Arbitrator Rolland Toenges upheld the termination of a Cloquet, MN police officer fired after the County Attorney notified the City that she would not use him as a witness. Arbitrator Toenges' award can be found here.
Grievant was employed as a police officer for the City of Cloquet, MN since June 1997. On February 25, 2019, the Carlton County Attorney notified the City that grievant was a "Brady Cop." This designation was premised on three incidents of alleged misconduct reflecting dishonesty and credibility issues. These incidents took place on December 22, 2004, January 3, 2005 and July 24, 2017.
On June 4, 2019, the City terminated grievant's employment "based on his inability to perform essential duties of his position." The termination was grieved and submitted to Arbitrator Rolland Toenges for resolution.
The city argued that because the County Attorney determined that grievant was an unacceptable witness to testify in court proceedings, and that she would not prosecute cases where the grievant would be a witness, it would put public safety at risk to continue to employ him. It argued further "[w]hether the County Attorney's determination is righter wrong is not a matter within the Police Department's authority. The Police Department must accept that Grievant is not qualified to perform the essential duties of a Police Officer. ... The only remedy available to the Employer is termination of the Grievant."
The Union questioned the County Attorney's decision to bar grievant from testifying, asserting that it was premised on her personal animosity toward grievant, and noting that a judge or jury could determine whether grievant's testimony was credible. It also claimed that termination of grievant for the three earlier incidents, for which he had already been disciplined, constituted double jeopardy. Finally it argued that "Brady designation does not require discharge."
Arbitrator Toenges denied the grievance, concluding that "the City Attorney's position to not prosecute in situations where the Grievant would be a witness, renders him unable to perform an essential part of police officer duties." He rejected the Union's double jeopardy claim, noting that he was not terminated because of the prior misconduct "but due to the County Attorney's position not prosecute cases where the Grievant would be a witness." He concluded that the small Department had no other position for which it could use grievant.
The Arbitrator's decision is summarized in his Findings:
FINDINGS
1. Court testimony is an essential duty of a police officer.
2. Essentially all police arrests or investigations either will, or will likely, involve court testimony.
3. Based on the Grievant’s disciplinary record involving untruthfulness, the County Attorney will not prosecute cases where the Grievant’s testimony would be involved.
4. The effect of the County Attorney’s decision renders the Grievant unable to perform an essential duty of a police officer position.
4 The UNION in its Post Hearing Brief acknowledges there is “No mechanism to challenge Brady designation.”
5. The Police Department does not have the resources necessary to employ an officer who cannot perform essential duties.
6. The Police Department is without authority to change the County Attorneys position.
7. The County Attorney, as a member of the Citizens Advisory Board, has direct knowledge of the Grievant’s misconduct and disciplinary history.
8. It is axiomatic that the County Attorney having direct knowledge of the Grievant’s misconduct and discipline history is qualified to assess the effect application of the Brady Law may have on the Grievant’s creditability as a witness.
9. The County Attorney has confirmed that the decision to not prosecute cases where the Grievant would be a witness is final and not subject to reconsideration.
10. The County Attorney’s decision is not subject to the Arbitrator’s review.
Brady issues are also discussed in the following posts:
Police dishonesty, public policy and reinstatement - Mass SJC upholds arbitrator's award reinstating police officer who filed ""intentionally misleading" report
Termination of police officer for dishonesty overturned, disparate treatment renders discipline excessive
Termination of police officer for off duty DWI upheld
Law Enforcement: Untruthfulness, reinstatement and Brady issues
Police officers, Brady/Giglio, dishonesty, exoneration and just cause
Update: Grievant has filed a complaint in federal court challenging the County's Brady policy and its application to him. Available here.
Showing posts with label police. Show all posts
Showing posts with label police. Show all posts
Sunday, December 8, 2019
Sunday, August 25, 2019
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.)
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:
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.)
Sunday, February 17, 2019
Department of Justice says Seattle not violating consent decree on police use of force - new burden of proof language no impediment to effective discipline
After an arbitrator overturned the termination of a Seattle police officer accused of punching a handcuffed suspect (award), the District Court judge overseeing a consent decree concerning police use of force issued an Order to Show Cause questioning whether the City was meeting its obligation to maintain effective compliance with the terms of the decree. Specifically, the Court requested a response on several questions, including:
Whether the events surrounding the [Disciplinary Review Board's] decision to reinstate an SPD officer who punched a hand-cuffed subject who was sitting in a patrol car, and the new CBA's rejection of aspects of the Accountability Ordinance—including those aspects that would have replaced the DRB with the PSCSC and provided for a different standard of review—should lead the court to conclude that the City and the SPD have failed to maintain full and effective compliance with the Consent Decree during Phase II?
The US Department of Justice has responded, (here) expressing its position that the particulars of an individual case, which took place prior to the time designated to evaluate compliance, could not demonstrate the City's noncompliance. It noted that the City had taken action against the officer, and that "one incident is not necessarily reflective of a system-wide problem" and that the Department's rules and systems designed to catch and correct individual issues appeared to be working as intended.
It also noted that while it had initially expressed concern about the standard of review for disciplinary actions included in the most recent cba, after further review it found no basis to challenge it.
The DOJ noted that prior to 2008 the applicable cba provided that discipline would be imposed only with just cause, but did not specify any burden of proof to be used.
In 2008, a new cba added language creating a presumption of termination for officers found to have engaged in dishonesty, but also provided that the Department must prove dishonesty "by clear and convincing evidence."
In preparation for a new cba in 2018, the City submitted proposed language to the Court, and the Court asked for the DOJ's opinion. The DOJ asserted that the addition of a "clear and convincing" burden "without any clear basis" could potentially undermine public confidence. It later noted, however, that this suggestion was in error, since "the use of the clear and convincing standard (1) was not new; and (2) had a clear basis for inclusion." In any case, however, the final 2018 cba language on discipline eliminated specific reference to a particular standard. The new language read:
The standard of review and burden of proof in labor arbitration will be consistent with established principles of labor arbitration. For example, and without limitation on other examples or applications, the parties agree that these principles include an elevated standard of review (i.e. - more than a preponderance of the evidence) for termination cases where the alleged offense is stigmatizing to a law enforcement officer, making it difficult for the employee to get other law enforcement employment.
After reviewing prior arbitration awards furnished by the City (Exhibits B,C,D,E,F, and G) DOJ found that this heightened standard had been in effect for some time as part of the "common law of arbitration" and concluded that the new language would not make disciplining officers more difficult than in the past and presented no conflict with the consent decree.
Whether the events surrounding the [Disciplinary Review Board's] decision to reinstate an SPD officer who punched a hand-cuffed subject who was sitting in a patrol car, and the new CBA's rejection of aspects of the Accountability Ordinance—including those aspects that would have replaced the DRB with the PSCSC and provided for a different standard of review—should lead the court to conclude that the City and the SPD have failed to maintain full and effective compliance with the Consent Decree during Phase II?
The US Department of Justice has responded, (here) expressing its position that the particulars of an individual case, which took place prior to the time designated to evaluate compliance, could not demonstrate the City's noncompliance. It noted that the City had taken action against the officer, and that "one incident is not necessarily reflective of a system-wide problem" and that the Department's rules and systems designed to catch and correct individual issues appeared to be working as intended.
It also noted that while it had initially expressed concern about the standard of review for disciplinary actions included in the most recent cba, after further review it found no basis to challenge it.
The DOJ noted that prior to 2008 the applicable cba provided that discipline would be imposed only with just cause, but did not specify any burden of proof to be used.
In 2008, a new cba added language creating a presumption of termination for officers found to have engaged in dishonesty, but also provided that the Department must prove dishonesty "by clear and convincing evidence."
In preparation for a new cba in 2018, the City submitted proposed language to the Court, and the Court asked for the DOJ's opinion. The DOJ asserted that the addition of a "clear and convincing" burden "without any clear basis" could potentially undermine public confidence. It later noted, however, that this suggestion was in error, since "the use of the clear and convincing standard (1) was not new; and (2) had a clear basis for inclusion." In any case, however, the final 2018 cba language on discipline eliminated specific reference to a particular standard. The new language read:
The standard of review and burden of proof in labor arbitration will be consistent with established principles of labor arbitration. For example, and without limitation on other examples or applications, the parties agree that these principles include an elevated standard of review (i.e. - more than a preponderance of the evidence) for termination cases where the alleged offense is stigmatizing to a law enforcement officer, making it difficult for the employee to get other law enforcement employment.
After reviewing prior arbitration awards furnished by the City (Exhibits B,C,D,E,F, and G) DOJ found that this heightened standard had been in effect for some time as part of the "common law of arbitration" and concluded that the new language would not make disciplining officers more difficult than in the past and presented no conflict with the consent decree.
Sunday, December 9, 2018
Quick Hits - Limits on arbitrator's authority, omissions on an application, "no-add" provisions and contract modification, and displacement and discipline
Award vacated - Reinstatement order ignored cba limitation on arbitrator's authority
The District Court in Massachusetts has vacated an award of Arbitrator Michael Stutz reinstating an employee dismissed by Steward Holy Family Hospital. Steward Holy Family Hospital, Inc. v. Massachusetts Nurses Association . Grievant was employed by the hospital as a nurse. She was dismissed following an incident during which she was alleged to have "assaulted" another employee by grabbing her face and speaking to her "like a baby."The two had been in a dispute about conflicting vacation requests. Grievant denied any physical contact but Arbitrator Stutz found her denials not credible. While concluding that discipline was appropriate he concluded that termination was too severe and modified the discipline to a written warning. The hospital sought to vacate the award as beyond the arbitrator's authority. It noted language in the parties agreement that prohibited the arbitrator from substituting his judgment for that of the Hospital. Vacating the award, the District Court found:
Once the arbitrator determined that [grievant] had engaged in the specific alleged misconduct in violation of the Hospital's policy, his role was fulfilled. ... By going further and reducing the discipline imposed by the Hospital to what he believed was more appropriate, the arbitrator was prescribing his own brand of industrial justice in violation of the plain terms of the contract.
UPDATE: The First Circuit reversed the District Court. Steward Holy Family Hospital, Inc. v. Massachusetts Nurses Association It found that while the Arbitrator concluded the grievant had engaged in a "inappropriate, unconsented touching" nothing in the cba or the Hospital's policies compelled the Arbitrator to classify grievant's conduct as a Group III offense warranting termination.
Termination of Officer involved in Tamir Rice shooting upheld
Arbitrator James Rimmel has denied a grievance contesting the termination of the officer involved in the shooting of Tamir Rice. Arbitrator Rimmel's award can be found here. The termination was not because of any conduct related to the shooting, but from what the City claimed were misstatements or omissions in grievant's personal history statement submitted in connection with his application for employment and discovered during the investigation of the shooting. Arbitrator Rimmel found that the City had established grounds for discipline, and that termination was consistent with the Department's disciplinary matrix and not imposed disparately. He noted that while the shooting precipitated the investigation that led to the discipline "I am tasked solely to adjudicate whiter the City had just cause to terminate grievant for his alleged omission and/or failure to provide full and complete information his PHS when applying for employment with the City. That is my focus here!"
The Union has indicated it will appeal the arbitrator's decision focusing on "what they believe are inconsistencies in the ruling and that the arbitrator’s decision was affected by public pressure outside the facts of the case." Cleveland police union determined to return officer who killed Tamir Rice back to the force.
The question of the sometimes differing expectations of the real issue to be decided by the arbitrator is discussed in Reaction to police discipline award highlights mixed expectations about the issue to be decided.
The award addressing the discipline of the second officer on the scene is discussed at Arbitrator reduces suspension of officer involved in Tamir Rice shooting
Ninth Circuit upholds ASARCO liability for copper bonus
A previous post (Waiver of a challenge to the jurisdiction of an arbitrator and how to avoid it) discussed the Court's earlier opinion in this case. The Court has now withdrawn that opinion and replaced it with a new one. ASARCO LLC v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union . The Court again affirmed the District Court's decision refusing to vacate the award of Arbitrator Michael Rappaport. Arbitrator Rappaport found that the parties had made a mutual mistake concerning the impact on the negotiated exclusion of new employees from the Company's pension plan on the eligibility of those employees to participate in the copper bonus program. ASARCO sought to vacate the award, arguing that it was beyond the authority of the arbitrator given the language of the contract and its prohibition on the arbitrator adding to, detracting from, or altering it in any way. The District Court concluded that, after finding the parties were mutually mistaken as to the impact of the exclusion of new employees from the pension on eligibility for then bonus, he was authorized to reform the cba to provide for their eligibility. (No-add" language in cba doesn't prevent arbitrator from modifying contract). A majority of the Ninth Circuit (over a dissent asserting that its conclusion was "flatly wrong") has now determined that "Upon concluding that the parties were mutually mistaken as to the impact of the 2011 MOA on new hires' eligibility for the Bonus, the arbitrator was authorized to reform the CBA despite ASARCO's protest."
Sixth Circuit upholds NRAB decision on dispute over discipline and displacement rights
A panel of the National Railway Adjustment Board denied a grievance (here) challenging discipline imposed by CSX on an employee for having missed minimum availability requirements while considering his displacement rights.The Carrier claimed that work had been available to him but that he chose to forgo that work pending exercise of his seniority to the assignment he ultimately selected. Claimant maintained that he was protected from discipline for the full 48 hours the cba allowed for him to consider his displacement options. The panel concluded:
Section 1 of Article XII addresses only what happens after 48 hours if the employee has failed to exercise seniority to his next assignment during that time. Section 1 says nothing about the implications of delaying his selection, and thereby making himself unavailable, while work is otherwise available to him.
The Union sought to challenge the award, arguing that it was contrary to the plain language the contract, but the District Court granted summary judgment to CSX (here).The Sixth Circuit (over a strong dissent) has affirmed that decision. International Association of Sheet Metal, Air, Rail and Transportation Workers v, CSX Transp., Inc. The Court held that because the arbitrator was "arguably construing" the contract the award was entitled to enforcement, noting:
... it was within the arbitrator's discretion to find that the displacement policies govern the rights of senior employees vis-à-vis more junior employees, whereas CSXT's availability policies govern the rights of employees vis-à-vis their employer. As CSXT argued before the arbitrator, "Nothing in the Agreements creating the 48-hour period for exercising seniority to another assignment also created the right to be unavailable for work during that period." (R. 1-1, Page ID# 13.) The arbitrator acted within her discretion to credit this statement as true, based on the face of Article XII itself as well as the 1996 Q&As. To be sure, there may be reasonable disagreement as to whether the arbitrator's interpretation of the CBA was correct. But the arbitrator's reasoning does show that she "appeared to be engaged in interpretation," and the outcome she reached was not "ignor[ant]" of the CBA's "plain language."
The District Court in Massachusetts has vacated an award of Arbitrator Michael Stutz reinstating an employee dismissed by Steward Holy Family Hospital. Steward Holy Family Hospital, Inc. v. Massachusetts Nurses Association . Grievant was employed by the hospital as a nurse. She was dismissed following an incident during which she was alleged to have "assaulted" another employee by grabbing her face and speaking to her "like a baby."The two had been in a dispute about conflicting vacation requests. Grievant denied any physical contact but Arbitrator Stutz found her denials not credible. While concluding that discipline was appropriate he concluded that termination was too severe and modified the discipline to a written warning. The hospital sought to vacate the award as beyond the arbitrator's authority. It noted language in the parties agreement that prohibited the arbitrator from substituting his judgment for that of the Hospital. Vacating the award, the District Court found:
Once the arbitrator determined that [grievant] had engaged in the specific alleged misconduct in violation of the Hospital's policy, his role was fulfilled. ... By going further and reducing the discipline imposed by the Hospital to what he believed was more appropriate, the arbitrator was prescribing his own brand of industrial justice in violation of the plain terms of the contract.
UPDATE: The First Circuit reversed the District Court. Steward Holy Family Hospital, Inc. v. Massachusetts Nurses Association It found that while the Arbitrator concluded the grievant had engaged in a "inappropriate, unconsented touching" nothing in the cba or the Hospital's policies compelled the Arbitrator to classify grievant's conduct as a Group III offense warranting termination.
Termination of Officer involved in Tamir Rice shooting upheld
Arbitrator James Rimmel has denied a grievance contesting the termination of the officer involved in the shooting of Tamir Rice. Arbitrator Rimmel's award can be found here. The termination was not because of any conduct related to the shooting, but from what the City claimed were misstatements or omissions in grievant's personal history statement submitted in connection with his application for employment and discovered during the investigation of the shooting. Arbitrator Rimmel found that the City had established grounds for discipline, and that termination was consistent with the Department's disciplinary matrix and not imposed disparately. He noted that while the shooting precipitated the investigation that led to the discipline "I am tasked solely to adjudicate whiter the City had just cause to terminate grievant for his alleged omission and/or failure to provide full and complete information his PHS when applying for employment with the City. That is my focus here!"
The Union has indicated it will appeal the arbitrator's decision focusing on "what they believe are inconsistencies in the ruling and that the arbitrator’s decision was affected by public pressure outside the facts of the case." Cleveland police union determined to return officer who killed Tamir Rice back to the force.
The question of the sometimes differing expectations of the real issue to be decided by the arbitrator is discussed in Reaction to police discipline award highlights mixed expectations about the issue to be decided.
The award addressing the discipline of the second officer on the scene is discussed at Arbitrator reduces suspension of officer involved in Tamir Rice shooting
Ninth Circuit upholds ASARCO liability for copper bonus
A previous post (Waiver of a challenge to the jurisdiction of an arbitrator and how to avoid it) discussed the Court's earlier opinion in this case. The Court has now withdrawn that opinion and replaced it with a new one. ASARCO LLC v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union . The Court again affirmed the District Court's decision refusing to vacate the award of Arbitrator Michael Rappaport. Arbitrator Rappaport found that the parties had made a mutual mistake concerning the impact on the negotiated exclusion of new employees from the Company's pension plan on the eligibility of those employees to participate in the copper bonus program. ASARCO sought to vacate the award, arguing that it was beyond the authority of the arbitrator given the language of the contract and its prohibition on the arbitrator adding to, detracting from, or altering it in any way. The District Court concluded that, after finding the parties were mutually mistaken as to the impact of the exclusion of new employees from the pension on eligibility for then bonus, he was authorized to reform the cba to provide for their eligibility. (No-add" language in cba doesn't prevent arbitrator from modifying contract). A majority of the Ninth Circuit (over a dissent asserting that its conclusion was "flatly wrong") has now determined that "Upon concluding that the parties were mutually mistaken as to the impact of the 2011 MOA on new hires' eligibility for the Bonus, the arbitrator was authorized to reform the CBA despite ASARCO's protest."
Sixth Circuit upholds NRAB decision on dispute over discipline and displacement rights
A panel of the National Railway Adjustment Board denied a grievance (here) challenging discipline imposed by CSX on an employee for having missed minimum availability requirements while considering his displacement rights.The Carrier claimed that work had been available to him but that he chose to forgo that work pending exercise of his seniority to the assignment he ultimately selected. Claimant maintained that he was protected from discipline for the full 48 hours the cba allowed for him to consider his displacement options. The panel concluded:
Section 1 of Article XII addresses only what happens after 48 hours if the employee has failed to exercise seniority to his next assignment during that time. Section 1 says nothing about the implications of delaying his selection, and thereby making himself unavailable, while work is otherwise available to him.
The Union sought to challenge the award, arguing that it was contrary to the plain language the contract, but the District Court granted summary judgment to CSX (here).The Sixth Circuit (over a strong dissent) has affirmed that decision. International Association of Sheet Metal, Air, Rail and Transportation Workers v, CSX Transp., Inc. The Court held that because the arbitrator was "arguably construing" the contract the award was entitled to enforcement, noting:
... it was within the arbitrator's discretion to find that the displacement policies govern the rights of senior employees vis-à-vis more junior employees, whereas CSXT's availability policies govern the rights of employees vis-à-vis their employer. As CSXT argued before the arbitrator, "Nothing in the Agreements creating the 48-hour period for exercising seniority to another assignment also created the right to be unavailable for work during that period." (R. 1-1, Page ID# 13.) The arbitrator acted within her discretion to credit this statement as true, based on the face of Article XII itself as well as the 1996 Q&As. To be sure, there may be reasonable disagreement as to whether the arbitrator's interpretation of the CBA was correct. But the arbitrator's reasoning does show that she "appeared to be engaged in interpretation," and the outcome she reached was not "ignor[ant]" of the CBA's "plain language."
Sunday, October 7, 2018
Police dishonesty, public policy and reinstatement - Mass SJC upholds arbitrator's award reinstating police officer who filed "intentionally misleading" report
The Massachusetts Supreme Judicial Court has rejected a public policy challenge to the reinstatement of a police officer found by an arbitrator to have made "intentionally misleading ...but less than intentionally false" statements in a police report. City of Pittsfield v. Local 447 International Brotherhood of Police Officers.
Grievant had arrested an individual who had been identified by a supermarket's security department as having engaged in shoplifting. He placed the individual in the back of his cruiser, In his report of the incident, grievant wrote that the individual began trashing about and so "for her safety" he removed her from the vehicle and placed her on the ground to control her. He also noted that store security wanted to get a photo of her as part of its normal process.
In his award, Arbitrator Michael Stutz found that grievant's report was inaccurate and that the three words in issue "for her safety," were "[u]ntrue, intentionally misleading, and cause for discipline, but less than intentionally false." He concluded that grievant removed the individual from the vehicle to allow store security to photograph her and that his report was not a mistake or an error, but "knowingly inaccurate." He found:
The City sought to vacate the award, arguing that "any lie, be it big or small, absolutely disqualifies a police officer from continuing to serve in his position, and that any act of dishonesty, no matter the circumstances, requires dismissal."
The Superior Court rejected this request, and the Massachusetts Supreme Judicial Court accepted he case on direct review. The trial court opinion, and the parties briefs before the SJC are discussed at Is there a "bright line" requiring the termination of a police officer found to have been untruthful in a police report?
In its decision, the SJC refused to adopt a bright line rule that any dishonesty by a police officer would compel termination. In doing so it noted grievant's 'intentionally misleading" statements "did not lead to a wrongful arrest or prosecution, or result in any deprivation of liberty or denial of civil rights."
Accepting the arbitrator's factual conclusion that grievant's statement was not made with the intent "to impede, obstruct, or otherwise interfere with any criminal investigation or proceeding," but was instead an effort to avoid discipline for his poor judgment, the Court found no public policy requiring the termination of the grievant. Reinforcing the limited nature of its decision, the Court concluded:
In making these employment decisions, police chiefs who are responsible for maintaining the integrity of their departments and for preserving public trust in their officers need clear lines. It requires commitment and courage for a police chief to terminate the employment of a police officer; it is generally easier to avoid doing so. Termination of an officer's employment means that the police department almost invariably will need to incur the expense of arbitration, including the substantial attorney's fees from litigating such an arbitration. And if the arbitrator disagrees with the decision to terminate, the officer will be reinstated and the police department will be required to make the officer whole with respect to lost benefits under the collective bargaining agreement, including back pay, compensation for lost income from overtime and details, and the return of seniority rights. If there are no clear public policy lines supporting termination, it is extremely difficult for a police chief to risk such a decision where it might be undone by an arbitrator whose decision cannot be reversed by a court even when it is plainly wrong as a matter of fact or as a matter of law.
Where a police chief decides to terminate an officer in circumstances in which the officer's false statements violated G. L. c. 268, § 6A or 13B, or which otherwise resulted in an unjustified arrest or prosecution, or in a deprivation of liberty or denial of civil rights, an arbitration award finding no just cause for such a dismissal and reinstating the officer would violate public policy. We affirm the arbitrator's award here only because it did not cross this public policy line.
In a footnote, the Court acknowledged that the local District Attorney had informed the City that he would no longer call grievant as a witness in any criminal matter. Finding this "very troubling" the Court noted that this was not part of either the City's or the arbitrator's decision. It noted further however,
... although it is required to abide by the results of this arbitration, the city is, of course, not prohibited from pursuing any additional appropriate discipline based on the district attorney's letter or any other newly acquired information
Grievant had arrested an individual who had been identified by a supermarket's security department as having engaged in shoplifting. He placed the individual in the back of his cruiser, In his report of the incident, grievant wrote that the individual began trashing about and so "for her safety" he removed her from the vehicle and placed her on the ground to control her. He also noted that store security wanted to get a photo of her as part of its normal process.
In his award, Arbitrator Michael Stutz found that grievant's report was inaccurate and that the three words in issue "for her safety," were "[u]ntrue, intentionally misleading, and cause for discipline, but less than intentionally false." He concluded that grievant removed the individual from the vehicle to allow store security to photograph her and that his report was not a mistake or an error, but "knowingly inaccurate." He found:
the grievant wanted to conceal the real reason for removing the prisoner by falsely reporting that it was safety-related, and that the reason for this was the public disturbance that resulted when he removed, photographed and returned the prisoner to his car. The grievant should have waited to take the photograph outside public view at the station. He could have gotten assistance from his nearby colleague. I believe the grievant referred to safety to deflect the readers of his report away from his bad judgement. This intentional inaccuracy violated the grievant’s obligation to be absolutely truthful.
Nevertheless, Arbitrator Stutz found termination too severe, and ordered grievant reinstated with a three day suspension.
Nevertheless, Arbitrator Stutz found termination too severe, and ordered grievant reinstated with a three day suspension.
The City sought to vacate the award, arguing that "any lie, be it big or small, absolutely disqualifies a police officer from continuing to serve in his position, and that any act of dishonesty, no matter the circumstances, requires dismissal."
The Superior Court rejected this request, and the Massachusetts Supreme Judicial Court accepted he case on direct review. The trial court opinion, and the parties briefs before the SJC are discussed at Is there a "bright line" requiring the termination of a police officer found to have been untruthful in a police report?
In its decision, the SJC refused to adopt a bright line rule that any dishonesty by a police officer would compel termination. In doing so it noted grievant's 'intentionally misleading" statements "did not lead to a wrongful arrest or prosecution, or result in any deprivation of liberty or denial of civil rights."
Accepting the arbitrator's factual conclusion that grievant's statement was not made with the intent "to impede, obstruct, or otherwise interfere with any criminal investigation or proceeding," but was instead an effort to avoid discipline for his poor judgment, the Court found no public policy requiring the termination of the grievant. Reinforcing the limited nature of its decision, the Court concluded:
In making these employment decisions, police chiefs who are responsible for maintaining the integrity of their departments and for preserving public trust in their officers need clear lines. It requires commitment and courage for a police chief to terminate the employment of a police officer; it is generally easier to avoid doing so. Termination of an officer's employment means that the police department almost invariably will need to incur the expense of arbitration, including the substantial attorney's fees from litigating such an arbitration. And if the arbitrator disagrees with the decision to terminate, the officer will be reinstated and the police department will be required to make the officer whole with respect to lost benefits under the collective bargaining agreement, including back pay, compensation for lost income from overtime and details, and the return of seniority rights. If there are no clear public policy lines supporting termination, it is extremely difficult for a police chief to risk such a decision where it might be undone by an arbitrator whose decision cannot be reversed by a court even when it is plainly wrong as a matter of fact or as a matter of law.
Where a police chief decides to terminate an officer in circumstances in which the officer's false statements violated G. L. c. 268, § 6A or 13B, or which otherwise resulted in an unjustified arrest or prosecution, or in a deprivation of liberty or denial of civil rights, an arbitration award finding no just cause for such a dismissal and reinstating the officer would violate public policy. We affirm the arbitrator's award here only because it did not cross this public policy line.
In a footnote, the Court acknowledged that the local District Attorney had informed the City that he would no longer call grievant as a witness in any criminal matter. Finding this "very troubling" the Court noted that this was not part of either the City's or the arbitrator's decision. It noted further however,
... although it is required to abide by the results of this arbitration, the city is, of course, not prohibited from pursuing any additional appropriate discipline based on the district attorney's letter or any other newly acquired information
Sunday, June 10, 2018
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.
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:
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.
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.
Sunday, February 18, 2018
Termination of police officer for dishonesty overturned, disparate treatment renders discipline excessive
Arbitrator Bruce McIntosh reduced a termination to a six month suspension for a police officer who was alleged to have intentionally defaced a newly painted locker room wall.
Another officer in the locker room heard someone enter and then the sound of someone swiping and scraping at the wall. He walked toward the sound and claimed he saw grievant facing the wall with an object in his hand. The officer claimed he then saw grievant scrape the object across the wall two more times and then state "it's a shame that this new paint is already scratched up."
The officer reported his observations to the Lieutenant who confronted grievant and asked if he knew anything about the marks in the locker room. Grievant denied responsibility but went and wiped the marks off.
A Departmental investigation ensued that included polygraphs of both officers. The polygraph examiner concluded that grievant was found to be deceptive while the other officer was found to be truthful.
Grievant was terminated for violation of Department Orders and Policies for defacing Department property, failing to admit wrongdoing and lying.
Sustaining the grievance in part, Arbitrator McIntosh found that the Department had improperly deprived grievant of certain procedural rights under the cba. However, the arbitrator did find that the Department had established both that grievant had scratched the wall and had falsely denied doing so. While the department argued that grievant's dishonest denial raised Brady issues warranting his termination, the Arbitrator found that the department had not treated claimed dishonesty in the past as a basis for immediate termination. Arbitrator McIntosh concluded:
Although the Department sustained its burden of proving that Grievant did scratch and mark the locker room wall, the union's evidence of disparate treatment for "dishonesty" was, similarly, persuasive. In September of 2013, an officer was given a written reprimand when it was discovered by a lieutenant that, what the officer had written could not have been possible since he had not witnessed what he had written. In July of 2011 another officer was found to have provided a report for a uniform allowance that was not "truthful" and again, in July of 2011, another officer became involved in off-duty conduct but did not truthfully disclose his situation and received an oral reprimand. Reprimands were given to another officer for lying about a domestic situation and, another, for lying because he was embarrassed about a check that was returned for insufficient funds. Overwhelming evidence of ignoring termination for dishonest conduct was illustrated by one employee who used sick leave formats avoid reporting toward for over a year resulting in forty-eight (48) hours being deducted from his Leave Bank. This conduct was found to be so egregious that it was taken to the Athens County Prosecutor who determined that this conduct was essentially theft in office. This employee was subsequently given a Last Chance Agreement in December of 2012 and, thereafter, terminated for being in violation of the LCA.
As previously discussed, the Department has sustained its burden of proof that Grievant defaced the property and denied doing so. As such it was certainly appropriate for the Department to move beyond mere reprimands of progressive discipline. However the disparate treatment given others renders termination excessive.
The Arbitrator did not specifically address further the Department's Brady claim. Arbitrator McIntosh's award can be found here.
Update: According to a recent article in the AthensNews, grievant testified in a rape prosecution and was questioned about the arbitrator's findings. Alleged victim testifies during continuing rape trial
Sunday, October 29, 2017
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:
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:
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.
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.
Sunday, June 11, 2017
Arbitrator overturns termination of Miami police officer for invocation of Fifth Amendment rights
Arbitrator Donald Spero has issued an award in a dispute between The city of Miami and the Miami Fraternal Order of Police Lodge #20.
Grievant was employed as a police officer for approximately nine years at the time of his termination. Prior to his employment with the police department, grievant had been employed at a PCS Metro store. In October of 2007 Grievant was working at the PCS store when it was robbed and a manager of the store was shot and killed during the course of the robbery.
In December of 2012 the Miami police received a tip implicating grievant in the robbery. In February 2013 Grievant was called in for an interview with a homicide detective concerning the robbery. While the issue was contested, Arbitrator Spero found that grievant invoked his Fifth Amendment rights and left the interview. Grievant was assigned to Relieved of Duty (ROD) status and was required to remain at home, while continuing to be paid, from 8 to 4 every workday.
On April 27, 2016 the City terminated grievant's employment. The City articulated two reasons for the termination. The first was grievant's refusal to answer questions in the February 2013 interview. The second alleged several failures of grievant to comply with the ROD status. The matter was grieved and submitted to Arbitrator Spero for resolution.
Arbitrator Spero described the first issue as :
whether the grievant was protected by the Fifth Amendment and by "Garrity" rights from answering questions propounded to him during a police department inquiry on February 11, 2013.
Answering the question in the affirmative, Arbitrator Spero noted that grievant's lawyer in the criminal case advised the City that grievant would not give a statement unless he was given Garrity rights. The Arbitrator concluded:
[Grievant] was entitled to decline to answer the City's inquiries without being afforded Garrity rights. Through his attorney he offered to do so. If he declined to respond after being afforded Garrity rights he would have been subject to discipline. The City in its judgment determined that it wanted to preserve the rights to prosecute [Grievant] Thus by preserving its opportunity to prosecute based on his statement it abandoned its right to inquire.
Arbitrator Spero rejected the City's argument that grievant had waived his Fifth Amendment rights when he initially took his oath as a new police officer essentially swearing to uphold and defend the law and to faithful perform all of his duties as a place officer. That oath did not expressly waive any rights, and adopting the city's position would mean that no officer had any Fifth Amendment rights.
On the issue of of grievant's failure to adhere to the ROD restrictions, however, the arbitrator found that the City had established one of its claims, justifying "severe" discipline. Accordingly Arbitrator Spero ordered grievant's reinstatement but denied him back pay for his time off.
According to news reports, When Miami fires cops, they usually get their jobs back — even if they’re murder suspects, the City will seek to overturn the award.
Grievant was employed as a police officer for approximately nine years at the time of his termination. Prior to his employment with the police department, grievant had been employed at a PCS Metro store. In October of 2007 Grievant was working at the PCS store when it was robbed and a manager of the store was shot and killed during the course of the robbery.
In December of 2012 the Miami police received a tip implicating grievant in the robbery. In February 2013 Grievant was called in for an interview with a homicide detective concerning the robbery. While the issue was contested, Arbitrator Spero found that grievant invoked his Fifth Amendment rights and left the interview. Grievant was assigned to Relieved of Duty (ROD) status and was required to remain at home, while continuing to be paid, from 8 to 4 every workday.
On April 27, 2016 the City terminated grievant's employment. The City articulated two reasons for the termination. The first was grievant's refusal to answer questions in the February 2013 interview. The second alleged several failures of grievant to comply with the ROD status. The matter was grieved and submitted to Arbitrator Spero for resolution.
Arbitrator Spero described the first issue as :
whether the grievant was protected by the Fifth Amendment and by "Garrity" rights from answering questions propounded to him during a police department inquiry on February 11, 2013.
Answering the question in the affirmative, Arbitrator Spero noted that grievant's lawyer in the criminal case advised the City that grievant would not give a statement unless he was given Garrity rights. The Arbitrator concluded:
[Grievant] was entitled to decline to answer the City's inquiries without being afforded Garrity rights. Through his attorney he offered to do so. If he declined to respond after being afforded Garrity rights he would have been subject to discipline. The City in its judgment determined that it wanted to preserve the rights to prosecute [Grievant] Thus by preserving its opportunity to prosecute based on his statement it abandoned its right to inquire.
Arbitrator Spero rejected the City's argument that grievant had waived his Fifth Amendment rights when he initially took his oath as a new police officer essentially swearing to uphold and defend the law and to faithful perform all of his duties as a place officer. That oath did not expressly waive any rights, and adopting the city's position would mean that no officer had any Fifth Amendment rights.
On the issue of of grievant's failure to adhere to the ROD restrictions, however, the arbitrator found that the City had established one of its claims, justifying "severe" discipline. Accordingly Arbitrator Spero ordered grievant's reinstatement but denied him back pay for his time off.
According to news reports, When Miami fires cops, they usually get their jobs back — even if they’re murder suspects, the City will seek to overturn the award.
Sunday, April 9, 2017
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.
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.
Sunday, February 19, 2017
Quick Hits - Public policy, double jeopardy and emails
Four (unsuccessful) public policy challenges to arbitration awards
Courts continue to carefully scrutinize challenges to arbitration awards based on claims that the award is contrary to public policy. In Cuyahoga Metropolitan Housing Authority v. Fraternal Order of Police, Ohio Labor Council, the Ohio Court of Appeals rejected the agency's request to vacate an award that converted a termination of a CMHA detective into a thirty day suspension. The Court, with one dissent, found that it was bound by the arbitrator's factual findings that the detective had not used excessive force, nor had he been dishonest as the agency had alleged. Given these factual findings the Court found no basis to overturn the award. In City of Guthrie v. Fraternal Order of Police, Lodge 105 the Oklahoma Court of Civil Appeals similarly rejected the City's challenge to the award of Arbitrator Mark Reed which reduced the discipline of a police lieutenant accused of improperly arresting the former husband of his girlfriend. The court found no public policy impediment to enforcement of the decision imposing a suspension rather than a termination. In Jersey City POBA v. City of Jersey City the NJ Superior Court found no "contractual, administrative, legislative, or legal authority" compelling it to vacate an award ordering the City to pay terminal leave benefits to an officer who retired during the pendency of criminal proceeding against him. Finally, in Cornwall-Lebanon School District, v. Cornwall-Lebanon Education Association, the Pennsylvania Commonwealth Court reversed a lower court's decision vacating an award as contrary to public policy. An arbitrator had converted the discipline of a teacher, who had a sexual relationship with a student starting on her graduation night and who was alleged to have lied about it, from termination to a one year suspension. The lower court concluded that termination would prevent future inappropriate conduct and that a teacher who had lied was not an appropriate mentor for students. The Commonwealth Court found that the lower court had improperly reweighed the evidence, and noted that the arbitrator had imposed an appropriate remedy for the misconduct he found. Accordingly, and "[k]eeping in mind that the public policy exception is narrow" the Court reversed.
Arbitrator finds exchange of racist and pornographic emails justified termination
Arbitrator James Reynolds denied the grievance filed on behalf of Miami Beach Police Lieutenant who had been terminated for distributing racially and sexually charged emails with other members of the police department. Rejecting the Union challenge to the timeliness of the investigation, and claims of disparate treatment and double jeopardy (arising from prior undocumented counseling and a demotion from a non bargaining unit position) Arbitrator Reynolds found grievant's actions "shameful and disgraceful" and sustained the termination.
Court erred in hearing testimony on petition to vacate arbitration award
The City of Norwalk, CT terminated the employment of a police sergeant who had allegedly informed another officer of a criminal investigation against him. The termination was grieved and ultimately heard by a panel of the Connecticut Board of Mediation and Arbitration. The panel (2-1) upheld the termination. In doing so it rejected the sergeant's claim that he had been subjected to double jeopardy because he had been reassigned to a different position after discovery of his actions. The panel rejected this claim, finding that no grievance had been filed about the transfer and that a transfer was not disciplinary. The Union sought to vacate the award, claiming that it was in manifest disregard of the law since it ignored the "long standing " principle that double jeopardy was part of the just cause analysis. The trial court ordered a hearing and allowed the Union to present testimony on the circumstances surrounding the grievant's transfer. After hearing testimony the trial court concluded that because the City had no right to discipline grievant twice for the same event there was no just cause for the termination. Accordingly, it vacated the award.
The City appealed and the Connecticut Supreme Court unanimously reversed. It held:
We conclude ... that the trial court improperly allowed Couture [the grievant] to give testimony on the issue and substituted its finding that Rilling's reassignment of Couture to the patrol division constituted discipline for the arbitration board's finding to the contrary. Because the trial court's conclusion that Couture was subject to double jeopardy was predicated on this finding, and because this conclusion, in turn, provided the basis for the court's determination that the arbitration award was in manifest disregard of the law, that determination cannot stand. Accordingly, we conclude that the trial court improperly vacated the award of the arbitration board.
Courts continue to carefully scrutinize challenges to arbitration awards based on claims that the award is contrary to public policy. In Cuyahoga Metropolitan Housing Authority v. Fraternal Order of Police, Ohio Labor Council, the Ohio Court of Appeals rejected the agency's request to vacate an award that converted a termination of a CMHA detective into a thirty day suspension. The Court, with one dissent, found that it was bound by the arbitrator's factual findings that the detective had not used excessive force, nor had he been dishonest as the agency had alleged. Given these factual findings the Court found no basis to overturn the award. In City of Guthrie v. Fraternal Order of Police, Lodge 105 the Oklahoma Court of Civil Appeals similarly rejected the City's challenge to the award of Arbitrator Mark Reed which reduced the discipline of a police lieutenant accused of improperly arresting the former husband of his girlfriend. The court found no public policy impediment to enforcement of the decision imposing a suspension rather than a termination. In Jersey City POBA v. City of Jersey City the NJ Superior Court found no "contractual, administrative, legislative, or legal authority" compelling it to vacate an award ordering the City to pay terminal leave benefits to an officer who retired during the pendency of criminal proceeding against him. Finally, in Cornwall-Lebanon School District, v. Cornwall-Lebanon Education Association, the Pennsylvania Commonwealth Court reversed a lower court's decision vacating an award as contrary to public policy. An arbitrator had converted the discipline of a teacher, who had a sexual relationship with a student starting on her graduation night and who was alleged to have lied about it, from termination to a one year suspension. The lower court concluded that termination would prevent future inappropriate conduct and that a teacher who had lied was not an appropriate mentor for students. The Commonwealth Court found that the lower court had improperly reweighed the evidence, and noted that the arbitrator had imposed an appropriate remedy for the misconduct he found. Accordingly, and "[k]eeping in mind that the public policy exception is narrow" the Court reversed.
Arbitrator finds exchange of racist and pornographic emails justified termination
Arbitrator James Reynolds denied the grievance filed on behalf of Miami Beach Police Lieutenant who had been terminated for distributing racially and sexually charged emails with other members of the police department. Rejecting the Union challenge to the timeliness of the investigation, and claims of disparate treatment and double jeopardy (arising from prior undocumented counseling and a demotion from a non bargaining unit position) Arbitrator Reynolds found grievant's actions "shameful and disgraceful" and sustained the termination.
Court erred in hearing testimony on petition to vacate arbitration award
The City of Norwalk, CT terminated the employment of a police sergeant who had allegedly informed another officer of a criminal investigation against him. The termination was grieved and ultimately heard by a panel of the Connecticut Board of Mediation and Arbitration. The panel (2-1) upheld the termination. In doing so it rejected the sergeant's claim that he had been subjected to double jeopardy because he had been reassigned to a different position after discovery of his actions. The panel rejected this claim, finding that no grievance had been filed about the transfer and that a transfer was not disciplinary. The Union sought to vacate the award, claiming that it was in manifest disregard of the law since it ignored the "long standing " principle that double jeopardy was part of the just cause analysis. The trial court ordered a hearing and allowed the Union to present testimony on the circumstances surrounding the grievant's transfer. After hearing testimony the trial court concluded that because the City had no right to discipline grievant twice for the same event there was no just cause for the termination. Accordingly, it vacated the award.
The City appealed and the Connecticut Supreme Court unanimously reversed. It held:
We conclude ... that the trial court improperly allowed Couture [the grievant] to give testimony on the issue and substituted its finding that Rilling's reassignment of Couture to the patrol division constituted discipline for the arbitration board's finding to the contrary. Because the trial court's conclusion that Couture was subject to double jeopardy was predicated on this finding, and because this conclusion, in turn, provided the basis for the court's determination that the arbitration award was in manifest disregard of the law, that determination cannot stand. Accordingly, we conclude that the trial court improperly vacated the award of the arbitration board.
Sunday, January 29, 2017
Police officers, Brady/Giglio, dishonesty, exoneration and just cause
A recent award by Arbitrator Micheal Falvo addresses all of these topics. Arbitrator Falvo sustained a grievance filed on behalf of a Champaign, Ill. police officer terminated after the State's Attorney declared that she did not believe she could use him as a witness because of his disciplinary history, including an allegation of dishonesty overturned in an earlier arbitration.
Officer Matt Rush began his employment with the City of Champaign in February 2010. Over the course of his employment he was the subject of several disciplinary actions. In March 2014 he was suspended for one day for failing to turn in a citation he had issued in connection with a traffic stop. He admitted he forgot to turn the ticket in and did not challenge the suspension. A second incident occurred in April 2014. Officer Rush was alleged to have engaged in unprofessional conduct in connection with his handling of a disturbance. He admitted using profanity and acknowledged he did not act professionally during this encounter. During the encounter Officer Rush twice kicked in the legs an individual who was refusing to get into the police vehicle. The Department agreed that the first kick was a reasonable use of force but maintained that the second was inappropriate. Rush was suspended for three days as a result of his conduct during this incident. A third incident occurred in May 2014 when Rush was accused of punching an individual he was attempting to subdue. He was also accused of dishonesty, i.e., falsely denying that he had thrown a punch. His employment was terminated as a result of these events. Because of the claimed dishonesty the Chief sent the following letter to the State's Attorney:
As required by law, I write to inform you of a recent disciplinary matter involving an officer of the Champaign Police Department. On August 8, 2014, Officer Matt Rush was charged with a violation of department policy wherein the offending behavior involved untruthful or deceptive representations. As you are aware, under Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972) and its progeny, the Champaign Police Department is required to disclose such information regarding the untruthfulness of law enforcement officers to prosecutors.
Please feel free to contact my office in the event that you have any questions regarding this matter.
Rush grieved the termination and in April 2015 Arbitrator Fredric Dichter issued an award finding the one and three day suspensions appropriate (but finding the claim regarding the second kick unsupported), but overturning the termination. Arbitrator Dichter concluded that "the only evidence [of a punch] is a blurry video taken from some distance away ..." and found no evidence of malice or loss of temper but rather an effort to subdue an uncooperative person. The Arbitrator found this conduct, by itself, did not justify termination. Turning to "the other serious charge, dishonesty," he concluded that while some viewing the dash cam video (including himself) may view the video one way, grievant "may very honestly be seeing it another." Arbitrator Dichter noted:
Lying requires intent. Grievant is apparently wrong in his perception of what he did, but the Arbitrator finds it is based on his errant perception of events and not on an intent to deceive.
Concluding that discipline was warranted for grievant's handling of the incident, but not for dishonesty, Arbitrator Dichter reduced the termination to a thirty day suspension
In accord with the award, Rush was reinstated to the Police Department. The Chief also sent another letter to the State's Attorney enclosing a copy of the Arbitrator's award.
In December of 2015 local media reported on several pending settlements of claims involving local police officers use of force, primarily involving Officer Rush. Examples are here, here, and here. In response to citizen demands that Officer Rush be prosecuted for claimed use of excessive force, the State's Attorney conducted an investigation. On February 23, 2016 she informed the Chief of the results of her investigation and also issued a press release. While declining to prosecute, she noted:
Although the State’s Attorney’s Office is declining to file criminal charges against Officer Matt Rush, in light of our review of Officer Rush's actions and behavior during these incidents and in the light of the entirety of Officer Rush's history of internal discipline for failure to adequately document use of force and untruthfulness, we are unable to use Officer Matt Rush as a witness for the prosecution in criminal cases. Officer Rush's repeated discipline for failure to adequately document use of force and untruthfulness as outlined here and in other disciplinary actions reviewed in the course of this examination create a substantial issue with regards to his credibility as a state witness, subject him to cross-examination on these issues, and require the State’s Attorney's Office to work around him in order to bring criminal cases to trial. Moreover, a review of these incidents cause us great concern about his judgement and decision making in crisis situations, particularly with regard to his response the mentally ill. In light of these concerns, having given this matter serious consideration and taking into account his full disciplinary history, we have concluded that if Officer Rush were to return to active duty, we will not call Officer Rush as a witness for the prosecution in criminal proceedings.
Upon receipt of the letter, the Chief conducted a fact finding with Rush and his Union, but ultimately terminated his employment because he believed his inability to testify made him "unable to perform the essential functions of [his] position." This action was grieved and submitted to Arbitrator Falvo for resolution. After a comprehensive review of arbitration awards and case law, Arbitrator Falvo sustained the grievance and ordered grievant again be reinstated. The Arbitrator emphasized that except for the charge of dishonesty overturned by Arbitrator Dichter grievant had not been accused of or disciplined for untruthfulness. Noting the potential for "behind the scenes collusion," Arbitrator Falvo concluded:
If a prosecutor is empowered with the unbridled and unreviewable discretion to deem an officer “disqualified” to testify -- with the consequence that she loses her job because obviously there is no place in a police department for a law enforcement officer with that incapacity – contractual or statutory just cause protections are a nullity. An arbitrator would need to be more naïve than parties should expect not to realize that one must be alert to the danger that a losing party in a disciplinary arbitration will try to undo a disappointing result by finding an alternative path to reinstate what the arbitrator reversed. By no means is this to imply that a decision by a prosecutor that an officer will not be called testify that results in her dismissal cannot in the appropriate case meet the just cause standard. Rather, it means that an arbitrator’s non-delegable responsibility to determine whether just cause does or does not exist requires that he bring informed judgment to the case with the recognition that deference to the judgments of public officials cannot be blindly and uncritically ratified.
Regarding the positions articulated by the State's Attorney, Arbitrator Falvo found that in light of Arbitrator Dichter's conclusion that Rush had not engaged in intentional misrepresentation, her reliance on perceived Brady/Giglio obligations was misplaced. He also found that the other reasons cited by her did not support a claim of just cause for the Officer's termination. Arbitrator Falvo similarly rejected the Department's reliance on the "well established doctrine of persona non grata" (typically used when a third party customer bars a bargaining unit employee from their premises).
Accordingly he ordered Rush' reinstatement with back pay and the expungement of any reference to the disciplinary action in his personal records.
A third arbitration, arising from a different incident, also claimed by the Department to justify Officer Rush's termination was scheduled for hearing but has since been settled. Pursuant to the settlement Rush waives reinstatement while the City agrees not to appeal Falvo's decision.
The New Hampshire Supreme Court addressed a similar issue in Duchesne v. Hillsborough County Attorney, granting the request of three police officers to have their names removed from that State's "Laurie List" after an arbitrator and the State Attorney General's office had cleared them of allegations of excessive force.
Sunday, October 2, 2016
Officer involved shooting - Arbitrator orders "second chance" for dismissed officer
On March 7, 2013 El Paso police received a call about a domestic disturbance. The individual who was the subject of the call (Daniel S.) was no longer on the scene but witnesses reported that he had burned his mother's dogs, cut another one and threatened to kill his brother. A few hours later he was the subject of another call when he was reported to be violently menacing staff and customers at a local convenience store. Police arrived on the scene and transported his to a nearby hospital where he assaulted several staff and patients, and punched an El Paso police officer in the face. The officer fired five Taser cycles with little effect. Eventually he was subdued with the assistance of hospital personal. He was then transported to the police substation.
Grievant was coming on duty at the substation and volunteered to take the individual to the County Jail. According to grievant and others, Daniel S. had the physique of a professional body builder and appeared to be "on something." Grievant was assisted with the transport by a civilian employee of a contractor. This was pursuant to a new program designed to free police officers for other assignments. During the transport Daniel S. would cycle between periods of docility and combativeness. He would go limp, requiring Grievant and the contractor to carry him for significant distances. Upon the approach to the jail, Daniel S. deliberately smacked his head against the door causing a bloody wound. Because of the wound, jail personnel refused to accept him, requiring grievant to take the prisoner to another facility for treatment. The prisoner became combative again as they were exiting the jail. The departure was recorded on the jail's video, but the interpretation of the events was subject to dispute. What was undisputed was that the officer and the contractor struggled with the prisoner, with the officer ultimately pulling his weapon. While there was some uncertainty concerning whether the officer intended to shoot or whether his hand was struck causing an accidental discharge, the prisoner was fatally shot. An investigation ensued, and the officer's employment was ultimately terminated. The Notice of Termination contained two primary allegations. The first alleged that the officer had violated the Department's policy with respect to the use and application of deadly force, and the second alleged that he had misrepresented the facts concerning whether the shooting was accidental or intentional.
After a criminal investigation resulted in no charges being filed, the grievance proceeded to arbitration before Arbitrator Mark Sherman.
After a detailed review of the evidence, and the conflicting positions of the parties, Arbitrator Sherman ordered the grievant reinstated without back pay. While noting the severity of law enforcement's excessive use of force, and his own prior cases generally upholding termination where excessive use of force was involved, Arbitrator Sherman found several mitigating factors in this case.
Initially, the Arbitrator found that the City had not established that grievant intended to deceive. Rather, he concluded that any discrepancies in his account resulted from the initial shock of the incident and gradual but incomplete efforts to recall details. He also found that deficiencies in the investigation of the incident led to a disjointed effort to gather a complete statement from grievant.
Turning to the use of force issue, Arbitrator Sherman noted that a lack of coordination between the City, the Union and the District Attorney's office led to grievant's actions being portrayed "in the worst possible light by the media." He also found that the newly instituted policy of civilian transport of prisoner exacerbated the situation, noting:
[Grievant] was assigned to transport a violent and highly dangerous prisoner with only a 23-year-old, unarmed security guard to assist him. While his contracted “off -sider”certainly did his valiant best to assist [Grievant], the unarmed young man had never been through any police academy nor was he physically or mentally equipped to deal with the dangerous situation that confronted him on the day in question. For all intents and purposes, therefore, the Grievant was pretty much on his own in his effort to transport a powerful and seriously deranged hulk of a man.
Nevertheless, Arbitrator Sherman found that grievant was not without fault:
In the final analysis, there were a couple of key opportunities for the Grievant to seek help before things got out of hand while he was on his way out of the sally port. Ultimately, he should have never put himself in the position where he had to draw his gun in an effort to intimidate Mr.S[...]. He should have never put himself in the position where he had to breach the Use of Force policy in a last desperate attempt to control the situation. But most critically, he should have never drawn his weapon in such close proximity to Mr. S[...], knowing intuitively and through training that an unexpected and violent movement could cause his gun to accidentally discharge. (After viewing the sally port video nearly 50 times the Arbitrator reached the firm conclusion that this is precisely what happened.) In summary, despite the fact he was let down by both the Department and the County Jail staff, he still bears the brunt of the responsibility for the accidental death of Mr. S[...].
Accordingly, Arbitrator Sherman concluded that he would serve "his customary role of scapegoat and reviled 'decider' of the controversial, by choosing to give an officer a second chance." He ordered the City to reinstate grievant, without back pay, and subject to a fitness for duty exam and whatever additional training the Chief might require.
Sunday, June 19, 2016
Post termination conduct, just cause and public policy
The saga involving a sheriff's deputy first dismissed for allegedly stealing two potted plants continues.
As discussed here (Arbitrator rejects termination of Sheriff's deputy based on allegation of theft, but finds post termination shoplifting warrants suspension) the deputy was accused of stealing the plants from a city park. Grievant claimed she believed they had been abandoned. Arbitrator Dennis McGilligan, applying a "clear and convincing" burden of proof standard, concluded that the City had failed to establish grievant intended to steal the plants. However he found that she had failed to follow the department's policy on abandoned property and deemed a thirty day suspension appropriate. Reacting to testimony concerning grievants admitted post termination conduct of retail theft (shoplifting) the arbitrator noted that while there was little information in the record concerning the incident he deemed a sixty day suspension appropriate.
The Sheriff's office sought to vacate the award, arguing that the arbitrator utilized the wrong standard of proof and improperly ruled on the shoplifting incident. The court remanded the matter back to Arbitrator McGilligan for reconsideration under a preponderance of the evidence standard, and also agreed with the Sheriff that the shoplifting incident had been improperly considered. On remand the arbitrator again found a thirty day suspension warranted for the claimed plant theft.
The Sheriff's office reinstated grievant in accord with the award but dismissed her for the shoplifting incident.
The propriety of that termination was submitted to Arbitrator Timothy Tobin. Arbitrator Tobin found that the second termination was also without just cause. (Arbitrator: Misconduct between initial termination and reinstatement no basis for post reinstatement termination). He found that since grievant was not employed by the Sheriff at the time of the incident there was no basis for discipline. He ordered her reinstatement.
The Sheriff's Office also appealed this decision and, according to press reports, the Sangamon County court has overturned the award. (Decision upholds termination, Judge rules sheriff doesn't have to reinstate Sangamon County deputy fired after theft). According to the reports, Judge John Schmidt concluded that the arbitrator's award "is repugnant to the firm, clear and resolute public policy against retail theft" He observed that such acts "are more disturbing when committed by law enforcement officers sworn to uphold the law." Accordingly he found that required grievant's reinstatement would be contrary to public policy.
As discussed here (Arbitrator rejects termination of Sheriff's deputy based on allegation of theft, but finds post termination shoplifting warrants suspension) the deputy was accused of stealing the plants from a city park. Grievant claimed she believed they had been abandoned. Arbitrator Dennis McGilligan, applying a "clear and convincing" burden of proof standard, concluded that the City had failed to establish grievant intended to steal the plants. However he found that she had failed to follow the department's policy on abandoned property and deemed a thirty day suspension appropriate. Reacting to testimony concerning grievants admitted post termination conduct of retail theft (shoplifting) the arbitrator noted that while there was little information in the record concerning the incident he deemed a sixty day suspension appropriate.
The Sheriff's office sought to vacate the award, arguing that the arbitrator utilized the wrong standard of proof and improperly ruled on the shoplifting incident. The court remanded the matter back to Arbitrator McGilligan for reconsideration under a preponderance of the evidence standard, and also agreed with the Sheriff that the shoplifting incident had been improperly considered. On remand the arbitrator again found a thirty day suspension warranted for the claimed plant theft.
The Sheriff's office reinstated grievant in accord with the award but dismissed her for the shoplifting incident.
The propriety of that termination was submitted to Arbitrator Timothy Tobin. Arbitrator Tobin found that the second termination was also without just cause. (Arbitrator: Misconduct between initial termination and reinstatement no basis for post reinstatement termination). He found that since grievant was not employed by the Sheriff at the time of the incident there was no basis for discipline. He ordered her reinstatement.
The Sheriff's Office also appealed this decision and, according to press reports, the Sangamon County court has overturned the award. (Decision upholds termination, Judge rules sheriff doesn't have to reinstate Sangamon County deputy fired after theft). According to the reports, Judge John Schmidt concluded that the arbitrator's award "is repugnant to the firm, clear and resolute public policy against retail theft" He observed that such acts "are more disturbing when committed by law enforcement officers sworn to uphold the law." Accordingly he found that required grievant's reinstatement would be contrary to public policy.
Sunday, April 24, 2016
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.
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.
Sunday, February 21, 2016
February Quick Hits
USM followed contract in layoff of faculty
Arbitrator Mark Irvings largely rejected a grievance filed by the Associated Faculties of the Universities of Maine challenging the University's "retrenchment" (layoff) of faculty at USM resulting from economic pressures. While the Union challenged the need for layoffs, and offered its own analysis of the financial health of the system, Arbitrator Mark Irvings concluded that the University acted "for bona fide financial or program reasons" within the meaning of the cba.
The Portland Press Herald reports on the decision USM followed contract when it laid off faculty members in 2014, arbitrator rules and links to a redacted copy of the award here.
Court: Arbitrator did not ignore last chance agreement, upholds award
The US District Court for the Southern District has refused to overturn an award of Arbitrator Robert Simmelkjaer. UNITE HERE Local 100 v. Westchester Hills Golf Club, Inc. Arbitrator Simmelkjaer sustained the grievance filed behalf of a bartender who had been dismissed. In 2010 Arbitrator Susan Mackenzie reinstated grievant following his termination for insubordination but imposed a last chance condition. Separately, the Golf Club entered into a last chance agreement with grievant in settlement of a dispute about a proposed termination in 201. In 2013 grievant was working as a bartender at a bereavement lunch. A participant complained about his behavior and the Club again terminated his employment. Arbitrator Simmelkjaer found that the Club had not established that grievant engaged in the conduct alleged. Additionally, he concluded that the last chance agreement entered into in 2011 was unenforceable because the Union was not a party to the agreement. He rejected the Club's claim that, since grievant was a shop steward, further participation by the Union was unnecessary. The Court concluded that the Arbitrator acted within the scope of his authority and his award was entitled to confirmation. (A similar issue is addressed in Last chance agreement doesn't bar arbitration when union is not a party)
City to appeal order confirming award reinstating police officer
Arbitrator Mark Reed sustained a grievance filed on behalf of a Guthrie, Oklahoma police officer dismissed for his actions in arresting his wife's ex-husband. Arbitrator Reed's award can be found here. The Arbitrator concluded that grievant's conduct warranted severe discipline but that an unfair investigation and grievant's length of service supported mitigation of the penalty. The City unsuccessfully sought to set aside the award, and it has now indicated its intent to appeal that decision. City Council appeals judge ruling that former Guthrie police officer should be reinstated.
Police discipline
A column in the San Antonio Express News reviews the arbitration award that reinstated an officer involved in the fatal shooting of his girlfriend's ex-boyfriend and asserts Union undermines police chief in appeal process. The article links to the award of Arbitrator LeRoy Bartman here.
The issue of police discipline is the subject of news articles in Texas (Police disciplinary process questioned by McManus), Massachusetts (Discipline for Boston police officers frequently overturned Arbitrators rule in favor of officers three out of four times), New York (Schenectady to appeal police discipline case to state's highest court) and California (How San Jose cop fired for combative Black Lives Matter tweets got his job back).
Court confirms award upholding termination of oboist
The District Court for the Western District of New York has rejected an effort to overturn an award of Arbitrator Robert Rabin upholding a termination. Grievant was an oboist with the Boston Philharmonic. The Court rejected the unsuccessful grievant's challenges to the arbitrator's evidentiary rulings, and declined the grievant's invitation to find a violation of public policy in the award. The Court denied grievant's claim that an award upholding a termination was contrary to public policy "because his profession as an oboist is extremely limited in terms of job opportunities." The court's decision in Roy v. Buffalo Philharmonic Society, Inc. can be found here.
The US District Court for the Southern District has refused to overturn an award of Arbitrator Robert Simmelkjaer. UNITE HERE Local 100 v. Westchester Hills Golf Club, Inc. Arbitrator Simmelkjaer sustained the grievance filed behalf of a bartender who had been dismissed. In 2010 Arbitrator Susan Mackenzie reinstated grievant following his termination for insubordination but imposed a last chance condition. Separately, the Golf Club entered into a last chance agreement with grievant in settlement of a dispute about a proposed termination in 201. In 2013 grievant was working as a bartender at a bereavement lunch. A participant complained about his behavior and the Club again terminated his employment. Arbitrator Simmelkjaer found that the Club had not established that grievant engaged in the conduct alleged. Additionally, he concluded that the last chance agreement entered into in 2011 was unenforceable because the Union was not a party to the agreement. He rejected the Club's claim that, since grievant was a shop steward, further participation by the Union was unnecessary. The Court concluded that the Arbitrator acted within the scope of his authority and his award was entitled to confirmation. (A similar issue is addressed in Last chance agreement doesn't bar arbitration when union is not a party)
City to appeal order confirming award reinstating police officer
Arbitrator Mark Reed sustained a grievance filed on behalf of a Guthrie, Oklahoma police officer dismissed for his actions in arresting his wife's ex-husband. Arbitrator Reed's award can be found here. The Arbitrator concluded that grievant's conduct warranted severe discipline but that an unfair investigation and grievant's length of service supported mitigation of the penalty. The City unsuccessfully sought to set aside the award, and it has now indicated its intent to appeal that decision. City Council appeals judge ruling that former Guthrie police officer should be reinstated.
Police discipline
A column in the San Antonio Express News reviews the arbitration award that reinstated an officer involved in the fatal shooting of his girlfriend's ex-boyfriend and asserts Union undermines police chief in appeal process. The article links to the award of Arbitrator LeRoy Bartman here.
The issue of police discipline is the subject of news articles in Texas (Police disciplinary process questioned by McManus), Massachusetts (Discipline for Boston police officers frequently overturned Arbitrators rule in favor of officers three out of four times), New York (Schenectady to appeal police discipline case to state's highest court) and California (How San Jose cop fired for combative Black Lives Matter tweets got his job back).
Court confirms award upholding termination of oboist
The District Court for the Western District of New York has rejected an effort to overturn an award of Arbitrator Robert Rabin upholding a termination. Grievant was an oboist with the Boston Philharmonic. The Court rejected the unsuccessful grievant's challenges to the arbitrator's evidentiary rulings, and declined the grievant's invitation to find a violation of public policy in the award. The Court denied grievant's claim that an award upholding a termination was contrary to public policy "because his profession as an oboist is extremely limited in terms of job opportunities." The court's decision in Roy v. Buffalo Philharmonic Society, Inc. can be found here.
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