate. Rush was suspended for three days as a result of his conduct during this incident. A third incident occurred in May 2014 when Rush was accused of punching an individual he was attempting to subdue. He was also accused of dishonesty, i.e., falsely denying that he had thrown a punch. His employment was terminated as a result of these events.  Because of the claimed dishonesty the Chief sent the following letter to the State's Attorney:

As required by law, I write to inform you of a recent disciplinary matter involving an officer of the Champaign Police Department. On August 8, 2014, Officer Matt Rush was charged with a violation of department policy wherein the offending behavior involved untruthful or deceptive representations. As you are aware, under Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972) and its progeny, the Champaign Police Department is required to disclose such information regarding the untruthfulness of law enforcement officers to prosecutors.

Please feel free to contact my office in the event that you have any questions regarding this matter.

Rush grieved the termination and in April 2015 Arbitrator Fredric Dichter issued an award finding the one and three day suspensions appropriate (but finding the claim regarding the second kick unsupported), but overturning the termination. Arbitrator Dichter concluded that "the only evidence [of a punch] is a blurry video taken from some distance away ..." and found no evidence of malice or loss of temper but rather an effort to subdue an uncooperative person. The Arbitrator found this conduct, by itself, did not justify termination. Turning to "the other serious charge, dishonesty," he concluded that while some viewing the dash cam video (including himself) may view the video one way, grievant "may very honestly be seeing it another." Arbitrator Dichter noted:

Lying requires intent. Grievant is apparently wrong in his perception of what he did, but the Arbitrator finds it is based on his errant perception of events and not on an intent to deceive.

Concluding that discipline was warranted for grievant's handling of the incident, but not for dishonesty, Arbitrator Dichter reduced the termination to a thirty day suspension

In accord with the award, Rush was reinstated to the Police Department. The Chief also sent another letter to the State's Attorney enclosing a copy of the Arbitrator's award.

In December of 2015 local media reported on several pending settlements of claims involving local police officers use of force, primarily involving Officer Rush. Examples are here, here, and here. In response to citizen demands that Officer Rush be prosecuted for claimed use of excessive force, the State's Attorney conducted an investigation. On February 23, 2016 she informed the Chief of the results of her investigation and also issued a press release. While declining  to prosecute, she noted:

Although the State’s Attorney’s Office is declining to file criminal charges against Officer Matt Rush, in light of our review of Officer Rush's actions and behavior during these incidents and in the light of the entirety of Officer Rush's history of internal discipline for failure to adequately document use of force and untruthfulness, we are unable to use Officer Matt Rush as a witness for the prosecution in criminal cases. Officer Rush's repeated discipline for failure to adequately document use of force and untruthfulness as outlined here and in other disciplinary actions reviewed in the course of this examination create a substantial issue with regards to his credibility as a state witness, subject him to cross-examination on these issues, and require the State’s Attorney's Office to work around him in order to bring criminal cases to trial. Moreover, a review of these incidents cause us great concern about his judgement and decision making in crisis situations, particularly with regard to his response the mentally ill. In light of these concerns, having given this matter serious consideration and taking into account his full disciplinary history, we have concluded that if Officer Rush were to return to active duty, we will not call Officer Rush as a witness for the prosecution in criminal proceedings.

Upon receipt of the letter, the Chief conducted a fact finding with Rush and his Union, but ultimately terminated his employment because he believed his inability to testify made him "unable to perform the essential functions of [his] position." This action was grieved and submitted to Arbitrator Falvo for resolution. After a comprehensive review of arbitration awards and case law, Arbitrator Falvo sustained the grievance and ordered grievant again be reinstated. The Arbitrator emphasized that except for the charge of dishonesty overturned by Arbitrator Dichter grievant had not been accused of or disciplined for untruthfulness. Noting the potential for "behind the scenes collusion," Arbitrator Falvo concluded:

If a prosecutor is empowered with the unbridled and unreviewable discretion to deem an officer “disqualified” to testify -- with the consequence that she loses her job because obviously there is no place in a police department for a law enforcement officer with that incapacity – contractual or statutory just cause protections are a nullity. An arbitrator would need to be more naïve than parties should expect not to realize that one must be alert to the danger that a losing party in a disciplinary arbitration will try to undo a disappointing result by finding an alternative path to reinstate what the arbitrator reversed. By no means is this to imply that a decision by a prosecutor that an officer will not be called testify that results in her dismissal cannot in the appropriate case meet the just cause standard. Rather, it means that an arbitrator’s non-delegable responsibility to determine whether just cause does or does not exist requires that he bring informed judgment to the case with the recognition that deference to the judgments of public officials cannot be blindly and uncritically ratified.

Regarding the positions articulated by the State's Attorney, Arbitrator Falvo found that in light of Arbitrator Dichter's conclusion that Rush had not engaged in intentional misrepresentation, her reliance on perceived Brady/Giglio obligations was misplaced.  He also found that the other reasons cited by her did not support a claim of just cause for the Officer's termination. Arbitrator Falvo similarly rejected the Department's reliance on the "well established doctrine of persona non grata" (typically used when a third party customer bars a bargaining unit employee from their premises).

Accordingly he ordered Rush' reinstatement with back pay and the expungement of any reference to the disciplinary action in his personal records.

A third arbitration, arising from a different incident, also claimed by the Department to justify Officer Rush's termination was scheduled for hearing but has since been settled. Pursuant to the settlement Rush waives reinstatement while the City agrees not to appeal Falvo's decision.

The New Hampshire Supreme Court addressed a similar issue in Duchesne v. Hillsborough County Attorney, granting the request of three police officers to have their names removed from that State's "Laurie List" after an arbitrator and the State Attorney General's office had cleared them of allegations of excessive force.