Termination of police officer for off duty DWI upheld

Grievant was employed as a Sergeant on the Litchfield, MN police department. The department consisted of a Chief and eight licensed officers. In the early morning of October 27, 2016, grievant, while driving off duty, was stopped by a Sheriff's Deputy. The Deputy administered a preliminary blood test that registered grievant's blood alcohol content at .146. He questioned grievant concerning whether he had drinking. According to the Deputy, grievant initially denied having been drinking but later claimed to have had two, or maybe three, beers a couple of hours earlier. Grievant was arrested and charged with "driving while impaired" (DWI). A blood alcohol test approximately two hours later placed grievant's blood alcohol content at .186.

Following an investigation, grievant's employment was terminated for violation of several Department policies, including "criminal, dishonest, or disrespectful conduct, whether on or off duty that adversely affects the members relationship with the department,"failure to maintain a current drivers license {grievant's license had been administratively revoked following the incident], giving false or misleading statements [related to grievant's denial of having been drinking when questioned by the Deputy], and conduct unbecoming.

The termination was grieved and ultimately submitted to Arbitrator Carol Tidwell for decision.

Initially, Arbitrator Tidwell found that the policies in issue were reasonable ones. She noted:

The arbitrator finds that the policies, principles, and procedures cited above which the Employer asserts were violated by the Grievant are all eminently reasonable, including the provisions that relate to off duty conduct. Police officers are charged with enforcing the law and their violation of the law, especially when this occurs in a public setting as is the case with a DWI violation on a public road, is especially harmful to the reputation and ability of the police to maintain law and order among the general population. This is just as true when the behavior occurs off duty. It is accurate, as the City’s rules state, that an officer’s ability to do his or her job is dependent upon the respect and confidence the local population has in the police. It is highly reasonable for the City to consider the potential effect that an officer’s behavior at any time, on or off duty, has on the community’s opinion of the officer and by extension the local police department, and to promulgate rules that require exemplary behavior of its officers at all times. 

She also found that grievant had in fact violated the rules. While the criminal charges against grievant remained pending, she found that the Department had established that grievant "was indeed driving his vehicle on a public road having consumed a large quantity of alcoholic a state of impairment ...," and had given false information to the Deputy who stopped him. Similarly she found that grievant's loss of his driver's license and the subsequent conditional reinstatement subject to an ignition interlock device posed legitimate safety concerns and would engender a negative reaction in the community. Grievant's actions, concluded the Arbitrator, were egregious and the impact that conduct  in a small community particularly severe.

Arbitrator Tidwell also found that the City had established that grievant "lied repeatedly" to the arresting Deputy. While agreeing with the Union that the existence of a Brady/Giglio disclosure obligation does not automatically require an officer's termination, "it does not mean that a Brady/Giglio officer must be retained in the Department if the Department cannot accommodate that officer."

Turning to potential mitigating factors, the Arbitrator noted grievant's prior alcohol related issues and his apparent unwillingness to confront his problem with alcohol. The Arbitrator also remarked on the absence of any other officer of the Department testifying in his behalf. She did, however, reject Department's contention that grievant's plea of not guilty to the DWI charge, and his action in contesting the validity of the claimed consent to a blood test, evidenced a refusal on his part to "take responsibility" for his actions, concluding:

The arbitrator is convinced ... that employees such as the Grievant in this case should not be effectively forced to forego their Constitutional right to a trial and to contest evidence against themselves in a criminal proceeding in order to maintain or regain their employment.

Finally the Arbitrator considered and rejected potential remedies short of termination. Demotion, she concluded, would remove his leadership responsibilities but would not address the violation of the standards of conduct expected of him. Reinstatement on a last chance basis, or after completion of an alcohol abuse program would of necessity be based on grievance's recognition of the need for such treatment and a willingness to undertake it, something she concluded he was not ready to do. In light of this she noted:


It is well-settled in labor matters concerning discipline that the punishment must fit the crime. The arbitrator concludes that upholding the Grievant’s termination meets this standard; indeed she concludes that it is the only appropriate remedy in this case.

Arbitrator Tidwell's award can be found here.  A case also addressing whether an officer's denial of acts of misconduct provide a basis for a charge of dishonesty is discussed at Police officer's denial of misconduct insufficient to establish untruthfulness

Off duty misconduct, just cause, burden of proof and leniency

All of these topics are  addressed in a recent award by Arbitrator Howell Lankford in International Association of Firefighters, Local 27 and City of Seattle Fire Department. Arbitrator Lankford denies the grievance filed on behalf of a firefighter for actions relating to an alleged assault on homeless individuals in the City's Pioneer Square area.

While off duty, grievant and two friends attended a Seattle Sounders game. Before, during and after the game, grievant consumed a number of drinks. At some point grievant and his friends were walking to a local restaurant when they observed several homeless people on or near the Fallen Fireman's Memorial. A dispute ensued and became physical and the fighting continued for about eight minutes. The identity of the aggressor was disputed, but grievant and his friends were arrested for assault.

After an investigation, grievant's employment was terminated. The charges specified in the Notice of Termination included: 1. Aggressive Fighting with Homeless Victims, 2. Interference with Law Enforcement Investigation, 3. Misuse of Position, and 4 Negative Community Impact.

The termination was grieved and ultimately brought to arbitration before Arbitrator Lankford.

In deciding the issue, Arbitrator Lankford first reviewed the concept of "just cause." He observed:

Many learned volumes have been written on the notion of just cause in American labor arbitration. In the end, however, just cause is simply a distillation of our shared response to some of the common, occasional shortcomings of employee discipline. Most of the issues arising under the just cause standard divide into three classes: It is not just to discipline an employee for misbehavior that he or she did not actually commit. It is not just to exact a disciplinary penalty which the employee could not have known to be a possible consequence of such misbehavior. And it is not just to administer the disciplinary process in fundamentally unfair and irregular ways.5

__________
5The Department proposes arbitrator Daugherty’s “seven tests” from Enterprise Wire and other reported cases ... . The “seven tests” have generated a very substantial body of scholarly discussion, but that approach does not represent the view of a majority—or even a very substantial minority—of current main line American labor arbitrators.

Applying these standards, Arbitrator Lankford addressed the appropriate burden of proof. He rejected the Union's contention that the City should be held to a "beyond a reasonable doubt" standard, but also rejected the City's claim that it should be held only to a preponderance of the evidence test. He concluded:

The Union points out that NAA arbitrator Mike Beck wrote in 2005 in a case between SEIU 925 and King County that “...in discharge cases involving alleged...stigmatizing behavior a significant number of arbitrators impose a beyond a reasonable doubt standard.” (At 24.) But in that case arbitrator Beck honored the ‘beyond a reasonable doubt’ standard only in the breach. The cited case did involve stigmatizing misbehavior and what arbitrator Beck actually required was proof by clear and convincing evidence. In my first 30-odd years as a labor arbitrator, I have not yet heard or read a case in which it would have been appropriate to require proof beyond a reasonable doubt. On the other hand, I agree that a majority of main line labor arbitrators recognize that some discharge cases—those alleging misbehavior that would be criminal and would have catastrophic career implications—require proof by clear and convincing evidence. Because this is not such a factually close case that the measure of the City’s burden of proof matters to the outcome, I assume without deciding that the City must prove its case by clear and convincing evidence.

On the merits, and relying primarily on several recorded 911 calls made at the time of the incident, the Arbitrator concluded that the City had established that grievant had instigated, escalated and returned after having an opportunity to disengage. He rejected the Union's claim that grievant's acquittal on a misdemeanor charge of assault and malicious harassment of the homeless preluded a finding of just cause, noting the differing burden's of proof and evidentiary standards. He also found that the City had established that grievant interfered with the police investigation by actively misleading police officers on the scene. He also concluded that the evidence "clearly established" that grievant's conduct had a significant impact on the Department's relationship with the community, and in particular the homeless community. However he found unsupported the allegation grievant had requested special consideration because of his status as a firefighter. Based on these findings, he found the City had just cause for the termination.

Finally he declined the Union's request that grievant be given a "second chance" because he had  entered and successfully completed an alcohol rehabilitation program, noting:

In the past, as in the case of [], the Department has given some firefighters a second chance in light of such a voluntary submission to treatment. If I were the Department, I might extend that same discretion to [grievant], but that is the Department’s discretion, not an arbitrator’s.25 The Department established just cause for his discharge by clear and convincing evidence, and the Union’s grievance must be dismissed.

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25The Department quotes the renowned arbitrator Whitney McCoy, from the very first volune of BNA’s collection of labor arbitration awards: “The only circumstances under which a penalty imposed by management can be rightfully set aside by an arbitrator are those where discrimination, unfairness, or capricious and arbitrary action are proved—in other words, where there has been an abuse of discretion.” Stoakham Pipe Fittings Co., 1 LA 160, 162 (1945). One part of arbitrator Daugherty’s Enterprise Wire discussion that remains valid almost 50 years after its publication is his observation that “lieniency is the prerogative of the employer rather than of the arbitrator; and the latter is not supposed to substitute his judgment in this area for that of the company unless there is compelling evidence that the company abused its discretion.” 46 LA 359, n4 (1966). In this instance, I cannot find a basis for concluding that the Department’s decision to discharge [grievant] was an abuse of its discretion.

The Seattle Times reports on this dispute, Seattle firefighter, acquitted in attack on homeless in park, fails to win his job back and links to the award here.

For another case discussing the impact of an acquittal on the just cause issue see Acquitted of criminal charges, but just cause for dismissal

Quick Hits - Law Enforcement

Officer's growing large amount of marijuana doesn't justify immediate dismissal

Grievant was employed as a police officer for the City of Buffalo. He was the subject of criminal and internal affairs investigations which revealed that he was growing large amounts of marijuana in a warehouse. He had visited the area of the warehouse on several occasions in his police vehicle. When confronted with the results of the investigations, the officer acknowledged that he had been participating in the marijuana grow operation since before he joined the Department. The Police Commissioner summarily terminated his employment. The Buffalo PBA pursued a grievance claiming that the City had failed to provide grievant with the contractual right to an informal conference and a formal hearing before terminating his employment. Arbitrator Jeffrey Selchick sustained the grievance, noting "the [contract] language brooks no exception based on the Commissioner's perception, no matter how reasonable and well founded, that the evidence of an officer's wrongdoing is overwhelming and termination is fully justified." The Arbitrator ordered the City to pay grievant for lost pay until the date of his guilty plea, less a thirty day unpaid suspension the City would have been contractually able to impose while it investigated.

 WIVB.com reports on the case, City to pay nearly $220k to dirty cop behind bars, and Arbitrator Selchick's award can be found here.

Public policy requires a determination of likelihood grievant will re-offend before reinstatement award can be upheld

An earlier post, Arbitrator overturns termination despite finding "unnecessary, unjustified, unreasonable" use of force because of due process considerations, noted an award reinstating a police officer who had been accused of using excessive force and of being less than candid with the Department. Although finding both of these allegations supported by the evidence, the Arbitrator found the delay in the Department's investigation and the failure of superior officers with knowledge of the incident to take timely action weighed against termination. Accordingly he ordered the grievant's reinstatement without back pay. The City sought to vacate the award, and the Circuit Court for Cook County granted the City's request, finding the award contrary to public policy. The Union appealed, and the Illinois Appellate Court has now reversed that decision and sent the dispute back to the arbitrator for him to make a specific finding on the likelihood that grievant would engage in similar conduct if reinstated. Clarification of the award is necessary, according to the Court, to allow it to "fully assess [the award's] public policy implications." The Court's opinion can be found here.

Sheriff's Deputy leaving official vehicle in the dark on side of highway and making false statement during investigation just cause for dismissal

Arbitrator James R. Cox has upheld the termination of a Sheriff's Deputy for parking his official vehicle at least partly in the traffic lanes, turning the lights off and then "intentionally making false and inaccurate reports of the circumstances to investigating officers." Pantagraph.com reports on the case, Ex-deputy's firing upheld by arbitrator, and links to the award of Arbitrator Cox here.

Dismissal of officer for discharging weapon while off duty upheld

The Connecticut State Board of Mediation and Arbitration has denied a grievance filed on behalf of a New Haven officer. Grievant was one of three off duty officers at a restaurant when the New Haven PD received a report of shots being fired in the area. Several spent shell were found in the area and it was determined that 5 of the 6 shells had come from grievant's weapon. The Union maintained that the evidence was insufficient to support a termination, or, alternatively, that lenience should be shown and a lengthy suspension be imposed. The panel unanimously rejected these positions noting "This incident was not a minor issue such as firing off a firearm in the woods by teenagers. This was an incident where a mature police officer fired off at least five rounds in the middle of a congested city where someone could have been wounded or killed by an off duty police officer sworn to uphold the law against such activity."

The panel's decision can be found here

Connecticut Supreme Court clarifies use of public policy in challenges to arbitration awards

Since first recognizing a public policy exception to the general rule of deference to arbitrator's awards, the Connecticut Supreme Court has issued six decisions in which an employer has sought to vacate, on public policy grounds, an arbitrator's award reinstating an employee. The Court summarized those decisions as follows:

 In one half of those cases, we held that reinstatement of the terminated employee violated a clear public policy of the state. See State v. AFSCME, Council 4, Local 391, supra, 309 Conn. 521 (correction officer engaged in persistent sexual harassment of coworkers); Groton v. United Steelworkers of America, 254 Conn. 35, 36–37, 757 A.2d 501 (2000) (weighmaster at municipal landfill pleaded nolo contendere to embezzlement charge); State v. AFSCME, Council 4, Local 387, AFL-CIO, 252 Conn. 467, 468–69, 747 A.2d 480 (2000) (correction officer placed obscene, racist telephone call to state senator). In the other three cases, we upheld the decision of the arbitrator reinstating the terminated employee. See Stratford v. AFSCME, Council 15, Local 407, supra, 315 Conn. 50–52 (police officer misrepresented history of alcohol use during official medical exam); State v. New England Health Care Employees Union, District 1199, AFL-CIO, supra, 271 Conn. 129–31 (Department of Mental Retardation employee shoved agitated client into chair); South Windsor v. South Windsor Police Union Local 1480, Council 15, 255 Conn. 800, 802–805, 770 A.2d 14 (2001) (police officer deemed unfit for duty after drawing gun on trespassers playing basketball in school gym). 

In its unanimous decision in Burr Road Operating Company II, LLC v. New England Health Care Employees Union, District 1199 the Court has, in an effort "to assure consistent, principled decisions," clarified the factors a reviewing court should consider when evaluating such a claim. The case arose from the arbitration of a grievance filed by an employee of a nursing facility. The grievant had delayed in reporting her suspicion that a resident had been abused. The arbitrator concluded that while the delay warranted some discipline, termination was too severe. The employer sought to vacate the award, but the Superior Court denied the request. The nursing home appealed, and the Appellate Court (in an opinion discussed here) vacated the arbitrator's award. The Appellate Court determined that the award violated the public policy calling for protection of nursing home residents. The Supreme Court has now used this case to clarify the factors to be used by courts in reviewing awards in the face of a public policy challenge, and to assist arbitrators in the types of factual findings they may make to assist a reviewing court in considering such a challenge. The Court synthesized a four pronged test for review:

Specifically, in determining whether termination of employment was necessary to vindicate the public policies at issue, both the majority and the dissenting opinions of this court have, either expressly or implicitly, focused on four principal factors: (1) any guidance offered by the relevant statutes, regulations, and other embodiments of the public policy at issue; (2) whether the employment at issue implicates public safety or the public trust; (3) the relative egregiousness of the grievant’s conduct; and (4) whether the grievant is incorrigible

Applying these factors to the case before it, the Court first found no serious challenge to the applicable public policy of protecting vulnerable nursing home residents. Concerning the second issue, the Court observed that it is a "rare case" in which the Court will vacate on public policy grounds an award reinstating an employee in the private sector. It recognized however, a limited exception when reinstatement of a grievant by itself would pose a serious threat to public safety (e.g. reinstatement of a pilot for operating an aircraft while drunk). The Court noted that residential nursing home facilities pose "something of an exceptional case" because of the state's interest in protecting vulnerable residents. It found this factor neutral with respect to vacating the award in this case. Turning to the third and fourth factors, the Court found an insufficient basis for overturning the award. It noted that, as found by the arbitrator, grievant had in fact ultimately reported her suspicions, and there was no evidence of a likelihood of recidivism. Finding that the Appellate Court had improperly substituted its judgment for that of the arbitrator, the Court reversed and remanded the case for consideration of a second issue not previously addressed by the Appellate Court.

Alcohol fueled misconduct found just cause for termination despite rehab

Arbitrator Joseph Duffy has upheld the termination of an Able Bodied Seaman in a dispute between the State of Washington and the Inland Boatmen's Union of the Pacific.

Grievant was employed by the Washington State Department of Transportation, Ferries Division. On April 5, 2013, while he was off duty, grievant drove his personal vehicle on board a ferry operated by the employer. While on board, grievant engaged in conversation with two other employees. According to these employees grievant was intoxicated and made offensive and racially charged comments to both, as well as comments about a passenger. The grievant was also alleged to have engaged in inappropriate physical contact with a female coworker. The coworker testified that grievant thrust his hands between her vest and her shirt, rubbed against her from behind, and placed his face against the back of her neck. During the employer's investigation of this incident grievant claimed he had no recollection of the events in issue, saying he was in an alcoholic blackout at the time. The employer terminated grievant's employment, and the dispute was ultimately submitted to arbitration. At the hearing the Union argued that while grievant's conduct warranted discipline, termination was too severe, and the discipline should be mitigated because of grievant's length of service and his successful participation in an alcohol treatment program.

Initially, Arbitrator Duffy noted that while grievant had been off duty at the time of the incidents, there was a clear connection between the events and grievant's employment, noting that they took place on board a ferry operated by the employer and involved coworkers and, potentially, a passenger. He then considered, and rejected, the Union's mitigation and disparate treatment arguments, observing:
 
     As witnesses at this hearing testified, many people successfully recover from alcoholism, remain sober and lead productive lives thereafter. ... The process of recovery often has a transformative effect on the individual that extends beyond simply stopping drinking. The Grievant described the positive, transformative effect that recovery has had in his life. ... Clearly, the Grievant's conduct in obtaining treatment and continuing in follow up programs is commendable.
     Had this been a case of intoxication in the workplace without the other elements, the outcome would very likely be different. Intoxication, however, does not provide an excuse for serious misconduct of the type engaged in by the Grievant. The mitigating factors of length of service, the lack of prior discipline for similar conduct and the Grievant's commitment to alcoholism treatment are outweighed by the Employer's interest in protecting the integrity and credibility of its equal employment policies and rules. 

As a result, he rejected the Union's grievance.

Arbitrator Duffy's Award can be found here.