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 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.