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.

Reinstatement of police officer fired for dishonesty regarding personal conduct not violative of public policy

Grievant was employed as a police officer for the City of Sandusky, Ohio. He worked the night shift, which was supervised by a Sergeant who was also a personal friend. Grievant was approached by the Sergeant's fiancee who informed him that she and the Sergeant were "swingers" and that she wanted to have a sexual encounter with him. She advised the grievant that the Sergeant was aware of her request and had no objection to it. The Sergeant subsequently informed grievant that he knew of his fiancee's request and confirmed that he had no objection. Grievant turned down the offer.

Several months later the Sergeant's now wife began texting grievant. She and grievant began exchanging sexually explicit texts and photos. The Sergeant became aware of these texts and became angry that grievant had been communicating with his wife without his knowledge. He informed two higher level officers of his belief that grievant had been sleeping with his wife. The Department began an investigation and grievant described the solicitation he had received. However, on at least two occasions, he denied the existence of any explicit photos before ultimately acknowledging their existence.

The City terminated grievant's employment and the Union pursued the matter through arbitration. Arbitrator Robert Stein, while finding a basis for some discipline because of grievant's alleged insubordination, overturned the dismissal, finding it without just cause.

The City brought an action to vacate the award, contending, among other bases, that reinstatement of a police officer who had been dishonest during the investigation violated public policy. The Common Pleas court denied that request. The court initially noted that "the essence" of grievant's dishonesty involved off duty conduct and noted further that the Arbitrator had found no evidence that it had any direct negative impact on grievant's work performance.

Distinguishing other cases where the alleged dishonesty also violated criminal laws, the Court refused to vacate the award holding:

      Bearing in mind the standard of review which requires a reviewing court to make every reasonable indulgence to avoid disturbing an Arbitration Award, the Court cannot find it violates public policy to reinstate a police officer who was dishonest about something that was not job related, had no "direct negative impact on his work performance" and did not involve violation of a criminal statute.
      The Court finds that its review of an arbitration award must necessarily be very narrow. This Court cannot substitute its judgment for the judgment of the Arbitrator. The basis for vacating such an award are well established and very limited. Under the law, this Court cannot find that the Arbitrator exceeded his power or that public policy prohibits reinstatement, given the unique facts of this case. 

The Sandusky Register reports on the case here and here. The Court's decision can be found here .


(The City also terminated the employment of the Sergeant, for, among other reasons, "failure to display absolute honesty." Arbitrator Mary Jo Schiavone sustained the Sergeant's grievance and ordered his reinstatement. Arbitrator Schiavone's award can be found here.  The City did not seek to set aside that award.)

In another case, also addressing an issue of claimed dishonesty concerning off duty conduct, Arbitrator Norman Bennett rejected a claim that an Austin, TX officer had acted dishonestly in providing conflicting and contradicting statements to Internal Affairs during an investigation of his off duty actions while working security at a hotel. Arbitrator Bennett did so, however, for reasons of insufficiency of evidence without discussing whether there was a nexus to grievant's employment. The Austin Chronicle reports on the case and the decision is available here.