City of Cincinnati, Ohio
Queen City Lodge No. 69
Fraternal Order of Police
117 LA (BNA) 637
AAA Case No. 52-390-00481-1
July 19, 2002
James C. Duff, Arbitrator
The instant claim is one whereby the Fraternal Order of Police asserts on behalf of Police Officer D__ that he was discharged without just cause.
ARTICLE II Management Rights
The FOP recognizes that, except as provided in this labor agreement, the City of Cincinnati retains the following management rights as set forth in Ohio Revised Code Section 4117.08(C)1-9:
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5. To suspend, discipline, demote or discharge for just cause, or lay-off, transfer, assign, schedule, promote or retain employees;
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ARTICLE III Grievance Procedure
All sworn members of the Cincinnati Police Division shall be entitled to the following grievance procedures:
Section 1. Definition of Grievance
A grievance shall be an allegation that the terms of the written Agreement between the FOP and the City have been violated or misinterpreted or when there is a difference of opinion as to the application of the same, interpretation of same, or a disagreement as to whether the City has disciplined an employee for just cause.
Disciplinary actions subject to this grievance and arbitration procedure shall include all disciplinary actions except for discharges and terminations. Employees who are discharged or terminated shall, at his or her option, select this grievance and arbitration procedure. In the alternative, said discharged or terminated employees may appeal their discharges through the state civil service laws. In the event said terminated employee selects this grievance and arbitration procedure, his or her rights to proceed under the state civil service laws shall be considered waived, and this grievance and arbitration procedure shall be final and binding upon the parties. In the event said terminated employee elects to proceed under state civil service law, he or she shall have an additional thirty (30) days in which to convert the appeal to the grievance arbitration process. It is understood by the parties that no member shall have the right to both a civil service hearing and a grievance arbitration hearing.
Disciplinary grievances involving suspensions of more than three (3) days without pay, demotion, discharge or termination shall advance automatically to Step 6 of the grievance procedure.
Disciplinary Grievances of all pay step denials and disciplinary penalties of three (3) days or less shall be submitted to either Peer Review or the Civil Service Commission (“CSC”). A Peer Review Panel shall be established at each sworn rank consisting of volunteers at that rank who shall serve for a period of one (1) year.
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Section 3. Steps
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Mediation: If the grievant is not satisfied with the decision or adjustment at Step Five, then the individual or organization filing the grievance and the City may submit the matter for grievance mediation in accordance with the procedures in Appendix B hereto.
Arbitration: If the grievant is not satisfied with the decision or adjustment at Step Five, an arbitrator, acceptable to both parties, shall be appointed. The American Arbitration Association (AAA) shall be contacted by the Union, in writing, to obtain a list of arbitrators within ten (10) calendar days after the receipt of the decision or adjustment of the City Manager or his representative, with a copy to the Chief of Police and Safety Director. The parties shall move to select an arbitrator within twenty (20) calendar days of the date AAA transmits the list of arbitrators. AAA rules shall apply to all arbitration procedures, including the selection of arbitrators. The decision of the arbitrator shall be binding. The cost of the arbitrator shall be borne equally by the parties. The Union and the City shall each share the filing fees, administrative fees, or panel fees charged by the AAA. The City, however, shall pay all such administrative fees, filing fees or panel fees in the event a terminated employee selects this grievance and arbitration procedure in lieu of his or her rights to proceed under the civil service laws for cases involving employment terminations. The expense of the expert witnesses shall be paid by the party producing same; and, in the event there is a transcript of proceedings, the party ordering the transcript shall be responsible for the cost of said transcript.
The Arbitrator shall have no power to render a decision that will add to, subtract from, or alter, change or modify the terms of this agreement and his/her power shall be limited to interpretation or application of the express terms of this agreement.
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The record in this case is quite voluminous and any effort to reiterate all of it in detail here would generate an unduly prolix statement of the case. The Post-Hearing Brief of the City of Cincinnati succinctly outlines the basis alleged for the Grievant's discharge as follows:
... On October 30, 2000, Grievant Police Officer, D__ (“D__”) punched citizen B__ (“B__”) in the face during an arrest, failed to report that use of force, convinced another police officer not to report the punch, and subsequently lied about this incident to the City's Internal Investigation Unit (“IIU”). On December I, 2000, one month after the B__ incident, D__ did the same thing by punching an unidentified person in the face while working security detail at an establishment known as Oscar's Bar. Again, D__ never reported the incident. Although approximately eleven months later he admitted to punching this unidentified person and failing to report his use of force, this admission occurred only after the City had conducted an investigation and only after D__ viewed a videotape that had caught him in the act. D__ would have never come forward with the truth otherwise. The only difference between the B__ incident and the Oscar's Bar incident is that the Oscar's Bar incident was fortuitously videotaped.
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All of the testimony and other evidence is incorporated herein by reference. The most salient aspects of the evidence will be identified in the course of the analysis which follows.
The City insists that Officer D__ used unnecessary force to effect the arrest of citizen B__ by punching him in the face, then failed to report this use of force and lied to representatives of the City's Internal Investigation Unit about it. It charges that he also knew that Officer A__ was aware of his use of force and failed to report it. It submits that the decision to discharge Officer D__ was fair and appropriate under all of the circumstances so that it should be upheld to protect the citizens of Cincinnati from an Officer demonstrably proven to resort to the use of excessive force. It also asserts that Officer D__ should not be reinstated in light of his subsequent misconduct at Oscar's Bar, which was fully investigated by its IIU and wherein he ultimately admitted to his misconduct. For all of the foregoing reasons in fact and law the City requests that this Arbitrator find in its favor, deny the Union's grievance, and uphold D__'s discharge from his employment with the City of Cincinnati.
The Union maintains that from the outset the City inexplicably focused exclusively on Officer D__ as its target in its investigation of the incident which triggered his discharge. It believes that the City ultimately concluded its investigation based upon a preconceived picture of what transpired that was distorted in part by misconduct of the Grievant which actually took place at a time subsequent to the critical incident. It cites and relies upon the interrogation of Officer A__ by Lieutenant Kraft as conclusive evidence that the City's case against Officer D__ is fatally flawed. Accordingly, it urges the undersigned impartial Arbitrator to direct that Officer D__ be reinstated with full back pay and benefits effective immediately and require that all reference to this matter be expunged from his records.
This case is of great import to all the people of Cincinnati. It is incumbent upon the undersigned impartial Arbitrator to exercise great care to circumspectly analyze this matter so as to safeguard the welfare of the citizens of the City and leave the zeal of its fine police force intact. It is also his solemn obligation however to make certain that the facts here are not unjustly allowed to deprive Officer D__ of any of his fundamental rights to due process.
The City has characterized this case as being about police officers who employ the age-old, yet insidious practice known as “The Code of Silence” to sanction, and then conceal, police misconduct. It rightfully and accurately notes that, by and large, its police officers perform the arduous task of protecting and serving its citizenry with personal honor and professional integrity. It suggests that Officer D__ was in effect the antithesis of its standards and was an Officer who refused to follow orders, was quick to use excessive force, did not tell the truth, and was in effect a one-man police force operating on his own rules and regulations as he saw fit.
Unfortunately, those allegations may indeed prove to be true and the Oscar's Bar incident may ultimately well warrant the Grievant's discharge. However, the undersigned impartial Arbitrator is compelled to focus upon the facts before him rather than those pertaining to that later incident. While there is great cause in this case to be ever so suspicious of Officer D__'s story, it must never be forgotten that suspicion is no adequate substitute for untainted proof.
Apparently believing unflinchingly in his ability to divine the truth, the IIU's Lieutenant Kraft conducted an “interview” of A__, the Officer who was with Officer D__ at the time in question. The interrogation took place immediately after A__ was shown a video depicting D__'s apparent perpetration of an unwarranted battery upon an unknown person at a time about a month after the incident here in question, and reference was made by the Lieutenant to another incident wherein D__ was allegedly disciplined for punching a person a “couple years ago.” A__ was told that D__ was “going to go down” and that it was up to him whether “you want to go down with him.” Lieutenant Kraft then continued as follows: ... Right now, I can assure you—you're probably worried about you need to stick to your guns because there's been a previous interview and you're worried about changing your story. This is the time to come clean. Nothing else will happen to you. Okay? We're not really concerned about you right now. All right? I'm not going to—as a matter of fact, if you want to hear the word “immunity,” that's what it's going to be.
Lieutenant Kraft further emphasized that anyone with Officer D__ would “go down” with him, that A__ needed to separate himself from him, that he should think about whether he wanted to be a policeman for another twenty years, that this was his only and last chance, that everybody who sticks to D__'s story that he did not hit citizen B__ would be going down with him, that he was not being honest, and he was also asked if he wanted to be a part of Officer D__'s expansive “track record.” After sustained verbal bludgeoning of that sort, A__ blurted, “Okay. He hit him.”
Lieutenant Kraft was never called as a witness at the Arbitration Hearings. At the initial proceeding, however, the undersigned became concerned about the fundamental fairness of this “interview” and inquired of Lieutenant Colonel Richard Janke, Assistant Police Chief of Cincinnati, about the propriety of this technique. That inquiry produced the following colloquy at pages 230-231 of the first transcript of these proceedings:
ARBITRATOR DUFF: Do you believe it would be appropriate, if you were interrogating someone, to, in effect, threaten that they would lose their livelihood if they failed to make an accusation believed to be true?
THE WITNESS: That's a very fine judgment line. Do I think it's appropriate for me to threaten somebody with loss of their livelihood if they don't make a statement that I believe to be true. That would depend on how serious the conduct is and how strongly I believed the statement, how strongly I believe the act to be true.
You follow what I mean? Do I strongly believe that this occurred and I need you to acknowledge it, may be appropriate. Fine line and it's difficult. It is a very precarious situation. I'm hesitant to sanction it.
The audio tape of this “interview” imparts a further dimension of visceral repugnancy to the notion that an interrogator should threaten a person being interrogated with the loss of their livelihood if he fails to acknowledge a version of events that the interrogator believes to be true. The danger inherent in deciding what is the truth in advance of having very cogent proof of it is impossible to over-emphasize. This Arbitrator fully appreciates that police interrogations need to be intense where there is reason to believe a witness may be obstructionistic but there is a vast distinction between leading a witness and threatening and dragging him in this fashion.
D__ may be a pugnacious individual unworthy of his badge, but that will have to be determined at a time when he is afforded due process of law. That did not occur in this case, and after repeated scrutiny of everything on record the undersigned absolutely cannot fail to recognize that fact. Absent the improperly procured statement of Officer A__, the City's case against Officer D__collapses.
The undersigned wishes also to simply note in closing that while D__ struck B__ in some fashion, “clearing” his hands, as he finally admitted he did in his testimony, it seems very unlikely that that slender but uncooperative citizen was the victim of an outright “sucker punch” delivered by Officer D__. D__ was a very powerfully built individual and a direct, deliberate blow from him would most likely have caused much more physical damage to B__ than he actually sustained. D__'s own story was ostensibly consistent with the damage done and A__ never claimed that D__ used excessive force under all of the prevailing circumstances. According to A__, B__ made a gesture as if to strike D__, triggering D__'s defensive reaction.
It is apparent that there was ample cause that prompted both of these Police Officers to take citizen B__ to the ground. It is also clear that they were both aware that that effort generated sufficient incidental physical contact with that uncooperative citizen such that the use of force should have been reported. However, D__ cannot fairly be subjected to any greater penalty than A__ was, after the City unjustly reneged on its transparent assurance of immunity to him, due to any evidence the City can properly rely upon.
The grievance is granted in part. The City is directed to offer to reinstate Officer D__ with full back pay and benefits immediately and to reduce the penalty imposed upon him consistent with the rationale expressed immediately hereinabove.