City of Struthers and Fraternal
Order of Police
OPINION AND AWARD
In the Matter of Arbitration
Order of Police, Ohio Labor Counsel, Inc.
of Post Hearing Briefs
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,
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.
The parties stipulated that there were no
procedural objections and that the case was properly before this Arbitrator for
The parties were given full opportunity to
present their cases, examine and cross examine witnesses, introduce documentary
evidence, and argue their respective cases.
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
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.”
CONTRACT PROVISIONS AND AUTHORITIES:
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:
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
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
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
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
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.
OF PREDISCIPLINARY HEARING
Officer Xavier Young
From: Mayor Daniel Mamula
Date: January 11, 2005
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
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:
Neglect of duty;
Failure of good behavior;
Violation of the Law Enforcement Code of Ethics (Oath of
Violation of the Canons of Police Ethics
Article 1, Primary Responsibility of the Job
Article 6, Private Conduct
7, Conduct Toward the Public
11, Attitude Toward the Profession
of City of Struthers Police Department Rules of Conduct
Rule 1, Conformance to Laws
Rule 2, Conformance to Rules and
Rule 5, Immoral Conduct
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
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.” 
It noted that he had also been trained in a concept called
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
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
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
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.
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.
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.” 
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
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.
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
The FOP also called Mark Wasko who was married
to Shawn Scott’s sister but was estranged from her at the time of his
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.” 
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.”
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
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.”
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.
Admissibility of the testimony of Officer Carlson.
Admissibility of Management Exhibits 11 & 12.
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.”
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 subsequent admissions by the Grievants that they were drinking larger portions of alcohol in a clandestine manner that evening, while on the Plant floor.” 
Likewise, Arbitrator William Rule considered a “subsequent admission” in a Marriott Host International & Culinary Workers Union Case. 
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.
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:
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.” 
Arbitrator Nolan does go on to differentiate those cases in which “no contest” pleas result in conviction from those that do not.
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.” 
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
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
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. 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:
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)]”
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:
of good behavior;
of the Law Enforcement Code of Ethics (Oath of Office);
of the Canons of Police Ethics
1, Primary Responsibility of the Job
6, Private Conduct
7, Conduct Toward the Public
Article 11, Attitude Toward Profession
of City of Struthers Police Department Rules of Conduct
1, Conformance to Laws
2, Conformance to Rules and Regulations
5, Immoral Conduct
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
individually. I agree with
Arbitrator Susan Grody Ruben when she writes:
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.” 
The charges for examination primarily fall into
“You allowed numerous underage individuals to consume alcoholic
beverages at your residence.”
caused bodily harm and injury to both Shawn and Jason Scott.”
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?”
Dyce responded, “Yes”
Mr. Nevada, “And how far away was he from where this was taking place?”
Dyce, “He wasn’t far. He was roaming around the house and in the kitchen.”
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.”
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.
The Grievance is denied.
 The admissibility of these documents will be ruled upon as a part of this Opinion and Award.
 Employers Post Hearing Brief, page 1
 Jessica Dyce was Shawn Scott’s girlfriend at the time.
 Union Post Hearing Brief, page 7
 106 LA 215 (1995)
 94 LA 864 (1984)
 89 LA 495 (Dennis R. Nolan) US Postal Service and The National Association of Letter Carriers.
 How Arbitration Works, Elkouri & Elkouri, Fifth Edition, Page 903.
 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
 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.
 Unpublished case, SEIU, District 1199 and the State of Ohio. (Ruben).
 80 LA 713, Mead Paper Co. (1983)