Arbitrator: City didn't prove rape, but "extremely poor judgement" found. Termination converted to a 40 hour suspension

In his award in Portland Police Association and City of Portland, Arbitrator David Stiteler reversed the termination of a Portland police officer, converting the discipline to a forty hour suspension. Grievant had been dismissed for having sexual intercourse with an acquaintance (A) when she was too intoxicated to consent (essentially an allegation of rape) and by acting unprofessionally and in a way that could bring discredit on the Bureau by having sexual contact with A after she had been drinking.

Grievant, his wife and A had been friends for some time. Grievant and A had occasionally flirted, and later A, at grievant's request, sent him sexually explicit pictures of herself. There was conflicting testimony about subsequent interactions between the two.

The incident culminating in grievant's termination occurred during a party at grievant's  home in October of 2015. A testified that during the party she felt sick, went upstair to vomit and and went to lie down in a guest bedroom. There was a dispute about what took place next, but both agree there was some sexual contact on more than one occassion. A testified that grievant put his penis in her mouth. She asserted grievant left but returned a second time and repeated his conduct. He then, according to her, returned a third time and briefly had sexual intercourse with her. A testified that she tried to tell him to stop but was unable to say anything. According to grievant the sexual activity that took place was at A's invitation.

The next day A had a rape kit done, and several days later filed a complaint with the County Sheriff's office. The Sheriff's office conducted an investigation, and submitted its conclusion to the prosecutor's office which declined to prosecute, finding insufficient evidence to prove beyond a reasonable doubt that grievant had committed sexual assault. The Bureau conducted its own investigation and submitted its report to grievant's superior. He recommended that the first charge not be sustained, finding insufficient evidence to make a determination between the two versions of what had taken place. However, he recommended the addition of a second charge, that grievant had "acted unprofessionally and in a manner tending to bring reproach or discredit" to the Police Bureau "by having sexual intercourse with (A) after she had consumed alcohol." He felt the second charge was warranted, and a 40 hour suspension appropriate,  because "grievant should have been aware of consent issues."  The recommendations were reviewed (and concurred in) by more senior officers and by the Police Review Board, and were ultimately submitted to the Chief. The Chief initially agreed with the recommendations on both charges. Later, however, he concluded that the allegations of the first charge should also be sustained. Grievant's employment was thereafter terminated.

The dispute was grieved and submitted to Arbitrator Stiteler for resolution. Arbitrator Stiteler initially rejected the Union's claim that because the alleged misconduct occurred while grievance was off duty, it was "largely beyond the City's reach." He noted:

It is well established that an employer has an elevated burden when imposing discipline for conduct outside work. In such cases, the employer must show some clear connection between the alleged misconduct and its legitimate business interests.
I agree with the City, however, that the mere fact that Grievant may have been off-duty does not, in and of itself, mean his conduct is beyond the City's reach. Policy directive 310.00 expressly addresses off-duty conduct, and is aimed at conduct that could damage the public image of the Bureau and the City. The conduct at issue, involving questions about whether sexual activity was consensual, is of the type that falls within the policy directive's proscriptions, and its impacts are connected to Grievant's employment.

He also noted that a police officer's conduct, both on and off duty, is subject to greater scrutiny:

It is also well established that there is a certain relativism in judging alleged employee misconduct. Employees in certain jobs or industries may be held to a higher standard.
Law enforcement is one such profession. A police officer occupies a unique position of trust. That carries with it a special responsibility to avoid conduct that may damage the public's perception. Thus, Grievant's behavior, though off-duty, was a legitimate concern for the Bureau and the City.

However, he found the first charge unproven. While reinforcing that he did not necessarily find A's testimony "not credible," he concluded that in the absence of persuasive evidence there was no reasonable basis for the Chief to reject the recommendations of virtually everyone who had previously reviewed the case. Accordingly he found the Chief's decision to terminate grievant's employment was without just cause.

Nevertheless, he also concluded that the City had sustained the allegations of the second charge:

Grievant knew or should have known that he needed to avoid questionable behavior or misconduct. He knew or should have known that A had been drinking, regardless of whether she appeared intoxicated. He knew or should have known that A had been less enthusiastic about their involvement since the August lunch. All of those things should have led him to make sure she was okay with any sexual contact the night of the party. Instead, he ignored those things and engaged in conduct that could have brought discredit on the City and the Bureau.

Finding grievant had "exhibited extremely poor judgment in his behavior with A on the night of the party" Arbitrator Stiteler upheld the initial 40 hour suspension that had been recommended.

Police officer "wasted" second chance. Domestic violence and related publicity supports termination

Grievant began his employment as a police officer with the City of Coral Springs, FL in 2005. In 2010 he was arrested and convicted of two counts of battery on a detainee and his employment was terminated. An arbitrator subsequently ordered his reinstatement but found significant discipline to be warranted and awarded no back pay for the approximately two years he was off the job. He returned to employment in December 2013.

On April 22, 2015, while off duty, grievant was involved in a "heated argument" with his wife. During the course of the argument grievant punched a hole in the wall and used a crowbar to deflate the tires on his wife's car.  Grievant was arrested for domestic battery and a "no contact" order was entered against him. The altercation was covered by the local news station, and the story included reference to his prior conviction and the current charge of domestic violence.

On April 28, 2015 a neighbor called 911 to report that grievant had entered the marital home. The Sheriff's Office arrived shortly after grievant's wife also arrived. The wife falsely informed the Sheriff's officers that her husband was not on the premises. Nevertheless, a SWAT team was deployed  and remained on the scene after an initial aborted contact with grievant. There was conflicting testimony about the amount of further contact with grievant. Grievant claimed he had not been aware that the SWAT team was outside the house. The City maintained that local officers had talked and texted with grievant and informed him that SWAT was outside the house and had advised him to cooperate with the Sheriff's officers. Ultimately grievant's wife texted him and persuaded him to come out of the house. Grievant was arrested for violation of the no contact order and was formally served with a restraining order for the April 22 incident.

Once again, local news stations were on the scene throughout and took pictures of the deployed SWAT team.

In early May, grievant's wife dropped all criminal charges against him and he was never convicted of domestic violence/battery.

Following an investigation, the City terminated grievant's employment, and that action was ultimately submitted to Arbitrator Martin O. Holland for review.

Arbitrator Holland upheld the termination.  He noted initially the importance of public trust in its police officers:

Police Officers have a widespread respect from the general public. The public recognizes the significant hazards and risks police officers face every day. Police officers are the first line of defense from attacks or criminal conduct. A police career provides good wages, pension and benefits. Public trust is paramount as police officers provide service and protection to their citizens. 

Addressing the conflicting testimony, Arbitrator Holland found grievant's claim that the had not been aware that the SWAT team was outside his residence "absurd." He also found grievant's testimony "flippant" and "pugnacious." Reviewing grievant's disciplinary history, the Arbitrator observed that following his earlier termination an arbitrator had reinstated him but found his past discipline "significant" and a "major infraction." Nevertheless, that arbitrator had given grievant a "second chance" to save his career.

On the merits of the current discipline, Arbitrator Holland also addressed the fact that the conduct in issue had occurred while grievant was off duty. Notwithstanding that, the Arbitrator found discipline appropriate:

Generally, off-duty conduct is not a basis for discipline. ThyssenKrupp Budd Co., 121 LA 164 (Goldberg, 2005)   Arbitrators consistently hold off-duty conduct as outside an employer's realm. However, because of the special nature of police employment, municipalities may impose discipline. Kitsap County, 118 LA 1173 (Gaba, 2003)   A police officer is always a police officer whether on or off duty. They often carry firearms and are expected to be a steward of public safety even off-duty. The City, here, enacted reasonable Rules and Regulations in General Order-4 spelling out the on-duty and off-duty expectations of its police officers.   Those rules and regulations are well-founded and universally applied throughout the United States. There is no surprise when a city enacts standards of conduct for both on duty and off duty conduct. Professional conduct is expected of all police personnel, 365 days per year and 24 hours per day. 

He also found that the absence of a criminal conviction was not dispositive of the grievance, noting that "Just cause is not defined by a criminal statute."

Upholding the termination, Arbitrator Holland concluded that grievant had "wasted" his second chance, finding:

The City's reputation was harmed by the actions of the Grievant. Widespread media reports of aberrant behavior by a police officer is conduct unbecoming.
 The seriousness of [grievant's] infractions of General Order - 4 warrants discharge. Multiple police calls, multiple arrests, and multiple investigations outweigh any mitigating factors. 

Arbitrator Holland's award can be found here.

Another unsuccessful public policy challenge to an arbitrator's award

The City of Cleveland terminated the employment of a police officer for her essentially undisputed actions of stabbing a romantic partner.

 Grievant had been dating and, for a time, living with the partner. He had a criminal history of convictions for a number of offenses including drug possession, sexual battery, attempted kidnapping and  gross sexual imposition. On March 12, 2012 the two engaged in an argument and grievant, while intoxicated, stabbed the partner several times and fled the scene. She was found in her vehicle with a cord that was suspended from the ceiling of the car wrapped around her neck. Grievant was arrested and charged with felonious assault. She was subsequently charged with a reduced offense and sentenced to county jail for six months. The sentence was suspended but her employment was terminated.

In an award (discussed here) Arbitrator Paul Gerhart ordered her reinstatement. He concluded that while grievant had engaged in "particularly egregious" conduct the temination was not for just cause. Arbitrator Gerhart relied on evidence that other officers who had engaged in arguably similar behavior had not been terminated and found that this evidence of disparate treatment undermined the City's case. He noted also a number of mitigating factors and reinstated her (without back pay) subject to her refraining from alcohol  and her compliance with any requirements imposed by the City's Employee Assistance Program.

The City sought to set aside the award but the trial court refused to do so. The Court of Appeals of Ohio has now affirmed that decision and upheld the award. City of Cleveland v. Cleveland Police Patrolmen's Association. The City claimed that the award was contrary to public policy, a claim that the Court quickly rejected. The Court observed that the City had failed to state a well defined public policy argument and noted:

The arbitrator acted within his discretion, and the City did not effectively argue how his decision is in conflict with public policy. The City only argues that the public should be able to have the confidence in police officers and that officers should hold themselves to the highest ethical standard. However, there are many cases where police officers have not held themselves to such a high standard, and yet they were not terminated from their jobs. 

The Court also rejected the City's claims that the arbitrator improperly required it to use progressive discipline and did not issue a "final" award because he essentially deferred to the City's Employee Assistance Program to decide what, if any, continuing counseling was appropriate.