Police officers exchange of racially derogatory text messages found sufficient cause for dismissal

Four officers of the Ft Lauderdale Police Department were investigated for exchanging racially charged text messages and at least one video. The messages were brought to the attention of the Department by the former fiancée of one of the officers. The former fiancée had access to the messages during the relationship and preserved copies them. Several of the messages contained disparaging racial references, including repeated use of the "N" word. The messages also contained disparaging references to other officers and the efficiency of the Department. Following the investigation one of the officers (the creator of the video) resigned and the remaining three were dismissed. One did not challenge the dismissal. Two pursued their discipline separately before Arbitrators Carey M. Fisher and James Reynolds. Both arbitrators denied the grievances and upheld the terminations.

Both arbitrators rejected the officers claims that the messages had been improperly obtained or were protected by the First Amendment. On the merits, both found the evidence supported the Department's charge that each officer had engaged in "conduct unbecoming" and conduct "prejudicial to the good order of the Department."

Concerning the use of the "N" word, Arbitrator Fischer observed:

[Grievant] argues that it is merely that – a word, the meaning and import of which is dependent on the context and thought process of both the speaker and the listener, or in this case, the author and recipient. He denied any intent to denigrate African Americans. He denied any intent to express hateful, racist expressions. Yet, the word itself, and the context in which it was used, along with other exchanges amongst the officers, leads to the inescapable conclusion that its use was distasteful, unprofessional and derogatory. Yes, just a word, but one that conjures up images for which a proper context does not exist when used today by police officers (white or black) about residents of Fort Lauderdale.

Arbitrator Fisher noted that the use of the word in this case this was not "a slip of the tongue in a fit of pique" or one time indiscretion, but rather the denigration of a group "as part of one's personal entertainment.”

Concluding that the conduct involved damaged the Department’s relationship with the community  Arbitrator Fischer found the conduct involved directly impacted the Department’s  ability to perform its duties. Arbitrator Fischer observed:

The tasks facing police departments are considerable as populations have grown more culturally, racially, ethnically and religiously diverse. It is well known throughout this country that tension and conflict exists between police and some populations of the communities they serve. Unavoidably, the role police have in enforcing the law and maintaining order places officers in key positions to deal with all kinds of conflicts. Additionally, the actions of officers and the perceptions of the public result in heightened media, political and public attention. Bad news travels fast. Perceptions become reality. Enough gossip turns into fact.

Accordingly he found that the City had established cause for the officer’s dismissal.

In his award, Arbitrator Reynolds reiterated that police officers are held to a higher standard of conduct than other professionals:

... the primary duty of police officers is that of law enforcement. As such they are often the first to be involved in actions that could result in depriving citizens of their freedom. That is a formidable responsibility. In order to effectively discharge their responsibilities police officers must have the respect of the community they serve. That requires that they adhere to high standards of conduct in both their private and professional lives.

Like Arbitrator Fischer, he rejected the officer’s assertion that his intent was not to be racist or disparaging, finding that the comments were clearly racist “and his intentions do not provide any other meaning."

Even accepting as believable the officer’s testimony that he was not a racist, Arbitrator Reynolds found:

His comments were racially offensive, and some were demeaning to members of the Department. His conduct was clearly unbecoming that of a police officer and the record shows that it was prejudicial to the good order of the Department. It is not likely that he would repeat his misconduct, but a cloud over him would persist that would hamper his effectiveness as a police officer in the City of Fort Lauderdale.

Finding that there was a convincing showing that the officer’s conduct had a “disturbing effect “ on the community’s trust in the Department, Arbitrator Reynolds concluded:

What fundamentally matters here is the issue of [grievant’s] conduct as reasonably viewed by the Department and ultimately the community. Through that perspective the record supports a finding the [grievant’s] termination was for cause.

Arbitrator Fischer's award can be found here. Arbitrator Reynolds' award here.

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distasteful, hat conjures up images for which a proper context does not

exist when used today by police officers

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Lauderdale.

Termination of police officer for Facebook post overturned - City prematurely released information to media

During the disruption following the shooting of Michael Brown in Ferguson, Missouri, a police officer in Elgin, Illinois posted two entries concerning the dispute. The first included a link to a video purporting to show Brown stealing cigarillos from a local store. Under the link to the video the officer wrote "Hmmm ...innocent victim my ass. Did society a favor." A couple of days later the officer posted a second entry. This entry contained a photo of a Missouri State Highway officer with a protester. Both individuals in the photo are making a hand gesture which the officer interpreted as a gang sign. Under the photo he wrote " This is Missouri State Highway Patrol Capt. Ron Johnson. He's also in the Chicago Tribune hugging protesters Just awesome...appears to be the enemy within."

While the officer's settings were set so his posts were visible only to his friends, one of his friends, a Sergeant in the Department, saw the initial post and reported it to superiors in the Department. Grievant was spoken to about the posting, and,while there was a dispute about the content of the conversation, it was undisputed that the officer was told that the posting was inappropriate and as a result of the conversation he removed everything following  "Hmmm...." Grievant removed the second post after he learned that what he believed to be a gang sign was a fraternity gesture.

The City conducted an investigation of the officer's Facebook posts. As part of the investigation it met with community representatives and the investigation received considerable local news coverage. That coverage included references to the Facebook posts and other details of the investigation. Following the investigation the officer's employment was terminated. That termination was grieved, and the dispute submitted to Arbitrator Aaron Wolff for resolution.

Arbitrator Wolff described the issue before him:

Discharge of Elgin police officer with 171/2 years service for two postings on his Facebook account in August 2014, allegedly made in violation of Elgin's Social Media Policy, at the height of the Ferguson, Missouri riots after a white policeman shot and killed an 18 year old black man. 

The Union (Policemen's Benevolent and Protective Association, Unit 54) raised a number of arguments, including a claim that that the City's action violated grievant's First Amendment rights.

Arbitrator Wolff found it unnecessary to reach the First Amendment issue, finding instead that the City's actions, while the investigation was pending, of providing information to the media concerning facts in dispute and copies of the Facebook postings undermined the City's claim of just cause. Arbitrator Wolff concluded:

The above record of expedited release of documents (fn30) several weeks prior to completion of the investigation of [grievant] on September 19 was a clear violation of the City's Police Department rules and regulations and is a bar to finding just cause for the discharge. ...                                      
***                                         
In light of that finding and conclusion there is no need to decide the First Amendment issue or other issues in this case. It should be noted, however, that both City staff employees and Police Department employees released confidential information to the public while the investigation was pending and, therefore, both violated the Collective Bargaining Agreement ....
____
fn30 ...An unanswered question in this case is how the media learned of the investigation in order to make any FOIA requests. ...

Nonetheless, Arbitrator Wolff did find cause for a six month suspension for grievant's failure to follow what he found was the direction to grievant to remove posts relating to the Ferguson incidents. While noting that the First Amendment issue remained unresolved, he concluded "Grievant should have followed the golden rule of obeying orders and grieving them later. At that time and manner he could find out if the postings were protected by the First Amendment."

Arbitrator Wolff's award is available here.

Labor Arbitration in the News

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Termination of teacher for improper contact with student upheld

The Pensacola News Journal reports on an award upholding the termination of an Escambia, FL teacher for improperly texting a student Teachers texting students: Escambia case raises questions, concerns. Arbitrator Jeanne Charles Wood upheld the termination, finding that Grievant’s texting of the student, which extended over a period of several days and included texts at various times through the day and into the evening, demonstrated “repeatedly exercised poor judgment” and that the escalation of personal contact was “sufficient to give the Employer grave concern as to whether the Grievant can be trusted in the school system” The Arbitrator concluded that the Employer has a duty to protect the children in its care and “placing the Grievant back in the school system would be a breach of that duty.” The full text of Arbitrator Wood’s award can be found here.

Arbitrator orders apology as remedy

Arbitrator Jonathan Monat has ordered the USPS District Manager to apologize to employees affected by the bullying and intimidation of a former supervisor. Arbitrator Monat found that the conduct violated the Joint Statement on Violence and Behavior in the Workplace and that LA District Management had failed for an extended period of time to address the problem. As a remedy, the Arbitrator ordered the LA District Manager to “issue a written apology to the employees in the Redondo Beach Post Office stating that it failed to act…. This apology shall acknowledge the feelings and concerns of the Redondo Beach employees and state that the District Manager will act proactively…” in the future. The Arbitrator also ordered the District Manager or his high level designee to personally apologize to the employees in the office. The text of the award can be found here.

NYC unsuccessful in efforts to overturn school closing award.

SchoolBookreports that a judge has refused to overturn Arbitrator Buchheit’s award concerning New York City’s efforts to close and reopen certain schools it believed were underperforming. Judge Backs Union in Turnaround Ruling. The Judge concluded that the Arbitrator acted within his authority under the contract. The City indicated it intends to appeal the ruling. The arbitrator’s original decision is discussed here.