Police officers, Brady/Giglio, dishonesty, exoneration and just cause

A recent award by Arbitrator Micheal Falvo addresses all of these topics. Arbitrator Falvo sustained a grievance filed on behalf of a Champaign, Ill. police officer terminated after the State's Attorney declared that she did not believe she could use him as a witness because of his disciplinary history, including  an allegation of dishonesty overturned in an earlier arbitration.

Officer Matt Rush began his employment with the City of Champaign in February 2010. Over the course of his employment he was the subject of several disciplinary actions. In March 2014 he was suspended for one day for failing to turn in a citation he had issued in connection with a traffic stop. He admitted he forgot to turn the ticket in and did not challenge the suspension. A second incident occurred in April 2014. Officer Rush was alleged to have engaged in unprofessional conduct in connection with his handling of a disturbance. He admitted using profanity and acknowledged he did not act professionally during this encounter. During the encounter Officer Rush twice kicked in the legs an individual who was refusing to get into the police vehicle. The Department agreed that the first kick was a reasonable use of force but maintained that the second was inappropriate. Rush was suspended for three days as a result of his conduct during this incident. A third incident occurred in May 2014 when Rush was accused of punching an individual he was attempting to subdue. He was also accused of dishonesty, i.e., falsely denying that he had thrown a punch. His employment was terminated as a result of these events.  Because of the claimed dishonesty the Chief sent the following letter to the State's Attorney:

As required by law, I write to inform you of a recent disciplinary matter involving an officer of the Champaign Police Department. On August 8, 2014, Officer Matt Rush was charged with a violation of department policy wherein the offending behavior involved untruthful or deceptive representations. As you are aware, under Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972) and its progeny, the Champaign Police Department is required to disclose such information regarding the untruthfulness of law enforcement officers to prosecutors.

Please feel free to contact my office in the event that you have any questions regarding this matter.

Rush grieved the termination and in April 2015 Arbitrator Fredric Dichter issued an award finding the one and three day suspensions appropriate (but finding the claim regarding the second kick unsupported), but overturning the termination. Arbitrator Dichter concluded that "the only evidence [of a punch] is a blurry video taken from some distance away ..." and found no evidence of malice or loss of temper but rather an effort to subdue an uncooperative person. The Arbitrator found this conduct, by itself, did not justify termination. Turning to "the other serious charge, dishonesty," he concluded that while some viewing the dash cam video (including himself) may view the video one way, grievant "may very honestly be seeing it another." Arbitrator Dichter noted:

Lying requires intent. Grievant is apparently wrong in his perception of what he did, but the Arbitrator finds it is based on his errant perception of events and not on an intent to deceive.

Concluding that discipline was warranted for grievant's handling of the incident, but not for dishonesty, Arbitrator Dichter reduced the termination to a thirty day suspension

In accord with the award, Rush was reinstated to the Police Department. The Chief also sent another letter to the State's Attorney enclosing a copy of the Arbitrator's award.

In December of 2015 local media reported on several pending settlements of claims involving local police officers use of force, primarily involving Officer Rush. Examples are here, here, and here. In response to citizen demands that Officer Rush be prosecuted for claimed use of excessive force, the State's Attorney conducted an investigation. On February 23, 2016 she informed the Chief of the results of her investigation and also issued a press release. While declining  to prosecute, she noted:

Although the State’s Attorney’s Office is declining to file criminal charges against Officer Matt Rush, in light of our review of Officer Rush's actions and behavior during these incidents and in the light of the entirety of Officer Rush's history of internal discipline for failure to adequately document use of force and untruthfulness, we are unable to use Officer Matt Rush as a witness for the prosecution in criminal cases. Officer Rush's repeated discipline for failure to adequately document use of force and untruthfulness as outlined here and in other disciplinary actions reviewed in the course of this examination create a substantial issue with regards to his credibility as a state witness, subject him to cross-examination on these issues, and require the State’s Attorney's Office to work around him in order to bring criminal cases to trial. Moreover, a review of these incidents cause us great concern about his judgement and decision making in crisis situations, particularly with regard to his response the mentally ill. In light of these concerns, having given this matter serious consideration and taking into account his full disciplinary history, we have concluded that if Officer Rush were to return to active duty, we will not call Officer Rush as a witness for the prosecution in criminal proceedings.

Upon receipt of the letter, the Chief conducted a fact finding with Rush and his Union, but ultimately terminated his employment because he believed his inability to testify made him "unable to perform the essential functions of [his] position." This action was grieved and submitted to Arbitrator Falvo for resolution. After a comprehensive review of arbitration awards and case law, Arbitrator Falvo sustained the grievance and ordered grievant again be reinstated. The Arbitrator emphasized that except for the charge of dishonesty overturned by Arbitrator Dichter grievant had not been accused of or disciplined for untruthfulness. Noting the potential for "behind the scenes collusion," Arbitrator Falvo concluded:

If a prosecutor is empowered with the unbridled and unreviewable discretion to deem an officer “disqualified” to testify -- with the consequence that she loses her job because obviously there is no place in a police department for a law enforcement officer with that incapacity – contractual or statutory just cause protections are a nullity. An arbitrator would need to be more naïve than parties should expect not to realize that one must be alert to the danger that a losing party in a disciplinary arbitration will try to undo a disappointing result by finding an alternative path to reinstate what the arbitrator reversed. By no means is this to imply that a decision by a prosecutor that an officer will not be called testify that results in her dismissal cannot in the appropriate case meet the just cause standard. Rather, it means that an arbitrator’s non-delegable responsibility to determine whether just cause does or does not exist requires that he bring informed judgment to the case with the recognition that deference to the judgments of public officials cannot be blindly and uncritically ratified.

Regarding the positions articulated by the State's Attorney, Arbitrator Falvo found that in light of Arbitrator Dichter's conclusion that Rush had not engaged in intentional misrepresentation, her reliance on perceived Brady/Giglio obligations was misplaced.  He also found that the other reasons cited by her did not support a claim of just cause for the Officer's termination. Arbitrator Falvo similarly rejected the Department's reliance on the "well established doctrine of persona non grata" (typically used when a third party customer bars a bargaining unit employee from their premises).

Accordingly he ordered Rush' reinstatement with back pay and the expungement of any reference to the disciplinary action in his personal records.

A third arbitration, arising from a different incident, also claimed by the Department to justify Officer Rush's termination was scheduled for hearing but has since been settled. Pursuant to the settlement Rush waives reinstatement while the City agrees not to appeal Falvo's decision.

The New Hampshire Supreme Court addressed a similar issue in Duchesne v. Hillsborough County Attorney, granting the request of three police officers to have their names removed from that State's "Laurie List" after an arbitrator and the State Attorney General's office had cleared them of allegations of excessive force.

Management rights clause doesn't supersede ADA - Court confirms arbitrator's award

A Solo Cup facility decided to end its lease of sit down fork lifts and instead to purchase several for its use. After a review of various options, Solo elected to purchase stand up fork lifts, concluding that these provided better safety and reduced the risk of injury. 

Tamela Wells was a bargaining unit employee who had operated a fork lift for a significant portion of her thirty-two years at the facility. Following the introduction of the stand up fork lifts, she sought an accommodation allowing her to continue to use a sit down lift. Wells presented medical information supporting her claim that the extended standing caused by the new fork lifts created problems for her. While the parties were initially able to accommodate Wells request to allow her to take more frequent breaks from operating a stand up fork lift, they ultimately came to impasse on her (and her physician’s) assertion that frequent breaks were inadequate and that she needed to be allowed to regularly utilize a sit down lift instead of a stand up one. 

Solo maintained that allowing this would be contrary to the improved safety the stand up lifts provided and that the management rights clause of the cba expressly authorized it "to change or eliminate existing methods of operations, equipment or facilities...." Concluding that it was unable to accommodate her request, and that there were no other available positions for her, Solo terminated Wells' employment.

Wells' Union (Teamsters Local 528) grieved that decision and the dispute was submitted to Arbitrator William Dealy for resolution. Arbitrator Dealy upheld  the grievance. He recognized that the cba allowed the Company to change equipment, but concluded that the Company breached its ADA obligations by failing to accommodate Wells. He ordered the Company to "provide the Grievant with a sit-down style forklift to use to perform her work." 

Solo sought to vacate the award, arguing that the award "usurped Solo's power to implement new equipment" and that, in any case, the award was not authorized by the ADA. 

The District Court for the Southern District of Georgia rejected both of these contentions and confirmed the award. Solo Cup Operating Corp. v. Teamsters Local 528. The Court noted that the arbitrator recognized the Company's contractual right to introduce new equipment and found that the award did not contravene that right. It concluded:

… the arbitrator may have concluded that, though Solo had the general power to manage its equipment, Article 5 did not obviate the possibility that Article 27 [the nondiscrimination article] could require Solo to introduce unique equipment for a single employee. While Solo may disagree with such an interpretation of the agreement, it is not so implausible that it warrants vacating or modifying the award.

The Court also rejected Solo's claim that the arbitrator erred by ordering it to adopt a specific accommodation, i.e to provide  grievant with sit down fork lift. The Court noted that the parties had previously discussed potential alternatives but were unable to agree. It noted:

…while the arbitrator may have been permitted to simply instruct the parties to decide on an accommodation themselves, he was not required to do so. As noted, the arbitrator framed the issues as: "Did the Company violate provisions of the parties' collective bargaining agreement and/or any provisions of Federal law . . . ? If so, what is the remedy?" (Doc. 24-4 at 24 (emphasis added).) And he decided that the appropriate remedy was to order Ms. Wells reinstated and provided with a sit-down forklift.

Moreover, to the extent the arbitrator contemplated leaving the determination of the specific accommodation to the parties to decide, his refusal to do so makes sense. Solo argues that numerous other accommodations existed, including allowing Ms. Wells to take breaks and moving her to a different position. But Solo rejected similar requests prior to the arbitration. Accordingly, it would not have been especially efficient for the arbitrator to broadly instruct Solo to comply with the ADA because it may have resulted in Solo once again refusing to accommodate Ms. Wells. That is, Solo was required to comply with the ADA prior to the arbitration. There is little reason to think that an abstract instruction from the arbitrator would have changed what Solo viewed as reasonable accommodations.

The Court granted the Union's request to confirm the award, but rejected its claim for attorney fees, finding the Company's position plausible if ultimately unfounded. 

Law enforcement officers pointing weapons at co-workers - two terminations upheld

Two recent arbitration awards address discipline imposed on law enforcement employees alleged to have pointed loaded weapons at other employees.

In State of Ohio Department of Rehabilitation and Correction Arbitrator Howard Silver upheld the termination of a Corrections Officer who was found to have pointed a loaded shotgun at another corrections officer.

 Grievant alleged that the other officer, on several occasions, including shortly before the incident in issue, had shouted "whore, whore whore" at grievant while both were working at the Lebanon Correctional Institution. On August 21, 2015, grievant was on her way to the bathroom. Pursuant to her usual practice she was carrying her weapons, both the shotgun and a handgun. She came upon  the other officer and a third corrections officer. While there was some dispute as to precisely what took place, grievant testified that she twice asked the other officer  "Do you have something you want [or need] to say to me?" The officers testified that while asking this question grievant pointed the shotgun at the officer alleged to have made the "whore" statements. The third officer attempted to place himself between the two but grievant gave "stern" instructions for him to step aside.  Grievant was dismissed as a result of this conduct.

The arbitrator found no evidence that the other office had made the taunts alleged, but even if she had  the grievant's actions were unwarranted. He noted:

Even if [Grievant] had suffered taunts from a co-worker, such misbehavior would not justify the threatened use of deadly force. The allegations of wrongdoing made by [Grievant]  ... are not supported by a preponderance of the evidence in the hearing record and these allegations ... have not been substantiated.
***
Without proof of the misconduct alleged by the grievant ... the question repeatedly put to Officer Kelly by [Grievant] about whether Officer Kelly had something to say to [Grievant] remains unexplained. It may be that [Grievant] believed that this harassment had occurred when in fact it had not occurred, or it may be that the harassment occurred and it has not been proven to have occurred. In either event, the threat of deadly force against a co-worker remains unjustified and is found to be egregious misconduct, opening a person who engages in such threatening behavior to a severe disciplinary response based on the seriousness of the misconduct and the serious physical harm such misconduct threatens. 

Because he found grievant's conduct " so dangerous, so reckless, so coercive and intimidating" Arbitrator Silver denied the grievance and found just cause for the termination notwithstanding grievant's nineteen year discipline free history.

In County of Faribault and Law Enforcement Labor Services, Inc., Arbitrator Stephen Befort similarly denied a grievance and upheld the termination of a Deputy Sheriff. Grievant was alleged to have pointed his loaded service weapon at other deputies on six occasions. Grievant did not deny the conduct but claimed that there was no intent to threaten or harm the other deputies and that the conduct was engaged in in a playful or joking manner.

The arbitrator rejected this defense. He noted that the lack of ill will did not exempt the "serious and dangerous" misconduct from appropriate remedial sanction. He also rejected the Union's argument that a lack of progressive discipline undermined any claim of just cause for the termination.  He concluded:

...it is well established that warnings and a pattern of increasing discipline are not required in instances of severe misconduct. An employee is presumed to know without warning or lesser discipline that severe misconduct is not permissible. ... Thus, an employer need not use progressive discipline when an employee commits serious misconduct such as theft or violence. The same is rue with respect to a law enforcement officer who points a loaded weapon at a co-worker.

The arbitrator concluded that despite what he found to be grievant's genuine remorse the department had "lost all trust" in his rehabilitation and that the County had established just cause for the termination.

Social media, adverse publicity and just cause

The Clark County, Ohio Sheriff's office is responsible for County wide law enforcement and operates the county jail. The jail shares a building with the Springfield police department with a common lobby between the two. Grievant was one of two Sheriff's Office Sergeants on duty at the jail on May 13, 2015. On that evening a former deputy, who had been fired for alcohol related misconduct, entered the lobby. While there was some dispute about his initial condition he became increasingly inebriated as the evening progressed. The former deputy approached the window of the Sheriff's office and asked to speak with a Sergeant. One of the Sergeants on duty (not the grievant) responded. The former deputy claimed there was an incident down the street requiring attention, but could not provide any details. After being advised that there was nothing that could be done without additional information. Nevertheless the former deputy remained in the lobby, at one point lying next to the door. The responding Sergeant notified the Springfield police that the former deputy was in the lobby but instructed her deputies to leave him alone.

Approximately a half hour later an individual entered the lobby to turn himself in on an outstanding warrant. This individual recognized the former deputy from a prior jail stay and began videoing him on his phone. His recording showed the former deputy stumbling severely and urinating in the lobby. After the individual left then office he posted his recording on Facebook and contacted the local media to report what he had observed.

The following morning the Sheriff was faced with numerous media accounts of the incident and the Facebook posting and spent considerable time responding to media inquiries. He also asked the County prosecutor to conduct an investigation to determine if criminal charges against any Sheriff's Department employees were warranted.

After an investigation the prosecutor recommended the pursuit of misdemeanor charges against the  sergeant who first interacted with the former deputy and who directed the staff to leave him alone. The Sheriff decided not to pursue criminal charges but conducted an internal investigation. That investigation resulted in the termination of three sergeants, the responding sergeant, the grievant and a sergeant who came on duty while the former deputy was still in the lobby. All of the terminations were grieved. The termination of the responding sergeant was upheld (Termination upheld for fired Clark Co. sheriff’s sergeant). A hearing on the termination of the third sergeant has not yet been held. Arbitrator Tobie Braverman addressed the termination of the second.

Arbitrator Braverman concluded that the evidence supported a charge of conduct unbecoming, neglect of duty and unsatisfactory performance. She concluded that she should have, at a minimum, questioned the other Sergeant's decision to let the former depart remain in the lobby and should have called someone to check on the former deputy's mental state and possible need for assistance.  As to the penalty, however, Arbitrator Braverman concluded that termination was too severe. She addressed the impact of the negative publicity caused by the posting of the video to Facebook, but found this by itself insufficient to support termination. She observed:

Having determined that the Grievant committed the offense with which she is charged, the remaining question is that of whether the penalty meted out for her offense is appropriate in the circumstances present in this case. There can be no doubt that the decision to terminate the Grievant was influenced in significant part by the fact that video of the incident was posted on Facebook and covered by local media. This clearly reflected poorly on the Employer. It resulted in accusations of both favoritism, since [ ] was a former deputy, and indifference due to the lack of concern for his safety and that of the public. The publicity, however, cannot be the sole determinant in assessing the propriety of the discipline to be meted out to the Grievant. In this day and age when virtually everyone has a video camera in his pocket, it must be presumed that there is a real and present possibility that the events are being recorded and that those recordings will be posted to social media. While it is important that law enforcement personnel in particular be mindful of this fact, the mere fact of the additional attention cannot exclusively drive the penalty for misconduct.

In light of grievant's seventeen year discipline free history, and the principle of progressive discipline, the arbitrator ordered grievant's reinstatement without back pay. WDTN reports on the decision, and Arbitrator Braverman's award can be found here.

Arbitrator's duty to disclose and evident partiality

The City of Mason, Ohio and the Mason Professional Firefighters Union were parties to a dispute about the termination of a bargaining unit employee. After the arbitrator initially selected disclosed a potential conflict of interest, the parties selected another arbitrator from a list provided by FMCS.  The parties selected arbitrator Howard Tolley. Following a hearing Arbitrator Holly upheld the Union's grievance and ordered the reinstatement of the grievant with back pay. He found that the City failed to conduct a fair, objective investigation and that it lacked substantial evidence of guilt. Together with his award, Arbitrator Tolley submitted an invoice. The signature block on the invoice identified him as the Executive Director of Unitarian Universalist Justice Ohio. The City maintained that this was the first time it became aware of the arbitrator's position with the organization which, according to its mission statement, "organized justice seekers statewide to promote  education, service, and advocacy consistent with Unitarian Universalist liberal religious principles and to witness with and on behalf of marginalized groups and individuals."

The City sought to set aside the award, arguing that the arbitrator had failed to disclose his employment with UUJO, that he was not qualified under the terms of the cba, and that it would not have selected him had it know of his position with the organization. The City claimed that these facts supported a claim of evident partiality, a basis to set aside the award. The magistrate hearing the City's motion denied the request to vacate, and the City's objections to that decision were overruled by the trial court.

On the City's appeal, the Court of Appeals of Ohio reversed.  Relying in part on what it described as the seminal case on the issue of undisclosed background information (Commonwealth Coatings Corp. v. Continental Das. Co.) the  Court held

Based on our review, we find the facts and circumstances in the present case depart from normal procedures of arbitration significantly enough to find evident partiality. The record in this case establishes that Tolley's involvement with UUJO is not indirect or trivial in the sense that he was an arms-length member of an organization supporting some social justice positions.

***
The record further supports the city's position that they were prejudiced by the nondisclosure of this information. While UUJO aligns itself with many issues and causes, the record before the court does indicate the support of a number of positions that would be unacceptable to a party representing the management side of an arbitration decision. [footnote omitted]

Accordingly the Court vacated the award.

The Court's decision in City of Mason v. Mason Professional Firefighters can be found here.

"Union member-union" privilege, grievance time limits - two recent cases

Mass. SJC rejects union privilege

In Chadwick v. Duxbury Public Schools, the Massachusetts Supreme Judicial Court has rejected an effort to have the country recognize a "union member - union privilege,"  at least beyond the labor dispute setting. Plaintiff, a union represented teacher, and a former local union president, sued her employer alleging discrimination and retaliation. When the School sought discovery, plaintiff objected to several of the requests, asserting that any discussions or communications she may have had with her Union were covered by a union member - union privilege. The trial court rejected plaintiff's privilege claim. The SJC has now decided what it described as an issue of first impression, i.e.

whether an employer, in defense of a lawsuit alleging discrimination in employment filed by a union member, may demand communications between the union member and her union representatives or between union representatives acting in their official capacity. 

Affirming the lower court's decision, the SJC declined to create such a privilege. Initially it found that nothing in the statutory language granting public employees the right to bargain over wages, hours and terms and conditions of employment implied such a privilege in the context of a civil action not directly connected to the collective bargaining context. 

The Court also found no basis to create such a privilege as a matter of common law. Declining to adopt the reasoning of the Alaska Supreme Court in Petersen v. State (discussed here) the Court observed that the creation of such a privilege was best left to the legislature. 

Maine Supreme Court - Arbitrator improperly ignored time limits on grievance processing

The Maine Supreme Court in  State v. Maine State Employees Association, SEIU Local 1989 reversed a lower court ruling and concluded that an arbitrator had exceeded her authority by deciding a case appealed to arbitration beyond the deadline established by the cba. 

The applicable contract called for requests for arbitration to be submitted within 15 days of receipt of the Step 3 decision. Because of the absence of two employees who normally handled these appeals, the Union requested a "break" from the employer on enforcement of timelines.  The employer responded:

Of course we will work with you/MSEA while the Member Support Specialists are out. I will notify everyone in this office and the Department HR directors that we are waiving time requirements form[sic] 8/27 through 9/13.
Let's plan to pick up the timelines on Monday 9/16. We can touch base later if this needs to change.

The Step 3 decision in this case was received on August 29. The appeal to arbitration was submitted  on October 22, more than fifteen work days beyond September 16. 

The employer challenged the appeal as untimely, but the arbitrator concluded that the employers response was not "so exact or precise" as evidenced by its commitment to touch base later if needed, and that it would be unfair to the grievant to deny her a hearing based on the actions of a temporary employee unfamiliar with the process. The arbitrator then proceeded to the merits, reducing grievant's termination  to a written reprimand. 

The State sought to vacate the award, but the lower court refused. On the State's appeal, the Supreme Court concluded: 

By attributing to the State an agreement to waive deadlines beyond the date to which it in fact consented, and then enforcing a waiver that is necessarily deficient under the CBA, the arbitrator, in effect, re-wrote the terms of the CBA. Instead, under any "rational construction" of the CBA, ..., MSEA's Step 4 arbitration request on behalf of [grievant] cannot be viewed as timely. Because the arbitrator's contrary determination represents a "manifest disregard" of the CBA, the arbitrator exceeded her powers and—reasoning that it would be unacceptable" if [grievant] were denied an arbitration hearing under the circumstances presented here—imposed her "own individual concept of justice." 

The Court remanded the case for entry of a judgment vacating the award. 

The issue of timeliness in grievance processing is also discussed here and here.

Officer involved shooting - Arbitrator orders "second chance" for dismissed officer

On March 7, 2013 El Paso police received a call about a domestic disturbance. The individual who was the subject of the call (Daniel S.) was no longer on the scene but witnesses reported that he had burned his mother's dogs, cut another one and threatened to kill his brother. A few hours later he was the subject of another call when he was reported to be violently menacing staff and customers at a local convenience store. Police arrived on the scene and transported his to a nearby hospital where he assaulted several staff and patients, and punched an El Paso police officer in the face. The officer fired five Taser cycles with little effect. Eventually he was subdued with the assistance of hospital personal. He was then transported to the police substation.

Grievant was coming on duty at the substation and volunteered to take the individual to the County Jail. According to grievant and others, Daniel S. had the physique of a professional body builder and appeared to be "on something." Grievant was assisted with the transport by a civilian employee of a contractor. This was pursuant to a new program designed to free police officers for other assignments. During the transport Daniel S. would cycle between periods of docility and combativeness. He would go limp, requiring Grievant and the contractor to carry him for significant distances. Upon the approach to the jail, Daniel S. deliberately smacked his head against the door causing a bloody wound. Because of the wound, jail personnel refused to accept him, requiring grievant to take the prisoner to another facility for treatment. The prisoner became combative again as they were exiting the jail. The departure was recorded on the jail's video, but the interpretation of the events was subject to dispute. What was undisputed was that the officer and the contractor struggled with the prisoner, with the officer ultimately pulling his weapon. While there was some uncertainty concerning whether the officer intended to shoot or whether his hand was struck causing an accidental discharge, the prisoner was fatally shot. An investigation ensued, and the officer's employment was ultimately terminated. The Notice of Termination contained two primary allegations. The first alleged that the officer had violated the Department's policy with respect to the use and application of deadly force, and the second alleged that he had misrepresented the facts concerning whether the shooting was accidental or intentional.

After a criminal investigation resulted in no charges being filed, the grievance proceeded to arbitration before Arbitrator Mark Sherman.

After a detailed review of the evidence, and the conflicting positions of the parties, Arbitrator Sherman ordered the grievant reinstated without back pay. While noting the severity of law enforcement's excessive use of force, and his own prior cases generally upholding termination where excessive use of force was involved, Arbitrator Sherman found several mitigating factors in this case.

Initially, the Arbitrator found that the City had not established that grievant intended to deceive. Rather, he concluded that any discrepancies in his account resulted from the initial shock of the incident and gradual but incomplete efforts to recall details. He also found that deficiencies in the investigation of the incident led to a disjointed effort to gather a complete statement from grievant.

Turning to the use of force issue, Arbitrator Sherman noted that a lack of coordination between the City, the Union and the District Attorney's office led to grievant's actions being portrayed "in the worst possible light by the media." He also found that the newly instituted policy of civilian transport of prisoner exacerbated the situation, noting:

[Grievant] was assigned to transport a violent and highly dangerous prisoner with only a 23-year-old, unarmed security guard to assist him. While his contracted “off -sider”certainly did his valiant best to assist [Grievant], the unarmed young man had never been through any police academy nor was he physically or mentally equipped to deal with the dangerous situation that confronted him on the day in question. For all intents and purposes, therefore, the Grievant was pretty much on his own in his effort to transport a powerful and seriously deranged hulk of a man.

Nevertheless, Arbitrator Sherman found that grievant was not without fault:

In the final analysis, there were a couple of key opportunities for the Grievant to seek help before things got out of hand while he was on his way out of the sally port. Ultimately, he should  have never put himself in the position where he had to draw his gun in an effort to intimidate Mr.S[...]. He should have never put himself in the position where he had to breach the Use of Force policy in a last desperate attempt to control the situation. But most critically, he should have never drawn his weapon in such close proximity to Mr. S[...], knowing intuitively and through training that an unexpected and violent movement could cause his gun to accidentally discharge. (After viewing the sally port video nearly 50 times the Arbitrator reached the firm conclusion that this is precisely what happened.) In summary, despite the fact he was let down by both the Department and the County Jail staff, he still bears the brunt of the responsibility for the accidental death of Mr. S[...].

Accordingly, Arbitrator Sherman concluded  that he would serve "his customary role of scapegoat and reviled 'decider' of the controversial, by choosing to give an officer a second chance." He ordered the City to reinstate grievant, without back pay, and subject to a fitness for duty exam and whatever additional training the Chief might require. 

Arbitrator Sherman's award can be found here.