IN THE MATTER OF ARBITRATION BETWEEN

JASON HOLDING, GRIEVANT

and

CITY OF FORT LAUDERDALE FLORIDA

Employer/City/Department

| OPINION AND AWARD

|
|
| Termination Grievance of
| Jason Holding, Grievant
|
|
|
| Award Dated: August 19, 2016

Date and Place of Hearing:

June 13, 2016 continuing on

June 14, 2016
Offices of the Employer
Fort Lauderdale, Florida

Date of Receipt of Post Hearing Briefs:

August 1, 2016

APPEARANCES
For the Grievant:

Eugene G. Gibbons, Esq.

Buschel Gibbons P.A.
100 S.E. Third Avenue, Suite 1300
Fort Lauderdale, Florida 33394

For the Employer:

Eugene K. Pettis, Esq.

Adrian J. Alvarez, Esq.
Haliczer, Pettis & Schwamm, P.A.
100 S.E. Third Avenue, Suite 700
Fort Lauderdale, Florida 33394

ISSUE
Whether or not the City had cause to terminate the employment of Officer Jason Holding,
and if not what shall the remedy be?
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WITNESSES TESTIFYING
Called by the City

Called by the Grievant

Pricilla Perez,
Former Fiance of Resigned
Officer Alvarez

Atila Coss,
Co-worker of Grievant
While he was detailed at the
Blue Martini Lounge

Sgt. Francisco Bettencort,

Internal Affairs Investigator
Fort Lauderdale Police Department

Perpetua Michel
Friend of Grievant

Major Karen Dietrich,

Commander, Internal Affairs Unit
Fort Lauderdale Police Department

Jason Samuel Holding, Grievant

Police Officer [Discharged]
Fort Lauderdale Police Department

Lee Feldman,
City Manager
City of Fort Lauderdale
Timothy Lee Donnelly,
Assistant State Attorney 17th Judicial District
Broward County State Attorneys Office
Testified by Video Recording of
Deposition taken on June 3, 2016
Franklin Charles Adderley,
Chief of Police
Fort Lauderdale Police Department

JURISDICTION
The issue in grievance was submitted to James L. Reynolds as a sole arbitrator pursuant
to the provisions of the Collective Bargaining Agreement [Exhibit 14] between the
parties. The parties stipulated at the hearing that the grievance was properly before the
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Arbitrator for a decision and that he was properly called. At the hearing the parties were
given full and complete opportunity to examine and cross-examine witnesses and present
their proofs. Final argument was provided through post hearing briefs submitted to the
Arbitrator by each party. The briefs were received by the agreed upon deadline, and the
parties cross served their briefs to opposing counsel. With the receipt of the post hearing
briefs by the Arbitrator, the record in this matter was closed. The issue is now ready for
determination.
STATEMENT OF THE ISSUE
The issue to be resolved here is whether or not the employment of Officer Jason Holding
with the Fort Lauderdale Police Department was terminated for cause, and if not what
shall the remedy be? There was considerable discussion at the hearing and in the briefs
of the parties as to whether cause or just cause was the appropriate standard to be
applied here. Counsel for the Employer pointed out that at Article 15, Section 1 the
Collective Bargaining Agreement between the parties [Exhibit 14] provides for a standard
of cause, and that the Arbitrator is prohibited by the Collective Bargaining Agreement
at Article 43, Section 3.4 from modifying any of the terms of the Agreement. Counsel for
the Grievant argued that the just cause standard should be applied.

Research into whether there is a meaningful difference between the cause and just
cause standard produced the following guidance from the respected arbitration authority
How Arbitration Works, 7th Ed. Elkouri and Elkouri, 2012, BNA/ABA Section of Labor
and Employment Law, 15.2.A.ii:
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[I]t is common to include the right to suspend and discharge for just
cause, justifiable cause, obvious cause, or quite commonly simply for
cause. There is no significant difference between these various phrases.
These exclude discharge for mere whim or caprice. They are obviously
intended to include those things for which employees have traditionally
been fired. They include the traditional causes of discharge in the
particular trade or industry, the practices which develop in the day-to-day
relations of management and labor and most recently include the decisions
of courts and arbitrators. They represent a growing body of common law
that may be regarded either as the latest development of the law of master
and servant or, perhaps, more properly as part of a new body of common
law of management and labor under collective bargaining agreements.
They constitute the duties owed by employees to management and, in their
correlative aspect, are part of the rights of management. They include
such duties as honesty, punctuality, sobriety, or, conversely, the right to
discharge for theft, repeated absence or lateness, destruction of company
property, brawling and the like. Where they are not expressed in posted
rules, they may very well be implied, provided they are applied in a
uniform, non-discriminatory manner. 1
1. Worthington Corp., 24LA 1, 6-7(McGoldrick, Sutton & Tribble, 1955).

The Employer argues here that the just cause standard is a more strenuous challenge for
an employer to meet, and involves the seven tests for just cause first described by the
noted arbitrator Carroll R. Daugherty in Enterprise Wire Company (46LA 363, 1966).
Those tests are 1) reasonable rules and orders, 2) notice, 3) investigation, 4) fairness of
the investigation, 5) proof, 6) equal treatment, and 7) fairness of the penalty.

The

elements the Employer considers as cause for discipline were not, however, presented.
It is difficult to imagine that applying a cause standard would not embrace these same
elements of due process and fundamental fairness as are found in the usual application of
just cause.

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Counsel for Grievant Holding points to a similar set of standards for determining whether
or not cause exists for applying discipline to a police officer found in The Rights of Law
Enforcement Officers by Will Aitchison (5th Ed., 2004, Labor Relations Information
Systems, pp89-91) as follows:

1. Have the charges against the officer been factually proven?

2. Was the punishment imposed by the employer disproportionately
severe under all the circumstances?
3. Did the employer conduct a thorough investigation into the
incident?
4. Were other officers in engaged in conduct similar to that of the
officer treated as harshly?
5. Was the officers misconduct the product of action or inaction by
the employer?
6. Did the employer take into consideration the officers good or
exemplary work history?
7. Did the employer take into consideration mitigating
circumstances?
8. Was the officer subjected to progressive discipline?
9. Was the employer motivated by anti-union bias?
10. Are the employers rules clear and understandable?
11. Is the officer likely to engage in similar misconduct in the future?
12. Was the officer accorded procedural due process in the
disciplinary process?
Whatever elements of cause are applied, an employer is burdened to show with at least a
preponderance of the evidence that an employee is shown to have actually committed the
offense he/she is charged with, and that discipline was applied in a manner proportional
to the seriousness of a proven offense and was consistent with discipline applied to
similarly situated employees.

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This Arbitrator is well aware of and respects the usual limitations on arbitrable authority
specified in collective bargaining agreements. Here Article 43, Section 3.4 of the parties
Collective Bargaining Agreement [Exhibit 14] prevents the arbitrator from modifying any
of the terms of the Agreement. Accordingly, the cause standard was applied.

RELEVANT PROVISIONS OF THE COLLLECTIVE BARGAINING

AGREEMENT
ARTICLE 14 - MANAGEMENT RIGHTS
Section 1. The Union agrees that the City has and will continue to retain,
whether exercised or not, the right to operate and manage its affairs in all
respects except as modified by other articles of this Agreement. The rights
of the City, through its management officials, shall include but not be
limited to the following:
* * * *
D. to set standard for service to be offered the public.
* * * *
G. To suspend, demote, discharge, or take other disciplinary action and
impose sanctions for cause involving deficiencies in performance and/or
deficiencies in conduct.
* * * *
M. To establish and revise or discontinue policies, practices, programs, or
procedures, provided that the exercise of such right does not have the
practical effect of violating specific terms of this Agreement.
* * * *
ARTICLE 15 DISCIPLINE AND DISCHARGE
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Section 1. Employees may be disciplined only for cause involving

deficiencies in performance and/or deficiencies in conduct.
When
disciplinary action is taken, the affected employees shall be informed in
writing either prior to or at the time the action is taken of (1) the reason for
the discipline; (2) the penalty assessed and (3) the effective date of the
penalty.
1.
2.
3.
4.

Written Reprimand
Suspension/forfeiture of Time
Demotion
Discharge

* * * *

ARTICLE 43 - ARBITRATION
* * * *
Section 3.4 The arbitrator shall have no power to change, amend, add to,
subtract from or otherwise alter or supplement this Agreement or any part
thereof or any amendment thereto.
* * * *
Section 4.0 This Agreement constitutes a contract between the parties
which shall be interpreted and applied by the parties and the arbitrator in
same manner as any other contract under the laws of the State of Florida.
The function and purpose of the arbitrator is to determine disputed
interpretations of terms actually found in the Agreement or to determine
disputed facts upon which the application of the Agreement depends. The
arbitrator, therefore, shall not have the authority to change the intent of the
parties as determined by generally accepted rules of contact construction.
The arbitrator shall not render any decision which, in practical or actual
effect, modified, revises, detracts from, or adds to any of the terms or
provisions of this Agreement.
* * * *
ARTICLE 50 DEPARTMENTAL POLICIES RULES AND
REGULATIONS
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Section 1. It is agreed and understood that the Police Department

currently has policies, rules and regulations governing employment. The
Union agrees that such policy [sic], rules, and regulations shall be
formulated amended, revised and implemented at the sole and exclusive
discretion of the Police Chief, provided, however, that said formulation,
amendment, revision, and implementation will be neither arbitrary nor
capricious. ..
* * * *

In addition to the above cited contract provisions the City has promulgated certain Police
Department Policies and Rules which the Grievant was found to have violated. They
read in relevant part as follows:

Policy 118 RULES OF CONDUCT [Exhibit 6]

A. INTRODUCTION
Effective law enforcement depends upon a high degree of cooperation and
respect from the public that is served. The Police Department is the most
conspicuous representative of government and, as such, is a symbol of stability
and authority upon which the citizens can rely. We must be constantly mindful
that the people with whom an officer comes into contact are individuals with
varying problems and emotions, but regardless of their circumstances they are
entitled to fair and courteous treatment by Police Department employees. Proper
conduct is not an additional duty imposed on employees, but is inherent in the
police profession. Since any neglect of or divergence from this standard of
conduct reflects unfavorably on the Department and fellow employees, it is
incumbent on all personnel to conduct themselves in an exemplary manner,
maintaining the highest standards of performance, efficiency, and competence,
which the citizens of our community expect and deserve.
The Rules of Conduct contained in this manual are promulgated in addition to
City of Fort Lauderdale Personnel Rules, an existing labor agreement, or both.
They are adopted for the administration, management, discipline and disposition
of employees of the Fort Lauderdale Police Department.
The Rules of Conduct of the Fort Lauderdale Police Department, including any
subsequent additions, deletions, corrections, or modification are made applicable
to all employees and volunteers of the Department, unless stated otherwise. In
the event of a breach of these rules or the engagement in activities that constitute
a conflict of interest, it shall be presumed that the employee or volunteer had

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knowledge of and was familiar with any rule, order, or directive of the
Department. Violation any rules may result in disciplinary action. These Rules
of Conduct supersede all other previous Rules of Conduct.
* * * *
E. CONDUCT
* * * *
12. Misconduct Defined: Any of the following, in addition to the foregoing and
to the Personnel rules, may constitute misconduct:
* * * *
d. Engaging in conduct unbecoming a police officer/Police Department
employee.
* * * *
h. Conduct prejudicial disruptive to the good order of the Department
[sic].
* * * *

Policy 118.1 CODE OF ETHICS [Exhibit 7]

A. POLICY
1.
Law enforcement effectiveness requires that actions of public
employees be impartial; . and that the public have confidence in the
integrity of the Police Department. The purpose of this Code is to establish
ethical guidelines of conduct for all department employees by setting forth
those acts or actions that are compatible with the best interest[s] of the
City of Fort Lauderdale and its citizens.
2. The adoption of this Code of Ethics will, with cooperation, improve the
attitude and practices of our employees; minimize injustice or the
perception of injustice; and heighten public confidence in our local
government, institutions, positions, and people. All members of the Fort
Lauderdale Police Department are required to abide by this Code of
Ethics.
B. CODE
* * * *
I will keep my private life unsullied as an example to all, maintain
courageous calm in the face of danger, scorn, or ridicule; develop selfrestraint; and be constantly mindful of the welfare of others. Honest in
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thought and deed in both my personal and official life, I will be exemplary
in obeying the laws of the land and the regulations my department.

In addition to accusing the Grievant of violating the above referenced Departmental

Rules the Employer charges him with violation of the Officer Requirements for Ethical
Standards of Conduct promulgated by the Florida Department of Law Enforcement.
Those standards were entered as Exhibit 20 and provide for the following relevant
principles as follows:
Principle One: Police officers shall conduct themselves, whether on or off
duty, in accordance with the Constitution of the United States, the Florida
Constitution, and all applicable laws, ordinances and rules enacted or
established pursuant to legal authority.
Principle Two: Police officers shall refrain from any conduct in an official
capacity that detracts from the public's faith in the integrity of the criminal
justice system.
Principle Three: Police officer shall perform their duties and apply the
law impartially and without prejudice or discrimination.
Rules
* * * *
3.2 Police officers shall not express, whether by act, omission or
statement, prejudice concerning race color, creed, religion, national
origin, sex, marital status, status with regard to public assistance,
disability, sexual orientation or age.
* * * *
Principle Four: Police officers shall not, whether on or off duty, exhibit
any conduct which discredits themselves or their Department or otherwise
impairs their ability or that of other officers or the Department to provide
law enforcement services to the community.
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Principle Five: Police officers shall treat all members of the public
courteously and with respect.
* * * *
FACTUAL BACKGROUND

The Employer is a municipal corporation chartered under the laws of the State of Florida.
Among its other functions it provides police services to the residents and visitors to the
City of Fort Lauderdale. Officer Holding was not represented by the Fraternal Order of
Police [FOP] in this proceeding, although the Collective Bargaining Agreement between
the City and the FOP was regarded by the Grievant and the City as controlling.

Officer Holding was hired by the City on January 24, 2012.

At the time of the

termination of his employment he was a Patrol Officer in District Two of the Police
Department. During his tenure he received six commendations [Exhibit 15] and was
utilized in the evaluation process of the vehicle towing service companies used by the
City. He was suspended for two days on December 23, 2014 for improperly documenting
an arrestees personal property.

While employed by the City of Fort Lauderdale Officer Holding participated in text
message chats with Officers Alex Alvarez, Christopher Sousa and James Wells. Officer
Alvarezs fiance at the time was Pricilla Perez. Ms. Perez testified without challenge
that she and Officer Alvarez openly shared the content of their cell phones, including the
record of text messages that ultimately became the crucial piece of evidence in this case.
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Ms. Perez and Officer Alvarez were living together and were engaged to be married.
That relationship was ended, however, after eight months of their engagement. Ms. Perez
testified in this proceeding that she became concerned about the comments she found on
Officer Alvarezs cell phone that showed officers had made racist remarks during their
text messages.

She took screen shots of the text messages exchanged among the

officers, and forwarded them to her mothers cell phone for safekeeping.

After the

engagement was broken off, Ms. Perez forwarded the text message screen shots from
her mothers cell phone to Chief of Police Adderley on October 16, 2014 [Exhibit 1]. In
her accompanying email message [sent under the name of Hilary Gonzalez] Ms. Perez
stated that the text messages were obtained from Officer Alvarezs phone, and included
racist conversations between Officers Alex Alvarez, James Wells and Jason Holding.
Ms. Perez strongly encouraged Chief Adderley to look into the matter, and stated that
the information has not been sent to the media yet.

Chief Adderley was not able to open the screen shots that Ms. Perez referred to in her
email message. He directed the Internal Affairs Office to contact Ms. Perez and request
that she bring the phone to the Police Department where its contents could be examined.
On October 17, 2014 Ms. Perez signed a consent form [Exhibit 2] authorizing the Fort
Lauderdale Police Department to conduct a search of the cell phone which was shown to
contain the screen shots of the text messages involved here . That same day, October 17,
2014 Officer Holding was advised by Internal Affairs Office Commander Dietrich that
Internal Affairs was conducting an investigation into an allegation of misconduct, and he
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was ordered to have no contact with Ms. Perez.

Officer Holding testified in this

proceeding that he had no prior knowledge of Ms. Perez.

Upon receiving Ms. Perezs email message and eventually retrieving the screen shots of
the text messages, an Internal Affairs investigation was begun. The screen shots of the
text messages described by Ms. Perez [Exhibits 9 and 10] included text messages using
racially inflammatory words and a highly racist video produced by Officer Alvarez The
video credited Officer Holding and other officers with its production [Exhibit 21]. At the
arbitration hearing Officer Holding testified without challenge that he was not involved in
the production of the video. Moreover, he testified that he sent a text message to Mr.
Alvarez describing his disapproval and cautioning him that there could be trouble if the
video was viewed outside of the text messaging group of officers.

On November 20, 2014 Officer Holding was notified that he was relieved of duty with
pay, and on January 9, 2015 he was notified [Exhibit 5] that he was being investigated
regarding allegations that he violated the following sections of the Fort Lauderdale Police
Department Policy and Procedure Manual:
1. 118 E 12 (d) Engaging in conduct unbecoming a police officer/employee.
2. 118 E 12 (j) Conduct prejudicial to the good order of the Department.

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In January 2015 the Internal Affairs Unit conducted interviews of Officers Holding,
Sousa and Wells [Exhibits 11, 12, 13].

On March 18, 2015 Major Dietrich reported the findings of the IA investigation. That
report stated the following: the evidence and testimony in this case supports the charge
of Conduct Unbecoming an Officer on Alvarez, Wells, Holding and Sousa. It also
concluded that the charge of Engaging in Conduct Prejudicial to the Good Order of the
Department on all four officers is also sustained [Exhibit 4]. Upon completion of the
Internal Affairs investigation, the case file and findings were reported to Chief of Police
Adderley, who affirmed the conclusions and recommendations.

The report was then

reviewed by City Manager Lee Feldman, who made the final decision to terminate the
employment of Officer Holding.

On March 20, 2015 Officer Holding was notified

[Exhibit 3] that he was being suspended and dismissed from City employment as a Police
Officer. His termination was effective on April 17, 2015.

Prior to the completion and release of the Internal Affairs investigation the media became
aware of the investigation and in particular that it involved alleged racist conduct in the
Police Department.

The media was vigorously inquiring about the case prior to the

investigation being completed. The Department held back releasing information about
the case until its investigation was completed and Officer Holding was notified of his
termination on March 20, 2015. Major Dietrich testified in this proceeding that some
information about the investigation had leaked out to the community and within the
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Police Department.

She went on to testify that there was considerable unrest in the

Department due to the rumors that were circulating about the case. Upon completion of
the investigation briefings with supervisors and all officers in the Department were held
and the evidence accumulated during the investigation was laid out to them. Fearing
community unrest the Department also elected to brief community leaders and hold a
press conference to show the evidence it had obtained during the investigation. That
press conference took place on March 20, 2015, the same day that Mr. Holding was
notified of his termination. Additionally, meetings were held with community leaders to
ensure they were aware of the facts, and to quell the prospects of any civil unrest.

Assistant State Attorney Donnelly first heard of the case at the press conference. Upon
learning of the case he directed the Assistant State Attorneys in the Broward State
Attorneys Office to review the impact the case may have on filed criminal cases. As a
result several felony and misdemeanor cases were dropped. Officer Holding was placed
on the Brady List which disclosed to defense attorneys that Officer Jason Holdings
employment was terminated by the Fort Lauderdale Police Department after an Internal
Affairs Investigation determined that he had engaged in conduct prejudicial to good order
of the department and conduct unbecoming a police officer [Exhibit 17].

The conduct of the four officers involved in this case was referred to the Criminal Justice
Standards and Training Commission for review related to their license to serve as sworn
police officers. The Commission subsequently advised Chief Adderley that it was taking
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no action related to the officers licenses. It found that while the video and many of the
conversations outlined in the materials among the officers that your agency provided
were reprehensible and disturbing, the material failed to evidence a cognizable violation
that the Commission can legally charge. Similarly, the fact that the Office of the State
Attorney chose to drop several criminal cases, in which those officers were witnesses, is
not, by itself, an enumerated officer standards violation. Again the Commission has no
legal authority to make an exception, no matter how egregious the conduct in question
may be. [Exhibit 27].

Officer Holding appealed his termination and it was processed to arbitration.

It was

heard on June 13 and 14, 2016.

POSITION OF THE PARTIES

Position of the Employer

The City maintains that it had cause to discharge Officer Holding and that the termination
of his employment should be upheld and his grievance denied. In support of that position
it offers the following arguments:
1. The Collective Bargaining Agreement allows the City to discipline or
terminate employees for cause. That is the standard specified in the
Collective Bargaining Agreement, and the Arbitrator is without power to
apply the just cause standard as suggested by counsel for Officer
Holding.
2. The Citys policies authorize discipline where, among other things, an
officer engages in conduct that is prejudicial to the good order of the
Police Department or where an officer engages in conduct that is
unbecoming to a police officer. All City policies are based upon the
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Florida Department of Law Enforcement standards and core principles.

Within those principles FDLE policy 3.2 clearly states that [p]olice
officers shall not express, whether by act, omission or statement, prejudice
concerning race color, creed, religion, national origin, sex, marital status,
status with regard to public assistance, disability, sexual orientation or
age.
3. The Citys Rules of Conduct set forth in Policy 118 put all officers on
notice that any neglect of or divergence from prescribed conduct reflects
unfavorably upon the Department, and may result in disciplinary action.
Importantly, the Policy requires all officers to be familiar with all rules,
order and directives of the Department.
4. The Citys related Code of Ethics [Policy 118.1] provides ethical
guidelines that require officers to, among other things, be impartial,
maintain the confidence of the public they serve, and engage in conduct
that is in the best interest of the City of Fort Lauderdale and its citizens.
5.
Officer Holding agreed to keep his private life unsullied, and
acknowledged that his position as a police officer was one of public faith
and trust. It is imperative that police officers, whether on or off duty
conduct themselves in a manner consistent with integrity, trustworthiness
and confidence. Officer Holding violated those principles.
6. Officer Holdings conduct was unbecoming that of a police officer. His
derogatory use of the N word is not acceptable in any context by a
police officer whether on duty or off duty. Police officers are held to high
standards, and the use of that word in street culture or rap music does not
make it acceptable for use by police officers.
7. Officer Holding agreed to abide by the Departments principles and
guidelines, yet the evidence submitted supports the fact that he violated
them. He acknowledged that police officers are held to a higher standard
and that he violated those standards.
8. Officer Holding attempted to minimize the impact of the derogatory
and racist words by stating that they were immature talk and joking
among friends. He stated that he did not intend for them to be considered
racially derogatory, and that he was desensitized to using the N word.
He went on to state that he used the word to mean a bad guy or
criminal, or a dude or something like that, and was not ascribing any
specific gender or race to the word. Officer Holding admitted that his
repeated use of the N word was inappropriate and in bad taste and
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exhibited a pattern of derogatory, racist behavior for which he took full

responsibility.
9. Officer Holding maintained that he found Officer Alvarezs racist video
to be offensive, but his concern was only that if it got into the wrong hands
the joking nature of it may not be understood. That implies that he
believed that if it stayed within the group of texting officers it would be
okay. Officer Holding should have stepped forward and reported the
video as violating Policy 118. His failure to do so supports the charge of
conduct unbecoming a police officer.
10. Officer Holding also made derogatory comments maligning and
insulting his co-workers.
11. Officers Holdings conduct is prejudicial to the good order of the City
of Fort Lauderdales Police Department. It impacts both the City and the
community. The offensive, racial and violent nature of Officer Holdings
text messages shed a negative light on the City and impacted both the
Police Department and the community. Those comments could lead to
civil unrest.
12. Information regarding an Internal Affairs investigation involving
racial bias immediately caused turmoil with the Police Department and
crated a racial divide amongst its officers.
13. As a result of his conduct Officer Holding was no longer able to fulfill
the critical duties and responsibilities of a police officer. He could no
longer fulfill his responsibility to testify as an officer in court. His
participation in the text messages could be perceived as being biased
against the African-American community in District 2 where he was
assigned. The State Attorneys actions in dropping several potential
prosecutions and placing Officer Holding permanently on the Brady list
confirmed the Citys fears that his conduct would greatly impact his ability
to continue to perform his duties.
14. Termination was appropriate where Officer Holdings evidence of
similarly situated employees were not true comparators. None of the other
employees cited by Officer Holding showed the level of violence or
threats that Holdings texts included, nor did they deal directly with the
very people in the community that they had given the oath of office to
protect and serve. Likewise the derogatory comments of the other
employees were not made on a continuing basis as was the case with
Officer Holding.
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15. Officer Holding had no expectation of privacy with regard to the text
messages, so it was appropriate for the City to obtain and utilize them for
disciplinary purposes. There has been no governmental intrusion. Ms.
Perez provided the City with copies of the text messages prior to
voluntarily meeting with the Internal Affairs Detectives and providing
them with access to her mothers phone. Additionally, Officer Holding
had no expectation of privacy with regard to messages on someone elses
phone. He did not own those phones and he cannot claim a right to
privacy with regard to the information on them. Further, Officer Holding
had no reasonable expectation of privacy with regard to the text messages
he sent to others. Essentially, once the communication is sent, the senders
expectation of privacy ends.
16. Chapter 934 of the Florida Statutes does not apply here. There was no
illegal interception of the text messages. Ms. Perez did not illegally obtain
the messages and voluntarily provided them to the Department. It is not
disputed that she had full access to Officer Alvarezs phone, and had
permission to look at the messages therein. Absent any expectation of
privacy, or any illegal interception of the messages, it was, and is,
appropriate for the City to rely on them.
17. Officer Holdings use of the N word is not protected speech under
the First Amendment of the United States Constitution. His speech was
not a matter of public concern, and making it known to the public does not
make it so.
18. Even if Officer Holdings speech is considered a matter of public
concern, his termination was still appropriate. His free speech interests do
not outweigh the efficiency interests of the City. The Pickering balancing
test tips in favor of the City. The government, as an employer, has a
legitimate interest in limiting certain employee speech for the purpose of
promoting harmonious relationships among its employees.
19. Based on a preponderance of the evidence, the City had cause to
terminate the employment of Officer Holding and that termination should
be upheld.

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Position of the Grievant

It is the position of Officer Holding that the Citys termination of his employment was
not for cause; it should be overturned and his grievance upheld.

He should be

immediately reinstated to his position as a Police Officer in the City of Fort Lauderdale,
and a lesser form of discipline should be instituted. The principles of just cause support
such an adjustment. In support of that position the following arguments were offered:
1. There is no meaningful difference between the cause and just cause
standards for applying discipline. Just cause for discipline requires that
the discipline be fair and appropriate under all the circumstances.
Elements of just cause include the following, all of which are separate
inquiries:
1. Have the charges against the officer been factually proven?
2. Was the punishment imposed by the employer disproportionately
severe under all the circumstances?
3. Did the employer conduct a thorough investigation into the
incident?
4. Were other officers in engaged in conduct similar to that of the
officer treated as harshly?
5. Was the officers misconduct the product of action or inaction by
the employer?
6. Did the employer take into consideration the officers good or
exemplary work history?
7. Did the employer take into consideration mitigating
circumstances?
8. Was the officer subjected to progressive discipline?
9. Was the employer motivated by anti-union bias?
10. Are the employers rules clear and understandable?
11. Is the officer likely to engage in similar misconduct in the future?
12. Was the officer accorded procedural due process in the
disciplinary process?
If any of these elements are not met by the City an arbitrator is compelled
to reverse or mitigate disciplinary actions imposed. The record shows that
the City has failed to meet all of these elements.

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2. The investigation and disciplinary process was not fair. All the officers
involved were grouped together into one Internal Affairs investigation.
Each officers involvement should have been considered separately.
3. The City imputed the video produced by Officer Alvarez to Officer
Holding, thereby poisoning the fairness of the investigation and causing a
prejudicial effect as to the appropriate level of discipline. Moreover, the
City considered the video as evidence against Officer Holding in
determining his discipline. Prior to making his final determination of
discipline, City Manager Feldman was not advised that Officer Holding
had no role in the production of the video. Mr. Feldman did not review
the entire IA case file.
4. The City imputed the inappropriate text messages of other officers to
Officer Holding. That is unfair and extremely prejudicial. Officer
Holdings due process rights were violated as related to his actual
involvement in the text messaging. He did not even reply to many of the
text messages, yet the City imputed the thoughts in those messages to him.
5. The text messages supplied by Ms. Perez were not placed in their
proper context by the City. The City concluded that Officer Holding was a
racist without understanding the context of the messages and his intent in
making them. City investigators projected their own subjective view of
bias into the text messages by reading into them an unintended meaning.
6. Officer Holdings use of the term 14 Pointer was misinterpreted by
Internal Affairs to mean a large black man, and not a large deer as
intended. Ms. Perez incorrectly stated that the picture of a black man with
a gold teeth grill was a doctored picture of President Obama as
contained in the Alvarez video. That is not the case.
7. The text messages introduced into evidence are not in any logical order
do not accurately depict the nature of the texting conversation among the
officers.
8. Officer Holding was referring to an inside joke when he used the
phrase Id have the noose ready. He was referring to the fact that he had
been involved in three auto crashes in the past year and that the noose was
for him.
9. Officer Holding was referring to Officer Wells when he used the phrase
crazy nigger and was meant as slang for crazy dude. The N word
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was not used in a hateful or racist way. It is also important to note that the
texting conversation took place while Officer Holding was not on duty.
10. Officer Holdings use of the phrase If thats true, Ill kiss your ass, I
want those niggers in the course of a texting conversation with Officer
Wells shows that Officer Wells was not offended by the N word and that
he had used the word earlier in the conversation. Moreover, it shows that
Officer Holding was influenced by Officer Wells use of the term.
11. Officer Holdings use of the phrase wet dream in connection with
other officers finding two black men and giving them the death penalty on
the spot is merely a gross and vulgar attempt at humor and shows his
frustration toward the VW occupants who escaped from apprehension.
12. Officer Holdings occasional use of the N word was not intended to
malign an entire race. He is a fine young man and not a violent racist as
portrayed by the City. There are no complaints of mistreatment against
him. No discipline and no allegations of excessive use of force have been
lodged against him. His girl-friend, who is black, testified that he is a man
of good character. The officers involved in this case were just trying to
fit in to the culture of the Fort Lauderdale Police Department, as
suggested by Chief Adderley.
13. Officer Holding is and was apologetic and remorseful and has learned
a valuable lesson and will not repeat his conduct. His inappropriate and
unprofessional use of the N word reasonably warrants some lower level
of discipline.
14. The reasons for Officer Holdings termination as expressed in his
notice of termination did not refer to the cancellation of his pending cases
or his ability to testify in future court cases. Those assertions came up
after he was terminated. Similarly, the assertion that he violated the
Florida Department of Law Enforcement/Criminal Justice Standards and
Training Commission ethics standards came up after he was terminated.
He was denied his due process rights in defending against those charges.
15. Prior to Officer Holdings termination States Attorney Satz did not
have a conversation with Chief Adderley relating to Officer Holdings
cases being dropped and that he would be placed on the Brady list. Chief
Adderleys testimony that such a prior conversation occurred is simply not
true. Officer Holding was not placed on the Brady list by Assistant States
Attorney Donnelley until July 8, 2015, well after his termination.
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Moreover, Mr. Donnelley did not know about the case until the press
conference related to it.
16. Placement on the Brady list is not, in and of itself, a reason to
terminate Officer Holdings employment. Indeed, the State Attorneys
Office is not the deciding authority regarding his employment; the City of
Fort Lauderdale is. It is important to note that the vast majority of
criminal cases are settled without going to trial. Moreover, any question
of Officer Holdings credibility during his testimony in such cases is a
matter for a Judge or jury to consider. Placement on the Brady list does
not prevent him from testifying.
17. Officer Holding was afforded disparate treatment. He was treated
more harshly than Officers Felderwert, Wilson and Smith.
Officer
Felderwert received only a ten day suspension for conduct that was
arguably more egregious than that of Officer Holding. Officer Felderwert
continues to be a Fort Lauderdale police officer. He was placed on the
Brady list, but continues to give testimony in court.
18. The Citys concern about the public perception of this case should not
determine the level of discipline to be imposed. Discipline should be
imposed based on fairness and justice. The City threw Officer Holding to
the media wolves with the meat of the Alvarez video and the text
messages from the other officers. Officer Holdings text messages were
made to fellow officers while he was off duty.
They were not
disseminated to the public by him.
19. Officer Holdings discipline was excessive and clearly influenced by
political and community pressure. He accepts responsibility and does not
seek to escape disciplinary action. He simply wants and deserves that
discipline be progressive, reasonable, fair and appropriate. That requires
that the City follow the discipline issued in similar cases where officers
were given less discipline. Officer Holding should be reinstated so that he
may serve as a mentor and example to his fellow officers.

ANALYSIS OF THE EVIDENCE

The controlling contract language is found in Article 14 of the Collective Bargaining

Agreement. That Article provides that the City must show cause for discipline imposed.
!23

The City argued that cause was the appropriate standard to be applied, while counsel
for the Grievant argued that just cause was the appropriate standard. While the City
asserted that just cause was a more demanding standard, involving the frequently cited
seven tests for just cause attributed to Arbitrator Daugherty in Enterprise Wire Company
(46LA 363, 1966) it did not articulate what the elements of the cause standard would be.
The issue of the standard to be applied was discussed supra and further consideration of
that issue is not necessary here. Suffice it to say that either standard will require an
employer to show with at least a preponderance of the evidence that a disciplined
employee is guilty of the offense he/she is charged with committing; that the discipline
imposed is proportional to the seriousness of the offense, and disparate treatment is not
shown.

Here the Grievant is charged with violating Fort Lauderdale Police Department Policy
118. In particular he is charged with conduct unbecoming a police officer and conduct
prejudicial to the good order of the Department.

These charges arose following disclosure of a series of text messages exchanged among
Officers Alvarez, Holding, Sousa and Wells. It is not disputed that Officer Alvarezs
fiance at the time, Pricilla Perez, had consensual free access to Officer Alvarezs cell
phone while they were engaged to be married. Ms. Perez testified that she saw the text
messages on Officer Alvarezs phone and became concerned about the racist nature of
some of them. When their engagement ended Ms. Perez took screen shots of the text
!24

messages she found troubling and transferred those screen shots to her mothers phone.
She subsequently provided them to the Department.

At the hearing and in its post hearing brief the City went to considerable effort to show
that it had obtained the text messages legally, and that there was no violation of Officer
Holdings Constitutional rights, and that the text messages were not protected speech.
The role of a labor arbitrator, as here, is not to determine matters of constitutional law,
but to apply the terms of the Collective Bargaining Agreement to the facts adduced at the
hearing. That said, the facts of the case involve the City obtaining the text messages and
the Alvarez video.

Accordingly, careful consideration was given to whether the text

messages, including the Alvarez video were obtained improperly; that Officer Holding
had a reasonable basis for believing that they would be kept private or that they are
protected forms of his free speech. The arguments raised by the City are convincing that
the text messages and video were obtained properly, and that Officer Holding did not
have a reasonable expectation that they would be kept private. Additionally, the City has
shown that the utterances of Officer Holding in the text messages he wrote are not
protected forms of free speech.

There can be no doubt that rules prohibiting conduct unbecoming a police officer are
reasonable and appropriate for the Department to enforce. It is not disputed that police
officers are held to a higher standard of conduct than other professionals.

Officer

Holding does not dispute that. Of course, the primary duty of police officers is that of
!25

law enforcement. As such they are often the first to be involved in actions that could
result in depriving citizens of their freedom. That is a formidable responsibility. In order
to effectively discharge their responsibilities police officers must have the respect of the
community they serve. That requires that they adhere to high standards of conduct in
both their private and professional lives. To provide guidance to that end the Department
and the FDLE/CJSTC have promulgated rules of conduct that apply here. There is no
evidence that these rules were recently enacted, or that there was some other reason that
Officer Holding would not have been aware of them. Indeed, he made no claim of being
unaware of the rules he is accused of violating in this case.

When the Department became aware of the text messages and Officer Alvarezs video, it
initiated an Internal Affairs investigation.

The IA Detectives obtained Ms. Perezs

consent to examine her mothers phone where the screen shots were stored.

Officer

Holding was placed on paid administrative leave pending the results of the investigation.
On January 9, 2015 he was notified that he was being investigated on charges of
engaging in conduct unbecoming an officer, and conduct prejudicial to the good order of
the Department. In the course of the investigation Officer Holding and the other officers
were interviewed. The record of those interviews shows they were given an opportunity
to tell their side of the story.

During the investigation information about the case began to leak out within the
Department and out to the community. That caused dissention within the Department and
!26

serious concern in the community that some Fort Lauderdale police officers were racists.
To its credit the Department did not release any findings until the investigation was
complete. Upon completion of the investigation the findings were reviewed by Chief
Adderley who recommended termination of the officers involved, including Officer
Holding. That recommendation was reviewed by City Manager Feldman who concurred.
Officer Holding was notified on March 20, 2015 that he was suspended and his
employment would be terminated effective April 17, 2015.

The record of this proceeding does not show that the City rushed to judgment despite
public pressure to do so. The Grievant argues persuasively that application of discipline
must be done in a fair and just manner and not influenced by partially informed public
opinion.

The City did not challenge that perspective.

Fair and just application of

discipline is an important point, and was carefully considered here. That consideration
compels a finding that Officer Holding was not terminated simply to satisfy public
outcry. The investigation was done, and its findings reviewed by two levels of senior
management in the City who concurred.

There is simply no showing that Officer

Holding was fed to the media wolves in order to placate community and political
pressures on the Department.

There is no doubt that there was considerable public

interest in this case, and the media pursued it with great vigor, as they should. That said,
there is no evidence that the City acted arbitrarily or capriciously in order to satisfy the
public interest.

!27

The screen shots of the text messages and the video produced by Officer Alvarez is the
primary evidence necessary to demonstrate the guilt or innocence of Officer Holding.
Dealing first with the video, Officer Holding testified convincingly, and without
challenge that he had no role in the production of the video. There is no doubt that the
video is highly racist in nature. It shows credit given to Officer Holding and others at the
end of the video, but that is not sufficient to convince a reasonable person that Officer
Holding was involved in any way with its production. Officer Holding and others were
work associates of Officer Alvarez, but there was no evidence that they collaborated in
the production of the video. The City has not presented evidence to show that Officer
Holding was involved in producing the video.

Accordingly, his testimony must be

credited regarding his non-involvement in its production.

Officer Alvarez was not

present to testify as to who if anyone, assisted in the production of the video. It is noted
that Officer Alvarez resigned after the text messages and video where made available to
the Department.

Counsel for the Grievant argued that the City imputed Officer Holding in the production
of the video and that biased their perspective of the evidence.

A reasonable person

viewing the inflammatory video may indeed, have been biased in evaluating the other
evidence against the Grievant. The record of this hearing, however, shows that there is
not sufficient evidence that Officer Holding was actually involved in the production of
the video. Accordingly, his involvement in producing it is dismissed.

!28

The record does show however, that Officer Holding had viewed the video and actually
expressed concern over its content to Officer Alvarez.

Expression of concern to the

producer of the video is not sufficient to meet the ethical and conduct standards he is held
to as a police officer. The blatantly racist nature of the video required that he go further,
and report it to his superiors.

Understandably, that would have been difficult for an

officer trying to fit in with his colleagues.

reluctance to do so, he was compelled to do so.

Notwithstanding his understandable

In and by itself, however, Officer

Holdings failure to report the video would not rise to the level of a dischargeable
offense. Taken together with the text messages, however, his conduct is very troubling.

The 51 text messages in Exhibit 9 comprise the most damming evidence against Officer
Holding. It is noted, however, that it appears from the record that he responded to only
17 of them. His text messages that are of greatest concern are found in the following nine
screen shots: 1605, 1608, 1623, 1624, 1626, 1628, 1629, 1630, and 1633.

On these

screen shots the record evidence clearly shows a racial response from Officer Holding.
On other screen shots racial comments are made, but either there is no response from
Officer Holding or Officer Holding testified that he did not make the comment or send
the image involved in the screen shot. He is afforded the benefit of doubt in regard to
those messages.

Accordingly, analysis is focused on nine screen shots where the most inflammatory
comments were made or racial photos were posted that can be clearly attributed to
!29

Officer Holding. Where the disparaging term nigger is used in the text messages by the
officers involved it is shown without using the redacted N word in the analysis table
below in order to show the actual term used by the officers.

The explanations Officer

Holding offered regarding the messages/images in the texts is shown in the table below:
Screen Shot

Nature of Message/Image

Officer Holdings Explanation

1605

Image of a black man on a box of

Shotgun shells. Officer Holding
writes: The buck stops here.

Found image on the internet

Believed it to be funny.

1608

Officer Holding writes 14 pointer

in VIP tonight, followed by an
image of a black man with gold
grill teeth.

14 pointer referred only to a

large male and did not refer
to a black or white man. The
term 14 pointer referred to
Officer Holdings interest in
hunting.

1623/1624

Officer Holding critical of other

He was complaining about the
Officers who did not work in thework ethic of other officers.
hood. He describes them as
lazy fucks.

1626

Asked what his reaction would be

if his personal vehicle was hit by
criminals.

Replies that he would have the

noose ready. Testified that he
Would prepare the noose for
for himself because he had 3
previous accidents.

1628

Officer Holding responds: crazy

nigger"

Testified that he meant he

words to mean only a crazy
dude.

1629

Officer Wells wrote upon

apprehending: Niggers hit 3
cars and crashed and bailed.
Officer Holding responds:
If that is true Ill kiss your
ass I want those niggers.

Testified that his use of the

word nigger was meant to
mean any bad guy.

1630

Officer Holding writes: I bout

killed a man on 2 street boys.

Testified that he was

exaggerating.

1633

Officer Holding responds to other

officers: I had a wet dream that

Officer Holding testified that he

was only embellishing and

!30

you two found those two niggers

in the VW and gave them the
death penalty on the spot.

blowing off steam after a

vehicle took off after he had
stopped it.

A reasonable person examining the inflammatory nature of the text messages and Officer
Holdings explanations would conclude that his explanations are simply not plausible,
and they do not rise to the level that would excuse his conduct. Officer Holding testified
that he did not intend his comments to be racist or disparaging of anyone. The fact is
however, some of his comments were clearly racist and his intentions do not provide any
other meaning.

The record shows that Internal Affairs and this proceeding for that matter could not
discern the proper order and context of the text messages in the conversations among the
officers. Because the order and context could not be accurately determined counsel for
Officer Holding argued that the innocent intent of Officer Holding was not made known.
That argument fails inasmuch as derogatory words within each message are reasonably
seen as racist in nature.

It is not necessary to establish any further context for such

words. They speak loudly and disparagingly for themselves.

Officer Holding earnestly testified that he was not a racist. His testimony in that regard is
believable, but does not lead to a finding that his conduct in participating in the text
messages or his failure to report the Alvarez video is excusable. His comments were
racially offensive, and some were demeaning to members of the Department.

His

conduct was clearly unbecoming that of a police officer and the record shows that it was

!31

prejudicial to the good order of the Department. It is not likely that he would repeat his
misconduct, but a cloud over him would persist that would hamper his effectiveness as a
police officer in the City of Fort Lauderdale.

Officer Holding appears to have made his inappropriate comments in an attempt to fit in
with other officers by using the same unsavory language they did. His testimony that he
did not intend for his comments to be considered racist is simply not availing. What
matters is that a reasonable person seeing or hearing those comments would regard them
as racist and unbecoming a police officer. Officer Holding testified that the video and
text messages were made in a joking manner. No humor is seen in them.

The City argues that Officer Holding could not continue to function as a police officer in
Broward County because he was placed on the Brady list that would disclose the charges
against him to attorneys defending individuals who he had arrested. Officer Holdings
counsel argues persuasively that being placed on the Brady list is not necessarily an end
to a police officers ability to function. Indeed the case of Officer Felderwert was cited as
an officer who is on the Brady list and still functions as a Fort Lauderdale police officer.
Considerable deference must be given, however, to the judgment of prosecutors in regard
to whether a case where Officer Holding was a key witness could be successfully
prosecuted. These observations compel a finding that cause for the termination of Officer
Holding cannot be based simply on the fact that he was placed on the Brady list. That
said, by being placed on the Brady list the good order of the Department was prejudiced
!32

by his conduct.

What fundamentally matters here is the issue of Officer Holdings

conduct as reasonably viewed by the Department and ultimately by the community.

Through that perspective the record supports a finding that Officer Holdings termination
was for cause.

The record of this proceeding was carefully examined for disparate treatment of Officer
Holding. The three officers cited as comparators do not appear from the evidence to be
similarly situated. Officer Holdings conduct was not a single episode as was that of
Officer Felderwert. The cases of Officers Wilson and Smith similarly do not provide a
showing of disparate treatment of Officer Holding. It is noted that in his responses to text
messages received Officer Holding used threatening or violent language toward black
people. Similar language is not shown to have been used by the comparators cited.

A finding of cause for discipline requires that the penalty imposed is proportional to the
seriousness of the offense committed.

Here Officer Holding joined with others in

conduct that had serious repercussions in the community. Counsel for Officer Holding
appropriately argued that discipline is not to be determined in the media or by a partially
informed public. It was correctly pointed out that discipline must be based on fairness
and justice. The entirety of the record here, however, compels a finding that termination
of Officer Holdings employment with the Fort Lauderdale Police Department was a fair
and just penalty given all the circumstances present.

!33

Unless a collective bargaining agreement specifically limits the authority of an arbitrator

to modify the level of discipline imposed on an employee, arbitrators generally have the
power to do so. Here the Collective Bargaining Agreement of the parties does not impose
such a limitation on the arbitrators authority. Modification by an arbitrator of a penalty
imposed by management after a fair investigation showed an employee to have
committed the acts he/she is charged with doing would not be undertaken lightly,
however. The penalty must be appropriate given all the facts in evidence, including the
impact of the offense on the efficiency of the operations of the employer, the tenure of the
employee, any prior discipline issued to the employee, and how the employee was
disciplined compared to other employees. Here, there is a convincing showing that the
conduct of Officer Holding had a disturbing effect on the trust the community placed in
police officers and the Police Department. The relatively brief tenure of Officer Holding
with the Fort Lauderdale Police Department showed that he received several
commendations and good performances evaluations. As discussed supra, the record does
not show that he was afforded disparate treatment compared to similarly situated
employees. In total, the fairness balance between the legitimate interests of the City and
those of Officer Holding compel a finding that the termination of his employment was
appropriate discipline. Accordingly, this Arbitrator is without authority to overturn it.

This case was thoroughly and competently presented by counsel for both parties. Their
post hearing briefs were thoughtful and well argued. This arbitrator greatly appreciates
the assistance provided.
!34

IN THE MATTER OF ARBITRATION BETWEEN

JASON HOLDING, GRIEVANT

and

CITY OF FORT LAUDERDALE FLORIDA

Employer/City/Department

!35

| OPINION AND AWARD

|
|
| Termination Grievance of
| Jason Holding, Grievant
|
|
|

The termination of the employment of Officer Jason Holding was for cause and is upheld.
The grievance and all remedies requested are denied.

August 19, 2016

Dated:___________________________

James L. Reynolds
_______________________________
James L. Reynolds,
Arbitrator

Awd 6.16a

!36