Arbitrator upholds termination of Sheriff's Deputy for off duty use of force

This case comes at a time one report notes " "[t]he issue of arbitration has come to the forefront of a national discussion on accountability in law enforcement."  Deputy fired after allegedly punching man in H-E-B parking lot loses fight to be returned to force 

In an Award involving a dispute between a terminated employee and the Bexar County, TX Sheriff's Office, Arbitrator Louise Wolitz has upheld the termination of a Sergeant in the Sheriff's Office who had been dismissed for his off duty use of what the Sheriff's Office asserted, and the Arbitrator found, was excessive use of force. 

The dispute involved a claim that the employee of the Sheriff's office struck another driver who he believed had backed into his truck and attempted to leave the scene while both were in a parking lot. The grievant maneuvered his vehicle into a position to block the other driver from leaving. When the other driver rolled down his window the parties engaged in a brief exchange, and grievant reached in a struck the other driver. During the investigation of the incident grievant maintained that he was attempting to stop the other driver from fleeing the scene and may accidentally have touched him while he was trying to grab the steering wheel. At the hearing, grievant acknowledged that he had struck the other driver.

Arbitrator Wolitz concluded that the Sheriff's Office was confronted "with a clear case of excessive use of force." 

On the propriety of termination, the Arbitrator noted:

The question of the punishment was for the Sheriff and the command officers to decide. After an investigation, they were unanimous in the decision to discharge Mr. Anderson. ... There was video evidence that [the other driver] was subject to an unjustified use of force by a law enforcement officer. This was clearly conduct unbecoming a law enforcement officer and, if it became public, would bring discredit on the Bexar County Sheriff’s Office. There was no reason to believe it would not become public. The records were subject to public release. The conduct would be detrimental and have an adverse affect on the Sheriff’s office if it were discussed in the media. ... Moreover, the fact that Mr. Anderson did not acknowledge his conduct and came up with an unconvincing story that he was simply trying to stop the car, called into question his honesty in other actions in the department and destroyed his credibility as a witness in court. His story was easily determined not credible by the available video evidence, especially when there were other ways to attempt to get [the other driver's] identification without using physical force. The disciplinary decision was for the command officers and the Bexar County Sheriff to make. There is no evidence in this record which requires the arbitrator to change their unanimous judgment.

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.

Quick Hits - Law Enforcement

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

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

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

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

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

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

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

Dismissal of officer for discharging weapon while off duty upheld

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

The panel's decision can be found here

Police officer, special needs child, use of force and a clash of cultures

Grievant was employed as a police officer by the City of Bloomington, Illinois. He responded to an incident at a local school to address an issue with an out of control student. After that issue was resolved, grievant was talking with one of the teachers when he heard "loud screaming and a thumping sound" coming from the teacher's classroom. The officer entered the classroom where a seven year old was being restrained by the school's psychologist. The psychologist first became aware of the officer's entrance when grievant told the student to be quite, he was giving the officer a headache. Following school protocol, the psychologist relinquished control of the student to the officer. Grievant lifted the student and briefly held him against a wall. There was a dispute about whether he lifted the student by his coat or by his neck. He then "very intently" placed the student in a nearby chair. After the student delayed responding to a direction to go to the principal's office grievant carried him there and "very roughly" placed him in a chair. Acting in part on a complaint from the student's father the City terminated grievant's employment for what was alleged to be his "overly aggressive" handling of the student.

The Policemen's Benevolent and Protective Association arbitrated the termination, and Arbitrator Jeanne Vonhof sustained the grievance. Arbitrator Vonhof concluded that grievant's conduct was "objectively reasonable" and that while it would have made sense in retrospect for grievant to have asked more questions and gathered more information before he entered the classroom [grievant was unaware that the student was a special needs child] he was "following his training and acted quickly and instinctively in taking control" of the student. The arbitrator found insufficient evidence that grievant had lifted the student by his neck or restricted his breathing in any way. She found grievant's actions consistent with a "soft-empty-hand technique" authorized by the Department's use of force guidelines and concluded that the dispute arose from a failure of communication and a "clash of cultures" between that of the school staff and that of the police .  Accordingly she sustained the grievance and ordered grievant's reinstatement. She did conclude that a one day suspension was appropriate for grievant's failure to file a use of force report as required by Department policy.

The City moved to set aside the award. It argued, inter alia, that the award violated a well-defined and dominant public policy of protecting the safety of school age children and preventing use of excessive force by police officers. The trial court vacated the award, finding it violated the public policy of ensuring the welfare and protection of minors and that it effectively condoned the actions taken by grievant and indirectly encouraged similar behavior in the future.

The Appellate Court of Illinois has now reversed that decision, effectively confirming the award. While agreeing that there was a strong public policy concerning the protection and welfare of minors, the court noted that the Arbitrator's found as a fact that no misconduct had occurred. Similarly it rejected the City's claim that the Arbitrator had failed to make any findings that the grievant would not repeat his actions or offer any reassurance that grievant posed no future risk. Given the Arbitrator's factual findings, the Court found the City's argument unpersuasive, noting:

Here, no finding regarding grievant's remorse or likelihood to reoffend could be made because no misconduct was found in the first place. Additionally, the arbitrator found (1) grievant would not have intervened had he known more about N.A.'s needs and behavioral issues; (2) Bloomington police officers would rarely encounter an "out-of-control, combative[seven-year-old]," similar to this child; and (3) this incident was largely the result of a "clash of cultures" where, on one hand, school personnel are trained to passively wait for a student to deescalate and, on the other, police officers are trained to act quickly and efficiently to dispel any possible threat to the safety of others and property. Based on these findings, the arbitrator concluded the staff at Stevenson and the Department should reevaluate their policies to make sure an incident such as this one does not recur. By encouraging the two entities to develop better policies for handling disruptive juveniles, the arbitrator provided the reassurance called for under AFSCME, and we are obliged to affirm the award.

The Court's decision can be found here.

Arbitrator upholds grievance of Miami police officer terminated for fatal shooting

Arbitrator Martin Soll has found that the termination of a Miami police officer was without just cause.

Grievant was dismissed following his involvement in a fatal shooting. He was part of a joint task force investigating suspected gang activity in Miami. As a result of a request from another officer to stop a car leaving a bar believed to be frequented by gang members, grievant and several other task force members stopped the vehicle. Grievant approached the car and directed the driver to "show your hands." The driver did not  comply, but according to grievant, appeared to reach for what grievant believed to be a weapon. Grievant yelled at the driver "don't do it"  and when the driver continued, grievant fired three shots, killing the driver and wounding the passenger. In fact, the driver had no weapon but what grievant perceived to be a weapon was actually a cell phone.

The shooting was investigated by the Department's Firearms Review Board, and the Board concluded that the firing was unjustified and in violation of the Department's Use of Force Policy. The Chief concurred and terminated the employment of the grievant. The Chief's reasons were summarized in four specific charges, including (i) an allegation that the evidence concerning the shooting was inconsistent with grievant's statement, (ii) a conclusion that neither grievant nor any other person was in imminent danger of death or serious injury, (iii) an allegation that the evidence was inconsistent with grievant's statement that he had seen a black object he believed to be a gun, and (iv) a charge that grievant should not have approached the vehicle but should have instead retreated.

The Union (FOP Lodge No. 20) was unable to resolve the dismissal in the grievance procedure, and submitted the dispute to arbitration before Arbitrator Martin Soll. Based primarily on his factual findings, Arbitrator Soll concluded that the City had failed to meet its burden of proof on the four charges. He concluded that in fact the evidence was consistent with grievant's statement concerning both the shooting and grievant's perception of a weapon. Regarding the second and third specifications, Arbitrator Soll found that the Firearms Review Board had concluded, and the evidence at the hearing supported a finding, that  grievant "reasonably believed he saw what appeared to be a weapon." The Arbitrator found further that there was no basis for the charge that grievant should have retreated,and there was no support for the allegation that grievant had violated the Deadly Force Policy. The Arbitrator found nothing in the Department's Policy requiring  retreat, but instead observed that it specifically provided "it must be remembered that by law, an officer need not retreat in his/her efforts to lawfully control a subject ...".

Arbitrator Soll also noted that, while not determinative, the Office of the Miami-Dade County State Attorney had investigated the shooting and deemed it justified.

Finding no support for the City's allegations the Arbitrator ordered the City to reinstate grievant with back pay

Arbitrator Soll's award can be found here.

Conduct unbecoming, use of force, drug tests and restraining orders- several police related awards

Conduct unbecoming

Arbitrator Harry G. Mason overturned the termination of a police Sergeant employed by the City of Lakeland, FL. The grievant was dismissed after acknowledging that he had had sex with a civilian employee of the City in his car in a park. Grievant was off duty at the time and his partner was on her lunch break. This issue was uncovered during an investigation of allegations of sexual activity and the exchange of sexually explicit pictures and texts between the civilian employee and several members of the police department. Arbitrator Mason concluded that the City had proved "by significant evidence" that grievant violated the Neglect of Duty and Conduct Unbecoming policies. He agreed with the City that grievant's conduct, and the ensuing publicity, brought the Department into disrepute.  However he found, in the circumstances of this case,and in view of the differing penalties imposed on other officers, that termination was too severe. He observed:

  If the [Grievant's] matter existed in isolation where there had not been so many other sexual activities by other officers that [the Chief] dealt with in the matter that she did, his termination likely would have been for just cause
***
The CBA requires consistent and appropriate discipline. I find that [grievant] was not disciplined consistent with the discipline imposed on others involved in this sex scandal. 

The Arbitrator ordered grievant's reinstatement as a police officer (not a Sergeant) and awarded back pay at the officer rate.

WTSP.com reports on the decision here, and links to Arbitrator Mason's award here.

Use of Force

Arbitrator Janet Gaunt denied grievances filed on behalf of three Portland police officers who were disciplined as a result of their conduct in connection with the incident leading to the fatal shooting of Aaron Campbell. A grievance over the termination of the fourth officer, who fired the fatal shot, was previously sustained by Arbitrator Jane Wilkinson (discussed here).

 Arbitrator Gaunt upheld a two week suspension for an officer who fired a beanbag at Campbell. The Arbitrator found that the City established that the officer acted unreasonably and prematurely. She concluded that "[grievant's] impatience resulted not from a lack of time or an immediate threat, but from annoyance that Mr. Campbell was doing what he wanted to do rather than exactly what [Grievant] was telling him to do."   Arbitrator Gaunt also concluded that the Sergeant in charge of the scene failed to ensure sufficient communication and coordination, and that a second Sergeant also failed to communicate critical information and coordinate his activities.

The Oregonian reports on the case here, and links to Arbitrator Gaunt's award here.

Drug Test

Arbitrator James Reynolds sustained a grievance filed on behalf of a terminated Miami Beach police officer who had been dismissed after failing a drug test. Grievant had been selected for a random drug test, and the test proved positive for the presence of metabolites of cocaine. Grievant denied knowingly ingesting cocaine, but testing of the split sample confirmed the initial results. Subsequently grievant became suspicious of a topical "cream" which a friend had given him to enhance his sexual performance as a possible source. A sample of the cream was tested and was found to contain cocaine. The City found this explanation for grievant's  positive test results unbelievable and terminated his employment.

Arbitrator Reynolds overturned the termination on two separate grounds. Initially he concluded that the City failed to follow its normal investigative process. Contrary to the normal process, in this case the Chief had dismissed grievant prior to a review by a Disposition Review Panel of Command Officers. The Arbitrator noted:

  Clearly the review panel would likely be biased in its review of the [Internal Affairs] findings by knowing that the Grievant had already been terminated by the Chief of Police. The likelihood of that bias, whether intentional or not, is sufficient to find that the fairness standard of just cause was not met in this case.

In addition, and on the merits, the Arbitrator concluded that the City had failed to effectively challenge  the grievant's explanation for the positive test result.  He concluded that the record compelled a finding that Grievant had cocaine metabolites  in his system due to using a cream which he did not know contained cocaine. Arbitrator Reynolds ordered grievant's reinstatement with back pay but provided that grievant would be subject to a minimum of 6 unannounced tests over a 12 month period for up to five years as provided in the City's Drug and Alcohol Policy.

Arbitrator Reynolds' Award can be found here.

Restraining Order

Arbitrator Tim Hatfield denied a grievance filed on behalf of a Woburn, Mass. police officer who was subject to a restraining order arising out of claimed domestic violence. As part of that order, Grievant was prohibited from possessing or carrying a firearm. The order was renewed and not scheduled to expire until February 17, 2015. Grievant was also arraigned on charges of domestic assault and battery, and in May of 2012 entered an Admission to Sufficient Facts on the charges. His employment was terminated on July 11, 2012 based on the admitted to "sufficient facts" and the restraining order prohibition on possession of a firearm.

The Arbitrator concluded that:

The City is under no obligation to  leave a patrol officer's position open for [Grievant] in the hope that he might sometime in the future be eligible to possess and carry a firearm, a fundamental requirement for all Woburn Police Officers. Based solely on this fact alone, the City had just cause to terminate [Grievant]. (footnote omitted) 

Additionally, based on the Admission of Sufficient Facts, and substantially discrediting Grievant's denials and explanations of the incidents in question, the Arbitrator found these also supported a finding of just cause. He noted:

 I agree with the City's assertion that police officers must be held to a higher standard of conduct given their prominent position and responsibilities in  the community.

Arbitrator Hatfield's Award can be found here.

Reinstatement of police officer who used "unreasonable and unnecessary" force not violative of public policy

Grievant was employed as a police officer for the City of Owasso, OK. His employment was terminated after the City accused him of engaging in excessive force in violation of Department policies in connection with the arrest and transportation of an individual. After a hearing, Arbitrator Edward Valverde concluded that the evidence established that while the officer had used "unreasonable and unnecessary force," the absence of evidence that the subject was injured precluded a finding that the force was excessive. In an award discussed here, Arbitrator Valverde found the discipline excessive and overturned the termination, reducing the discipline to a written warning.

The City sought to vacate the award on the grounds, inter alia, that reinstatement of an officer found to have engaged in such conduct violated the public policy of Oklahoma. The trial court agreed, concluding that grievant's conduct showed that his continued employment "poses a special risk of injury, physical and psychological, to citizens, and, if he is allowed reinstatement, the department will be faced with explaining why Owasso allows abusive conduct by its officers, which is against the law."

The Oklahoma Court of Civil Appeals has now reversed that decision, effectively enforcing the arbitrator's award. Initially, the Court observed that any decision of an arbitrator adverse to the position of the City might have some "fallout", but that it was "not the function of the court to protect the City from the consequences of the bargained for arbitration process."  The Court further concluded:

The parties clearly bargained for an arbitrator's interpretation of the CBA, and so long as the arbitrator remained true to the essence of the agreement, his decision should not be disturbed. More specifically, the parties bargained for the arbitrator's construction of the term "just cause" as used in the CBA, and, although reasonable people might differ on the appropriate discipline to be imposed, the CBA placed no limitation on the arbitrator's authority to craft a remedy for [grievant's] use of unreasonable and unnecessary force different from the decision of the City to terminate his employment.

Contrary to the lower court, and the dissenting judge, the Court of Civil Appeals found nothing in the criminal statues defining assault, or the statutory definition of excessive force, that would serve as an impediment to reinstatement

The Tulsa World reports on the decision, and links to the Court's opinion, here.

Claims of excessive force, videos and accurate reports

Grievant was employed as a police officer by the City of Omaha, Nebraska. He was called to a scene where he was required to subdue an individual to enable handcuffs to be applied. In the course of subduing the individual, grievant  was required to use three "open-handed hammer strikes." It was undisputed that this was an appropriate use of force. After the individual was handcuffed, grievant asserted that the individual again began moving in an attempt to assert control. Grievant again used three strikes, ceasing when the individual stopped resisting. Pursuant to Department policy, grievant prepared a "Chief's report" describing the use of force and the reasons use of force was necessary. The report described the use of 3-5 strikes, but did not clearly describe the second set of strikes. After a video taken by a bystander was released to the press, the Chief initiated an investigation. The investigation concluded that the report did not document the second set of strikes, and the Chief concluded that grievant "purposely omitted the information from any reports ... because you either thought that no one had witnessed the event or you felt that your second series of strikes ... was not in compliance with the Standard Operating Procedures of the Omaha Police Department." The Chief concluded that grievant had deliberately omitted reference to the second set of strikes to mislead his supervisors into beleiving that the second set of strikes did not occur. Because he claimed this engendered a lack of trust, the Chief terminated grievant's employment. 

The Police Union pursued the matter to arbitration, and Arbitrator Sherwood Malamud sustained the grievance, overturning the termination. Initially, the Arbitrator rejected the City's argument that the Chief's decision should only be set aside if the Arbitrator found the decision was arbitrary, capricious or discriminatory. He noted that such a test was much lower than the just cause standard required by the parties cba.  He noted that the City agreed that if the incident took place as described by the grievant in his testimony, the use of force was appropriate.Finding that the question of whether grievant used excessive force use of force was not the central focus of the award, Arbitrator Malamud noted:

The record is clear by any standard of proof that Grievant omitted mention of the second set of strikes. The issue is what inferences may be drawn from that omission. Was the omission deliberate and intentionally misleading? If so, then such a dishonest report may serve as the basis for termination of employment.

After reviewing the evidence, Arbitrator Malamud concluded that, while grievant’s report writing was “sloppy”, there was nothing to suggest that the report was written with the intent to deceive. Accordingly, he reduced the termination to a written reprimand. 

A similar analysis was performed by Arbitrator Harley Ogata in an award addressing a grievance filed on behalf of a St. Paul, MN police officer. In this case, grievant was dismissed for the alleged "intentional, willful and malicious" spraying of Aerosol Subject Restraint directly into the ear canal of an individual he was attempting to place into a police cruiser. He was also alleged to have pulled the individual into the vehicle by the hair.In addition, cited as a basis for his termination was grievant's claimed failure to timely submit an accurate report of the incident. 

 After an extensive review of a video of the incident taken by the in-car camera, and the other evidence of record, Arbitrator Ogata concluded that the City failed to prove that grievant had intentionally sprayed ASR into the individual's ear, but he did agree that grievant had failed to file "a complete and documented report." Accordingly he ordered the grievant reinstated with back pay less a one day suspension.

The Omaha Police Officer's Association has the award of Arbitrator Malamud here. Arbitrator Ogata's award can be found here. 

 

Union wins reinstatement but challenges Last Chance provision of Award

Grievant was employed as a police officer by the Borough of Fountain Hill, PA. On June 4, 2012 he was involved in an incident with an individual he and another officer had transported to the police station. The individual in custody was intoxicated and exhibited violent mood swings. The second officer was placing the handcuffed individual in a holding cell. While there was disparity in the testimony concerning what took place next, grievant was alleged to have grabbed the individual in custody and forced him to the ground, causing some injury to his mouth. The incident was captured on video, but no audio was recorded. Grievant was dismissed because of alleged excessive use of force. The matter was unresolved in the grievance procedure and ultimately was submitted to Arbitrator Steven Wolf for decision.  Lehigh Valley Ramblings blog links to Arbitrator Wolf's Award here.

Arbitrator Wolf noted that the dispute "illustrates ... the sometimes fine line that Police Officers must observe- namely, the exercise of appropriate force in order either to subdue or maintain safe control of a suspect in custody." Nevertheless, he concluded: "The Borough here argues that, under the circumstances present on June 4, 2012, the grievant crossed that line and exercised excessive force when attempting to render [the prisoner] compliant in the holding area. I agree."

The Arbitrator determined that the grievant's account of the incident was "materially incorrect," and at odds with the video. He concluded:

The totality of the evidence persuades me that the grievant patently exceeded the force reasonably needed to subdue the intoxicated, injured, and handcuffed [prisoner] on June 4, 2012. His Incident Report Form, both by commission and omission, is, in my view, a misrepresentation of the
relevant events. Severe discipline was surely for just cause.

However, noting that grievant had produced three character witnesses, and testified that it had become his lifetime goal to pursue Police work, the Arbitrator concluded that he should be afforded "one final opportunity" to do so. While noting he was not minimizing grievant's "reckless and unprofessional performance" he awarded a "last chance" to demonstrate he was capable of sustaining a career in law enforcement. Accordingly he reinstated him, but concluded that "Any further documented acts of excessive force will result in grievant's termination without recourse to the grievance and arbitration process."

According to a report in Lehighvalleylive.com, the Fountain Hill Police Association has filed a petition with the County Court claiming the Arbitrator's imposition of the "last chance" condition exceeded his jurisdiction by denying grievant a just cause determination for any future acts of excessive force. Arbitrator's controversial decision for fired officer leads to new legal challenge for Fountain Hill.  According to the Union's lawyer, the Arbitrator's Award would leave grievant without any meaningful review of future alleged acts.

The issue of an Arbitrator's conditional reinstatement of a grievant is discussed in a previous post here.

Arbitrator overturns termination despite finding "unnecessary, unjustified, unreasonable" use of force because of due process considerations

Arbitrator Peter Feuille has sustained in part a grievance filed on behalf of a Des Plaines, IL police officer dismissed for alleged excessive use of force.  The incidents in issue occurred in June of 2009 and January of 2010.

In August of 2011, the Acting City Manager received a letter accusing the grievant of having "brutally beaten" several arrestees. He testified that this was the first he learned of the allegations, and he assigned a Deputy Chief to conduct an investigation. The investigation took place during the last four months of 2011 and concluded in an investigatory report dated December 30, 2011. In accord with the recommendations of the report, the City terminated the employment of grievant in March of 2012, and the Union (Metropolitan Association of Police, Chapter No. 240) brought the dispute to arbitration.

After a lengthy review of the evidence, Arbitrator Feuille concluded that grievant's use of force was "unnecessary, unjustified, unreasonable, and clearly in violation of [General Order] 10.01." He also concluded that grievant had improperly failed to report his use of force, contrary to the Department's reporting mandate. Finally, he determined that grievant's explanation during the investigation of why he had struck an individual he was transporting "not remotely credible" and, as a result, found the grievant was not truthful in his explanation. This untruthfulness, the Arbitrator concluded, violated the Department rule requiring officers "to be truthful at all times, whether under oath or not." The Arbitrator also found a second incident of improper use of force, and two additional instances of failure to report the use of force. Summarizing his findings, the Arbitrator noted:

 Putting this evidence together, it shows the following. First, the Grievant improperly used force ..., in violation of Department policy .... Second, the Grievant failed to report the use of force .... Third, during his November 2011 interrogation  the Grievant was untruthful about why he used unjustified and excessive force ... , also in violation of Department policy. As indicated in the analysis above, the evidence provides very strong proof of the Grievant's egregious misconduct.

Notwithstanding this conclusion, however, the Arbitrator also noted that "there is more to the concept of  discipline for just cause than proof of wrongdoing. The City also must satisfy the due process considerations incorporated into the just cause concept in order to demonstrate that just cause existed for the Grievant's termination." The Arbitrator found that the City failed to meet this element of just cause.

  Arbitrator Feuille concluded that the delay between the incidents in issue and the discipline was unwarranted and potentially harmful to the grievant. He observed:

Ultimately we will never know what information was lost by the lengthy delay in conducting the City's investigation. But the possibility that this delay may have prejudiced the ability of the Union to defend the Grievant in this matter cannot be overlooked. Accordingly, I find that the long delay in the City's investigation of the Grievant's misconduct, and the concomitant delay in disciplining the Grievant, means the City's discharge of the Grievant was procedurally flawed.

He rejected the City's contention that it was unaware of the facts until receipt by the Acting City Manager of the letter in August of 2011. He noted that the Department's Command Staff was aware of, and tolerated, Grievant's use of force, and was therefore "partly at fault" for the Grievant's misconduct. He determined that this tolerance  of misconduct "constitutes a second due process consideration that prevents the Grievant's discharge for being for just cause."

However, the Arbitrator concluded that these procedural shortcomings "do not exonerate" grievant of his serious misconduct. He ordered the grievant reinstated  without back pay, with the time off treated as a disciplinary suspension. He further provided that the reinstatement be on a "last chance" basis for three years from the reinstatement, with any similar violation entitling the City to immediately discharge grievant, with the Arbitrator hearing any arbitration arising from such a termination.

Arbitrator Feuille's Award, with certain names redacted, can be found here.


Update: A Cook County court has overturned Arbitrator Feuille's award  Judge upholds firing of Des Plaines cop

Oakland Police SWAT arbitration award - Just Cause not determined by reference to "Best Practices"

Arbitrator Paul Greenberg has overturned the demotion of two Oakland police officers arising out of their management of a SWAT response to the fatal shooting of two other officers. Lt. Christopher Mufarreh and Capt. Richard Orozco were demoted after a Board of Inquiry concluded that each was guilty of "gross dereliction of duty" in connection with the incident.

After a lengthy review of the facts surrounding the shooting and the police response in which two additional officers were killed, Arbitrator Greenberg determined that the conduct of both Lt. Mufarreh and Capt. Orozco was consistent with Oakland Police Department practice and training, and that both officers had been improperly singled out for discipline.

Arbitrator Greenberg rejected the City's reliance on evidence purporting to show that the officer's conduct deviated from "best practices". He noted:

Additionally, with regard to the entire [Board of Inquiry] process and its review of the tactical operations performance on March 21, Capt. Hansen testified his role (and the role of the other
experts) was to measure the actions of the OPD staff against general industry standards (i.e., “best practices”). ... Although this probably is the appropriate measure for evaluating OPD’s overall response to the incident, this Arbitrator questions whether it is the appropriate standard for evaluating the individual culpability of employees, who should be measured against
the employer’s standard policies, the training they have received, and the employer’s commonly accepted practice.

Arbitrator Greenberg also noted that other, higher ranking, officers were on the scene and, according to OPD policies, should have, but did not, assume command responsibility. These higher ranking officers were not disciplined. Viewing this as evidence of selective enforcement of policies, the Arbitrator observed:

In this Arbitrator’s view, however, the City’s decision to single out Lt. Mufarreh and Capt. Orozco for discipline does not adequately recognize the responsibility of others – including their organizational peers, and also some of the senior management of the Department. Like the
matter involving Sgt. Wingate [in an earlier unrelated dispute], the decision to discipline Lt. Mufarreh and Capt. Orozco has the appearance of the Department needing to hold someone individually accountable for the tragic deaths of Sgt. Romans and Sgt. Sakai, but not considering the possibility that senior-level management decisions also contributed to the chain of events.

Arbitrator Greenberg concluded "if OPD is going to hold Lt. Mufarreh to a strict ... interpretation of the General Orders when justifying its decision to demote him, then it is reasonable to question why other OPD personnel are not held to a similarly strict reading of the General Orders."

 In light of these findings, the Arbitrator sustained the grievance and ordered the City to restore both officers to their prior rank.

Arbitrator Greenberg's award can be found here.