Department of Justice says Seattle not violating consent decree on police use of force - new burden of proof language no impediment to effective discipline

After an arbitrator overturned the termination of a Seattle police officer accused of punching a handcuffed suspect (award), the District Court judge overseeing a consent decree concerning police use of force issued an Order to Show Cause questioning whether the City was meeting its obligation to maintain effective compliance with the terms of the decree. Specifically, the Court requested a response on several questions, including:

Whether the events surrounding the [Disciplinary Review Board's] decision to reinstate an SPD officer who punched a hand-cuffed subject who was sitting in a patrol car, and the new CBA's rejection of aspects of the Accountability Ordinance—including those aspects that would have replaced the DRB with the PSCSC and provided for a different standard of review—should lead the court to conclude that the City and the SPD have failed to maintain full and effective compliance with the Consent Decree during Phase II?

The US Department of Justice has responded, (here) expressing its position that the particulars of an individual case, which took place prior to the time designated to evaluate compliance, could not demonstrate the City's noncompliance.  It noted that the City had taken action against the officer, and that "one incident is not necessarily reflective of a system-wide problem" and that the Department's rules and systems designed to catch and correct individual issues appeared to be working as intended.

It also noted that while it had initially expressed concern about the standard of review for disciplinary actions included in the most recent cba, after further review it found no basis to challenge it.

 The DOJ noted that prior to 2008 the applicable cba provided that discipline would be imposed only with just cause, but did not specify any burden of proof to be used.

In 2008, a new cba added language creating a presumption of termination for officers found to have engaged in dishonesty, but also provided that the Department must prove dishonesty "by clear and convincing evidence."

In preparation for a new cba in 2018, the City submitted proposed language to the Court, and the Court asked for the DOJ's opinion. The DOJ asserted that the addition of a "clear and convincing" burden "without any clear basis" could potentially undermine public confidence. It later noted, however, that this suggestion was in error, since "the use of the clear and convincing standard (1) was not new; and (2) had a clear basis for inclusion." In any case, however, the final 2018 cba language on discipline eliminated specific reference to a particular standard. The new language read:

The standard of review and burden of proof in  labor arbitration will be consistent with established principles of labor arbitration. For example, and without limitation on other examples or applications, the parties agree that these principles include an elevated standard of review (i.e. - more than a preponderance of the evidence) for termination cases where the alleged offense is stigmatizing to a law enforcement officer, making it difficult for the employee to get other law enforcement employment.

After reviewing prior arbitration awards furnished by the City (Exhibits B,C,D,E,F, and G) DOJ found that this heightened standard had been in effect for some time as part of the "common law of arbitration" and concluded that the new language would not make disciplining officers more difficult than in the past and presented no conflict with the consent decree.

A sleeping ferry engineer and a state trooper without a weapon

Two recent cases address issues created when an initial disciplinary action has not been fully thought through or the basis for it is not clearly articulated.

Discipline in excess of settlement agreement cannot be enforced 

Timothy Wood was employed as a Chief Marine Engineer aboard the Staten Island Ferries. During a shift he was observed sleeping during docking, in violation of docking procedures. No formal disciplinary was taken but Wood entered into a settlement agreement admitting that he had been sleeping and agreeing to a thirty day suspension. The agreement further provided that it was "executed in consideration of the Department's resolution of the aforementioned charge without the furtherance of disciplinary action in this matter."
Upon his return to work, Wood was advised that he would no longer be allowed to work in his recently bid job but would be assigned to non-passenger service dock work. He was thereafter prohibited from bidding on jobs in his title but was limited to bidding on Marine Engineer positions. His union, Marine Engineers Beneficial Association, pursued a grievance on his behalf asserting that these restrictions were contrary to the bidding procedures of the cba. Arbitrator E. David Hyland sustained the grievance, finding that the restrictions placed on Wood after his return to work were "directly related to the same misconduct/incompetence alleged as part of the parties disciplinary settlement" and were contrary to grievant's contractual rights.
The City sought to vacate the award, referencing the 2003 Staten Island ferry crash and arguing that it was contrary to public policy to allow Wood to be restored to his Chief Marine Engineer position and threatened public safety. It  also claimed that restoring grievant to his CME position exposed the Captain to potential liability under the Seaman's Manslaughter Statute.
The Court rejected this claim, noting:

The court does not find that the award, by its own terms, violates the Seaman's Manslaughter Statute, since it does not direct respondents to engage in misconduct or negligence, nor does it require [the Captain] or any other DOT employee to "knowingly and willfully" cause "fraud, neglect, connivance, misconduct, or violation of law." The award merely finds that respondents violated the collective bargaining agreement by imposing additional punishment after the settlement agreement had been entered into.

While recognizing the public safety concerns, the Court found that the City did not find that grievant's actions warranted these restrictions when it first entered into the settlement agreement and that it had failed to articulate any act since the settlement which would lead to any public safety concern. 

Accordingly, the Court confirmed the arbitrator's award. Marine Engineers' Beneficial Association v. City of New York

Update: The Appellate Division affirmed, finding no violation of public policy. Matter of Marine Engineers' Beneficial Assn. v. City of New York

Court upholds award, finding absence of evidence to support the charges

A Pennsylvania State Trooper (grievant) became romantically involved with another trooper. The relationship ended in 2014, and the other trooper filed a number of complaints alleging that grievant had engaged in harassing behavior. These complaints were investigated  and grievant's captain and the Department's EEO office found them unfounded. In December of 2015, the other trooper filed with the court for a temporary Protection From Abuse (PFA) order. A temporary order, later converted to a permanent order was issued, which among other restrictions prohibitrd grievant from carrying any firearm until May 2018. Grievant was placed on restricted duty for the duration of the time the PFA was in effect. In October of 2016 the Department issued a Notice of Penalty dismissing grievant, citing violation of two departmental regulations, Unbecoming Conduct and Conformance with Laws. The notice did not list as a reason for the discipline an assertion that  grievant was unable to perform an essential job function because he could not carry a weapon. A grievance over the termination was submitted to expedited arbitration. The arbitrator issued an Award and Remedy that proved in full:

The grievance is sustained, primarily because the Department's decision to discharge is based on the underlying incidents of harassing conduct alleged in the PFA that were the subject of the first two internal investigations and found `not sustained' and that were neither proven at the arbitration hearing nor considered when the Disciplinary Action Report was issued. Accordingly, the Department did not have just cause to discharge [Grievant].As the remedy, the Department is directed to reinstate [Grievant] to his former position (i.e., restricted duty status during the time the PFA remains in effect) with no loss of seniority. The Department is further directed to make [Grievant] whole for any losses incurred as a result of his discharge, including but not limited to back pay and benefits, less any interim earnings. The Arbitrator shall retain jurisdiction of the case for the sole purpose of resolving any disputes over the implementation of the remedy.

The Department sought to vacate the award. It claimed that the arbitrator's award was in excess of his powers because he reinstated grievant to restricted-duty status even though he was prohibited from carrying a gun. It asserted that the cba only provided for such status when an internal investigation is pending and prior to a Notice of Disciplinary Proceedings. A split Commonwealth  Court rejected the Department's arguments. Noting the very restrictive scope review of such awards, the Court concluded:

Because the NDP did not discharge Grievant because of his inability to carry a firearm or carry out essential job functions, the limited issue before the arbitrator was whether the aforementioned reasons demonstrate "just cause" for discharge, and "[i]f not[,] what shall the remedy be?" (R.R. at 7a-8a.) Because the award does not require the PSP to perform an illegal act or an act that it could not do voluntarily, the arbitrator did not exceed his authority. Moreover, because the parties stipulated that the arbitrator had jurisdiction to decide whether there was just cause to discharge Grievant and to decide the remedy, the arbitrator clearly acted within his jurisdiction.

The Court also found no error in the arbitrator's conclusion that the Department's failure to present first hand evidence of the claimed violations, (relying instead on the PFA)  was insufficient to establish just cause. Pennsylvania State Police v. Pennsylvania State Troopers Association.

[The issue of the impact of a law enforcement officer's loss of the ability to cary a weapon is also addressed at Police officer who lost license to carry weapon properly terminated and Award reinstating police officer without License to Carry weapon confirmed]

Conflicting views on the appropriate standard of proof in termination cases

As noted in an earlier post here, Arbitrator Michael Rappaport upheld a grievance filed by a firefighter whose employment was terminated for alleged sick leave abuse. The Las Vegas Sun links to his award here. The firefighter was accused of planning in advance when he would take sick leave so that , combined with his vacation, he could take most of the summer off. In addressing the issue, Arbitrator Rappaport discusses his view of the appropriate standard of proof in a termination case. He notes:

In many cases a union will typically argue that the employer should have the burden of proof beyond a reasonable doubt. This is because the union will typically argue that a termination case is equivalent to capital punishment in the labor relations world. Conversely, employers often argue that the burden of proof in a termination case should simply be a preponderance of the evidence since a disciplinary case arises out of the collective bargaining agreement and, therefore, it is contractual in nature. In the Arbitrator’s experience, most arbitrators, including the present Arbitrator, reject both of those arguments and instead tend to regard the appropriate burden as clear and convincing. That is to say, an arbitrator wants to be clearly convinced that the grievant in a termination case committed the acts as alleged that would justify termination.

Arbitrator Rappaport concluded that while the Fire Department had raised suspicions regarding the issue, it had failed to meet its burden of proof.

He also noted that the case involved an allegation of moral turpitude, i.e. dishonesty, and that this further supported the need for a higher standard of proof “because upholding a termination under such circumstances not only is likely to result in loss of the job at issue, but could also brand the discharged employee as dishonest or someone who is not to be trusted when applying for any future employment.”

Unlike the arbitrator whose award was vacated in Decatur Police Benevolent and Protective Association Labor Committee v. City of Decatur , (discussed here), Arbitrator Rappaport made no finding that on a lesser standard the grievant engaged in the conduct alleged. In the Decatur case, the court found no support for the arbitrator’s application of a “clear and convincing” standard and vacated an award reinstating a police officer found, on a preponderance of evidence standard but not on a clear and convincing standard, to have engaged in domestic violence. The court noted “We are aware of no case, and no statute, that requires an allegation of misconduct in this context be proved by clear and convincing evidence because the misconduct may also be criminal and because the City seeks to discharge the officer.”