ee FEDERAL MEDIATION AND CONCILIATION SERVICE Before ‘THOMAS G. HUMPERIES, ARBITRATOR, Tn the Matter of Arbitration between ‘TER GULF COAST POLICE Dismissal of John Desrig ‘BENEVOLENT ASSOCIATION MCS Case No. 110201-53035-3 and ‘TSE CITY OF MARCO ISLAND, FLORIDA / APPEARANCES: For the Union: ‘MICHAEL BRAVERMAN, ESQ. ‘Michael Braverman, PA. 2650 West State Road 84, Suite 103 Ft Lauderdale, FL 33312 Forthe Employer: ‘RAQUEL ELEJABARRIETA, ESQ. ‘Weiss Serota Holfiman..., P.AL 2525 Ponce de Leon, Blvd., Suite 700 Coral Gables, Florida 33134‘The above captioned matter came on for hearing atthe offices of the City of Marco Island, Marco Islend City Hall, $0 Bald Bogle Drive, Marco Island, Florida, on May 25 and June 41, 2011, pursuant to notice and in accordance with applicable provisions of the Collective Bargaining Agreement (the “Agreement”) between the Gulf Coast Police Benevolent Association (the “Union”) and the City of Marco Island, Florida (the “Employet”), ‘he patties were in agreement that the matter of the termination of police officer John Derg (the “Grievant” was propediy before the undenigned Arbitrator and each party was affocded fll oppatanity at hearing to preset witnesses, exhibits and arguments. Witness were sworn, trmcrpt was taken end post-heving bits were submited by the pres, Following receipt ofthe parties’ briefs, the record was closed on September 1, 2011, In accordance with the Agreement, the Arbitrator’s Decision and Award shall be final ad binding on the parties INTRODUCTION ‘The Employer’s Police Chief (tho “Chief") is responsible for the overall supervision of its Police Department (the “Department”) wiich consists of thirty-three police officers. Inthe summer of 2010, the Department was re-organized for improved operational efficiency. Under the new organizational stractare, there is one captain below the rank of Police Chief who is in chacgeofo Hetecans, road ieutecant who commands the Deprtmentsfourroed patrol shifts and a support division lieutenant who is in charge of the other operation divisions within “the Department. Bach ofthe four oad pata shifts is commanded bya sergenat and there is also relief sergeant. There are four police officers assigned to each of the four shifts. ‘The Grievant was employed as a Police Officer in the Department and was a member of ‘the bargaining wnt, covered by the terms and conditions sot forth in the Agreement when hereceived notice of his discharge for having allegedly engaged in improper conduct. The Grievant ‘was discharged for being grossly insubordinate, being untrathfil and failing to write an accurate ‘and teuthfal arrest report stemming from the Grievant's September 28, 2010 arrest ofa citizen, George Dascoulias. ‘The Grievant's discharge was precipitated by a foomal complaint filed by Mr. Dascoulias against the Grievant after he had been arrested. In the complaint, Dascoulias alleged that the Grievant physically assaulted him and made false statements in his arrest report. As a result, the Department commenced an investigation in November 2010 conceming Dascouliae’ allegations. After having completed its investigation, the Department was unable to conclude that the Grievant physically assaulted Dascoulias. However, the investigation allegedly revealed that the Grievant violated several provisions of Police Department General Order 103 titled Conduct due to his untruthfulness and insubordination and that he had violated Genecal Order 502, Report ‘Writing, by filing to waite an accurate and truthfi arrest report. ‘The Grievant, through his Union, citing a lack of just canse-to terminate his employment, filed a grievance in « timely manner. Having been unable to subsequently resolve the matter ‘through the grievance steps set forth in the Agreement, the parties processed the grievance to the Agreement’s arbitation step for neutral review. In accordance with the Agreement, the acbtration dessin shall be final and binding onthe partes. POSITIONS OF THE PARTIES ‘EMPLOYER: Prior to the investigation that led to the Grievant's texmination, the City attempted on numerous occasions to correct one of the behaviors for which the Grievant was ltimately terminated: insubordination. In particular, he failed to activate his mobile| i | ‘video/audio recording device (MDT) despite being counseled repeatedly to do so in accordance with General Order 402 and in accordance with his sergeant’ orders ‘Throughoot the Grievant's employment withthe City, the Police Department received an exceedingly large number of citizen complaints aguinst the Grievant. Most ofthe complaints alleged that the Griovant topped them for no reason, harassed them, searched them or their vehicle for no particular reason and was nude, Eventhough all police officers have a duty to activate their MDT during all traffic stops in accordance with General Order 402, the Grievant consistently failed to activate his MDT during traffic stops and, as such, the citizen complaints involving traffic stops (most ofthe complaints against the Grievant involved traffic stops) could not be verified. As a result ofthis, the Grievant was counseled nomerous times on the ‘importance of complying with General Order 402 and activating his MDT during all rafio stops. In addition, and because ofthe high number of citizen complaints that the City was zeceiving against the Griovant, the Grievant was ordered by his superiors to also activate his MDT éach time he made a selPinitiated contact. However, despite being spoken to on aumerous occasions about his failure to activate his MDT dusing all traffic stops and selfnitinted contacts, the Grievant continued to disregard those orders and that was ono of the reasons for which he ‘was ultimately terminated (the Grievant filed to activate his MDT priorto making contact with ‘Mr. Dascoulias on September 28, 2010). Based upon these and other facts discussed at length herein, the City’s conclusion that termination was the ouly appropriate disciplinary action was cleat justified. Therefore, the Grievant was properly dismissed forjust cause and the instant grievance should be denied. ‘UNION: The City of Marco Island has failed to oay its burden af proof, There is no just cause to discipline the Griovant. The City ftiled to provide any evidence that supports the( Arbitrator’s ability to be able to sustain the charges as set forth in the December 10, 2010 termination letter. ‘The Grievant explained that when he first saw Mr. Dascoulias he observed him doing something suspicious and as he opened the door tothe bathroom Daccoulias attacked him, ‘The Grievant told Dascoulias to show him his hands because they were buried inside a garbage can. ‘Furthermore, the Grievant did not have time to activate his camera. On September 28, 2010, the Grievant did not intentionally disregard Sergeant Guecrero’s order. Rather, tho Grievant analyzed the situation he was ficed with as it relates to Mr. Dascoulias and did not believe that ‘he needed to activate the camera because he did not now what he had. ‘The policy of the Marco Island Police Department does not require that all contacts be recorded and only suggests that certain types of enforcement of contacts are recorded. ‘The Grievant was never advised that he needed to activate his recording equipment when he was involved in every activity and the Employer nover submitted the policy regarding MDT use as an exhibit. ‘Should there be cause for discipline which cause is found to be justified and supported by ‘the record, the City's decision to tenminate the grievant is excessive. Should the Arbitrator decide that some disciplinary action is required based on the record, the employee's good performance, exemplary actions, and the manner in which the City disciplined employets in the past, should result inthe disciplinary action being reduced. STATEMENT OF TAEISSUE ‘Whether the Employer had just cause to terminate the Grievant's comployment, and if not, what is the appropriate remedy. ‘THE AGREEMENT, DEPARTMENT POLICIBS/ GENERAL ORDERS arelevant pert)ARTICLE 2 ‘MANAGEMENT RIGHTS Section 1, The City reserves and retains the exclusive right to manage its Police personel and direct its workfores, including but not limited to the exclusive right: to discipline or discharge employees for just cause. ARTICLE 7 COMPLIANCE WITH RULES AND REGULATIONS Seotion 1. All sections of the City’s personnel niles and regulations and police department rules and regalations, including any amendments thereto are applicable to bargaining unit members unless there is an express conflict between the Personnel ‘Rules and Regulations and the Agreement, in which case this Agreement shall apply. ARTICLES GRIEVANCE AND ARBIFRATION PROCEDURE Section 2. For the purpose of this Agreement, a grievance is defined as a dispute, claim cor complaint that say employee or the Union may have as to the interpretation, application, and/or alleged violation of some express provision af this Agreement which is subject to the Grievance Procedure. Section 8. The following general rules are applicable to this Article: 1. In dssplinary and discharge cases, th burden of proofs onthe City. weer Inall except criminal cases, the “greater weight of the evidence” standard is applicable.Section 9. The arbitrator's decision shall be final and binding on the Union and on all, bargaining unit employees and on the Cit outside or beyond the scope of the arbitrator’s jurisdiction and authority as set forth in this Agreement. EMPLOYER POLICIES/CONDUCT General Order 103 — Conduct ~ 103.3.2 Insubordination: Do not fil, either om or off uty, o obey any proper direction ofa supervisor of ‘Aigher rank than yourself. Do not induce, or try to induce, another Marco Island Police Department employee to this same behavior. No employee shall be disrespectful, insolent, or abusive towards a supervisor, commanding officer, or Chief of Police, in language or action. General conduct — 103.25 Truthfulness: Always speak the trath regarding police matters, declining comment where seiealing facts within your knowledge is forbidden by law or the content ofthis a General Order 302 —Discipline — 302.32 —Types of Punitive Discipline: ‘Depending on the seriousness of employee action, the department applies on of ‘the following types of punitive discipline for sustained complaints: * Oral Reprimand — Verbal warning «© Written Reprimand~ Letter of reprimand ¢ ‘Transfer — ‘Transfer of employes to another assignment , provided that the arbitrator's decision is not© Retribution for Damages —Employees may be required to repay the City for damages caused to city propecty or equipment as a result of preventable accidents on the employee's behalf, © Suspension — Suspension for a specific umber of days without pay. + Demotion—Demotion to alower rank or pay grade. + Dismissal— Termination ftom the department. General Ordec 402 ~Mobile Recording General Order 502 Report Writing DISCUSSION AND FINDINGS Following the Grievant's arrest of Mr. George Dascoulias, a Mereo Island Citizen, and an. investigation of the Grievant that ensued, he was discharged for being grossly insubordinate, C being untruthful, and failing to write an accurate and truthfil arrest report. ‘The Department's. . investigation concluded that the Grievant: © Was: insubordinate when he fled to activate bis mobile video / audio recording device (MDT”) prior to making contact with Mr. Dascoulias on September 28, 2010 despite repeatedly being ondeced by his sergeant to ‘© Was insubordinate when be failed to attach to the arrest repost a picture that was taken of Mr. Dascoulias on the scene that showed Mr. Dascoulias’ bloody face . after being ordered to do so several times by his sergeant. Failed to wite en accurate and trthfil amet report s evidenced by the «different statements that the Grievant provided in his internal affairs itesrogation and inthe arrest report of Mi, Dascoulias’ arrest.© Was untruthful by providing statements daring his swom internal affairs intecrogation statements conceming the events of Mr. Dascoulias’ arrest on Septeaiber 28, 2010 that were different ftom the written statements that ‘the Grievant provided in the arrest report of Mr. Dascoulias’ arrest. Ultimately, the Chief found that the Grievant had, “failed repeatedly to repair is conduct, and work withia the policies and procedure[s] of the ..Department” The Chief further ‘concluded in his December 10, 2010 disciplinary action memorandum to the Grievant that the inal determination would result in his immediate teomiiiation. §— * ‘The Chief a captain at the time of the Grievant's hiting, testified at hearing the he had been a participant om the Grievant's oral board and that be had had concems about the Grievant’s “maturity problem” at that time. ‘The witness farther stated that the Grievant had received vritten counseling for a July 2008 incident in which he was “egging on” « subject, “trying to dravw hin into a fight,” and fora Tamary 2009 incident in which he had reported late for work. Another counseling was placed in the Grievant's file in November 2009 concerning a DVD that the Grievant had been watching while on duty. Also, according to the witness, a complaint had ‘been generated by the State Attomey’s Office conceming the Grievant's tardy court appearance. ‘Referencing the Grievant's beginning employment in 2005, the Chief recalled that the command staff as well as other officers were having “issues” with the Grievant's performance. ‘The Grievant's problems, according fo the vitaess, inchided “not listening, not taking directions ‘well, just not complying with certain ways we do things here on Marco sland,” Although not having received complaints from citizens early in the Grievant's employment, the witness made seference to complaints starting in 2006, concecning traffic stops, unauthorized vehioular searches and complaints that he was, “alittle heavy-handed” ‘Tho number of complaints weresaid by the witness to have totaled “significantly more” than those of other Department officers. ‘Also noted by the witness were the Grievant's failures to employ his MDT during traffic stops. ‘These infractions, according to the Chief, had resulted in “time after time” counselings even, though the Grievant had been ordered by a sergeant and a lieutenant to have the MDT on at all times. In addition to the alleged on-duty infractions, the Chief's testimony referenced off-duty misconduct on the part of the Grievant. A specific incident is said to have occurred in a Fort ‘Myers, locida ber during Angust 2007 ia which the Grievant was exonerated by Fort Myers authorities or “covered up” as the Chief put it. Then, following additional incidents which produced concems gnd suspicions if not outright proof of the Grievant's wrongdoing, a ‘September 2010 incident caused the Chiefto conclude that ‘the Grievant had been grossly insubordinate and had exhibited a pattern of behavior that justified termination. A very different portrait of the Grievant was painted by Lieutenant Mike Pena, ‘Testifying for the Union, Pena recalled his own thirty-year supervision end interactions with the Grievant daring his tenure with the department. That tenure, December 2002 until June 2016 shad ended due to a layoff for what the Employer asserts were budgetary reasons. The witness, however, contends that he bad been unfkirly disociminated against and bas fled a EEOC complaint that was pending at the time of the hearing. . Former Lieutenant Pena recalled having supervised the Grievant for approximately two years during which ime ho had prticipated in the Grievant's peformence evaluations. The ‘witness characterized the Grievant as a, “high perforining officer,” who had been, “aggressive,” ‘one who had made the “majority” of the arrests that were made in the Department. The witness added that he had not encountered problems with the Grievant with the exception ofan instance 10eaten ‘where the Grievant had been watching a comedy DVD in his patrol vehicle. While conceding ‘that the Grievant had been the subject of complaints resulting from his policing style, the witness added that in his opinion, the Grievant along with certain other officers had been, “under the microscope.” ‘This added scratiny im the opinion of the witness was unwarranted. Based on ‘what the witness charactetizes as having emauating ffom his 30 years of policing experience, although the Grievant had garnered complaints, “an officer who aggressively performs his duties ‘will get complaints”. He added, however, “If you just lay back and sit down, you can probably survive your years here without getting complaints.” Conceming what be perceived to be the Chief's negative attitude toward the Grievant, the witness stated that the Chief had commented ‘that the Grievant was “gone” the next time anything happened with ‘hima. Al things considered, the record demonstrates that a cloud of suspicion bad swirled about the Grievant ftom the time of his initial employment ‘While not demonstratiog thet this added scrutiny by the Employer had been inherently improper, it does prompt inquiry into the scope of the Grievant's missteps as well as the Employer’s course of corrective measures to modify what ‘was believed to be improper conduct. ‘The Employer is said to have attempted on mamerous occasions to correct the Grievant's failures to activate his mobile video/audio recording device (MDT) despite having been ‘connseled to do so. The manner in which these allegedly grossly insubordinate actions were communicated to the Grievant, however, are simply not reflected in the force of the discip messages. ‘While termination of even.a stellar employee can be justified by a highly serious frst offtuse infraction, the concept of progressive discipline isthe traditionally held method of dealing, with lesser and repetitive eauployee missteps. The theory being: escalating levels of MWpunishment delivering clear warnings that longer suspensions and termination will likely ensue if bad behavior continues. The Employers Gentral Order 302—Discipline 302.32 —~Types of ‘Panitive Discipline reinforces just that. ‘The Order states: ‘Depending on the seriousness of employee action, the department applies on of the following types of punitive discipline for sustained complaints: ‘* Oral Reprimand — Verbal warning, + Written Reprimand ~Letter of reprimand © Transfer— Transfer of employee to another assignment i + Retribution for Damages —Hmployees may be required to repay the City for damages caused to city property or equipment as result of preventable accidents on the employee's behalf + Suspension — Suspension fora specific umber of days without pay. « Demotion—Demotion to alower rank orpay grade, ¢, Dismissal —-Termination from the department In the instant case, although the Employer had the above list of corrective tools available ‘in matter of the Grievant's ongoing method of performing his duties, no such progressive messages were delivered that would have let the Grievant know in no uncertain terms that his ‘position with the Employer was at risk. the Grievant’s dismissal, tao Union cties mmerous deficiencies inthe Employer's just cause argument. Indeed, application of'jst cause standards which arbitrators have emphasized over tho years have diawn on the Seven Tests of last Cause set firth by Arbitrator Carroll Daugherty inthe celebrated 1964 Enterprise Wire aibitration decision that is referenced by the Union. Itis wthe adherence to these Seven Tests that represent a ftequently articulated appfoach to the anal of ist cause ismes. Ano” answer to ons or more of the following seven questions is often. cited as evidence that the just cause standard was either not satisfied or was seriously weakened: TEST 1-NOTICE Did the employer give the employee forewamiing or foreknowledge of the possible disciplinary consequences of the employee's conduct? a. Forewaming/forelmowledge orally by management, or in. ‘writing through notices or published workrules, . Certain offenses such as workplace violence or theft do not necessarily require written or oral warning due to their seriousness and reasonable expectation that they will not be tolerated. c, The employer has the right to promulgate reasonable rules and sive reasonable orders to its employees CConceming the question of whether or not the Grievant in the instant case-was given, proper notice, especially concerning consecutive failures to meat expectations, the evidence does not demonstrate clear communication of potentially harsh consequences. Hadthe Employer decided on a course of action whereby the Grievant's employment was headiag for the brink, it ‘was incumbent on the Employer to inform the Grievant that his employment was at risk. An. employee has a right to know not only what is expected of him but aso the likely consequences —ofnon-comptianoe— = ee: TEST 2-REASONABLE RULE OR ORDER ‘Was the employer’s rule or managerial order reasonable related ‘0 (e) the ordeiy, efficient, and safe operation of tho employer's ‘business, and (b) the performance that the employer might ‘properly expect ofthe enaployee? a. Hven if an employee sees Ba policy as unreasonable they nonetheless saust obey unless they {eel that obeying would seriously or immediately jeopardize their ‘personal saféty or cause them to violate the lew. ‘While it is most assuredty proper for an employer to promulgate rules and policies concerning job performance, standards must be fair, reasonable and clearly articulated. Employees must Imow what s expected of them, given a course of correstive action ifneeded and advised in reasonable fashion of their performance progress. Inte instant case, for the most ‘part, a reasonable rule is demonstrated to have been in place, [Tests 3 and 4 are combined for the purpose of tho instant case inquiry] ‘TEST 3— INVESTIGATION Did the employer, before adiinistering the discipline to an employee, make an effiott to discover whether the employee did in fact violate or disobey a rule or order of management? a, Employees have the right to know the offence with which they are being charged with reasonable precision so that they can. explain their behavior. ». The employer's investigation should normally be made before a disciplinary decision is made. : 6, Incestain circumstances under which management unist react immediately to the employee's behavior, the proper action is to suspend the employee pending investigation with the understanding that the final disciplinary decision will be made after the investigation. Ifthe employee is found innocent, he/she should be restored to their job with full_pay forthe time lost. ‘TEST 4~ FAIRNESS OF THE INVESTIGATION “Was the employet’s investigation conducted fairly and objectively? uw‘While the evidence does not demonstrate that a legitimate investigation was not conducted in a professional and objective manner, the record nevertheless reveals predisposition on the part of the Employer to impose the highest level of discipline, ‘TEST 5-PROOF During the investigation, did the employer obtain substantial Bvidlence or proof tht the employee was guilty as charged? a. The chirge against the employee must be reasonably clear and specific, There must be evidence that supports the charge, ‘The ‘proof of the charge must be collected and demonstrated at the time of disciplinary action, not after the fact, + ‘The employer mast prove just cause forts disciplinary action. ‘onthe basis of the facts and evidence it knew of at the time'the “decision was made. After the fact additions cannot be expected to sake up for the original lack of just canse, «. In disciplin, the employer bears the burden of proof. Ttis the employer who must prove the employee guilty, not the employee ‘who must prove themselves not guilty. d, The evidence must be substmntial rather than that founded on suspicions, assumptions, possibilities, unsupported opinions, and. coincidences. Even the strongest showing of good faith can not make up for the absences of solid proof, In cases of discharge and ‘gross misconduct, “clear and convincing evidence” is a common ‘standards. and had been counseled by the Department. ‘The evidence falls short, however, of proving that ‘the Grievant had committed acts that justify his termination. While he is found to have made anistakes and to have acted impropedy is certain instances, there is a lack of competent, 1B -Granted,the record discloses proof thet the'Griovant had- committed certain infinetions.-— +=: =~compelling evidence to support the contention that his conduct had risen to the egregious career ending level of gross insubordination or willful untrathfiiness. ‘TEST 6- EQUAL TREATMENT “Has the employer applied its rules, onders and penalties evenhandedly and without discrimination? a. Have similarly situated employees been treated in a similar ‘mannec? ‘While the Grievant had been singled out-for heightened sorutiny, it cannot be conciuded ‘rom the record that he had been subjected to a significantly detrimental level of disparate treatment, . TEST 7-PENALTY ‘Was the degree of discipline administered by the employer reasonably related to the seriousness of the employee's overall record? 4. A trivial offense does not merit harsh discipline unless the employes has been propesty found guilty ofthe same or other offenses a number of times. Even fora fin offense, however, ‘highly serious misconduct can reasonably support discharge regardless of an employee's record. b, Jean employee's record is significantly worse than records of other offending employees, the employer may properly impose — ‘pier discipline tien iat given tb othéts fbi te sims offEne, Conceming the Employer's right to impose its chosen level of discipline, where discipline is found to be devold of discriminatory or arbitrary and capricious factors, arbitrators are often reluctant to substitute their judgments forthose of employers. Inthe instant case, 16however, facts that emerge ftom the record disclose an arbitrary imposition of discipline that yields substantial mitigation. ‘The Grievant.is found to have committed infractions. His entire record with the Department including the instant case incidents, howeves, compared side-by-side with the Employer's arguments in favor af workplace “capital punishment” produce a conclusion * that differs from the Employer's determination. DECISION ‘While the Employer is fundamentally correct in concluding that the Grievant had failed to, “repair his conduct and work within the policies and procedures of the Department” the resultant disciplinary response is found to be unwarranted. The insubordination charge for {ling to activate « mobile video / audio recording device (“MDT") prior to making contact with ‘Dascoulias on September 28, 2010 is found to more closely approximate neglectfiil oversight rather than an instance of gross and wanton insubordination. ‘The evidence leads to @ similac * conciusion regarding the Grievant's fillure fo attach to an arrest report fo a picture thet was taken ‘of Dascoulias’ face following the same September incident. Concerning an alleged failure to ‘orto an accurate and truthful report, the Grievant's omissions again emerge ftom the record as ovidence of sloppy and inattentivé work products rather than gross disregard for clear supervisory direotives. Finally, the lok of unmistakable notice to the Grievant that discharge ‘was looming cither through explicit wamings or increasingly stronger discipline such as that contemplated within the Famployer’s pois belies ex attempt bythe Department to correct ‘what has been desribed as eantimlly detsioating condut. Hed the Employer, concding ‘thatthe Grievant’s behavior was rapidly dectining, meted out increasingly harsh penalties and ‘warnings, the Grievant may well have heeded those mosseges and changed his ways, Had he on Ww‘the other hand, chosen to ignore unmistakable sanctions, he would have had only himself to blame for the forféiture of his career. What is ultimately revealod through a thorough examination of the record is the case of an intense officer, “high performing” according toe former supervisor but a loose cannon by other accounts, whose aggressive style hns endeared himself nether to the Employer norto a numberof citizens. Although aspects of the Grievant's actions incnding his often hardline . interactions with the citizenry do raise legitimate questions about the propriety of bis conduct, i the totality of the record fills short of epporting the penalty of discharge. Rather, although the ’ Grievant's deficioncies cannot be taken lightly, convincing evidence leads tothe contusion that the Grievant is deserving of another chance. 18AWARD ‘The Grievant shall be retummed to his position as a Police Officer as of Tanoary 1, 2012, at the rate of pay in effect as of that dete and his seniority shall borestored, As the result of his overall conduct, the Grievant shall have served disciplinary suspension without pay for all but a period of six (6) months during his absence ftom duty. ‘The Grievant atthe Exaployer’s discretion and expense _ shall be subject tofcounseting concerning the duties of his position}as well as to any seasitivity/anger management trainings deemed necessary by the Employer. ‘The Grievant shall receive six (6) months back pay calculated on the basis of his regular duty hours at the rate in effect for officers offhis rank and seniority atthe time of his reinstatement. Back pay shall be reduced by the amount of the Grievant's outside job earnings and by any unemployment benefits received daring the entire period of iis absence. ‘The Grievant shall be compensated for any medical expenses he and his covered dependents incurred due to his loss of ‘Employer sponsored health/dental insurance coverage during the entirety of his absence. “Tho undersigned Arbitrator shall maintain jurisdiofion in matters of disputes concerning implementation of the Award. December 12, 2011 ‘Thomas G. Humphries Arbitrator Fort Lauderdale, Florida 19ARBITRATION AWARD Federal Mediation & Conciliation Service Case No,14-02932-3 ISSUE: Dismissal ~ J. Dertig Arbitrator: Frank J. Squillace In the Matter of Arbitration Between City of Marco Island, Florida Police Department (Police Department / City / Employer) Representative: Amy Garrard, Esq. and Florida Police Benevolent Association Gulf Coast Chapter (Union / Employee) Representative: Michael Braverman, Esq. PRELIMINARY STATEMENT The Hearing of this matter was conducted on April 21, 22, 23, and August 4, 5, 6, 25, 2015, at the Marco Island City Hall Conference Room. The Arbitration Hearing procedure was in accordance with the Collective Bargaining Agreement and the Federal Mediation and Conciliation Service selection process. The Parties were granted equal and reasonable opportunities to present their cases, Witnesses were administered an ath prior to their testimony. The parties engaged in examination and cross-examination of witnesses, and submitted exhibits, The Arbitrator received the Transcripts of the Hearing on September 8, and October 29, 2015. The Post Hearing Briefs were received on November 13, 2015. BAC OUND ‘The Employer's Police Chief is responsible for the supervision of the Police Department staff which fs comprised of thirty-six police officers. The Department staff protects the citizens of the City of Marco Island. The Public expects a police officer to provide reliable services exercising high standards of conduct and behavior on duty. Police officers are to carry out their law enforcement duties in accordance with established guidelines and work standards. However, Police Officer John Derrig (the Grievant), in carrying out his responsibilities, did not comply with the Police Department's Rules, Procedures, General Orders and Directives. He committed acts of misconduct and exhibited less than acceptable work performance. His irresponsible and improper behavior led to his dismissal from the City of Marco Island Police Department.However, Officer Derrig denied he violated work policies, orders and procedures. He contends he was treated unfairly and unreasonably by the Police Department Administrators. Due to exercising his contractual right to protect his job security and good name, the Employer held a bias against him. The City's charges against him were without foundation. His firing was not justified. He wishes to have his dismissal revoked. ISSUE Did the City of Marco Island Police Department have just cause to terminate Officer Dertig? If not, what is the appropriate remedy? Note: In this case, the Issue of retaliation and discrimination against the Grievant is subsumed in the just cause principle review. POLICE DEPARTMENT / EMPLOYER POSITION Officer Derrig was dismissed on June 17, 2014 because he violated Police Department Manual Rules and Regulations, five (5) General Orders and Directives. Officer Derrig committed serious offences. Specifically, he was guilty of misconduct and being untruthful: 1. An Internal Affairs Investigation disclosed that officer Derrig was untruthful about what transpired at the Bombay Club Parking lot. He lied when he tumed in an Incident Report that was inaccurate and misleading. The Report was deliberately designed not to mention his assault on . Dertig applied greater force than was necessary to control a situation. He deliberately tried to cover up his Department rule violations. Officer Derrig did not submit a Use of Force Report even though he engaged in a physical attack on subject ‘aquired medical attention. Itwas apparent that Officer Derrig misused his authority in violation of General Order 401-Authority (101.2 Law Enforcement Authority). 2, The second Internal Investigation (beginning September, 2013) found that Officer Dertig wrongly initiated an unwarranted Vehicle Pursuit and Arrest. When he apprehended , the police skills Derrig utilized were highly questionable. He violated General Order Pursuit policies. He ‘called out" a gunpoint alert for what was actually an ordinary Traffic Stop. He drew his firearm and held at gunpoint for no good reason. The arrest of. was inappropriate and unreasonable. Officer Derrig used poor judgment. He needed to be disciplined. Hence, the charges that led to Officer Derrig’s termination included: 1. Unnecessary excessive Use of Force 2. Inadequate and incomplete Report Writing 3. Intentionally misleading supervisors-lying 4. Failure to submit a Use of Force Report 5. Battery — Misuse of Law Enforcement Authority 6. inappropriately suggesting the need to accessa Sergeant's work phone (Conduct). Thus, the Police Chief testified that due to the totality of Derrig’s Violations, he was discharged from the Marco Island Police Department. Asa result of the Vehicle Pursuit incident, the Police Chief called a meeting of the entire SQUAD. The police officers who assisted officer Derrig at the scene wanted to express their concems about officer Derrig’s judgment calls and law enforcement techniques he applied in the... Traffic Stop. The Police Chief listened to their comments. Then, on October 4, 2013, the Chief took Officer Derrig off the road and assigned him to temporary duties. In addition, the Police Chief received many citizens’ complaints claiming they were mistreated by Officer Derrig. Dertig exhibited some bad behavior moves. He was accused of unnecessarily coercing subjects, racial profiling, rudeness and harassment. Overall, his work performance was inconsistent with the requirements of good police operating standards. Furthermore, Officer Derrig's personnel file showed he committed additional work place infractions. He disregarded work rules. In January, 2012, he was issued a Counseling Form for Incompetency; he failed to thoroughly review the Police Policy Manual and thirteen General Orders as directed. Next, on March 6, 2013, he was given a Counseling Form charging him with Absenteeism. He failed to show up for his Farmers’ Market detail. Finally, the City could no longer tolerate Officer Derrig’s acts of misconduct and poor decision-making. Officer Derrig caused his own problems. He was not discriminated against for his use of the Grievance Procedure in a prior dispute. Therefore, the City properly and justifiably used its management rights to dismiss Officer Derrig, The grievance should be denied in its entirety. UNION / EMPLOYEE POSITION A previous Arbitration Award in December, 2011 overturned Officer Derrig's prior termination and reinstated him to a Patrol Officer position in January, 2012. Itis the Position of the Union that Police Chief D. Hunter had a certain aversion about a previously fired police employee returning to his staff command. With an arbitrator's decision, an unwanted police officer was placed on the Chief's personnel force. From that time on, the Police Department administrators’ supervisory pressure on Officer Derrig was relentless and never ending. Hence, Officer Derrig was retaliated against from the time he was reinstated after his prior disciplinary action, to the point he was separated again on June 17, 2014. The Union explained that the Marco Island Police Department experienced frequent changes in Police Chiefs and police staff. As an example, the Turnover rate of the patrol officers under Police Chief Hunter was inordinate. Police officers testified that theyresigned from the Department because they were dealt with unfairly by the Police Depariment administrators. The Police Chief created tension among the staff members. Thus, the Union noted that Officer Derrig tried to carry out his duties in the same negative environment. He worked under the same pressure. In the early morning of January 1, 2008, at the Marco Island Bombay Club, Officer Derrig did not use excessive force on individual, —_ However, the Police Chief, with information he received from Officer K. Petit, claimed Officer Dertig lied about the whole Bombay Club incident with He went through great lengths to support his belief. The City presented Derrig's alleged assault / battery situation to the Florida State Attomiey's Office, the Federal Bureau of Investigation and the Florida Department of Law Enforcement. After a review of Officer Derrig's police actions, the two Agencies and the Department all decided there was no cause for prosecuting Officer Derrig for a criminal act, Yet, even with the responses clearing Officer Derrig, the Police Chief still continued to press the matter. He believed Officer Derrig committed a battery charge when he “broke up a fight” involving Therefore, on December 3, 2013, the Police Chief submitted his Investigation Findings and Recommendations to the Marco Island City Manager. The Chief recommended Officer Derrig be separated from the Marco Island Police Department. Derrig did not, comply with direct orders and failed to tall the truth about his interactions with However, Officer Derrig maintained that Officer Peti’s story that he physically attackes Was untrue. {In addition, the City continued to find fault with the quality of Officer Derrig's police work performance. In October, 2013, the Police Chief opened an intemal Affairs Investigation concerning a happening on August 18, 2013 wherein Officer Dertig stopped a ina Vehicle Pursuit situation. was apprehended. But the Police Chief claimed, in the process of making the arrest, Officer Derrig violated police rules and procedures including Police Department General Orders 102, 502, and 602. ‘The Police Chief said Officer Derrig: 1. Initiated an unnecessary pursuit 2. Unnecessatily used an act of deadly force when he drew his weapon and pointed it at 3. Had Reckless Disregard for his fellow officers who assisted him. 4. Failed to properly complete a Use of Force Report Form (offence Incident Report). 5. Improper Seizure and Search. However, the Union points out that the Police Chief's accusations are another example of charges being assessed without foundation. The blame voiced by the Police Chief led to Derrig's dismissal. Accordingly, Officer Derrig responded by claiming he had good cause to pursue "The Arrest Report he submitted on August 18, 2013 gives a full and accurate explanation of what transpired when he apprehended . Sat.Giansanti verified the Report. Also, the Car Videos show Officer Derrig treated the Eluding and Fleeing situation in a professional and reasonable manner. ‘The Arbitration Award also recommended training and counseling for Officer Derr, Derrig was required to attend programs and complete reading assignments that would free him of deficiencies and improprieties and help him return to full-time police officer patrol duties. The Police Chief believed Derrig's assignments would help him to adjust fo going back on the road. However, Officer Derrig believed his superiors relegated him to duties and tasks that were difficult to complete and belitting to a law enforcement officer. Some tasks were petty and objectionable to a police officer. For example, Officer Derrig was ordered to put together glow sticks for the children’s Halloween event. He took reports for Walk Ins. He did foreign based Commercial Vehicle Reviews. Also, Derrig was directed to wash cars. This led Officer Derrig to believe the Police Department administrators designed his rehabilitation program to be more punitive than beneficial. Contrary to the Police Chiefs insinuations that Officer Derrig's police work was of inferior quality, most of his Performance Evaluation Rating Levels were °6's’- substantially exceeds expectations and "4’s"-exceeds expectations. Moreover, Officer Derrig received a number of positive statements about the quality of his law enforcement work. The October 31, 2012, memo from Sgt. Diaz to Chief Hunter states: “Officer Derrig consistently follows procedure while investigating crime; Very thorough while completing reports; Officer Derrig willing to lend a hand to assist his fellow officers.” Also, in a February, 2013 memo by Sgt. Spina, he writes “Derrig is conscientious of Officer Safety; he has good knowledge of Florida law; his reports are completed in an orderly manner; he has the highest arrest statistics in the Agency.” Nevertheless, even with all the commendations, compliments, Awards and letters praising Officer Derrig's performance, the Union maintained that the Police Chief and Assistant Police Chief continued to besmirch Officer Derrig's individual character and discredit the quality of his police work. Consequently, the Union contends that the Chief of Police intentionally and deliberately portrayed negative descriptions of Officer Derrig that were superficial and lacked evidentiary value. He no longer wanted Derrig on his Police Department staff. Finally Officer Derrig was treated unfairly and unreasonably. The City violated the just cause provision when it executed a wrongful discharge against Officer Derrig. Hence, Officer Derrig’s grievance should be honored. He should be reinstated and made whole. DISCUSSION AND OPINION ‘Bombay Club Disturbance Police Chief Hunter received Officer K. Petit's information that Officer Derrig engaged in an assault at the Marco Island Bombay Club on January 1, 2008. The Police Chief