City of Warren
Ohio Patrolman’s Benevolent Association
120 LA (BNA) 1332
FMCS Case No. 04-5377
December 21, 2004
Charles Z. Adamson, Arbitrator*
The instant matter involves a grievance filed on March 8, 2004 by The Ohio Patrolman’s Benevolent Association, hereinafter referred to as the “Union”, alleging that The City of Warren, hereinafter referred to as the “Employer”, violated the applicable collective bargaining agreement between the parties by disciplining Officer K__ on March 26, 2004 without just cause.
Whether the grievant was disciplined for cause? If not, what shall the remedy be?
Relevant Contract and Police Policy and Procedure Manual
Police Procedure Number 02-004
Article 9-Adjustment of Grievances
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Step 3 Arbitration
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A. The arbitrator shall limit his decision to the interpretation, application or enforcement of specific Articles of this Agreement. The arbitrator shall act in a judicial, not legislative capacity, and shall have no right to recommend to amend, modify, nullify, ignore, add to, or subtract from the provisions of this Agreement. He shall only consider and make a decision with respect to the specific issues submitted, and shall have no authority to make a decision on any other issue not submitted to him
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C. The decision of the arbitrator shall be final and binding upon the parties.
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D. The costs of the services of the arbitrator, the costs of any proofs produced at the direction of the arbitrator, the fee of the arbitrator, if any, or the hearing room, shall be borne by the losing party, except that in split awards or the reduction of discipline, the fees and expenses of the arbitrator shall be borne as determined by the arbitrator.
Article 10-Disciplinary Procedure
A. The tenure of every employee subject to the terms of this Agreement shall be during good behavior and the efficient service. The City may take disciplinary action against any employee in the bargaining unit only for just cause. The City may take disciplinary action for actions which occur while an employee is working for the City, or in instances where the employee’s conduct violates his oath of office. Forms of disciplinary action that maybe considered are:
1. Verbal warnings.
2. Written Reprimand.
3. Suspension without pay (at the option of the employee, and with the approval of the employer, accrued vacation or holiday time may be forfeited equal to length of the suspension.) Record of suspension will be maintained.
4. Reduction in rank.
B. In disciplinary matters, the supervisor filing charges must advise the Officer that department charges will be filed.
C. Whenever the City determines that an employee may be disciplined for just cause, a disciplinary hearing will be scheduled to give the employee an opportunity to offer explanation of the alleged misconduct. Prior to the hearing, the employee shall be given written specifications of the charges. At least twenty-four (24) hours prior to the disciplinary hearing, all evidence to be used at the hearing shall be made available to the employee and/or their representation. Any evidence to be used by the City, that is obtained subsequent to this submittal, shall be given to the employee as soon as possible.
City of Warren, Ohio
Chapter IV, 4.1, C, of the Police Policy and Procedure Manual
“Failure to deliver to the Property Officer any property and/or evidence found by, confiscated by, or relinquished to an officer of this Department before his/her tour of duty is ended.”
Police Procedure Number: 02-004, II.A.3, Effective Date: March 1, 2002
“Except during breaks, the MVR system must be in the Record mode during any citizen contact.”
Police Procedure Number: 02-004, II.A.4.
“All completed tapes shall be properly labeled and identified prior to being submitted with related documentation at the end of the officer’s shift.”
Police Procedure Number: 02-004, II.B.1.
“MVR tapes containing information that may be of value for case prosecution or any criminal or civil proceedings shall be safeguarded as other forms of evidence. As such, these videotapes will:
a. Be subject to the same security and chain of evidence safeguards as any other evidence collected by officers.”
William G. Franklin testified on behalf of the Employer that he has been its Director of Public Service and Safety since January 12, 2004. Director Franklin heard the grievant’s appeal of the initial discipline imposed by Chief of Police John Manopoulos. He reviewed the video tape of the incident that occurred on December 30, 2003 when Willie Summerlin was stopped by the grievant and his partner, Patrolman Hetmanski.
After the Step 2 grievance meeting held in this matter, Director Franklin issued a decision where he increased the five day suspension penalty issued by the Chief of Police to ten days in accordance with progressive discipline. When Franklin increased the suspension to ten days he was aware that the grievant had received a three day suspension as a result of a Step 2 grievance meeting held on January 21, 2004.
Gary Cicero, Director of Human Resources, determined after the January 21 Step 2 grievance meeting that the three day suspension should be held in abeyance for two years. In that matter the Chief of Police found that the grievant had violated Warren Police Rules and Regulations Procedures Chapter IV, Section 4.1C by failing to deliver to the Police Department’s property officer fifteen driver’s licenses confiscated over a one year period. Cicero indicated that if Chapter IV, Section 4.1C was violated again within a two year period, the grievant should serve a three day suspension, plus any subsequent discipline.
On cross-examination Director Franklin stated that prior to his appointment to his current position he was a member of the Warren City Council. The instant disciplinary matter was one of the first grievance matters reviewed by him.
It was noted that on March 2, 2004 the Chief of Police issued a finding from a disciplinary hearing held on the previous day in regard to the instant matter. The grievant was charged with violations of Police Department Rules, Regulations and Procedures-Chapter IV, Section 4.11, Chapter VI, Section 6.1 and Procedure 02-004, Mobile Video Recording, Part II Section A, 2, 3 and 4B. According to Director Franklin, the grievant’s partner on December 3, 2003 was also charged with the same violations.
Franklin stated that at the time of the Step 2 hearing before him in the instant matter, he was not aware of which officer had turned off the video camera. As a result, he asked a question of all in attendance at the Step 2 hearing as to who had turned off the video on December 30. A number of Police Department managers as well as the grievant in the instant matter and his partner, Edward Hetmanski, were present at the hearing. In response to the Director’s question, the grievant admitted that he had turned off the video camera. Franklin indicated, that as a result inferred that the Chief of Police had not known that the grievant had turned off the video camera when the Chief had initially imposed discipline on the grievant.
Franklin stated that, based upon the grievant’s admission he had turned off the video camera, he found a clear violation of the Employer’s mobile video recording policy, Number 02-004, effective March 1, 2002. Under II, Procedures, Paragraph 3, the officer is required to keep the video system in a record mode during any citizen contact except during breaks. The mobile video recording policies further provide that the reason for the video equipment is to record any significant event noted with the time, date and incident number. The policy’s objective is to record this evidence in order “... to protect the officer from future allegations of improper tactics, procedures or behavior and to avoid future liability.” It also assists the police department’s ability to review probable cause for arrest, officer and suspect interaction and evidence for investigative purposes.
Franklin testified that he had conferred with the Chief regarding the video policy. He mentioned that, in another case, the video camera was helpful where there was an allegation of police brutality where a individual was being transported to a hospital. The video reflected that the individual initially assaulted the police officer in that case.
Franklin stated that he made his decision based on the prior discipline that was pending against the grievant. He stated that he was offended by the grievant’s flippant response to his questions of the grievant during the Step 2 grievance meeting.
Franklin stated that there is a gray area in respect to his authority as to increasing a penalty, maintaining that there is nothing in writing indicating that he cannot increase the penalty. He recalled that, when he asked the grievant why he turned the video camera off, the grievant replied “for obvious reasons” in a manner which was flippant. He later admitted that the Chief of Police actually knew who had turned off the video prior to the Step 2 grievance hearing where Franklin had asked the question as to who turned off the video camera. However, the Chief of Police never advised Franklin of this fact.
The grievant, Patrolman K__, testified that he had been employed by the Warren Police Department for about nine and a half years. He had worked on security patrol for the Trumbull Metropolitan Housing Authority for about two and a half years. On or about December 30, 2003, the grievant and his partner were driving in their patrol car between housing projects when they stopped Willie Summerlin between two houses known to be involved in drug trafficking. Summerlin had gone through a red light so they had probable cause to pull him over. K__’s partner, Patrolman Hetmansld, according to the video tape viewed in this proceeding, began “frisking” Summerlin. The video also revealed that the grievant did not engage in the frisking, but began a search of Summerlin’s vehicle in accordance with Police Department policy. According to K__ he was cleared of any allegation as to why he did not have his personal microphone on during the stop of Summerlin.
The initial investigation of this matter was conducted by Lieutenant Joseph Marhulik. The grievant gave a written statement to the Department and participated in a hearing before the Chief of Police. He recalled that during the hearing the Chief never asked about turning off the video camera.
The grievant indicated that, after Summerlin went into the patrol car, he began complaining to the grievant about being stopped. Around this time three or four neighbors in the area came out of the houses and began criticizing the grievant and his partner. The grievant engaged in banter with Summerlin and complained that Summerlin was “... giving me the business”. This exchange between Summerlin and the grievant was not recorded because the patrol car microphone did not pick up the exchange
When the people in the housing project began approaching the patrol car the grievant decided to put Summerlin in the patrol car in order to separate Summerlin from the people in the neighborhood. He began writing a citation which took about three or four minutes. During the writing of the citation he turned off the video while Summerlin continued to complain in the backseat of the patrol car. He decided to turn the video off because he determined that his contact with Summerlin was finished and that nothing of evidentiary value was needed to be recorded. Summerlin then filed a complaint against the grievant and his partner. According to the grievant, nothing in Summerlin’s complaint referred to any incident that occurred after the grievant had shut off the video camera.
The grievant recalled that another officer by the name of L__ had received a verbal reprimand for the same alleged violation of turning off the video camera. The grievant claimed that the department did not have a uniform policy in respect to the video camera. He asserted that the Chief of Police knew that no common policy was followed in respect to the video camera. The grievant indicated that shift commanders were suppose to check to see if the video camera policy was followed since the tapes are available for department supervision to check incidents where there is any citizen contact. He referred to supervisory responsibilities set forth in the Mobile Video Recording Memorandum effective March 1, 2002 referred to above which indicated supervisory responsibilities in respect to procedures and supervisory review of the video tapes.
The grievant also testified that someone in the housing project also made a video of the incident involving the grievant and his partner. The video tape was taken to a local TV station and played on the television station on more than one occasion. He stated that, as of the beginning of January, 2004, a new Mayor and new Safety Director were installed in the City of Warren.
The grievant said that he didn’t consider his remarks to the Safety Director flippant. He stated that Summerlin was antagonizing him and that he had enough of Summerlin’s badgering of himself and his partner. He concluded that no purpose would be served to hear an argument between the grievant and Summerlin. The grievant stated that before his earlier disciplinary matter involving failure to deliver driver’s licenses to the property officer, referred to above, the grievant had a clean disciplinary record. He added that he had been a Union representative and contract negotiator for the past five years. In his capacity as one of the Union representatives he was aware of prior discipline where a police officer received a verbal reprimand for turning off the video camera.
The Position of the Parties
The Union’s Position
The Union argues that the discipline imposed in this matter is without just cause and that at most a five day suspension rather than a ten day suspension is warranted. Initially in its argument the Union reviewed the applicable contract provision, Article 10-Disciplinary Procedure, and maintained that, pursuant to the agreement and practice and custom, the Police Chief has the exclusive authority to discipline bargaining unit members; the only authority possessed by the Director of Service-Safety is to review grievance appeals. It points out that the clear terms of the contract were precisely followed by the Police Department and the Chief. The disciplinary procedure begins with an employee’s supervisor proffering of charges and ends with a full blown evidentiary hearing.
On the other hand, according to the Union, the Director’s only real knowledge of the disciplinary matter is what he learns from either a review of the grievance or thorough his meeting with the grievant and/or the Union pursuant to the contract’s grievance procedure. As a result, the procedure is specifically designed to administer appeals of management decisions that have already been made.
The Union argues that the Safety Director’s meeting is not a hearing and is not designed to obtain evidence for consideration of a de novo decision. The Director’s meeting is characterized by the Union as merely a chance for the grievant to appeal an adverse decision to a higher authority. As such, appeals in law are all designed to obtain relief from a prior ruling. The Union asserts that appeals to the Director are not sought to obtain a worse outcome than that received from the Chief. The same rationale applies to grievances made pursuant to the applicable contract. The Union concludes that there is no authority, practice or theory which would allow the Director to increase the discipline issued by the Chief.
The Union admits that the grievant made a mistake in turning of the video recorder in his vehicle. It points out, however, that the grievant only did it at the very end of his encounter with Summerlin and by doing so did not conceal any measure of his conduct. The Union points out that the grievant’s video recorder captured all of the actions of both K__ and Hetmanski. When the grievant allowed the recorder to continue when Summerlin was returned to the patrol car, the grievant had allowed everything relevant to be heard.
The Union notes that only in the last few minutes of Summerlin’s stop, when all the processing and all the work of the citation had been completed, the grievant stopped the recorder. It maintains that it is important that neither in Summerlin’s complaint nor his law suit did Summerlin allege any wrong doing or abuse during the unrecorded portion of the traffic stop. At this juncture the Union reaches the conclusion that there was no reason to impose any penalty upon the grievant beyond the departmental standards for such an offense.
The Union argues that no just cause exists in the instant matter because the penalty imposed was too severe. It suggests that the proper penalty for a first time offense, such as the grievant’s, is a verbal reprimand. The Union points out that the grievant served as Union representative for several years and participated as OPBA Director in the negotiations for two contracts as well as assisting bargaining unit members in disciplinary and grievance matters.
The Union emphasizes that the grievant’s testimony in regard to the frequent failure of officers to fully comply with Police Procedure 02-004 was not refuted. It maintains that the Employer offered nothing to contradict the grievant’s claim that the Employer’s failure to consistently enforce police procedure 02-004 was knowingly promulgated by the Employer’s supervisors. It also claims that the grievant’s assertion that the only officer ever previously disciplined for a similar violation was L__ who received and accepted a verbal reprimand. It notes, however, that L__ was said to have not allowed the encounter to be recorded as compared to the grievant who turned the recorder off at the end of his encounter with the citizen.
Additionally, the Union notes that at the end of 2003 and early 2004, the grievant was involved in defending against charges that he violated Chapter IV, Section 4.1C, of the Department’s Policy and Procedure Manual. The grievant appeared at a hearing before the Chief and the Chief sought to issue the grievant a three day suspension. The discipline was appealed to the Safety Director and the Chief’s charges against the grievant were resolved by the parties’agreement that the proposed three day suspension would be deferred for two years and then dismissed if the grievant did not again violate the same specific disciplinary rule.
The Union reasons that unless and until the grievant again commits a violation of Chapter IV he receives no discipline and has no disciplinary record. This is the only conclusion, according to the Union, that can be drawn from the agreement’s unambiguous terms such as “shall be held in abeyance” for two years. The Union argues that the parties’ January 21, 2004 resolution of that matter should not be allowed to represent previous discipline. The Union reasons that when the parties agreed to hold the discipline in abeyance they agreed to hold the entire matter in abeyance including the disciplines imposition. As a result, a matter purposely held open pending some condition must await the occurrence of the condition before finalization. According to the Union, a party cannot agree that before the condition is fulfilled and use the agreement as final disposition. The Union concludes by reiterating that the appropriate discipline in the instant matter is a verbal warning and no further discipline.
The Employer takes the position that grievant K__ was disciplined for just cause since the grievant admitted stopping the video recorder which was a clear violation of Police Procedure 02-004. It notes that K__’s flippant remark to the Service Safety Director was an aggravating factor that justified the increase in discipline. Further, according to the Employer, K__’s lack of truthfulness at the hearing was evidenced by his statement that he stopped the recorder because he though citizen contact was completed. The Employer maintains that the copy of the video tape introduced into evidence in this matter dearly proves that citizen contact had not been completed. The Employer concludes that the reason why K__ stopped the tape was because he was having a verbal confrontation with a citizen.
As a result, the Employer concludes that K__’s suspension for violating the applicable Police Procedure 02-004 should be affirmed and that the grievance in the instant matter should be denied.
The instant matter involves Police Patrol Officer K__, a veteran employee of the Warren Police Department, stopping a citizen while he and his partner were patrolling in a housing project area known to be involved in drug trafficking. The traffic stop was recorded on the mobile video recorder in the grievant’s patrol car. The record reflects that media attention centered around the grievant’s partner’s search of a citizen named Willie Summerlin. During the traffic stop, the grievant issued Summerlin a number of citations. However, during the ticketing phase of the traffic stop, the grievant shut off the video recorder.
The Police Department conducted a thorough investigation of the grievant’s stop of Summerlin. As a result of the investigation, the Police Chief issued the grievant a five day suspension.
The grievant did not agree with the discipline and filed a grievance appealing the Chiefs disciplinary order. Pursuant to the contract’s grievance procedure, the grievance appeal was heard by the Employer’s Safety Director. After hearing the grievant’s appeal, the Safety Director decided to double the penalty imposed by the Chief of Police from five days to a ten day suspension.
The question must be asked at this juncture whether under all of the circumstances in this matter, was a ten day suspension appropriate discipline to be imposed on the grievant. A number of factors must be taken into consideration by the undersigned to determine whether the discipline imposed by the Employer was appropriate. First, it must be noted that at the time of the hearing, grievant K__ had been employed by the Warren Police Department for about nine and a half years. It is unrefuted that, prior to the disciplinary matter held in abeyance in January, 2004 referred to above, the grievant had a clean disciplinary record. It is further noted the grievant had been a Union representative and a contract negotiator for the past five years. In his capacity as one of the Union representatives he was aware of prior discipline where Police Officer L__ received a verbal reprimand for turning off the video camera.
A disciplinary offense may be mitigated by a good past record or it can be aggravated by a poor disciplinary record. One of an arbitrator’s major considerations in determining a proper penalty for an offense is the consideration of an employee’s past record. In a number of cases arbitrators have reduced penalties in consideration of the employee’s long, good past record. By the same token, an arbitrator’s reluctance to interfere with an imposed penalty may be based in part on the past poor employment record of an employee. See Elkouri & Elkouri, How Arbitration Works, 6th Ed.. pp. 983 fn. 312, fn. 313 and the cases cited therein.
Substantial arbitral authority exists for the proposition that determining a penalty for misconduct is properly a management function and that an arbitrator should hesitate to substitute his or her judgment and discretion for that of management. It is well established that an arbitrator should not reverse the penalty imposed by management unless the management has acted unfairly, arbitrarily or capriciously in meting of the penalty. The discipline imposed maybe considered excessive if it is disproportionate to the degree of the offense or is punitive rather than corrective. See Elkouri & Elkouri pp. 959-960 fn. 169. See also Discipline and Discharge in Arbitration (Brand, pp. 85-86).
In view of the above, and the record as a whole, the undersigned has concluded that the penalty of a ten day suspension in the instant matter was excessive under the circumstances. The record reflects that except for the January, 2004 discipline where the discipline was held in abeyance for a minor violation of police procedure, the grievant has a clean disciplinary record. In the instant matter the grievant and his partner were involved in a difficult situation on December 30, 2003. A traffic stop was conducted by the grievant and his partner in a dangerous neighborhood where citizens in the neighborhood were acting in a hostile manner toward Officer K__ and his partner, Hetmanski. In accordance with Police Procedure 02-04 the MVR System was recording during the citizen contact with Willie Summerlin. However, it is undisputed that at some point in the contact Summerlin the grievant turned off the video recorder. By turning off the video recorder before citizen contact with Summerlin was completed, the grievant violated Police Procedure 02-004, II A. 3. As a result, a penalty must be imposed for the grievant’s violation of the Police Procedure. The Employer had a legitimate interest in insuring that the video recorder was on during the totality of the patrolman’s contact with the citizen. This policy protects the officer from any future allegations of improper tactics and protects the Department and the officer from future liability. Further, it assists the Police Department’s ability to review probable cause for arrest as well as officer and suspect interaction.
Accordingly, in view of the above and the record as a whole, a five day suspension was warranted in the instant matter. The undersigned hereby reduces the grievant’s ten day suspension to a five day suspension without pay. A five day suspension should be served because of a violation of an important policy of the Employer’s Police Department.
The grievant’s ten day suspension is reduced to a suspension of five days without pay. Since this is a reduction of discipline, the fees and expenses of the undersigned shall be shared equally by the parties.
* Selected by parties through procedures of the Federal Mediation and Conciliation Service.