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

Arbitrator rejects termination for use of excessive force, finds disparate treatment

Arbitrator Richard Miller has modified the termination of a police officer for the City of St. Paul, MN. The officer had been dismissed for what the City believed to be the excessive use of force.

On the evening of June 24, 2016, the officer and his partner were on patrol when they arrived on the scene of a reported fight involving a least one individual who was alleged to have a weapon. After conducting an initial investigation, the two received a radio transmission from the Department's K-9 officer who informed them that he had located an individual matching the reported description. Before grievant's arrival, the K-9 officer had released his dog on the individual. When grievant arrived on the scene the dog had the suspect on the ground, dragging him in circles on the pavement. Grievant, believing the suspect noncompliant with the officers instructions, and concerned that he had a weapon, administered two standing kicks to the suspect's midsection. After 14 seconds, believing the suspect was still not complying, the officer kicked him again. Grievant directed the kicks to the midsection because he did not want to accidentally kick the dog, and because he wanted to avoid kicking the suspect in the head, which would have been considered deadly force. After he was subdued, the suspect was transported to the hospital where an examination showed he had rib fractures on both sides and a collapsed lung. He did not have a weapon.

The new police chief, who had assumed that position on June 23rd,  learned of the incident from a local representative of the NAACP and ordered an investigation. Following the investigation the Chief disciplined both grievant and the K-9 officer. The Chief offered the K-9 officer a 30 day suspension in lieu of termination if he agreed not to contest the suspension. Grievant was offered no such option and his employment was terminated. That termination was grieved and ultimately submitted to Arbitrator Miller for resolution.

Arbitrator Miller converted the termination to a thirty day suspension. He found that grievant's act of kicking the suspect was not expressly prohibited by the Department's policy and was not contrary to the training grievant had received. He also noted that grievant had been faced with "a tense, uncertain and rapidly evolving situation involving an uncooperative witness."  Finally, he noted the disparity between the discipline imposed on grievant and that imposed on the K-9 officer:

It is difficult to believe that being dragged on the pavement in circles by a K-9 who is biting your leg is less traumatic and painful than being kicked in the torso three times. Thus, whether or not the Grievant's misconduct was more or less egregious than the misconduct of [the K-9 officer] misses the point. Both their actions were egregious and not distinguishable to warrant one receiving 30-day suspension and the other termination. They both deserve to be penalized for their actions, but the penalty should be the same for their misconduct.

Observing that the Police Civilian Internal Affairs Review Commission had initially recommended a thirty day suspension for grievant, Arbitrator Miller overturned the termination and reduced the suspension to the recommended thirty days.

Arbitrator Miller's award can be found here.

Oakland Police SWAT arbitration award - Just Cause not determined by reference to "Best Practices"

Arbitrator Paul Greenberg has overturned the demotion of two Oakland police officers arising out of their management of a SWAT response to the fatal shooting of two other officers. Lt. Christopher Mufarreh and Capt. Richard Orozco were demoted after a Board of Inquiry concluded that each was guilty of "gross dereliction of duty" in connection with the incident.

After a lengthy review of the facts surrounding the shooting and the police response in which two additional officers were killed, Arbitrator Greenberg determined that the conduct of both Lt. Mufarreh and Capt. Orozco was consistent with Oakland Police Department practice and training, and that both officers had been improperly singled out for discipline.

Arbitrator Greenberg rejected the City's reliance on evidence purporting to show that the officer's conduct deviated from "best practices". He noted:

Additionally, with regard to the entire [Board of Inquiry] process and its review of the tactical operations performance on March 21, Capt. Hansen testified his role (and the role of the other
experts) was to measure the actions of the OPD staff against general industry standards (i.e., “best practices”). ... Although this probably is the appropriate measure for evaluating OPD’s overall response to the incident, this Arbitrator questions whether it is the appropriate standard for evaluating the individual culpability of employees, who should be measured against
the employer’s standard policies, the training they have received, and the employer’s commonly accepted practice.

Arbitrator Greenberg also noted that other, higher ranking, officers were on the scene and, according to OPD policies, should have, but did not, assume command responsibility. These higher ranking officers were not disciplined. Viewing this as evidence of selective enforcement of policies, the Arbitrator observed:

In this Arbitrator’s view, however, the City’s decision to single out Lt. Mufarreh and Capt. Orozco for discipline does not adequately recognize the responsibility of others – including their organizational peers, and also some of the senior management of the Department. Like the
matter involving Sgt. Wingate [in an earlier unrelated dispute], the decision to discipline Lt. Mufarreh and Capt. Orozco has the appearance of the Department needing to hold someone individually accountable for the tragic deaths of Sgt. Romans and Sgt. Sakai, but not considering the possibility that senior-level management decisions also contributed to the chain of events.

Arbitrator Greenberg concluded "if OPD is going to hold Lt. Mufarreh to a strict ... interpretation of the General Orders when justifying its decision to demote him, then it is reasonable to question why other OPD personnel are not held to a similarly strict reading of the General Orders."

 In light of these findings, the Arbitrator sustained the grievance and ordered the City to restore both officers to their prior rank.

Arbitrator Greenberg's award can be found here.