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Arbitration Award

In Re the

City of Cuyahoga Falls, Ohio

and

Fraternal Order of Police

FMCS Case No. 010302/007108-6

116 LA (BNA) 545

November 16, 2001

Thomas J. Coyne, arbitrator.*

This case concerns itself with discharge of a police officer from this major city located in northeast Ohio.

Each party stipulated the matter as being before this arbitrator at this time for a final, binding award.

City Position

This former police officer was on the force only about six (6) months before his behavior became known. A rumor circulating within the department caused us to investigate. He is guilty of gross misconduct of duty, plus a large number of other offenses. This city does not want this person on its police force!

A female police officer from another jurisdiction came forward to alert us to our problem. She said she had sexual intercourse with this former employee on two occasions in one of our city-owned police cruisers: car #13 the first time; car #14, or similar, the second time. He was on duty each time they had sex; she was off-duty. The city asked her to take a polygraph test and she did, passing it with no difficulty.

The city had semen tests done of the back seats of cars 13 and 14 in an effort to match DNA evidence found in the car with that of the discharged policeman. The results were negative. We could not prove our case with DNA.

The consensual sex had occurred in October 2000, and DNA tests started on December 26, 2000, with initial swabs being sent to the lab some time in January 2001. The routine washing of cars occurs. No semen existed by the time we got around to learning of the problem. The washing of cars eliminated semen, if any. Regardless, we believe her story, had it confirmed with a similar story she had told earlier to one of her friends, saw it proven by a polygraph test, and discharged the employee. Additional reasons for discharge exist.

In addition to his violation of contract provisions concerning productivity and truthfulness, the discharged officer met while on duty an 18 year old girl working at the time at a local gasoline station frequented by the officer. This now discharged officer described himself to this girl when they met as a “sex addict” and asked if he could come to see her some time. Initially, she refused each such advance, but he persisted. One evening she reluctantly allowed him to come to her residential front door; aft er all, this police officer had given her a DUI ticket some months earlier and she did not want to upset him. This girl came later to the city to tell us her story, but only after she experienced some very tense moments at her home.

Immediately upon seeing the officer carrying alcoholic beverages and dressed in civilian clothes at her door, she became frightened. She left the room as quickly as she could, rushing upstairs to a bedroom to call her 19 year old boy friend for help. The young man rushed to her place immediately. When the 19 year old young man arrived, the police officer apologized for being there and about 20 or 30 minutes, or so, later the officer left the premises.

When questioned about his behavior by a ranking police sergeant within our police department, the now discharged police officer was not truthful.

The city has had productivity problems with this officer in the past, as explained at the oral hearing. On any number of occasions he neglected his duties.

Union Position

The witness, the female police officer from another jurisdiction, is a liar. She was in love with the now discharged police officer and when he dumped her she wanted a way to punish him; consequently, she contrived this ridiculous story. Besides, the city has no eye witness or any other evidence. It has attempted to manufacture evidence with DNA tests of the back seats of two cruisers, but no semen existed according to the laboratory.

The discharged officer told the arbitrator he has never had sex in a patrol car with anyone—ever, and this discharged police officer does not lie. He is telling the truth. On the other hand, the female fabricator of charges against this wrongfully discharged police officer from the other jurisdiction has had sex with other police officers in this city. She lies routinely.

With respect to the allegedly frightened 18 year old girl, she is an adult. The police officer is an adult. The woman told the officer he could come for a social visit. What the officer, any officer, does with his/her off-duty personal time is his/her business. It is not the business of any police officer's employer!

This officer of the law did not bring alcoholic beverages to this underage person. This now discharged police officer told the arbitrator he took Zima to the young girl's house, and that is what he did, but he never gave her any of the Zima to drink. His intent was to drink it himself. No need exists to bring alcohol to this girl. She has ready access to whatever alcohol she wants. The arbitrator should remember she has a DUI, given to her by this police officer. Quite simply, she is trying to get back at him for that DUI citation. She was drinking in front of him when he arrived, but not arresting her for underage drinking does not: constitute “just cause” for termination.

If he gave her alcohol it is a somewhat more serious situation, but he did not give her alcohol. Quite simply, no one knows what happened at her house that day. She says one thing, he says another. The city has to prove its case to discharge this man, and the city has been unable to do so. No proof was or is forthcoming. The officer need not prove himself innocent; instead, the city must prove him guilty. This officer is guilty of nothing.

Neither car #13 nor car #14 had semen, but not for reasons cited by the city. Discharge of this police officer occurred because of unfounded semen charges. Discharge in this manner is unwarranted. The city relied upon false evidence. The city has proven nothing.

Regarding the testimony and polygraph tests passed by the female officer, she was lying and the polygraph tests are inconclusive. One other point: no police officer from this jurisdiction has come forward to testify against him, to say he is guilty.

The whole discharge process started with unfounded rumors, and the people who spread them initially are lying. Notice please, none of the rumor mongers appeared to tell the arbitrator what the city claims they told the city. Of important note with respect to these rumors is this: the female officer told one rumor monger she intended to fabricate a tale against her former boy friend in order to get him suspended. When that happened, the city assumed the worst. The city assumed everyone was telling the truth except the police officer. It is the other way around. Everyone else is lying.

The city provided no date of alleged sexual intercourse to the arbitrator. Do you know why? Because the intercourse did not happen. Yet, the female officer claims there may have been 3 or 4 days between sex acts in the car. Records revealing the location of police cars #13 and #14 and the driver of each at the time of the alleged sex acts fail to confirm the city's story. Again, the city has failed to prove its case.

The polygraph test of the female officer was `junk,' a desperate attempt to contrive evidence against an innocent man. The female officer is not believable. The one or two minutes social visit to the young woman's apartment could not have resulted in the trauma we are hearing about at this late date. Regardless, no misconduct on the part of this discharged police officer took place. The city has proven nothing.

When asked about his behavior at the house of the 18 year old girl that night, and about his behavior some months earlier with the female officer from another jurisdiction who falsely accuses him of having sexual intercourse on two separate occasions in his police cruiser, the now discharged officer was totally truthful. The two women were lying.

The 18 year old girl lied when she told her story about what happened. This young, 18 year old person is one who uses marijuana and when the officer smelled it in her home he left as quickly as he could, apologizing to no one. He was at her house for less than a minute or two. How much damage can anyone do in one or two minutes? The whole story to the contrary is ridiculous, but if something serious happened the city must prove it. The worker has to prove or disprove nothing!

The female police officer lied when she claimed sexual intercourse had occurred. If sex occurred, the city must prove it. Where is the proof?

Inasmuch as the city cannot prove beyond any reasonable doubt the guilt of this employee, the city must reinstate him with full back pay and allowances. On February 9, 2001, the police officer became wrongfully discharged. This arbitrator should reinstate him, and make him financially whole.

Issue

Was the discharge for just cause?

Finding

Yes!

A city is required by law, by reasonableness, and by expectations on the part of responsible citizens within society to do its best to fill the ranks of its police force with morally straight, truthful, subordinate, intelligent, productive persons, ones not guilty of misconduct, or neglect of duties, and do so within the confines of its contract with its union, if any.

Under normal circumstances, the police department is the place an eighteen-year old female feeling threatened in her home by a thirty-something year old man who at the time was standing in her open residential doorway, and who soon was sitting on her couch, should call for help. In this instance, it did not work that way.

In this case before the arbitrator, an eighteen year old girl told the arbitrator she felt threatened in her home while her mother was out of the house. She was sitting on her couch at the time, and she found it necessary to call her nineteen-year old boyfriend for protection, for help. Why did she not call the police? The man threatening her was the police! He represented the police department, and was representative of them, she felt.

If this eighteen-year old girl had called the police for help, instead of calling her boyfriend, and the police sent another officer, a friend of the first officer, she might then have to fight-off two thirty-something year old men, each hiding behind his badge, his shiny new car, and his authority? They might even try to lock her up, or cause other problems for her in the community, with her mother, with her employer, with her boyfriend, with her traffic tickets, if any, and so on, should she fail to cooperate? Total intimidation was the condition of this eighteen-year old female citizen!

From testimony provided to the arbitrator by highly credible members of the police department, by the former boyfriend (a very truthful young man of considerable character), by the threatened young girl, and by other persons familiar with the incident, the arbitrator believes this police department cannot reinstate this discharged, former employee at any time, for any reason. Rehiring him could endanger citizens within the community? No eighteen year old female citizen of the community, for example, and no eighteen year old female driving through the community on her way, perhaps, to or from nearby Kent State University, could feel totally secure if stopped in the city with this former policeman cruising, if she were aware of his behavior?

When a person uses his police badge, police car, and policeman's uniform as a hunting license to locate and seduce the very members of the community the community hired him to defend, he must go!

Just cause occurred in the discharge of this former police officer.

No fewer than three highly credible witnesses told this arbitrator of what each witness considered to be immoral, illegal, totally unreasonable acts of behavior on the part of the dismissed officer. No one came forward to speak on behalf of the former officer. True, the union provided good representation, but not one police officer came to his defense. Not one city employee came to his defense. Not one citizen from the community came to his defense. Why? To be seen in his company is too embarrassing may be one assumption of this arbitrator at this time?

Allegations associated with questionable, objectionable, sexual intercourse related, highly personal on-duty misconduct on the part of this discharged policeman were considered, and given the weight they deserved in arriving at this decision, however, the upholding of this dismissal for just cause does not rest totally on this alleged behavior for two reasons:

(1) The sexual intercourse charges could not be proven, and the discharged former policeman denies having sex with the female police officer from another police district while she was off-duty and he was on-duty, as she charges. The arbitrator believes testimony provided by the female officer who said she had sex twice with the discharged officer in the back seat of his police cruiser, Car #13 the first time, Car #14 or some other numbered Car the second time. The discharged police officer denies these charges. A polygraph expert came to testify; however,

(2) Testimony and publications provided by the polygraph expert are seriously wanting, significantly less than credible. The discharged police officer refused or for whatever reason did not take the polygraph test. His refusal to be tested is irrelevant and unimportant to the arbitrator, to the outcome of this case.

Allegations concerning sex in the car, and allegations concerning illegal behavior at the 18 year old girl's apartment come from two different people, dramatically different in age, education, background, experience, and at the time these two women were unknown to one another. The arbitrator considers the probability of both women lying as being somewhere between zero and non-existent, and there is no chance the 19 year old young man was lying when he confirmed for the arbitrator the 18 year old girl's story, and that it took him about five minutes to respond to her call for help.

One cannot have sex in a back parking lot many miles from where he should be, with gun and phone put aside for however long the sex act takes and, simultaneously, be available to help another officer, should another officer need and/or call for help. Such behavior violates the contract and is unacceptable. Testimony from the female officer alleges this behavior, but no real proof exists. It is the word of one against the word of another. This arbitrator has had other cases where he found himself in a similar situation, but this case is easier than those other cases as discharge of this officer for just cause exists without confirmation of his having sex with a female police officer from another jurisdiction, as charged, and without his having been in complete dereliction of duty while so engaged, as charged.

On the sex issue, one must remember: “a liar is a liar is a liar? Never forget it!”

While denying having sex with the woman as charged by her, the discharged police officer admits to having parked police car to police car, driver to driver, his car to her car, positioned so their hands could touch, if desired, for many hours of discussion and on more than one occasion at various locations in his territory. She confirms numerous such meetings, at several different locations. She was off duty each time. He was on duty each time. If another officer had needed him he would not have been available, the arbitrator thinks. Such behavior is unproductive. Such behavior violates the contract and is unacceptable!

From the standpoint of the discharged officer, the alleged sex issue may be the good news. The bad news: the taking of alcoholic beverages to the eighteen-year old girl who said she felt threatened, totally intimidated and had to call her former boyfriend for protection. Taking alcoholic beverages into the girl's private residence, with the mother with whom she lives absent from the house, while he was in civilian clothes and “off duty,” violates police department rules, the contract between the parties, and state of Ohio laws concerning obligations and expectations of police behavior. Police Officers may not contribute to the delinquency of a minor while on or off-duty. Period!

The eighteen-year old is one about whom the discharged officer had been able to learn much as a result of the traffic ticket he gave her for drunk driving (DUI) some months earlier. Without issuance of that ticket, he would not have had an opportunity to meet her in the first instance, to get her name, to see how attractive she is, to know how weak she might be with respect to alcohol. The arbitrator thinks the now discharged police officer was using the authority of his position as a `hunting license' again. Such behavior violates the city's contract with its union and is unacceptable!

This dispute between the parties is not about sexual intercourse in the back seat of two city-owned police cruisers. This dispute is not about the absence of sexual intercourse as alleged by the discharged officer. This dispute is not about the litany of names of eighteen-year old girls this former officer cited as current or former girl friends he was able to meet while in service to this city, and his relationship with them, if any. This dispute is about the contract.

An off-duty police officer has a contractual obligation while off-duty to function in a manner similar to his on-duty responsibilities concerning matters of dignity, discipline, ethical behavior, honesty, honor, integrity and truthfulness. Truthfulness, is of greatest importance here. The discharged officer appears to have violated expectations of him in that category by telling the arbitrator and his former employers something other than the truth. If a police officer is not truthful as he goes before a judge to testify regarding a criminal or civil matter, should the judge or jury believe him? When a policeman lies, is it to the detriment of innocent people and their reputations? Why?

This properly discharged officer failed in every category cited here when he brought alcohol to an underage young woman's home, to the same eighteen year old girl to whom some months ago he had given a ticket for drinking, to the same eighteen year old who was frightened of him and intimidated by him, to the same eighteen-year old to whom he allegedly said when they met: “I am a sex addict.” What police force would want such a person? What police force would retain such a person if somehow he managed to pas s initial screening and interviews? Why?

Once the officer arrived at the eighteen-year old girl's private residence, she let him in as she was afraid not to do so. Imagine that! She could not call the police for help, she said. Imagine that: Afraid of the police, in the USA.

What kind of community gives its tax money by way of wages, salaries and supplements to a 30 + year old man, dresses him in an authoritative uniform, provides him with a shiny new police car, a badge, and allows him to prowl while on duty for 18 and 19 year old girls living and working in the same community so he can visit with them while he is off-duty, but dressed in civilian clothes, and bearing packages of alcoholic beverages in a state where he knows the legal drinking age is 21? This is an interesting question to the arbitrator as the discharged police officer and his union assured me that what an officer does while off-duty is the business of the officer, not the city.

If the young woman had romantically pursued the police officer, it would be a completely different matter, but she did not. The officer pursued her and she did not like it. He threatened and intimidated her, she believed. She had no relief from his advances at her place of employment or in her home. She had no place to go, no one to call for help other than her 19 year old boyfriend, a courageous young man, but what match would an untrained boy be against a fully trained, thirty-some year old officer of the law who could call for police back-up at any time? (The arbitrator met this responsible, mature 19 year old. The young man was impressive. I believe he could have handled himself quite well if he felt the need to physically remove the officer from his girlfriend's home some 20 or 30 minutes after he arrived, but why should he have to place he and she in harm's way in this manner is the question?)

The former police officer and his union lawyer believe: “What I do while off-duty is my business.” “Not so” says this arbitrator here and now, especially not when you prey on young girls found by you while in uniform, in a police car, and on duty!

This arbitrator disagrees strongly with the notion that the police officer's “off duty” activities are beyond question or discipline, or beyond the labor contract between the parties, especially when considered in light of circumstances surrounding this case! Preying on young girls in the manner cited here cut deeply into this former police officer's productivity at work. The contract requires that he be productive. He was not productive.

What kind of community would harbor in a police uniform a person who describes himself as a “sex addict,” the term provided to the arbitrator in testimony by the 18 year old young woman? Who would want to live and raise children in such a community? If an 18 year old blond, blue-eyed girl lives in such a community and feels threatened, as in this case, who can she trust when she knows not to call the police?

Knowing how and why a police officer prowls in this manner in this community, what 18 or 19 year old female would be foolish enough to stop for any reason, if approached by any uniformed police officer? Such a young person should not stop for the police? A young woman should run from the police and face charges later about resisting arrest, or similar? Of course, she might get shot while running away? To some young girls, getting shot while fleeing might be worth the risk? To correct for this very serious, onerous problem a community must rid itself immediately of any derelict officer in their midst, as was done correctly and justly in this instance .

To the everlasting credit of every member of the police department in this community, not one of them appeared before the arbitrator to defend the behavior of their former colleague. Additionally, not one civilian appeared to speak in defense of his behavior. Not one witness of any age, race, color, creed, or sex appeared in his defense. Only his very hard-working lawyer spoke on his behalf saying to the city over again many times, you must prove all charges “if you can.” It is his word against their word, according to his lawyer. Everyone is lying but the discharged police officer? Hardly!

This correctly discharged former officer of the law appears to have used his policeman's badge as a hunting license for young women living and working in his community. When caught, he was less than truthful about his behavior. He was insubordinate in conduct. He neglected his duty on several occasions, and his conduct in connection with alcohol delivery and associated behavior with that visit to the 18 year old young girl qualifies as “ gross misconduct.”

All necessary charges associated with the activities of this former policeman have been proven to the satisfaction of this arbitrator.

Police Officers seek and hold a higher standard than are the citizens for whom they work. While violating the contract with his employer, this former employee violated that standard. Additionally, no police officer is permitted by his union contract with this city to use highly personal information obtained while on duty, concerning name, address, phone number, age, place of work, living arrangements, and so on, and use such information while off-duty for personal aggrandizement purposes.

This former employee violated Article 1, paragraph 2, which says in part:

“It is also the objective of this Agreement to achieve and maintain a positive employer-employee relationship and improved work performance.”

This former employee violated Article 1 when he failed to maintain a positive relationship with his supervisors at work. This former employee violated Article 1 when he failed to improve his work performance.

This is a “just cause” discharge.

AWARD

This bottom line associated with this Finding: denial of this grievance in its entirety!

* Selected by parties through procedures of the Federal Mediation and Conciliation Service.

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