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Title: The City of Struthers and Fraternal Order of Police
Date: August 17, 2006
Arbitrator: N. Eugene Brundige
Citation: 2006 NAC 123

OPINION AND AWARD

In the Matter of Arbitration

Between

 

Fraternal Order of Police, Ohio Labor Counsel, Inc.
And
The City of Struthers, Ohio

Regarding
FMCS Case Number 050630-02167-8
(Xavier Young)

Dates of Hearing
March 15, 2006 & May 4, 2006

Submission of Post Hearing Briefs
June 19, 2006

Date of Award
August 17, 2006

 

APPEARANCES:
FOR THE STATE:   
E. P. Nevada, Employer Counsel  
Michael W. Esposito, Second Chair
Robert M. Norris, Police Chief 
Captain Patrick Bundy, Witness  
Patrolman Richard Craig, Witness
Detective Jeff Pantall, Witness
Officer James Carlson, Witness
Brendon Collier, Witness
Dani Dyce, Witness,
Jessica Broll, Witness
FOR THE FOP/OLC:
Michael W. Piotrowski, FOP Counsel
Xavier Young, Grievant
Scott R. Cochran, Attorney & Witness
Mark Wasko, Witness





            The Arbitrator was selected by the parties pursuant to the procedures of the Federal Mediation and Conciliation Service and appointed by FMCS on July 13, 2005. 

            The parties mutually agreed to postpone the hearing on this matter pending the outcome of criminal charges related to the same matters.

            Following the disposition of the criminal charges, the parties agreed to go forward and two days of hearing were conducted.  The first was held March 15, 2006, and the second on May 4, 2006.

            Prior to the hearing, Management requested twelve subpoenas which were executed by the Arbitrator.  

            The parties stipulated the issue in this case to be:  “Was the Grievant terminated for just cause?  If not, what shall the remedy be?”

            The parties mutually submitted four exhibits.  They included the Collective Bargaining Agreement, the notice of termination, the grievance trail, and the request for arbitration.

            Management submitted thirty-one exhibits and FOP offered one additional.  There was no objection to the admission of any of the documents with the exception of Management Exhibits 11 and 12.[1]

            The parties stipulated that there were no procedural objections and that the case was properly before this Arbitrator for determination.

            The parties were given full opportunity to present their cases, examine and cross examine witnesses, introduce documentary evidence, and argue their respective cases.

BACKGROUND:

            Grievant Xavier Young was employed by the City of Struthers, Ohio as a reserve, part-time police officer October 20, 1995, and has continued as an officer is some capacity since that time until his discharge on January 17, 2005.  Most recently he has served as a full time regular officer.

            Grievant worked New Year’s Eve 2004 until 11 p.m.  At that time he was dropped off at his home on Fifth Street, Struthers, Ohio by the officer who was taking over for him.

            When Grievant arrived, a party was in progress at his home.  That party was attended by approximately sixteen children and youth and ten adults.

            During the course of the night multiple incidents occurred that resulted in police units from two jurisdictions being called, followed by numerous arrests and injuries.

            Children were found drunk, smoking marijuana, and in possession of drugs including one of the Grievant’s sons.  At least two incidents occurred that resulted in physical assaults.  One resulted in at least one person being transported to the hospital.

            At one point, some of the people present called for the Grievant to come outside in order to quell the disturbances.

            After arriving outside, the Grievant became engaged in a struggle with Jason Scott (neighbor) which ended with the two of them on the ground.

            Following this incident a second occurred in which some of the persons at the party beat Jason Scott and his brother Shawn to the point where Jason was unconscious.  He was transported to the hospital.  Shawn was reported to be semi conscious when emergency personnel arrived.

            The incidents at the Young residence were responded to by two police departments (Struthers and Lowellville), a fire truck, and an ambulance.

            After an investigation conducted by a representative of the Bureau of Criminal Investigation (BCI) and the Struthers Police Department, the Grievant was charged with twenty-one criminal charges. 

            A plea bargain was conducted which concluded with the Grievant entering a “no contest” plea to two counts of “disorderly conduct” in exchange for the dismissal of the “contributing to the delinquency” charges, and two additional “disorderly…” charges in lieu of two assault charges.

            Following the conclusion of the criminal charges, the Grievant exercised his right to have his termination case reviewed through the arbitration process.

            In the grievance filed on January 19, 2005, Grievant states, “On January 18, 2005 I received Notice from my employer that I was discharged as a result of alleged acts that occurred while off duty at my home on or about January 1, 2005.  This discipline is without Just Cause and in violation of the collective bargaining agreement.”

            The remedy requested by the Grievant was, “That I be returned to my position and that I be made whole for any lost time, wages and expenses related to this discharge.”

            The section of the Collective Bargaining Agreement cited as being violated was Section 22.1 Discipline.

            At the conclusion of the second day of hearing the Arbitrator asked the Grievant, “Do you believe you have had a fair hearing here and represented properly in this setting?” 

            The Grievant responded, “Yes Sir.”

RELEVANT CONTRACT PROVISIONS AND AUTHORITIES:

ARTICLE 22

DISCIPLINE

Section 1.       The tenure of every employee subject to the terms of this Agreement shall be during good behavior and efficient service. The employer may take disciplinary action against any employee in the bargaining unit for just cause. The employer may take disciplinary action for actions which occur while an employee is on duty, or which occur while an employee is working under the colors of the employer, or in instances where the employee's conduct violates his oath of office. Forms of disciplinary action are:
1. written warning
2. written reprimand 
3. suspension without pay, at the option of the employee, and with concurrence of the employer, accrued vacation or holiday time may be forfeited equal to the length of the suspension. Record of suspension will be maintained.

4. reduction in pay
5. discharge.

ARTICLE 20:

Section 5: Force and Effect.  Any adverse or disciplinary material entered into any bargaining unit member’s personnel file shall cease to have force and effect twelve (12) months after the original date of incident, providing there is no intervening like disciplinary entries.

POLICE OFFICER'S COMMISSION AND OATH OF OFFICE

On this date, you are hereby commissioned as a peace officer to serve as a Police Officer for the Struthers Police Department pursuant to 737.02._ As such, you shall affirm the following:

I, Xavier L. Young in the presence of God and the Struthers City Officials, do swear that I will support the Constitution and Laws of the United States of America, Laws of the State of Ohio, the Laws and Ordinances of the City of Struthers and the Regulations of the Struthers Police Department.  I, also swear that I will be fair and just in all my dealings with the people I come in contact, I will not use the powers invested in me in any way except it be for the best interest and welfare of the public.  I will conduct myself as an officer and gentleman at all times giving the best that is in me and will strive for better public relations.  I will discharge the duties of Police Officer to which I have been appointed to the best of my ability.  To all of this, I promise and swear, so help me God, and keep steadfast as a Police Officer of the Struthers Police Department.

NOTICE OF TERMINATION LETTER

January 18, 2005

Mr. Xavier Young
549 Fifth Street
Struthers, Ohio 44471                   

Dear Officer Young,

I am in receipt of the hearing officer’s report concerning the pre-disciplinary hearing conducted January 13,1 2005. The report indicates that the incident in question did occur and the charges that were leveled as a result of your conduct on December 31, 2004 and January 1, 2005 are warranted. Accordingly this correspondence constitutes your official notice of discipline in this matter.

An incident of this magnitude is extremely serious, in addition to violating numerous department rules and regulations, you violated your oath of office and the public trust bestowed upon you. Your conduct has cast a shadow over this entire department and it may be awhile before the public gains its trust in us.

I regret to inform you that the city has made the determination to terminate your employment, effective immediately. I wish you the best in your future endeavors. Please return any city property by 4:00 pm January 19, 2005.

Sincerely,
John P. Sveda
Safety Service Director

 

 

NOTICE OF PREDISCIPLINARY HEARING

To:                        Officer Xavier Young

From:                  Mayor Daniel Mamula

Date:                    January 11, 2005

Subj:                    Predisciplinary Hearing

This notice of predisciplinary hearing is being provided to you in accordance with Article 22, Discipline, of the collective bargaining agreement.  Contained herein are the written specifications of the charges that you will be called to answer to at a predisciplinary
hearing on January 13, 2005.  The hearing is to take place at the Struthers Municipal Building at 1:30 p.m.

Should you and/or your representative choose to exercise your right to appear at the hearing, please be advised that the charges being brought against you consist of the following:

1.        Misfeasance;

2.        Malfeasance;

3.        Nonfeasance;

4.        Neglect of duty;

5.        Failure of good behavior;

6.        Violation of the Law Enforcement Code of Ethics (Oath of Office);

7.        Violation of the Canons of Police Ethics

A.        Article 1, Primary Responsibility of the Job

B.        Article 6, Private Conduct

C.        Article 7, Conduct Toward the Public     

D.        Article 11, Attitude Toward the Profession

8.            Violation of City of Struthers Police Department Rules of Conduct

A.        Rule 1, Conformance to Laws

B.        Rule 2, Conformance to Rules and Regulations

C.        Rule 5, Immoral Conduct

D.        Rule 48, Conduct Unbecoming

These charges stem from your conduct on December 31, 2004, and January 1, 2005. To wit, on or about the evening of December 31, 2004, and early morning of January 1, 2005, you allowed numerous underage individuals to consume alcoholic beverages at your residence. On or about the early morning of January 1, 2005, you caused bodily harm and injury to both Shawn and Jason Scott. Additionally, you failed to provide assistance and render aid and otherwise prevent the assault of Shawn and Jason Scott by other individuals at your residence.

You are entitled to all rights and privileges guaranteed by the Constitution and the Laws of State of Ohio and the Constitution of the United States, including the right to appear at the hearing with your chosen union representative and/or the right to be accompanied, represented, and advised by an attorney of your choosing. (In re Civ. Serv. Charges & Specs. Against Piper (2000), 88 Ohio St.3d308.~)

Per Article 22 of the contract, you are afforded the opportunity to waive this hearing. The contract states that such election should be in writing.  Please notify the Mayor's Office at 330-755-2181 at your earliest possible convenience as to whether or not you would like to waive this procedure.

cc:       FOP Representative Chuck Wilson

POSITION OF THE EMPLOYER:

            The Employer argues that the termination on Xavier Young was for just cause.  It notes that the Grievant was a trained police officer.  He had training in “hand to hand combat, and how to restrain a combatant and deflect punches.” [2]

             It noted that he had also been trained in a concept called “verbal judo.”

Grievant had been instructed and knew that force was to be used only as a last resort. 

            In the Employer’s view of the events of the evening and morning of December 31, 2004, and January 1, 2005, it notes that the neighbors of the Youngs, (Jessica Dyce and Brandon Collier) were made aware of the party across the street when a son of Xavier Young and another young man appeared at their door inviting Jessica’s teenage sister, Dani Dyce, and her friend to attend the party.

            Dani Dyce testified that she, as well as Jessica Broll, was offered alcohol.   The children saw other underage persons drinking alcohol.  Dani Dyce testified that most of the kids were drunk and that many were offered alcohol in front of the Grievant who was in the same room.

            Jessica Broll testified that she was offered marijuana by one of the Grievant’s teenage sons.

            In the Employer’s version, sometime between 1:00 and 2:00 a.m., neighbor Brandon Collier went to the Young’s home to retrieve his girlfriend’s little sister and her friend (Dani Dyce and Jessica Broll.)

            At some point, Mr. Collier had a disagreement with one of the Grievant’s sons (Andre).  Management believes Brandon Collier was accosted by Andre who demanded to know who he was.  Mr. Collier testified that he responded by saying, “You don’t need to worry who I am.” (T. 213).

            Brandon’s girlfriend, Jessica Dyce, tried to calm the situation which appeared to be heading for a fight.

            At this point, Andre pushed Jason Scott, (another neighbor who had entered the yard), to the ground and Jessica Dyce asked someone to “go get Xavier” to break up the fight.

            According to statements taken by the police from Jessica Dyce and Brandon Collier, Xavier “waded in, punched Jason Scott, put him to the ground, and started to choke him.”  According to the Collier statement, “at one point both the grievant and his son were jointly beating Jason Scott.”

            The Grievant then left Jason Scott and went into his home.

            Thereafter, Shawn Scott came to assist his brother Jason and tried to find his glasses.  A crowd of people descended on them and started beating on the two Scott brothers.

            Dani Dyce and Jessica Broll testified that they saw the Grievant participate in the second fight.

            The Employer explains the seriousness and magnitude of the events by stating that so many calls were made to the emergency number (911) that it overwhelmed the system.

            Two different police departments responded.

            Jason Scott was bloody, unconscious, and suffering convulsions; Shawn Scott was semi-comatose. (T. 232) (T. 247-248.)

            It notes that the Grievant testified that, “everyone in my family was charged.” (T. 45)

            The Employer then introduced the testimony of a Geneva-on-the Lake police officer who stated that in an incident that occurred after this event, the Grievant admitted to him that he had “jumped on” Jason Scott, “and beat him half to death.” (Testimony of Officer Carlson T. 269-270).

            The City notes the publicity and editorials that appeared in local media and argues that all of this reflected badly on the Grievant and the City.

            The Employer concludes by arguing that the Grievant has violated his Oath of Office, numerous regulations of the Struthers Police Department and the laws of the State of Ohio.

POSITION OF THE FRATERNAL ORDER OF POLICE AND THE GRIEVANT:

            The FOP argues that the City has failed to prove just cause exists to support the termination of the Grievant.

            According to the Grievant, he arrived at home shortly after 11 p.m. and spent some time talking with his colleague who had driven him home.  He testified that there were not loud party noises coming from the house at that time.

            He also testified that there were no disturbances in progress.  He entered the house and spoke to the adults in the kitchen as well as the children in the living room.  The Grievant then reported he went upstairs to change into a dark sweat suit and house slippers.  When FOP Counsel asked the Grievant if there were kids drinking, he responded, “No, not to my knowledge.” (T. 343).

            The Grievant testified that he did not know Dani Dyce and Jessica Broll were at the party.  He stated that Dani had a problem with him (the Grievant) because he had arrested her father.

            When asked why he did not want the Dyces in his house, the Grievant responded, “Well, because of the Scotts, I know they are – they are dealing with the Scotts and the Scotts are trouble.  They are known to cause havoc.  They have a police history.  Each and every one of them has a police history.” [3] (T. 347). 

            In his own words the Grievant described the series of events that led to the incident involving Jason Scott.  In essence, the Grievant stated he was in the computer room downstairs between the kitchen and the living room when he overheard a voice in the kitchen which he identified as Shawn Scott. 

            The Grievant called his wife and told her that she was going to have to ask Shawn to leave, which she did.

            The Grievant then stated that someone called to tell him there was a fight between Andre (son of Xavier) and Brandon (Collier). After exiting the house to enter the yard, the Grievant ordered Shawn Scott off his property and tells him he is trespassing. 

            At the same time, the Grievant testified that his wife and Jason Scott were engaged in an animated discussion.  The Grievant said his fifteen year old told him that, “he (Jason) just knocked mommy down.”

            The Grievant says that Jason then took a swing at him.  He goes on to say, “I moved and took him down to the ground.  And I’m holding him down to the ground and I’m yelling ‘call the police.’ ”

            The Grievant then says Jason got up and started walking away while the Grievant went into the house to change into a white sweat suit.  He then reports someone told him they were fighting again.

            When the Grievant went back outside the police had arrived.  His wife and other members of his family were already outside.

            The FOP made note of the fact that the Grievant was not interviewed as a part of the investigation.

            The Grievant testified that he was surprised to be terminated because he knows of four officers or more who had committed felonies, were found guilty, and “eventually later held their jobs.” (T. 361)

            The FOP called Scott R. Cochran who served as attorney for Xavier Young regarding the criminal charges filed against him.

            Attorney Cochran testified that the prosecutor had offered a minor misdemeanor charge and a “no contest” plea in return for dropping the assault charges and the dereliction of duty charge.  He also testified that in juvenile court the Grievant entered into a similar plea bargain relating to the contributing charges.

            Mr. Cochran testified that conviction of a minor misdemeanor does not prohibit someone from serving as a police officer.  He compared the charges that Mr. Young was convicted of to traffic tickets.

            The FOP also called Mark Wasko who was married to Shawn Scott’s sister but was estranged from her at the time of his testimony.

            Mr. Wasko testified that he had been staying in the same house with the Scott brothers following the incidents giving rise to this grievance.  During that time he observed Jason Scott walking without a neck brace.

            He introduced a picture which he asserts was kept on his computer.  He testified that the picture was of Jason Scott’s neck.  The FOP used it to show there were no marks on the neck and thus argued that Xavier Young did not choke Jason Scott.

            The arguments advanced by the FOP include:

              Minor Misdemeanor Convictions Do Not Constitute Just Cause for Termination Under the Contract nor Under State Law.”

            The FOP argues that the “no contest pleas” offered by the Grievant are not admissions of guilt, and that the minor misdemeanor charges do not support the charges brought by the City.

            To support its contention, the FOP cites two arbitration cases: (Steubenville and FOP/OLC (2005) Marcus H. Sandver and Cuyahoga Falls and FOP/OLC, (2005) Ronald F. Talarico.)  The FOP states that, “in both cases the arbitrators demanded the Employer prove the misconduct charged and refused to treat the no contest pleas as admissions of guilt.” [4]

            The FOP argues that, “The City Must First Prove What Happened Before They Can Apportion Blame.”

            The FOP then goes on to suggest a litany of scenarios based upon alleged conflicting testimony of the various witnesses called by the City.

            Next, the FOP asserts, “The City Failed to Call Necessary Witnesses.”

It notes that neither Shawn nor Jason Scott appeared to testify and argues that the testimony of Ms. Dyce, Ms. Broll, and Mr. Collier is filled with contradictions.

            The FOP then addresses the issue surrounding the fact the Grievant used an alias when talking to the Geneva-on-the-Lake police officers. 

            It argues that this action was done by the Grievant for personal reasons and that there is no cause to terminate him because of that act.

            The FOP then addresses the allegation that Officer Young admitted to the Geneva-on-the-Lake Officers that he had beaten “two men half to death.”  It concludes that, “The only rational explanation is that the GOTL officers misunderstood what Officer Young said or that Officer Young himself misspoke.”

DISCUSSION:

            Numerous objections were offered during the hearing.  Three were held in abeyance by the arbitrator.

            I will address those before turning to the merits of the case.

1.  Admissibility of the testimony of Officer Carlson.

2.  Admissibility of Management Exhibits 11 & 12.

3.  The issue of required discovery pursuant to a SERB Decision.

            At the hearing the FOP objected to testimony surrounding the interactions between the Grievant and Geneva-On-The-Lake police officers.  Mr. Piotrowski stated, “I’m going to object. This was August 2005.  It’s a full nine months after he was terminated.”

            Subsequent admissions are accepted by many arbitrators.  In the instant case there was absolutely no pressure placed on the Grievant to make this admission against interest, but he voluntarily and freely did so, if we are to believe the testimony of Officer Carlson.

            Arbitrator David T. Borland clearly relied on “subsequent admission” evidence when he wrote, “Such testimony cannot dilute the clear testimony and previous hitsubsequent admissions next hit by the Grievants that they were drinking larger portions of alcohol in a clandestine manner that evening, while on the Plant floor.” [5]

            Likewise, Arbitrator William Rule considered a “subsequent admission” in a Marriott Host International & Culinary Workers Union Case. [6]

            I find the testimony of Officer Carlson and the questions regarding the interaction between the Grievant and the Geneva-On-The Lake officers to be admissible.

            Regarding the second objectionable area, the admission of Management Exhibits 11 & 12, the FOP offered two objections.  The first related to Article 20.5 of the Collective Bargaining Agreement.  It is the contention of the FOP that these documents relate to prior discipline and, according to the contract, they should have no force or effect after twelve months.

            The second objection is that the documents constitute impermissible character evidence.

             Management responded that it would demonstrate an act in conformity with a character trait and therefore the documents would be admissible.

            If the documents in question are tied to a disciplinary proceeding then Article 20.5 clearly prohibits their introduction, unless, Management can demonstrate that there was other related intervening discipline.

            A careful review fails to clearly tie the documents to a specific disciplinary event, but the language of Article 20.5 is somewhat unique.

            “Any adverse (emphasis added) or disciplinary material entered into any member’s personnel file shall cease to have force and effect twelve (12) months after the original date of incident, providing there is no intervening like disciplinary entries.”

            It could be argued that the documents record “adverse” material. 

            The Employer argues forcefully that the material must be admitted because the material shows the City is on notice of certain propensities on the part of the Grievant.

            The Employer is correct that this is a valid concern on the part of the City but it is not a valid factor for this Arbitrator to consider in deciding the basic question of Just Cause.  The City must rely on other vehicles to prove its case.

            It is my ruling that Employer Exhibits 11 & 12 are not admissible in that they convey adverse material beyond the twelve (12) month period stated in the Collective Bargaining Agreement.

            Because I find them not to be admissible for the reasons enumerated above, I find no reason to rule on the second argument regarding their characterization of “character traits.”  The parties can reserve that battle for another forum.

            The third objection also related to Employer Exhibit 11.  The FOP argued that it had no notice that the document existed or that it was going to be introduced.

            A spirited exchange followed regarding whether or not there exists a requirement stated in a SERB Ruling that requires that the Union be presented with all necessary documents to determine the validity of the grievance.

            A cursory review of recent SERB decisions by this Arbitrator failed to locate a case on point.

            I invited the parties to brief this question citing the relevant SERB decision(s).

            In that neither party addressed the issue in their briefs, and the fact that I have excluded Exhibit 11, I find no reason to rule on this objection.

            Let us turn to the merits of the case.

            It is interesting to note that in the post hearing briefs both parties utilized a technique of alternate scenarios.  While each identified those scenarios most helpful to their respective positions, I do agree that based upon the testimony of the eye witnesses, many different versions could have occurred.

            These apparent contradictions in testimony can be due to a number of factors:

            This case has been delayed for some time.  Memories can change and be influenced by numerous comparing of notes and retelling of the tale.

            It appears that all or nearly all of the eye witnesses were in some stage of intoxication at the time of the incident.

            Many of the persons involved had motivations to either shade the truth or tell outright falsehoods.

            Many of the persons who could have shed light on the facts did not appear.  The absence of both the Scott brothers, along with any member of the Grievant’s family, leaves one to wonder what many of the key players would have added.

            The absence of the Agent from the Bureau of Criminal Investigation was particularly difficult in that he was the person with presumed immunity from the pressures on everyone else involved in, or handling this matter.

            The FOP would have me believe that the Employer did not do a thorough job in requiring witnesses to appear.  While I have no way of knowing what additional efforts were made, the Employer did request, and this Arbitrator did issue, twelve subpoenas.   

            Against this backdrop of confusion and suspect testimony, I find certain facts that were proven to my satisfaction.  

            The Grievant was present at the party from approximately 11:15 p.m. on December 31, 2004, until it broke up on the morning of January 1, 2005.

            As many as sixteen under age persons were present and many were either drinking, drunk, or in possession of drugs. 

            At one point in the evening, Xavier Young was involved in a physical confrontation with Jason Scott in which Mr. Scott was on the ground and Mr. Young was on top of him.

            Grievant then left Mr. Scott and returned to his home.

            Jason Scott was then beaten to the point where he had to be transported to the hospital and placed in intensive care.

            Shawn Scott was assaulted to the point where he appeared incoherent and “stunned.”

            Grievant agreed to a series of plea bargains in which he pled nolo contendere to four charges of disorderly conduct.  He was found guilty of those four misdemeanor charges.

            The question before me is whether these proven facts support the termination of the Grievant.

            The prosecutor apparently did not believe she would be able to prove the more serious criminal charges pending. 

            Several factors must be examined in determining that answer.

1.  The nolo contendere (no contest) plea is neither an indication of guilt nor innocence.  Arbitrator Dennis Nolan stated in a Postal Service case:

“In short, pleading nolo does not amount to an admission of guilt… None of the cases, in other words, supports management's assertion here that the bare nolo plea is sufficient evidence of guilt to justify discipline.” [7]

Arbitrator Nolan does go on to differentiate those cases in which “no contest” pleas result in conviction from those that do not.

“The arbitration awards introduced by management to show that the two pleas are equivalent do not in fact support that proposition. In two of them the nolo plea was followed by conviction, a critical difference from this case: No.NC-W-3700-D (Arbitrator Thomas T. Roberts, January 31, 1977) and No. 5-COL 585 b/NC-C6573-D (Arbitrator Albert A. Epstein, June 2, 1978). The third, No. S4C-3W-D 43087 etc. (Arbitrator Ernest E. Marlatt, March 25, 1987), did involve a nolo plea without a conviction, but management prudently demonstrated the employees’ guilt by other evidence.” [8]

The no contest pleas convince me that something happened, but the mere conviction on four minor misdemeanor pleas is not adequate proof, in and of itself, to support the termination of Grievant.

2.   The second issue to be examined is the standard of proof required.  Should the Arbitrator be persuaded by the fact the prosecutor apparently determined that she could not prove the criminal allegations against grievant?

Arbitrators are all across the board on the standard of proof required in termination cases.  A few hold that “burden” or “standard” are not concepts that apply in arbitration.  Some hold that the standard is either “preponderance of the evidence” or “clear and convincing.”  Some hold the higher criminal standard of “beyond a reasonable doubt.”

Arbitrator Harry H. Platt offered the most helpful guidance when he

observed, “To be sure, no standards exist to aid an arbitrator in finding a conclusive answer to such a question and, therefore, perhaps the best he can do is to decide what a reasonable man, mindful of the habits and customs of industrial life and of the standards of justice and fair dealing prevalent in the community, ought to have done under similar circumstances and in that light to decide whether the conduct of the discharged employee was defensible and the disciplinary penalty just.” [9]

            The more important observation is to note that the Arbitrator is not called upon to answer the same questions as those posed in the criminal system.  I am not called upon in this case to determine if Grievant is innocent or guilty of assault or contributing to the delinquency of minors.

            Instead I am asked to determine if just cause exists to support the termination of the Grievant based upon the charges levied by the City in the termination letter and the disciplinary charges.

            In a recent case I returned a grievant to work because the employer specifically charged the employee with a violation of the Criminal Code.[10]  The employee was acquitted by a jury of his peers, and thus the employer simply could not sustain the specific major charge against him.

            In that case I wrote:

“Even though many arbitrators believe they have responsibility to examine the evidence under the lens of the lesser “preponderance” standard, the very specificity of the rule of the Ohio Department of Public Safety in this matter, requires that the judgment of the jury be accepted.…It is a well accepted practice in Arbitration to determine just cause on the specific charge(s) levied against employees. [see Arbitrator Joseph M. Schneider (118 LA 1556) and Arbitrator Laurie G. Cain (101 LA 470)]”[11]

In the instant case the specific charges against the Grievant are captured in the Termination Notice from the Safety Service Director:

In addition to violating numerous department rules and regulations, you violated your oath of office and the public trust bestowed upon you. Your conduct has cast a shadow over this entire department and it may be awhile before the public gains its trust in us.”

The “numerous departmental rules and regulations” are enumerated in the Predisciplinary Notice issued to the Grievant by Mayor Mamula:

1.        Misfeasance;

2.        Malfeasance;

3.        Nonfeasance;

4.        Neglect of duty;

5.        Failure of good behavior;

6.        Violation of the Law Enforcement Code of Ethics (Oath of Office);

7.        Violation of the Canons of Police Ethics

A.        Article 1, Primary Responsibility of the Job

B.        Article 6, Private Conduct

C.        Article 7, Conduct Toward the Public     :

D.        Article 11, Attitude Toward Profession

8.        Violation of City of Struthers Police Department Rules of Conduct

A.        Rule 1, Conformance to Laws

B.        Rule 2, Conformance to Rules and Regulations

C.        Rule 5, Immoral Conduct

D.        Rule 48, Conduct Unbecoming

These charges stem from your conduct on December 31, 2004, and January 1, 2005. To wit, on or about the evening of December 31, 2004, and early morning of January 1, 2005, you allowed numerous underage individuals to consume alcoholic beverages at your residence. On or about the early morning of January 1, 2005, you caused bodily harm and injury to both Shawn and Jason Scott. Additionally, you failed to provide assistance and render aid and otherwise prevent the assault of Shawn and Jason Scott by other individuals at your residence.

            In examining these charges, it is not necessary that each and every one be

 proven individually.  I agree with Arbitrator Susan Grody Ruben when she writes:

 “The Employer must prove the Grievant committed some of all of the misconduct of which he is accused, and that the removal is appropriate for the charges that are proven.” [12]

            The charges for examination primarily fall into three areas:

1.        You allowed numerous underage individuals to consume alcoholic beverages at your residence.”

2.        “You caused bodily harm and injury to both Shawn and Jason Scott.”

3.        “You failed to provide assistance and render aid and otherwise prevent the assault of Shawn and Jason Scott by other individuals at your residence.”

It is at that point that the credibility of witnesses must be assessed by the Arbitrator. The problems with eye witness testimony were discussed earlier in this document.  None would be candidates for a most reputable witness award, but gems of truth can be gleaned from testimony of many of the witnesses when assessed against the common sense view of what was going on.

            I found the testimony of Detective Pantall to be helpful and credible.  While his testimony was second hand, he had the advantage of interviewing witnesses in close proximity of the date of the occurrence and the opportunity to observe the demeanor of witnesses. 

            Based upon his investigation, approximately nine counts of furnishing alcohol and contributing were levied against the Grievant and his wife.

            Employer Representative Eugene Nevada asked Dani Dyce, “Now at any tine when the kids were offering you alcoholic beverages or they themselves were drinking alcoholic beverages, was Mr. Xavier Young around?”

            Ms. Dyce responded, “Yes”

            Mr. Nevada, “And how far away was he from where this was taking place?”

            Ms. Dyce, “He wasn’t far.  He was roaming around the house and in the kitchen.”

            Mr. Nevada, “And were any of the kids drinking in the same room that he was in while he was in there?”

            Ms. Dyce, “Yeah.”

            Earlier in her testimony Dani Dyce testified that some of the kids appeared to be drunk.

            When one considers the conclusions of Detective Pantall along with the testimony of Dani Dyce, a reasonable person must conclude that the Grievant, a trained police officer, was aware of the presence of underage drinking at the party in question.

            Only the Grievant refuted the testimony of Ms. Dyce and denied any knowledge of underage drinking. 

            As I examine the credibility of witnesses and particularly of Mr. Young, I am mindful of the somewhat earthy statement offered by Arbitrator Charles R. Milentz when he stated, “It is worth noting, however, that Arbitrators will generally rely on the theory that Grievant, with her job at stake, has the best reason to lie.”[13]

            In addition to the general admonition to consider carefully the testimony of a terminated grievant, this individual has demonstrated his ability to alter the truth to fit the circumstances.

            The exchange between the Grievant and the Geneva-On-The-Lake officers in which he chose to provide a false identification and social security number is ample evidence of this fact.

            The FOP made a valiant effort to explain this action by stating he was only trying to protect his privacy.  A lie is a lie and I attribute very little credibility to any of the testimony of the Grievant.

            I conclude that Officer Young was aware that teenage drinking was taking place at the party at his residence.

            The FOP made much of the fact that parents may permit their children to drink in their presence.  I accept that as a true statement but nothing in the statute requires that a homeowner must allow parents to exercise that right on his property. There is also nothing in the statute that would permit a police officer to observe under aged persons who are intoxicated and not deal with the matter, even if that underage person had parental permission to drink.

            Regarding the second part of the charge, there is more than adequate evidence in the record to convince me that the Grievant did “cause bodily harm and injury to Jason Scott.”  Without the presence of Shawn Scott or other eyewitnesses, I cannot reach the same conclusion regarding Shawn Scott.  I find the evidence does not support the second part of the charge.

            I consider the testimony of Brandon Collier, Dani Dyce, and Jessica Broll in reaching this conclusion, but I am most influenced by the testimony of Officer Carlson. He was asked: “How certain are you that he said, ‘I beat these guys half to death?’”

            His response was clear and convincing.  I’m very certain.  I know that is exactly what he said.”  (T.278)

            The valiant effort of the FOP to counter this damning effort by arguing that the Officer must of misunderstood or the Grievant misspoke himself, must be applauded but it just doesn’t fly.             

Combined with the limited value of written witness statements and the testimony of eye witnesses, I believe Officer Carlson and take this as a confession and an admission against interest.  It appears that the Grievant may also have been personally involved in the beating of Shawn Scott, but without the presence of more collaborating evidence, I cannot reach that conclusion.

            There is however more than adequate proof that he was involved in an assault on Jason Scott.

            We turn to the final aspect of the charges against the Grievant, that he failed to protect Jason and Shawn Scott from further assaults.

            I reach my conclusions on this issue based primarily on the testimony of the Grievant himself.

            In Mr. Young’s version of what happened, he restrained a person awaiting the arrival of police in the midst of a very hostile situation.  The person got loose and went to his own home, and a sworn police officer merely got up and went inside to change his clothes.

            That is a dereliction of duty that cannot be condoned or allowed in any police organization.

            It is apparent that Mr. Young failed to act as a police officer.  He clearly violated his Oath of Office.

            The Employer would have me rule on Post Discharge Behavior due to his interactions with the Geneva-On-The-Lake officers and determine that he would properly have been fired after the fact.  There is no need for me to do so.

            Post Discharge Behavior is a concept arbitrators utilize when dealing with remedy in cases where the original charges do not support upholding the termination.  (See 44 LA 507, 43 LA 849).  In this case there is no need for me to explore such issues in that I have determined, based upon a thorough review of all the evidence and consideration of the arguments of the parties, that just cause exists to support the termination.

AWARD:

The Grievance is denied.

           

_________________________ 
N. Eugene Brundige, Arbitrator
Issued August 17, 2006 at London, Ohio.

 


[1] The admissibility of these documents will be ruled upon as a part of this Opinion and Award.

[2] Employers Post Hearing Brief, page 1

[3] Jessica Dyce was Shawn Scott’s girlfriend at the time.

[4] Union Post Hearing Brief, page 7

[5] 106 LA 215 (1995)

[6] 94 LA 864 (1984)

[7] 89 LA 495 (Dennis R. Nolan) US Postal Service and The National Association of Letter Carriers.

[8] IBID.

[9] How Arbitration Works, Elkouri & Elkouri, Fifth Edition, Page 903.

[10] The Work Rule in question stated: “For committing any crime or violation of the laws of the United States, the State of Ohio or any municipality.”

[11] Unpublished case, Fraternal Order of Police, Ohio Labor Council, Inc. and the State of Ohio, Grievance Number 15-00-031118-0173-05-02, (Brundige) October 17, 2005.

[12] Unpublished case, SEIU, District 1199 and the State of Ohio. (Ruben).

[13] 80 LA 713, Mead Paper Co. (1983)

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