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 untruthfulness. Show all posts
Showing posts with label untruthfulness. Show all posts
Sunday, December 8, 2019
Sunday, December 21, 2014
Police officers, "untruthfulness" and public policy
A police officer's claimed "untruthfulness" and the dictates of public policy have been the subject of previous posts here and here. (Discipline for untruthfulness generally is discussed here, here and here.)
The Supreme Court of Connecticut has now addressed this issue. In Town of Stratford v AFSCME Council 15, Local 407 the Court reversed the decision of the Appellate Court and essentially confirmed an arbitration award reinstating a police officer found to have been deceptive during an independent medical exam concerning his fitness to work.
Grievant had been employed by the City for several years. When he was initially hired the City was aware that he had latent epilepsy. It required him to complete a probationary period free from seizures, which he did successfully. In June of 2009 grievant suffered a seizure while driving a police vehicle, striking two parked cars. His personal physician cleared him to return to work, but the City sent him to an independent neurologist for an independent medical evaluation. That ime cleared him to return to work, but in reviewing the records, the City became aware that grievant had failed to inform the examiner that he had suffered two seizures, in 2005 and 2008, and further failed to disclose that he had been abusing alcohol. Presented with this information, the independent examiner concluded that, while he was unsure if grievant could be trusted to avoid activities (primarily alcohol) that might increase his susceptibility to seizures, he presented no greater risk than he had at the time of his initial hire. The City however charged grievant with lying during the ime, and terminated his employment.
An arbitration panel overturned the termination. It concluded that termination was excessive, but did find grievant's misconduct serious and denied any back pay. The City sought to set aside the award as contrary to public policy, but the trial court refused to do so. On appeal, the Appellate Court reversed (in an opinion discussed here) finding:
the union concedes that [grievant] intentionally lied during a medical examination into the conditions that would allow him safely to return to work and to perform his duties as a police officer. The arbitration panel’s determination to reinstate [grievant] in spite of this conduct runs contrary to the well-defined public policy against intentional dishonesty by police officers in connection with their employment. ... Accordingly, the award cannot stand.
The Union appealed, and the Supreme Court reversed. Initially, it concluded that there was a public policy "against the employment of law enforcement personnel who have engaged in intentional dishonesty that directly pertains to their qualification and ability to perform official duties." It noted, however, that the next question was whether public policy required termination of grievant's employment. Concluding that it did not, the Court observed:
[Grievant] did not lie under oath and his dishonesty was not disruptive or repeated; he was not dishonest before his fellow police officers or while performing his official duties. He was not warned about the repercussions of his misconduct so he was not incorrigible, and the punishment that he received was severe.
The Court concluded that requiring termination under the facts of this case "would unnecessarily expand "the stringent and narrow confines of [the] exception' to confirming an arbitration award and 'swallow the rule' granting deference to arbitration awards.
The dissent would have upheld the decision vacating the award, observing:
[Grievant's] violation of that trust and confidence, by lying in connection with the independent medical examination, was indeed ‘‘very serious,’’ as the panel observed, because those lies bore directly on his ability to return to work and to safely perform his duties as a police officer. Short of a violation of the criminal law, it is hard to conceive of misconduct by a police officer that is more serious. Simply stated, when {Grievant] placed his own perceived self-interest over the safety of the community by lying about his fitness to serve, he demonstrated that he is not fit to serve.
The Supreme Court of Connecticut has now addressed this issue. In Town of Stratford v AFSCME Council 15, Local 407 the Court reversed the decision of the Appellate Court and essentially confirmed an arbitration award reinstating a police officer found to have been deceptive during an independent medical exam concerning his fitness to work.
Grievant had been employed by the City for several years. When he was initially hired the City was aware that he had latent epilepsy. It required him to complete a probationary period free from seizures, which he did successfully. In June of 2009 grievant suffered a seizure while driving a police vehicle, striking two parked cars. His personal physician cleared him to return to work, but the City sent him to an independent neurologist for an independent medical evaluation. That ime cleared him to return to work, but in reviewing the records, the City became aware that grievant had failed to inform the examiner that he had suffered two seizures, in 2005 and 2008, and further failed to disclose that he had been abusing alcohol. Presented with this information, the independent examiner concluded that, while he was unsure if grievant could be trusted to avoid activities (primarily alcohol) that might increase his susceptibility to seizures, he presented no greater risk than he had at the time of his initial hire. The City however charged grievant with lying during the ime, and terminated his employment.
An arbitration panel overturned the termination. It concluded that termination was excessive, but did find grievant's misconduct serious and denied any back pay. The City sought to set aside the award as contrary to public policy, but the trial court refused to do so. On appeal, the Appellate Court reversed (in an opinion discussed here) finding:
the union concedes that [grievant] intentionally lied during a medical examination into the conditions that would allow him safely to return to work and to perform his duties as a police officer. The arbitration panel’s determination to reinstate [grievant] in spite of this conduct runs contrary to the well-defined public policy against intentional dishonesty by police officers in connection with their employment. ... Accordingly, the award cannot stand.
The Union appealed, and the Supreme Court reversed. Initially, it concluded that there was a public policy "against the employment of law enforcement personnel who have engaged in intentional dishonesty that directly pertains to their qualification and ability to perform official duties." It noted, however, that the next question was whether public policy required termination of grievant's employment. Concluding that it did not, the Court observed:
[Grievant] did not lie under oath and his dishonesty was not disruptive or repeated; he was not dishonest before his fellow police officers or while performing his official duties. He was not warned about the repercussions of his misconduct so he was not incorrigible, and the punishment that he received was severe.
The Court concluded that requiring termination under the facts of this case "would unnecessarily expand "the stringent and narrow confines of [the] exception' to confirming an arbitration award and 'swallow the rule' granting deference to arbitration awards.
The dissent would have upheld the decision vacating the award, observing:
[Grievant's] violation of that trust and confidence, by lying in connection with the independent medical examination, was indeed ‘‘very serious,’’ as the panel observed, because those lies bore directly on his ability to return to work and to safely perform his duties as a police officer. Short of a violation of the criminal law, it is hard to conceive of misconduct by a police officer that is more serious. Simply stated, when {Grievant] placed his own perceived self-interest over the safety of the community by lying about his fitness to serve, he demonstrated that he is not fit to serve.
Sunday, December 14, 2014
Arbitrator upholds dismissal of police officer for "untruthfulness" concerning DUI stop
FoxTampaBay reports on a recent decision upholding the dismissal of the head of Tampa PD's DUI unit for being deceptive concerning a dui stop. The report discusses the award of Arbitrator John Popular which can be found here.
On January 24, 2013 Grievant received a tip from a friend (Attorney Adam Filthaut) concerning a potential dui scenario. Filthaut was reporting on the conduct of C. Phillip Campbell, an attorney adverse to Filthaut and his firm in a hotly contested local trial. As a result of the tip, grievant assigned two officers to stake out the bar involved and to be on the look out for Campbell. Grievant and Filthaut exchanged thirteen text messages before Campbell was pulled over. Another officer performed the dui tests, and arrested Campbell. Grievant initiated text and phone conversations with Filthaut advising him of the arrest. Exchanges between the two continued into the next day, with grievant asserting that only then did he then became aware of the nature of the relationship between Filthaut and Campbell.
The arrest received media attention and grievant spoke with the Chief on the 24th, but failed to advise him of the extent of his friendship with Filthaut. He acknowledged exchanging a "few" text messages with Filthaut. On the same day, grievant testified in connection with a motion for mistrial in the pending litigation. In his testimony grievant claimed that he had no contact with Filthaut after the arrest. Over the next several months the Department conducted an investigation of grievant's conduct. In March the Chief learned that in fact grievant and Filthaut had exchanged 96 text messages. On September 27, 2013 grievant's employment was terminated for untruthfulness.
The Department's policy on truthfulness, contained in a General Order dated May 6, 1994, provided:
As many of you are aware, under prior departmental administrations, the subject of untruthfulness has generated some controversy as to the appropriate level of discipline to be administered in such cases. This General Order is intended to provide a clear understanding of the Department's views on the seriousness of untruthfulness and the manner in which such cases are and will be handled in the future. The public, as well as myself demand the highest integrity and honesty of police officers....
Therefore, the General Order will confirm that untruthfulness is not tolerated by this Department and it will continue to be treated as among the most serious offenses which an employee can commit. Any sustained incident of untruthfulness of any pending or future cases will be treated in accordance with that philosophy and subject the employee to immediate termination. ...
The termination was grieved, and on September 20, 2014 Arbitrator Popular issued his award. After reviewing the evidence, he concluded:
In the arbitrator's opinion (1) the Grievant became an unwitting accomplice in the collusion of four attorney's attempt to "set up" Mr. Campbell for a DUI arrest, (2) was untruthful about the volume of communications between himself and Mr. Filthaut on January 23d, (3) misrepresented his personal relationship with Mr. Filthaut, and (4) deliberately omitted these facts in his report to Chief Castor.. In addition, his January 25, 2013 Court testimony, denying phone contact with Mr. Filthaut after the arrest, did not square with what he told the Chief. ... Given the events that unfolded between January 23 and 24th, he had to be aware that this could result in further investigation, and undoubtedly escalate to being a significant problem for both himself and the Tampa Police Department. Between the January 23rd arrest and January 25th court appearance he had a window of opportunity to truthfully provide all of the facts to his superior officers and/or the Chief. He elected not to do so. His failure to communicate all the facts to Chief Castor on January 24th, or thereafter, proved to be intentionally deceitful, therefore, is deemed "untruthful".
Arbitrator Popular found no basis for the Union's argument that progressive discipline should trump the policy of immediate termination set forth in the Department's policy. He noted the absence of any evidence that the City had ever imposed any lesser penalty for untruthfulness since the policy was issued, and concluded that immediate termination must be deemed to be the "unchallenged norm" for cases of untruthfulness.
On January 24, 2013 Grievant received a tip from a friend (Attorney Adam Filthaut) concerning a potential dui scenario. Filthaut was reporting on the conduct of C. Phillip Campbell, an attorney adverse to Filthaut and his firm in a hotly contested local trial. As a result of the tip, grievant assigned two officers to stake out the bar involved and to be on the look out for Campbell. Grievant and Filthaut exchanged thirteen text messages before Campbell was pulled over. Another officer performed the dui tests, and arrested Campbell. Grievant initiated text and phone conversations with Filthaut advising him of the arrest. Exchanges between the two continued into the next day, with grievant asserting that only then did he then became aware of the nature of the relationship between Filthaut and Campbell.
The arrest received media attention and grievant spoke with the Chief on the 24th, but failed to advise him of the extent of his friendship with Filthaut. He acknowledged exchanging a "few" text messages with Filthaut. On the same day, grievant testified in connection with a motion for mistrial in the pending litigation. In his testimony grievant claimed that he had no contact with Filthaut after the arrest. Over the next several months the Department conducted an investigation of grievant's conduct. In March the Chief learned that in fact grievant and Filthaut had exchanged 96 text messages. On September 27, 2013 grievant's employment was terminated for untruthfulness.
The Department's policy on truthfulness, contained in a General Order dated May 6, 1994, provided:
As many of you are aware, under prior departmental administrations, the subject of untruthfulness has generated some controversy as to the appropriate level of discipline to be administered in such cases. This General Order is intended to provide a clear understanding of the Department's views on the seriousness of untruthfulness and the manner in which such cases are and will be handled in the future. The public, as well as myself demand the highest integrity and honesty of police officers....
Therefore, the General Order will confirm that untruthfulness is not tolerated by this Department and it will continue to be treated as among the most serious offenses which an employee can commit. Any sustained incident of untruthfulness of any pending or future cases will be treated in accordance with that philosophy and subject the employee to immediate termination. ...
The termination was grieved, and on September 20, 2014 Arbitrator Popular issued his award. After reviewing the evidence, he concluded:
In the arbitrator's opinion (1) the Grievant became an unwitting accomplice in the collusion of four attorney's attempt to "set up" Mr. Campbell for a DUI arrest, (2) was untruthful about the volume of communications between himself and Mr. Filthaut on January 23d, (3) misrepresented his personal relationship with Mr. Filthaut, and (4) deliberately omitted these facts in his report to Chief Castor.. In addition, his January 25, 2013 Court testimony, denying phone contact with Mr. Filthaut after the arrest, did not square with what he told the Chief. ... Given the events that unfolded between January 23 and 24th, he had to be aware that this could result in further investigation, and undoubtedly escalate to being a significant problem for both himself and the Tampa Police Department. Between the January 23rd arrest and January 25th court appearance he had a window of opportunity to truthfully provide all of the facts to his superior officers and/or the Chief. He elected not to do so. His failure to communicate all the facts to Chief Castor on January 24th, or thereafter, proved to be intentionally deceitful, therefore, is deemed "untruthful".
Arbitrator Popular found no basis for the Union's argument that progressive discipline should trump the policy of immediate termination set forth in the Department's policy. He noted the absence of any evidence that the City had ever imposed any lesser penalty for untruthfulness since the policy was issued, and concluded that immediate termination must be deemed to be the "unchallenged norm" for cases of untruthfulness.
Sunday, November 16, 2014
Reinstatement of police officer fired for dishonesty regarding personal conduct not violative of public policy
Grievant was employed as a police officer for the City of Sandusky, Ohio. He worked the night shift, which was supervised by a Sergeant who was also a personal friend. Grievant was approached by the Sergeant's fiancee who informed him that she and the Sergeant were "swingers" and that she wanted to have a sexual encounter with him. She advised the grievant that the Sergeant was aware of her request and had no objection to it. The Sergeant subsequently informed grievant that he knew of his fiancee's request and confirmed that he had no objection. Grievant turned down the offer.
Several months later the Sergeant's now wife began texting grievant. She and grievant began exchanging sexually explicit texts and photos. The Sergeant became aware of these texts and became angry that grievant had been communicating with his wife without his knowledge. He informed two higher level officers of his belief that grievant had been sleeping with his wife. The Department began an investigation and grievant described the solicitation he had received. However, on at least two occasions, he denied the existence of any explicit photos before ultimately acknowledging their existence.
The City terminated grievant's employment and the Union pursued the matter through arbitration. Arbitrator Robert Stein, while finding a basis for some discipline because of grievant's alleged insubordination, overturned the dismissal, finding it without just cause.
The City brought an action to vacate the award, contending, among other bases, that reinstatement of a police officer who had been dishonest during the investigation violated public policy. The Common Pleas court denied that request. The court initially noted that "the essence" of grievant's dishonesty involved off duty conduct and noted further that the Arbitrator had found no evidence that it had any direct negative impact on grievant's work performance.
Distinguishing other cases where the alleged dishonesty also violated criminal laws, the Court refused to vacate the award holding:
Bearing in mind the standard of review which requires a reviewing court to make every reasonable indulgence to avoid disturbing an Arbitration Award, the Court cannot find it violates public policy to reinstate a police officer who was dishonest about something that was not job related, had no "direct negative impact on his work performance" and did not involve violation of a criminal statute.
The Court finds that its review of an arbitration award must necessarily be very narrow. This Court cannot substitute its judgment for the judgment of the Arbitrator. The basis for vacating such an award are well established and very limited. Under the law, this Court cannot find that the Arbitrator exceeded his power or that public policy prohibits reinstatement, given the unique facts of this case.
The Sandusky Register reports on the case here and here. The Court's decision can be found here .
(The City also terminated the employment of the Sergeant, for, among other reasons, "failure to display absolute honesty." Arbitrator Mary Jo Schiavone sustained the Sergeant's grievance and ordered his reinstatement. Arbitrator Schiavone's award can be found here. The City did not seek to set aside that award.)
In another case, also addressing an issue of claimed dishonesty concerning off duty conduct, Arbitrator Norman Bennett rejected a claim that an Austin, TX officer had acted dishonestly in providing conflicting and contradicting statements to Internal Affairs during an investigation of his off duty actions while working security at a hotel. Arbitrator Bennett did so, however, for reasons of insufficiency of evidence without discussing whether there was a nexus to grievant's employment. The Austin Chronicle reports on the case and the decision is available here.
Several months later the Sergeant's now wife began texting grievant. She and grievant began exchanging sexually explicit texts and photos. The Sergeant became aware of these texts and became angry that grievant had been communicating with his wife without his knowledge. He informed two higher level officers of his belief that grievant had been sleeping with his wife. The Department began an investigation and grievant described the solicitation he had received. However, on at least two occasions, he denied the existence of any explicit photos before ultimately acknowledging their existence.
The City terminated grievant's employment and the Union pursued the matter through arbitration. Arbitrator Robert Stein, while finding a basis for some discipline because of grievant's alleged insubordination, overturned the dismissal, finding it without just cause.
The City brought an action to vacate the award, contending, among other bases, that reinstatement of a police officer who had been dishonest during the investigation violated public policy. The Common Pleas court denied that request. The court initially noted that "the essence" of grievant's dishonesty involved off duty conduct and noted further that the Arbitrator had found no evidence that it had any direct negative impact on grievant's work performance.
Distinguishing other cases where the alleged dishonesty also violated criminal laws, the Court refused to vacate the award holding:
Bearing in mind the standard of review which requires a reviewing court to make every reasonable indulgence to avoid disturbing an Arbitration Award, the Court cannot find it violates public policy to reinstate a police officer who was dishonest about something that was not job related, had no "direct negative impact on his work performance" and did not involve violation of a criminal statute.
The Court finds that its review of an arbitration award must necessarily be very narrow. This Court cannot substitute its judgment for the judgment of the Arbitrator. The basis for vacating such an award are well established and very limited. Under the law, this Court cannot find that the Arbitrator exceeded his power or that public policy prohibits reinstatement, given the unique facts of this case.
The Sandusky Register reports on the case here and here. The Court's decision can be found here .
(The City also terminated the employment of the Sergeant, for, among other reasons, "failure to display absolute honesty." Arbitrator Mary Jo Schiavone sustained the Sergeant's grievance and ordered his reinstatement. Arbitrator Schiavone's award can be found here. The City did not seek to set aside that award.)
In another case, also addressing an issue of claimed dishonesty concerning off duty conduct, Arbitrator Norman Bennett rejected a claim that an Austin, TX officer had acted dishonestly in providing conflicting and contradicting statements to Internal Affairs during an investigation of his off duty actions while working security at a hotel. Arbitrator Bennett did so, however, for reasons of insufficiency of evidence without discussing whether there was a nexus to grievant's employment. The Austin Chronicle reports on the case and the decision is available here.
Sunday, June 29, 2014
Arbitrator conditions reinstatement on personal apology
Grievant was employed as a civilian dispatcher by the Cleveland Police Department. On March 6, 2013, he handled a call from the Board of Education reporting a school lock down and a belief that an unidentified individual was in route to the school to "shoot up" the facility and possibly those in it. Grievant's handling of the call, and his conduct immediately thereafter, was the subject of criticism by the management of the call center. He was ultimately disciplined for a number of acts of alleged misconduct, including improper use of his personal cell phone to conduct official business, leaving the dispatch center early without permission, and being "untruthful" concerning permission he claimed to have received from the Commander of the center concerning handling of the situation. He was also charged with using "disrespectful, derogatory and insubordinate language" when describing his interactions with the Commander. These conversations were recorded. Grievant's employment was terminated. The Union grieved the termination and the matter was submitted to Arbitrator William Allport.
Arbitrator Allport found that grievant had engaged in much of the conduct alleged, but found termination too severe a penalty. With particular reference to Grievant's language concerning the Commander, Arbitrator Allport found Grievant's comments "at best ill advised, derogatory, and regretful." Given the "gravity" of the comments, together with Grievant's other transgressions, the Arbitrator concluded that Grievant should be reinstated without back pay. As part of the remedy, however, he also ordered Grievant to "compose and sign a Letter of Apology" directed to the Commander, sincerely apologizing for his remarks. This letter was to be personally delivered to the Commander by Grievant, accompanied by his Local President and Union Counsel, and was to be paired with an oral apology. At the option of the Commander, the letter could be posted in the center for a period of 45 days.
Arbitrator Allport appended to his award a sample Letter of Apology. The sample reads:
To: Commander S
I genuinely regret the insolent and disrespectful statements that I made respecting you on March 6, 2013. There is no excuse for such conduct. I was wrong to make those statements and I sincerely apologize to you for such inappropriate and offensive remarks.
I understand and agree that my conduct on March 6, 2014 was totally unacceptable by any standard.
I can assure you that I will never make disrespectful comments concerning you or any other supervisory employee of the Cleveland Police Department in the future.
I am hopeful that you will forgive me for this indiscretion.
Once again my sincere apology.
_________________________________
Grievant
Dated:
Should Grievant decline to write and deliver the letter, and the personal apology, the reinstatement called for in the Award would become "Void" and the original termination stand.
19actionnews reports on the dispute (Another worker fired from Cleveland police gets his job back), and links to Arbitrator Allport's Award here.
Arbitrator Allport found that grievant had engaged in much of the conduct alleged, but found termination too severe a penalty. With particular reference to Grievant's language concerning the Commander, Arbitrator Allport found Grievant's comments "at best ill advised, derogatory, and regretful." Given the "gravity" of the comments, together with Grievant's other transgressions, the Arbitrator concluded that Grievant should be reinstated without back pay. As part of the remedy, however, he also ordered Grievant to "compose and sign a Letter of Apology" directed to the Commander, sincerely apologizing for his remarks. This letter was to be personally delivered to the Commander by Grievant, accompanied by his Local President and Union Counsel, and was to be paired with an oral apology. At the option of the Commander, the letter could be posted in the center for a period of 45 days.
Arbitrator Allport appended to his award a sample Letter of Apology. The sample reads:
To: Commander S
I genuinely regret the insolent and disrespectful statements that I made respecting you on March 6, 2013. There is no excuse for such conduct. I was wrong to make those statements and I sincerely apologize to you for such inappropriate and offensive remarks.
I understand and agree that my conduct on March 6, 2014 was totally unacceptable by any standard.
I can assure you that I will never make disrespectful comments concerning you or any other supervisory employee of the Cleveland Police Department in the future.
I am hopeful that you will forgive me for this indiscretion.
Once again my sincere apology.
_________________________________
Grievant
Dated:
Should Grievant decline to write and deliver the letter, and the personal apology, the reinstatement called for in the Award would become "Void" and the original termination stand.
19actionnews reports on the dispute (Another worker fired from Cleveland police gets his job back), and links to Arbitrator Allport's Award here.
Sunday, June 1, 2014
Recent Developments-Quick Hits
Arbitrator overturns termination of police officer for claimed use of excessive force
Arbitrator Stanley Sergent has overturned the termination of a police officer in Sarasota FL who had been fired for alleged use of excessive force. Grievant had admittedly used several "empty-hand strikes" in an effort to control the individual he was attempting to arrest. The City maintained that the number of strikes, together with the absence of any time between them to determine compliance, rendered the use of force excessive. Initially Arbitrator Sergent noted that the Supreme Court has held that the test for whether the use of force is excessive must be determined from the perspective of a reasonable police officer on the scene, not "with the 20/20 vision of hindsight." Arbitrator Sergent determined that grievant reasonably believed the subject was continuing to resist. He also found that while the City could have a more restrictive policy, it failed to demonstrate that grievant had violated that policy. While ordering grievant's reinstatement, the arbitrator did find that grievant's use of profane and abusive language and flagrant demonstration of anger and frustration was "clearly inappropriate,' warranting some punishment. Accordingly he replaced the termination with a thirty day suspension. The Sarasota Herald Tribune reports on the decision, Sarasota officer fired in Club Ivory beating to be reinstated, and links to Arbitrator Sergent's award here.
Student Assistance Coordinator who facilitated "refund" of drug transaction properly terminated
Arbitrator Michael Peckler has upheld a determination of "conduct unbecoming" an educator who allegedly arranged a refund of a cash for marijuana transaction between students after one of the students complained of being shortchanged. After an extensive analysis of the conflicting claims, the Arbitrator concluded:
[Grievant's] facilitation of the drug/cash exchange to make the controversy go away is contrary to the proactive, vigorous, front-line approach that is required of all teaching staff members. And her brokering of a refund between G.H. and J.C. combined with her position that she was going to report the students but for the school administration being too busy demonstrates such an egregious display of poor judgment and obfuscation that removal is the only appropriate remedy.
Arbitrator Peckler's award can be found here.
Arbitrator upholds suspension for false claim in grievance
Arbitrator Harry Crump has upheld a four day suspension imposed on a Blaine, MN police officer. Grievant had been issued a letter of reprimand for allegedly working private overtime while on call without arranging for appropriate coverage. The Union prepared a grievance on her behalf, which she signed. The grievance asserted that grievant had arranged for a named detective to cover her on call assignment. The City deemed this assertion to be unfounded, and imposed a suspension for grievant's alleged dishonesty. Arbitrator Crump found no evidence that the assertion was not "knowingly or deliberately untruthful" and denied the grievance. He explained:
The undersigned opine that there is no allowance in B.P.D. policies or [the Public Employment Labor Relations Act] for law enforcement officers to make false statements. The right to file a grievance does not provide a law enforcement officer with the right to make a false statement, nor insulate them from disciplinary action for violating B.P.D. policies and expectations relative to truthfulness. The Grievant did not claim on her grievance that she was "treated unfairly." The Grievant make [sic] affirmative representations that were false. The undersigned opines that the Employer has satisfied the Public Policy purpose to promote orderly and constructive relationships between all public employers and their employees.
Arbitrator Crump's award can be found here.
Arbitrator Stanley Sergent has overturned the termination of a police officer in Sarasota FL who had been fired for alleged use of excessive force. Grievant had admittedly used several "empty-hand strikes" in an effort to control the individual he was attempting to arrest. The City maintained that the number of strikes, together with the absence of any time between them to determine compliance, rendered the use of force excessive. Initially Arbitrator Sergent noted that the Supreme Court has held that the test for whether the use of force is excessive must be determined from the perspective of a reasonable police officer on the scene, not "with the 20/20 vision of hindsight." Arbitrator Sergent determined that grievant reasonably believed the subject was continuing to resist. He also found that while the City could have a more restrictive policy, it failed to demonstrate that grievant had violated that policy. While ordering grievant's reinstatement, the arbitrator did find that grievant's use of profane and abusive language and flagrant demonstration of anger and frustration was "clearly inappropriate,' warranting some punishment. Accordingly he replaced the termination with a thirty day suspension. The Sarasota Herald Tribune reports on the decision, Sarasota officer fired in Club Ivory beating to be reinstated, and links to Arbitrator Sergent's award here.
Student Assistance Coordinator who facilitated "refund" of drug transaction properly terminated
Arbitrator Michael Peckler has upheld a determination of "conduct unbecoming" an educator who allegedly arranged a refund of a cash for marijuana transaction between students after one of the students complained of being shortchanged. After an extensive analysis of the conflicting claims, the Arbitrator concluded:
[Grievant's] facilitation of the drug/cash exchange to make the controversy go away is contrary to the proactive, vigorous, front-line approach that is required of all teaching staff members. And her brokering of a refund between G.H. and J.C. combined with her position that she was going to report the students but for the school administration being too busy demonstrates such an egregious display of poor judgment and obfuscation that removal is the only appropriate remedy.
Arbitrator Peckler's award can be found here.
Arbitrator upholds suspension for false claim in grievance
Arbitrator Harry Crump has upheld a four day suspension imposed on a Blaine, MN police officer. Grievant had been issued a letter of reprimand for allegedly working private overtime while on call without arranging for appropriate coverage. The Union prepared a grievance on her behalf, which she signed. The grievance asserted that grievant had arranged for a named detective to cover her on call assignment. The City deemed this assertion to be unfounded, and imposed a suspension for grievant's alleged dishonesty. Arbitrator Crump found no evidence that the assertion was not "knowingly or deliberately untruthful" and denied the grievance. He explained:
The undersigned opine that there is no allowance in B.P.D. policies or [the Public Employment Labor Relations Act] for law enforcement officers to make false statements. The right to file a grievance does not provide a law enforcement officer with the right to make a false statement, nor insulate them from disciplinary action for violating B.P.D. policies and expectations relative to truthfulness. The Grievant did not claim on her grievance that she was "treated unfairly." The Grievant make [sic] affirmative representations that were false. The undersigned opines that the Employer has satisfied the Public Policy purpose to promote orderly and constructive relationships between all public employers and their employees.
Arbitrator Crump's award can be found here.
Sunday, June 30, 2013
Police officer's denial of misconduct insufficient to establish untruthfulness
A San Antonio police Lieutenant was "indefinitely suspended" by the Department after being charged with violation of several Department rules. The discipline arose from an incident between grievant and a Deputy Constable who was providing security at a local restaurant/bar. The Deputy asserted that after he denied access to grievant because he was carrying a bottle of liquor, grievant identified himself as a San Antonio police officer. After grievant returned the bottle to a limo he and his companions had hired for the evening he returned to the door where the Deputy again denied entry because grievant appeared intoxicated. The Deputy claimed that grievant then let loose a string of racial slurs, identified himself as an SAPD Captain, and claimed he would "have his badge and gun". The Deputy notified his supervisor and also called SAPD.
After an investigation of the incident by Internal Affairs, grievant was charged with drinking while off duty in violation of a rule prohibiting drinking "to an extent which renders him unfit to report to duty." He was also charged with violating a Department rule providing "Members, whether on-duty or off-duty, shall be governed by the ordinary and reasonable rules of good conduct and behavior, and shall not commit any act tending to bring reproach and discredit on themselves or the Department". Finally, grievant was charged with "untruthfulness". Specifically "Since [grievant] is in fact not a captain, his statement was untruthful and [grievant] was also subsequently untruthful during the investigation into this incident when he denied having made any threatening and racist statements to Deputy Ahumada".
Arbitrator William McKee rejected a portion of the charge related to off duty drinking. In agreement with the Union, he found the "unfit to report to duty" standard untenably vague. He did conclude, however, that grievant was intoxicated in public in violation of the rules. He also found that the evidence supported the charge that grievant had used "inappropriate, abusive and intimidating language" in his interaction with the Deputy and that grievant's conduct demonstrated a lack of sound judgement.
With regard to the untruthfulness allegations, Arbitrator McKee found the first charge, relating to the alleged misrepresentation of grievant's rank, unsupported by the evidence. Concerning the allegation that the grievant had "untruthfully" denied using abusive and inappropriate language, the Arbitrator concluded:
In a very technical sense, any factual determination that the complainant's version of events is more credible than the officer/appellant's could also be construed as a determination that the officer/appellant was untruthful. However, many arbitrators, including myself are reluctant to sustain a charge of untruthfulness based solely on the fact that an appellant denied the charges and put a city and department to its proof. I recognize the City's position that officers are required to be truthful at all times, but I am also aware that there is a distinction between making an affirmative misrepresentation, which sends an investigation off on a 'wild goose chase' or incurs unnecessary investigative costs, and simply declining to admit the wrongdoing of which the officer is accused.
The Arbitrator noted that it was "common" for officers involved in a disciplinary suspension to respond with a blanket denial of charges, and that "[t]here may be other reasons for an officer who has been charged with serious violations to deny those charges, not the least of which is the possibility that further investigation will produce different facts than were known originally".
In light of his conclusions, Arbitrator McKee reduced the indefinite suspension to 45 days.
The San Antonio Express News reports on the case Officer wins appeal of firing; IA criticized and links to Arbitrator McKee's award here.
After an investigation of the incident by Internal Affairs, grievant was charged with drinking while off duty in violation of a rule prohibiting drinking "to an extent which renders him unfit to report to duty." He was also charged with violating a Department rule providing "Members, whether on-duty or off-duty, shall be governed by the ordinary and reasonable rules of good conduct and behavior, and shall not commit any act tending to bring reproach and discredit on themselves or the Department". Finally, grievant was charged with "untruthfulness". Specifically "Since [grievant] is in fact not a captain, his statement was untruthful and [grievant] was also subsequently untruthful during the investigation into this incident when he denied having made any threatening and racist statements to Deputy Ahumada".
Arbitrator William McKee rejected a portion of the charge related to off duty drinking. In agreement with the Union, he found the "unfit to report to duty" standard untenably vague. He did conclude, however, that grievant was intoxicated in public in violation of the rules. He also found that the evidence supported the charge that grievant had used "inappropriate, abusive and intimidating language" in his interaction with the Deputy and that grievant's conduct demonstrated a lack of sound judgement.
With regard to the untruthfulness allegations, Arbitrator McKee found the first charge, relating to the alleged misrepresentation of grievant's rank, unsupported by the evidence. Concerning the allegation that the grievant had "untruthfully" denied using abusive and inappropriate language, the Arbitrator concluded:
In a very technical sense, any factual determination that the complainant's version of events is more credible than the officer/appellant's could also be construed as a determination that the officer/appellant was untruthful. However, many arbitrators, including myself are reluctant to sustain a charge of untruthfulness based solely on the fact that an appellant denied the charges and put a city and department to its proof. I recognize the City's position that officers are required to be truthful at all times, but I am also aware that there is a distinction between making an affirmative misrepresentation, which sends an investigation off on a 'wild goose chase' or incurs unnecessary investigative costs, and simply declining to admit the wrongdoing of which the officer is accused.
The Arbitrator noted that it was "common" for officers involved in a disciplinary suspension to respond with a blanket denial of charges, and that "[t]here may be other reasons for an officer who has been charged with serious violations to deny those charges, not the least of which is the possibility that further investigation will produce different facts than were known originally".
In light of his conclusions, Arbitrator McKee reduced the indefinite suspension to 45 days.
The San Antonio Express News reports on the case Officer wins appeal of firing; IA criticized and links to Arbitrator McKee's award here.
Monday, April 30, 2012
Arbitration award reinstating police officer found to have engaged in domestic violence deemed contrary to public policy
An
appellate court in Illinois has affirmed the lower court’s decision to set
aside, on public policy grounds, an award reinstating a police officer
terminated for acts of domestic violence and untruthfully responding to
questions about the incident. Decatur Police Benevolent
And Protective Association Labor Committee v. The City of
Decatur The officer had been employed by
the City of Decatur since July of 1994. During his employment he had received a
number of awards and commendations for his work.
In
September, 2009 he received a thirty day suspension for domestic battery. In
January, 2010, grievant was again investigated for domestic violence. He was ultimately terminated for the alleged
domestic violence and for allegedly making untruthful statements to the
department during the investigation.
The
arbitrator concluded that, while the City had proved by a preponderance of the
evidence that grievant had engaged in this conduct, the appropriate standard of proof to uphold a
termination was proof by clear and convincing evidence, which he concluded the
City had not met. The arbitrator noted also that there was no evidence of a
judicial finding that the officer “has committed the crime of domestic battery”.
He converted the termination to a 45 day suspension.
On
the City’s action to set aside the award, the lower court concluded that the
award “does not in any way promote the welfare and protection of victims of
domestic violence. It sends a message that police departments must continue to
employ an officer found to be abusive and untruthful, even after employing
progressive discipline in an effort to correct this behavior.”
On
appeal, the Appellate Court affirmed. It determined that the arbitrator had
found (albeit by a preponderance of the evidence) that the officer had engaged
in the misconduct alleged, and that it was contrary to public policy to overturn
the termination. It concluded:
We are aware
of no case, and no statute, that requires an allegation of misconduct in this
context be proved by clear and convincing evidence because the misconduct may
also be criminal and because the City seeks to discharge the officer. We agree
with the trial court – there is well-defined and dominant public policy against
acts of domestic violence. Acts of
domestic violence are even more disturbing when committed by a police
officer-whether on or off duty. It is a violation of public policy to require
the continued employment of an officer who has been found to be abusive and
untruthful. We find the standard of proof is preponderance of the evidence. The
arbitrator concluded the act was proved by preponderance and the lie was proved
by preponderance. It would be repugnant to public policy to retain [Grievant] as
a police officer in these circumstances.
Tuesday, November 8, 2011
Awards in two recent cases reinstate public safety employees
Arbitrator Jonathan Klein ordered Lorain , Ohio
In another Ohio case, Arbitrator Jerry Sellman ordered the city of Mansfield
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