Arbitrator upholds termination of Sheriff's Deputy for off duty use of force

This case comes at a time one report notes " "[t]he issue of arbitration has come to the forefront of a national discussion on accountability in law enforcement."  Deputy fired after allegedly punching man in H-E-B parking lot loses fight to be returned to force 

In an Award involving a dispute between a terminated employee and the Bexar County, TX Sheriff's Office, Arbitrator Louise Wolitz has upheld the termination of a Sergeant in the Sheriff's Office who had been dismissed for his off duty use of what the Sheriff's Office asserted, and the Arbitrator found, was excessive use of force. 

The dispute involved a claim that the employee of the Sheriff's office struck another driver who he believed had backed into his truck and attempted to leave the scene while both were in a parking lot. The grievant maneuvered his vehicle into a position to block the other driver from leaving. When the other driver rolled down his window the parties engaged in a brief exchange, and grievant reached in a struck the other driver. During the investigation of the incident grievant maintained that he was attempting to stop the other driver from fleeing the scene and may accidentally have touched him while he was trying to grab the steering wheel. At the hearing, grievant acknowledged that he had struck the other driver.

Arbitrator Wolitz concluded that the Sheriff's Office was confronted "with a clear case of excessive use of force." 

On the propriety of termination, the Arbitrator noted:

The question of the punishment was for the Sheriff and the command officers to decide. After an investigation, they were unanimous in the decision to discharge Mr. Anderson. ... There was video evidence that [the other driver] was subject to an unjustified use of force by a law enforcement officer. This was clearly conduct unbecoming a law enforcement officer and, if it became public, would bring discredit on the Bexar County Sheriff’s Office. There was no reason to believe it would not become public. The records were subject to public release. The conduct would be detrimental and have an adverse affect on the Sheriff’s office if it were discussed in the media. ... Moreover, the fact that Mr. Anderson did not acknowledge his conduct and came up with an unconvincing story that he was simply trying to stop the car, called into question his honesty in other actions in the department and destroyed his credibility as a witness in court. His story was easily determined not credible by the available video evidence, especially when there were other ways to attempt to get [the other driver's] identification without using physical force. The disciplinary decision was for the command officers and the Bexar County Sheriff to make. There is no evidence in this record which requires the arbitrator to change their unanimous judgment.

Court vacates award reinstating police officer who struck handcuffed individual

A court has vacated the award of Arbitrator Jane Wilkinson reinstating Seattle police Officer Adley Shepherd. City of Seattle, Seattle Police Department v. Seattle Police Officers' Guild, Arbitrator Jane Wilkerson and Adley Shepherd  Officer Shepherd was dismissed following the Department's determination that he had used excessive force when he struck a handcuffed individual while attempting to place her in his patrol car. The interaction was captured by the in-car video.

Arbitrator Wilkinson concluded that Officer Shepherd violated the Department's Use of Force Policy. She found, however, that termination was too severe and not proportionate to the offense. Because of this lack proportionality, together with other mitigating factors, she reduced the termination to a fifteen day suspension.

In its decision, the Washington  Superior Court determined that the award was contrary to public policy and, accordingly, vacated it.

The Court found that the policy against police use of excessive force was explicit, dominant and well-defined. Turning to the question of whether the award reducing the termination to a fifteen day suspension was contrary to that policy, the Court concluded:

Allowing this imposed discipline to stand, which includes reinstatement of Officer Shepherd, sends a message to law enforcement officers and to the public that the use of excessive force on handcuffed or restrained persons is allowed in situations when officer patience is stretched thin or when an officer feels stinging pain inflicted by a handcuffed suspect who is no longer threatening immediate harm or when there are other options for control available. 

It is not clear from the opinion whether any discipline short of termination would address the Court's public policy concerns.

This award was one of the factors US District Court Judge James Robart relied on in concluding that the City was not in effective compliance with the consent decree entered into by the City and the US Department of Justice following a DOJ claim that the Seattle Police Department had engaged in a pattern and practice of excessive force. US v. City of Seattle. Judge Robart was critical of the City's efforts to ensure continuing accountability, particularly regarding the provisions contained in the most recent cba with the police union concerning the arbitration process for police discipline. The Court noted:

Because the CBA eliminates reforms instituted by the Accountability Ordinance and leaves the old arbitration regime "materially unchanged" (see U.S. Resp. at 3), the court finds that the City and SPD have fallen out of full and effective compliance with the Consent Decree concerning SPD discipline and accountability. Before the court will terminate the Consent Decree as it pertains to accountability, the City must bring itself into compliance in this area and then sustain that compliance for two years. (See Consent Decree ¶¶ 229-30.)

Both the City and the Community Police Commission have filed responses to the Court's concerns. Seattle’s police-reform plan is ‘busywork,’ citizen panel says in asking federal judge to reject proposal.  (Previous filings in the case are discussed here and here.)

Recent Decisions - Last Chance Agreement, "substantive due process" and police use of force

Arbitrator ignored Last Chance Agreement - Award vacated

The Sixth Circuit has affirmed a District Court decision vacating an award of Arbitrator John M. Felice. Tecnocap, LLC v. Graphic Communications Conference/International Brotherhood of Teamsters, Local 24M   Grievant was terminated after an absence caused by his car breaking down. Relying on a last chance agreement entered into by grievant and the Union, the employer terminated his employment. While acknowledging the LCA, the Arbitrator concluded:

 The fundamental principle underlying the discharge of an employee is that management must have just cause for imposing the discharge. The Company in the instant case appears to be applying its Policy in a punitive fashion. Simply because an employee is absent a specific number of times and accumulates a certain number of points does not, ipso facto provide for automatic discharge. No policy can vitiate the right of the Union to challenge whether the cause asserted for discharge is just under the CBA. To recognize such a policy through arbitration would be unreasonable since it would contravene the express intent and purpose of establishing and specifying cause for discharge under a labor agreement.

Finding that the Company had failed to meet the "fundamental indicia of just cause," the Arbitrator sustained the grievance and ordered the grievant's reinstatement with back pay.

The Company sought to have the award vacated and the District Court did so. here The Court concluded that the Arbitrator had exceeded his authority by ignoring the last chance agreement.

The Sixth Circuit (2-1) affirmed. It noted:

... an LCA is an agreed-upon predetermination of “just cause.” It is a concession by the employee (and the union) that the employer already had “just cause” to discipline the employee, who is thereafter on the grace of one “last chance” in exchange for a promise of compliance, the violation of which all three agree will be “just cause” for immediate discipline. ...  The employee is given ‘one last chance’ to correct his errant behavior, in exchange for which he agrees to certain conditions[,] . . . [the] failure to live up to [which] is [almost always] grounds for immediate dismissal, without the opportunity to file a grievance. . . .”). By signing the LCA in this case, both Witherow and the Union agreed that if Witherow had an unexcused absence in the next eight months, Tecnocap would have “just cause” to fire him.

Concluding that the LCA was an "agreed-upon predetermination of just cause" the Court affirmed the decision of the lower court.

Last chance agreements are also discussed in Last Chance Agreements- Arbitrability of triggering event

Arbitrator's reliance on "substantive due process" beyond the provisions of the cba, award vacated

The District Court in Kentucky vacated an award of Arbitrator Stephen L. Hayford reinstating an employee terminated pursuant to the employer's no fault attendance policy. Zeon Chemicals, L.P v. United Food and Commercial Works, Local 72D

Grievant's final absence resulted from his 30 day incarceration because of a plea to two charges of  battery in connection with an off duty incident. That absence put him at the point of termination pursuant to the employer's policy.  The Union grieved, arguing, inter alia, that the employer had the discretion under the policy to impose a thirty day suspension but refused to do so. The policy provided that, if an employee has 20 or more years of service "The Company may, at its discretion, impose a 30-day suspensions as an alternative to termination ... "  While acknowledging that grievant's accumulation of points under the employer's policy created prima facia proof that his discharge was for just cause, the Arbitrator concluded that other factors militated against termination. In particular he noted:

The substantive due process element of the contractual just cause standard contemplates that in this type of highly unusual situation, before terminating an employee under the ACP the Company will fully investigate the circumstances that led to the employee's exceeding  the 12 points total termination threshold of the Policy's progressive discipline procedure. This is especially imperative when the precipitating absences of an employee are due to off-duty misconduct that involves a felony criminal offense indicating moral turpitude on the employee's part. The Company's choosing not to investigate the events of July 15, 2015, that eventually resulted in [grievant's] being absent from the workplace ... was a serious omission on its part that arrived [grievant's] contractual right to substantive due process. It is a significant mitigating factor.

The Arbitrator reduced the termination to a 30 day suspension.

The District Court granted the Company's request to vacate the award. Rejecting the Arbitrator's reliance on the concept of "substantive due process" the Court concluded:

With this, it appears that the Arbitrator was not engaged in legitimate interpretation of the CBA, but referenced substantive due process solely to "dispense his own brand of industrial justice[]" in contravention of the explicit terms of the CBA. United Transp., 700 F.3d at 902 (citation omitted); see Mich. Family, 475 F.3d at 753. By employing the "interpolative reasoning underlying substantive due process," the Arbitrator effectively imposed upon the Company additional requirements found nowhere in the language of the CBA. The Arbitrator in this instance conflated the "just cause" language from Article III with the terms of the ACP to fashion a new requirement that the Company conduct an investigation into the facts surrounding an employee's accumulation of 12 points under the ACP. (Arbitration Award 21). Moreover, the Arbitrator essentially fashioned an additional subjective condition by requiring the Company "to make a full, fair and informed determination of whether exercise of its discretion to impose a suspension" and then held the Company failed in this regard, although the CBA explicitly leaves this determination to the Company's discretion and Jenkins never requested that he be suspended. (Arbitration Award 22). By the CBA's own explicit language, this provision of the ACP affords the Company the right to terminate any employee who exceeds 12 points under the attendance policy.

Finding that the Arbitrator "entirely disregarded" the plain language of the cba, the Court vacated the award.

Update: The Sixth Circuit reversed the decision of the District Court and reinstated the Arbitrator's award. Zeon Chemicals, L.P v. United Food and Commercial Works, Local 72D

Jury verdict finding excessive force insufficient to support termination

Arbitrator Peter R. Meyers overturned the termination of an Oak Park, Illinois police officer who had been dismissed for several alleged offense, most seriously the use of excessive force during his handling of a domestic violence call.  Illinois Fraternal Order of Police Labor Council and Village of Oak Park, Illinois.

An individual arrested and charged with domestic violence subsequently sued the Village and grievant, alleging grievant had used unnecessary and excessive force during the arrest.  A jury returned a verdict for plaintiff for $35,000. As a result of the verdict, the Chief ordered an investigation of the underlying incident. That investigation did not support a finding of excessive force, but did reveal what were alleged to be grievant's failure to have submitted a use of force form,  failure to properly secure evidence, and failure to provide the victim with paperwork required by the Illinois Domestic Violence Act.  Based on a review of transcripts in both the criminal trial for domestic violence and the civil case, the Village also concluded that "grievant had given untruthful testimony" that 'almost probably' met the standard of perjury under Illinois law.

Despite the initial conclusion that the evidence did not support a charge of use of excessive force, the Notice of Termination included this allegation as one of charges supporting grievant's ultimate termination.

In his award, Arbitrator Meyers noted that no explanation was provided for the inclusion of this unsupported claim except that the Chief's finding was based "almost entirely" upon the verdict in the civil case. Rejecting reliance on the jury's decision, the Arbitrator noted he must make the decision based on the evidence before him at the hearing, and that the award was entitled to no "precedential effect." He observed:

The Village has made much of the jury verdict in Durden’s favor in his civil rights suit against the Village and the Grievant, but this verdict has no impact here. Not only was the damages amount awarded to Durden basically nothing more than nuisance value, but Durden’s own testimony indicated that officers other than the Grievant were responsible for many of his claimed injuries and claimed civil rights violations. Just as a finding in an unemployment compensation hearing that the terminated employee was unfairly terminated has no weight or bearing on the subsequent arbitration over a just cause termination, so does a $35,000.00 judgment by a jury in a civil case where the standard of proof is different.

Based on the evidence and testimony presented at the hearing Arbitrator Meyers found no support for the allegation of use of excessive force. He also rejected several of the Village's other allegations as unsupported by credible evidence. Accordingly he found the termination to be without just case. Finding  merit to some of the other charges, Arbitrator Meyers converted the termination to a 30 day suspension.

Officer's use of force not unreasonable, Chief's subjective evaluation not supported by objective analysis

Arbitrator Daniel Saling upheld a grievance filed on behalf of a Tallahassee, FL police officer dismissed following an Internal Affairs investigation into a shooting incident. Florida Police Benevolent Association and City of Tallahassee The facts were largely undisputed. While on patrol, grievant had pulled behind what he believed to be a suspicious vehicle. The Arbitrator summarized what happened next:

On March 17, 2017, the Grievant was checking on a suspicious vehicle in a parking lot in front of a city owned building. When the Grievant got out of his marked patrol vehicle to speak with the occupant in the suspicious vehicle, the suspicious vehicle was placed in reverse and struck the Grievant's patrol vehicle, which then stuck the Grievant. The Grievant was without backup in a deserted parking lot and he drew his firearm and fired six shots into the driver side of the suspect's vehicle.

The vehicle left the area and was chased by Sheriff's Deputies.

 The Chief assigned the Department of Internal Affairs to conduct an investigation into grievant's actions during the incident. The initial report from IA found grievant's use of force reasonable. The Chief review that report and questioned the decision because it did not address the issue of "imminent danger" as set forth in the Department's Policy. That Policy provides "Officers may use deadly force only when they believe it is objectively reasonable to defend their life or the life of another person from imminent threat of great bodily harm or death." The IA investigator rewrote there report, changing the conclusion, and finding that grievant had not used reasonable force.  Grievant's employment was terminated, and the dispute was grieved and ultimately submitted to Arbitrator Saking for resolution.

Upholding the grievance, Arbitrator Saling concluded that grievant in fact "reasonably and objectively determined" that he was in imminent danger. Rejecting the conclusion of the modified finding he found:

The investigation by the lA Investigator was completed and there was a decision that the Grievant's conduct on the date of the incident, was within the provision of General Order 60, but the decision was changed when Chief DeLeo met with the lA Investigator and indicated that he subjectively did not believe the Grievant was in imminent danger. Chief DeLeo subjective evaluation of the incident is not supported by an objective analysis of the facts surrounding the incident.

Finding the Department's decision failed to follow the admonition found in the Supreme Court's Graham decision that an officer's judgment should not be evaluated based on hindsight, the Arbitrator ordered the grievant be reinstated with back pay.

A case containing a similar analysis is discussed in Oakland Police SWAT arbitration award - Just Cause not determined by reference to "Best Practices"

Just cause for termination but grievant denied due process - Arbitrator awards back pay but no reinstatement

Grievant was employed as a corrections officer with the Trumball County Ohio Sheriff's Office. On August 24, 2017 an incident in the jail led to an investigation by the Sheriff's Office. Grievant (and several other officer) were involved in the movement of an inmate who was returning to the jail from treatment following a suicide attempt. During the course of the transfer, the inmate became belligerent and was dragged and carried to his cell. An investigation of this incident ensued during which grievant was interviewed and his incident report was reviewed. Other officers were also interviewed and one of the other officers interviewed stated that grievant had struck the prisoner with his knee in the ribs/kidney and then struck him three times in the same area with a closed fist. These events were not included in grievant's Incident Report. After further investigation grievant was again interviewed. He then acknowledged for the first that he had administered two strikes to the prisoner in an effort to control him but had not included this in his incident report because he had "simply overlooked it." After an additional interview with another officer the investigating Lieutenant prepared a report charging grievant with violation of policy. Grievant was then called to a meeting with  the Chief Deputy where he was given a Notice of Discipline indicating he was being discharged.

The Union (Ohio Patrolmen's Benevolent Association) grieved the dismissal and the case was presented to Arbitrator Nels Nelson. The Union claimed that Grievant had been denied the due process called for by both the cba and the Constitution, and that the termination was without just cause.

Arbitrator Nelson agreed with the Union's due process position. He rejected the position of the Sheriff's Office that the Internal Affairs  investigation satisfied the right to a pre-termination hearing and its claim that grievant had waived a pre-termination hearing. However he did conclude that there was just cause for discipline . He found that grievant had used excessive force against the inmate and rejected grievant's claim that his failure to mention his use of force in his incident report and his first interview was caused by a "lapse of memory."

Turning to the question of remedy, Arbitrator Nelson observed the this question was more difficult than in most cases. He noted:

In the instant case, the seriousness of the grievant's offenses makes it inappropriate to return him to work, which eliminates two of the usual remedies for due process shortcomings, i.e., reinstating the grievant with no back pay  or reduced back pay.
Page 217 of The Common Law of the Workplace  recognizes that there is a third option where there is just cause for discharge but the employer failed to provide procedural due process. In this situation, some Arbitrators award back pay without reinstatement. This alternative prevents the reinstatement of an employee who has committed a serious offense and at the same time, recognizes the employer's denial of due process. (footnote omitted)

Arbitrator Nelson's selected the third option. He declined to reinstate grievant. However, he awarded back pay from the date of termination until the final day of the arbitration hearing. By that day, the Arbitrator determined, "grievant had received all of the rights a pre-termination hearing would have provided."

Arbitrator Nelson's award can be found here.

Update: The propiety of this type of remedy is also addressed in  Quick Hits - Back pay but no reinstatement, Arbitrator's reliance on external law, and Social media, law enforcement officers and the First Amendment

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.

Fitness for duty, just cause and the role of the arbitrator

These were the topics addressed in a recent decision of the Appellate Court of Illinois in The City of Rockford v. Policemen's Benevolent and Protective Association, Unit 6.

Grievant was employed by the City as a police officer. In August of 2009 he was involved in an altercation involving a hand to hand struggle with a suspect over the officer's weapon. During the altercation grievant shot and killed the suspect. The case was presented to a grand jury but no indictment followed. Grievant was not disciplined for his actions during this incident. After the shooting, grievant was placed on paid leave and was treated for PTSD. In July of 2010 the Chief ordered him to report for a psychological fitness for duty exam. The city retained an expert to examine grievant, and grievant, as was his right under the labor agreement, retained his own expert.

The City's expert found grievant unfit for duty, while grievant's reached a contrary conclusion. Relying on the report of its retained doctor, the City terminated grievant's employment. That termination was grieved and submitted to Arbitrator Elizabeth Simon for resolution.

The arbitration hearing was bifurcated. The arbitrator first addressed the Union's contention that in light of the conflicting medical opinions the City had no right to proceed to termination. The arbitrator rejected this claim, finding that there was no contractual prohibition on the City proceeding but noting that any decision was subject to the just cause provision of the labor agreement. The matter then proceeded to a second hearing on whether the City's action was supported by just cause.

After the second hearing the arbitrator found that the City failed to prove grievant's unfitness for duty. She largely rejected the conclusion of the City's doctor and found grievant's expert more persuasive. She ordered the City to reinstate grievant to the position he held immediately prior to his termination. However, she further ordered that before he could return to active duty he would be required to be evaluated by a third psychologist whose fitness determination would be final.

The City sought to vacate Arbitrator Simon's award. The circuit court confirmed the just cause portion of the award, but vacated the remedy provision, remanding the case to the arbitrator to create a new remedy in which the arbitrator retained decision-making authority. The City appealed that decision, and the Union appealed the Court's rejection of its efforts to obtain back pay.

The Appellate Court has now affirmed, upholding of the arbitrator's just cause determination but vacating that portion of the award dealing with the remedy.

The court found no basis to overturn the arbitrator's just cause analysis. It rejected the City's public policy challenge, finding it "based on rejecting a factual determination by the arbitrator." It also questioned the City's approach, noting:

The City’s argument that it should not be limited by section 1.2’s just-cause requirement caused much confusion in this case. The City essentially argued that it should have the power to terminate based on section 15.15 alone (unfitness), without the limitations of section 1.2 (just cause). In this way, the City encouraged the arbitrator to view the ultimate question as one of fitness, not just cause. By encouraging the arbitrator to view the ultimate question as one of fitness, the City forfeited an opportunity to argue that, even if [grievant's] mental condition did not rise to the level of unfitness, [grievant's] mental condition, combined with other factors, such as policy violations and firearm misuse, could constitute just cause to terminate. We believe that, in erroneously framing the ultimate question as one of fitness, the City invited the arbitrator to issue the somewhat confusing analysis of which the City now complains, including a weak comparison of the experts and a seemingly dissonant remedy. The award reads as though the arbitrator did not realize that she could both find [grievant] unfit and still find no just cause to terminate (based on mitigating factors such as trauma incurred on the job, and, despite prior policy violations, a good disciplinary record and, thus, effective condonation by the department of the policy violations and firearm misuse (see, e.g., Des Plaines, 2015 IL App (1st) 140957, ¶ 13, ¶ 21)). For the reasons stated, however, the arbitrator’s somewhat confusing analysis does not provide a basis to set aside the award in favor of a cleaner analysis, particularly where the City encouraged the arbitrator to view the case as it did.

As to the remedy, however, the Court found that the arbitrator exceeded her authority by effectively delegating the final decision to a psychologist:

The parties bargained for an arbitrator to decide the remedy, not a psychologist. ...Here, the arbitrator placed the question of [grievant's] return to active duty at the sole discretion of a psychologist. We agree with the circuit court that the arbitrator’s remedy “punts” a decision to a psychologist and, thereby, abdicates all “hallmarks of adjudicative procedure.”

The court also found the award inconsistent with the cba, pursuant to which the Chief can appoint an expert and the officer subject to an exam may procure his or her own expert.

Accordingly the court vacated the entire remedy portion of the award and remanded the issue to the arbitrator, which also allows the Union to renew its claim for back pay.

Arbitrator's finding that police officer's use of force was reasonable precludes public policy challenge to reinstatement award

On March 30, 2012, Arbitrator Jane Wilkinson ordered the reinstatement of Portland police officer Ronald Frashour. Officer Frashour had been dismissed because of the Chef's conclusion that he had used  excessive force in his fatal shooting of an individual who turned out to be unarmed. The Chief deemed Officer Frashour's conduct contrary to the Department's  use-of-force policies. Arbitrator Wilkinson's award is discussed here. She concluded that the City had failed to establish that the officer's conduct was objectively unreasonable or contrary to the Department's policies. 

The City announced that it would not comply with the arbitrator's award (Mayor Will Not Follow Arbitrator's Order To Reinstate Frashour). It claimed, inter alia, that the award was contrary to public policy. The Portland Police Association filed an unfair labor practice charge with the State's Employment Relations Board. The ERB upheld the award (here), holding that in light of the Arbitrator's findings that there was no basis to the claim the Frashour had violated Department policy there was no public policy bar to his reinstatement. The City appealed the decision to the Oregon Court of Appeals. The City's claims, and the Union's response, are discussed in Police discipline and public policy.

The Court of Appeals has now affirmed the ERB's decision. Portland Police Assn. v. City of Portland. The Court agreed with the ERB's analysis that because the arbitrator found that Frashour "was not guilty of the misconduct for which discipline was imposed" there was no violation of public policy in enforcing the award. The Court also rejected the City's alternate argument that the arbitrator's failure to defer to the decision of the Chief was, itself, contrary to public policy: 

In the city's view, [the ERB's] approach was flawed because it failed to consider that the arbitrator's conclusion that Frashour did not engage in misconduct itself violated public policy, specifically, the public policy, "clearly defined in statute and case law, that deference be given to the determination by the Chief of Police of the City of Portland that Officer Frashour's use of deadly force violated the City's policies." As a result, according to the city, the award was unenforceable under ORS 243.706(1), and the board therefore erred in concluding that the city had committed an unfair labor practice when it refused to implement the award.

The Court noted that "the statute does not appear to impose that same 'public policy' limitation on the arbitrator's review of the misconduct determination itself."  Affirming the conclusion that once the arbitrator concluded that the officer had not committed the misconduct alleged the public policy exception to enforcement of the arbitrator's award simply didn't apply, the Court observed:

the city has failed to identify statutes or judicial decisions "clearly defin[ing]" a public policy requiring deference to a police chief's determination regarding whether an officer has violated a city's use-of-force policies. See Salem-Keizer Assn. v. Salem-Keizer Sch. Dist. 24J, 186 Or.App. 19, 24-25, 61 P.3d 970 (2003) (for ORS 243.706(1) to bar the enforcement of an arbitration award, "the award must order something that either the legislature or the courts have determined to be contrary to public policy").

The City is currently reviewing the decision and has not yet announced whether it will appeal further. Portland considers taking Frashour's reinstatement order to state Supreme Court.

Arbitrator overturns suspension of police officer disciplined for alleged use of excessive force

Arbitrator Michael Cavanaugh, chair of a unanimous three person panel, has sustained a grievance filed on behalf of a Seattle police officer challenging his eight day suspension for claimed use of excessive force.

The incident in question arose during an investigation of an individual believed to have been involved in a hit and run. Grievant was one of two officers who initially stopped the suspect. These two officers were then joined by a third. While inspecting the suspect's vehicle grievant observed what he believed to be a failure of the suspect to comply with the requests of the other officers. Grievant approached the suspect and using a "command voice" (a tactic he had been trained to use) ordered the suspect to "shut your mouth and just sit there." A struggle ensued as the officers attempted to handcuff the suspect, and in the course of the struggle the suspect spit on the officers. Grievant struck the suspect with his forearm and, after the suspect was on the ground, struck him with a closed fist.

A review of grievant's conduct was conducted, and a Sergeant, and acting Lieutenant and a Captain concluded that greivant's actions were reasonable and within policy. The Captain however referred the matter to the Office of Professional Accountability for a "complete and thorough review."

The OPA found grievant's use of force unjustified and unnecessary. It found that he had unnecessarily escalated the situation by injecting himself in an aggressive manner and that his use of force was "premature".

Consistent with the recommendations of the OPA, the Chief suspended grievant for a period of eight days. The Seattle Police Officers' Guild grieved and ultimately arbitrated this discipline.

Initially Arbitrator Cavanaugh addressed the nature of the dispute:

Allegations of excessive force by police officers require consideration of several significant - and often conflicting - public policy and political considerations, each of which is critically important in its own right, e.g. public safety, officer safety, the rights of individual members of the public, and the health of relationships between the SPD and the communities it serves - not to mention the City's compliance with a settlement agreement with the United Sates Department of Justice resulting from claims the SPD has too often used excessive force. 

The Arbitrator noted that just cause for the discipline could be established:

only if facts sufficient sufficient to support the discipline have been established by a preponderance of the evidence in the record, and even then, only if the process used by the City comports with accepted notions of due process and with concepts of equal treatment when considered in light of the discipline imposed on other officers for similar established offenses.

Applying these standards, Arbitrator Cavanaugh concluded that the City had failed to meet its burden. He determined that what the OPA had deemed to be improper escalation was a legitimate, if unsuccessful, attempt to obtain the suspects compliance without the use of force. He also noted that while what the Chief had described as tactical errors had been made, these errors were equally the responsibility of the other officers on the scene and there was no evidence that they had been disciplined. Finally, he concluded that the evidence failed to establish that the blows delivered by grievant were excessive. With regard to the first, he found an absence of evidence that any reasonably available lesser level of force would have been effective in ending the suspect's assault (i.e. the spitting), and with regard to the second, he found that the City had failed to effectively counter grievant's testimony that the suspect was continuing to resist while he was on the ground.

Finding a lack of just cause for the discipline, the Arbitrator ordered the City to remove the suspension from grievant's record and make him whole for lost wages.

The Seattle Times reports on the award Panel overturns suspension of SPD officer in use-of-force case and links to the award of Arbitrator Cavanaugh here.

Arbitrator upholds grievance of Miami police officer terminated for fatal shooting

Arbitrator Martin Soll has found that the termination of a Miami police officer was without just cause.

Grievant was dismissed following his involvement in a fatal shooting. He was part of a joint task force investigating suspected gang activity in Miami. As a result of a request from another officer to stop a car leaving a bar believed to be frequented by gang members, grievant and several other task force members stopped the vehicle. Grievant approached the car and directed the driver to "show your hands." The driver did not  comply, but according to grievant, appeared to reach for what grievant believed to be a weapon. Grievant yelled at the driver "don't do it"  and when the driver continued, grievant fired three shots, killing the driver and wounding the passenger. In fact, the driver had no weapon but what grievant perceived to be a weapon was actually a cell phone.

The shooting was investigated by the Department's Firearms Review Board, and the Board concluded that the firing was unjustified and in violation of the Department's Use of Force Policy. The Chief concurred and terminated the employment of the grievant. The Chief's reasons were summarized in four specific charges, including (i) an allegation that the evidence concerning the shooting was inconsistent with grievant's statement, (ii) a conclusion that neither grievant nor any other person was in imminent danger of death or serious injury, (iii) an allegation that the evidence was inconsistent with grievant's statement that he had seen a black object he believed to be a gun, and (iv) a charge that grievant should not have approached the vehicle but should have instead retreated.

The Union (FOP Lodge No. 20) was unable to resolve the dismissal in the grievance procedure, and submitted the dispute to arbitration before Arbitrator Martin Soll. Based primarily on his factual findings, Arbitrator Soll concluded that the City had failed to meet its burden of proof on the four charges. He concluded that in fact the evidence was consistent with grievant's statement concerning both the shooting and grievant's perception of a weapon. Regarding the second and third specifications, Arbitrator Soll found that the Firearms Review Board had concluded, and the evidence at the hearing supported a finding, that  grievant "reasonably believed he saw what appeared to be a weapon." The Arbitrator found further that there was no basis for the charge that grievant should have retreated,and there was no support for the allegation that grievant had violated the Deadly Force Policy. The Arbitrator found nothing in the Department's Policy requiring  retreat, but instead observed that it specifically provided "it must be remembered that by law, an officer need not retreat in his/her efforts to lawfully control a subject ...".

Arbitrator Soll also noted that, while not determinative, the Office of the Miami-Dade County State Attorney had investigated the shooting and deemed it justified.

Finding no support for the City's allegations the Arbitrator ordered the City to reinstate grievant with back pay

Arbitrator Soll's award can be found here.