Double jeopardy, public policy and a filing on the Seattle consent decree

Dismissal overturned because of suspension for same offense

Arbitrator Michael Paolucci sustained, in substantial part, a grievance filed on behalf of a Euclid, Ohio police officer. The City of Euclid, Ohio and Fraternal Order of Police Lodge 18.

The grievances involved three separate incidents, all arising from grievant's off duty conduct and included allegations of domestic violence, violation of a protective order  and theft or failure to pay for certain appliances grievant allegedly took from a house he was renting. Arbitrator Paolucci found that two of the three incidents was either unproven or termination too severe for the alleged offenses. On the third, the arbitrator found that grievant's plea of guilty to a charge of persistent disorderly conduct made serious discipline "fair." However, because the Chief had already suspended grievant for 15 days, the limit of the Chief's disciplinary authority, the subsequent action of the Mayor terminating grievant was barred by principles of double jeopardy. He observed:

If the Chief believed that discharge was appropriate, it was incumbent on him to not issue discipline and to make the recommendation to preserve the issue. He did not do that here. He issued a very specific discipline that was directly responsive to the alleged offense. He issued discipline that was the maximum permitted under his authority, and he did so even though he believed harsher discipline was justified. Despite this belief, he acted with finality. This was not discipline pending or conditioned on further investigation. It was the maximum allowed, it was in response to allegations, it was after a full and complete investigation, and it was with the full authority allowed. Based on all the foregoing, it must be found that the City's administrative method exposed the Grievant to double jeopardy. He was disciplined first for fifteen (15) days, and was then also discharged.

It is fair to recognize that employees are often “suspended pending discharge” or “suspended pending investigation.” That is not what occurred here. As noted, the discipline was formalized, imposed and completed; and only then was it referred to the Mayor for additional consideration. If the Chief thought discharge was appropriate, then a full and final discipline should not have been issued. Based on the record submitted here, the procedure was improper and violated just cause standards.

Arbitrator Paolucci upheld the fifteen day suspension originally imposed by the Chief.

Minnesota Supreme Court rejects public policy challenge to reinstatement of police officer

Reversing the Court of Appeals, the MN Supreme Court has found no public policy basis for vacating an arbitrator's award reinstating an officer who had been dismissed for allegedly failing to report his use of force. City of Richfield v. Law Enforcement Labor Services, Inc.   The Court held:

The City argues that the court of appeals correctly held that enforcing this arbitration award violates "public polic[ies] in favor of police officers demonstrating self-regulation by being transparent and properly reporting their use of force" and "against police officers using excessive force" and would interfere with the City's "legal obligation" to enforce conduct standards for its police officers. City of Richfield, 910 N.W.2d at 477. The Union argues that the court of appeals focused unduly on Kinsey's conduct rather than on enforcement of the arbitration award, and reinstatement of Kinsey does not violate any public policy. We agree with the Union.
Assuming without deciding that a public-policy exception permits courts to vacate arbitration awards, the facts here do not support applying the exception. It is difficult to conclude that the arbitration award violates public policy given the finding that excessive force was not used. Kinsey's failure to report does not provide a basis for applying the public-policy exception because the arbitrator found that, even though Kinsey should have reported the incident, the City's policy was not clear on that question. The factual findings of the arbitrator, findings that we give deference to, do not support overturning the arbitration award on the basis of a rarely used public-policy exception.

The Court further held that the award did not undermine the Department's authority to enforce its policies, noting that the Arbitrator did uphold discipline (short of termination) because of the officer's failure to  report the incident. 

The Court of Appeals decision is discussed here. 

Community Police Commission response to Seattle OSC

Last week's post addressed the response filed by the Department of Justice to a Judge's inquiry whether Seattle was in compliance with a  consent decree concerning police use of force. Department of Justice says Seattle not violating consent decree on police use of force - new burden of proof language no impediment to effective discipline. The City's Community Police Commission has now filed its own response. It challenges the analysis of DOJ and is critical of what it describes as the heightened standard of review by arbitrators set forth in the City's most recent cba with the police union. It requests the Court "to convey that the Consent Decree will not be resolved until the City establishes that the accountability system reforms have in fact been secured."

The CPC's position is summarized in an article Citizen panel accuses Seattle police of backtracking on reforms, violating federal agreement, and the submission to the Court is available here.

"Brutal" hazing didn't provide just cause for termination when others involved weren't disciplined

The State of Iowa terminated the employment of a State Trooper following receipt of a report of hazing during police academy basic training class four years earlier.

Grievant was part of an Academy basic training class between June and October of 2008. As squad leader, grievant was assigned to assist another recruit who was having difficulties with the training. Grievant did not have a good relationship with the other recruit and believed he was unsuited for the training. He also believed the Academy would not dismiss the other recruit because his father was a trooper. Grievant engaged in what the other officer described as a pattern of threats and harassment. Grievant admitted he was attempting to induce the officer to quit. Grievant also engaged in "bonding' the other recruit. This involved handcuffing him to his bunk, pulling down his pants and rubbing Bond powder onto his "butt cheeks." While he did this, grievant called over other recruits to observe. It was undisputed that grievant was advised to stop verbally abusing the other recruit and that he did so, but there was conflicting testimony about whether the Academy leaders were aware of the physical interaction. Both individuals ultimately graduated.

 Approximately four years later, grievant met with a captain of the state police to report what had taken place during basic training. The captain initiated an investigation of what he described as a "sexual assault." As a result of that investigation, the employment of grievant and a second student who was deemed to have participated in the "bonding" was terminated. Other individuals who had observed the incident were questioned but not disciplined. The union pursued the dispute to arbitration, arguing that grievant had  been disciplined  at the time of the incident and that further discipline constituted double jeopardy. They also argued that grievant had been "set up" by Academy staff to cause the recruit to resign. The union claimed that, in any case, the discharge was not for just cause since the investigation took too long, the incident in issue was isolated, and that there was no showing of any impact of the incident on grievant's ability to perform his job.

Arbitrator Harvey Nathan rejected most of these contentions. He found no double jeopardy, noting that the warning grievant received while at the Academy "was directed to harassment generally, and specifically to the audacious verbal abuse...." He also found no basis to conclude that the Academy staff bore any responsibility for grievant's "loss of judgment" on the day in issue. However hid did conclude that if  the Academy had  more closely monitored activities in the barracks the  incident could potentially have been avoided.  Moreover, had the incident been reported promptly corrective action could have been taken immediately. Given the way the issue came to light, however, "there was little that could be done other than terminate the grievant. It was not the length of time of the investigation that prejudiced [grievant]. It was the Academy's failure to be on top of misbehavior in the barracks."

 While noting "there can be no minimizing of the brutal attack on a weak and innocent bunkmate," the Arbitrator ordered the Department to reinstate grievant with back pay from the date of the award.  Arbitrator Nathan concluded:

     While the grievant was the instigator of the assault, it would not have happened as it did if other recruits did not cooperate. Had the staff learned of what happened, either from [victim] or others, an investigation could have been opened as it was almost four years later. While obviously not as severe as forcibly stripping [victim] and pouring a substance on a private part of his body, standing there and cheering on the perpetrators was aiding and abetting the assault. There were many more people involved in this incident than just [grievant]. Someone there should questioned [sic] what was being done. The failure to intervene warranted discipline of several other recruits. Surely, the Academy needs to teach recruits that Troopers do not simply turn away when they see a colleague do something intolerable, let alone join forces with the miscreant after the hazing began.
     The defect in the Department's case was its failure to explore the incident after the meeting with [grievant] with the thoroughness that occurred in 2012. And with regard to that investigation, the Department should have disciplined all of the recruits, now Troopers, who directly or indirectly, were involved in the bonding incident. While this would have been difficult, once it decided to terminate [grievant] it was a violation of the "just cause" principle to ignore the several others who were involved.

Arbitrator Nathan's award (13-GA-0208 - State of Iowa (Dept. of Public Safety 10/5/2013) can be found here.

Note: According to a report in the Des Moines Register, here, the termination of the second student allegedly involved in the incident has been overturned by Arbitrator Clair Brooks.