AMERIATION

IN THE MATTER OF THE ARBITRATION BETWEEN

Cleveland Police Patrolmen’s : Case No.: 01-17-0003-7907

Association, :
: Grievance: Suspension
Union, :
: Grievant: Frank Garmback III
and :
: Arbitrator’s File No.: 17038
City of Cleveland, :
: April 4, 2018
Employer, :

APPEARANCES

For the Union:

Henry Hilow, Attorney

Brian Moriarty, Attorney
Steve Loomis, President
William Gonzalez, Vice President
Frank Garmback, Grievant
George Kwan, Patrol Officer

For the Company:

George Crisci, Attorney

Michael McGrath, Public Safety Director
Calvin Williams, Chief
Dornat Drummond, Deputy Chief

Daniel G. Zeiser
Arbitrator
P.O. Box 43280
Cleveland, Ohio 44143-0280
440.449.9311
Email: danzeiser@aol.com

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I. BACKGROUND

The grievance giving rise to this arbitration was submitted in writing and received

by the Employer on May 30, 2017. It was processed in accordance with Article XXII of

the Agreement between The City of Cleveland (Employer or City) and Cleveland Police

Patrolmen’s Association (C.P.P.A) Non-Civilian Personnel (CPPA or Union), Effective

through April 1, 2013 through March 31, 2016 (Agreement), which continued in effect

through the date of the grievance. After unsuccessful attempts to resolve the grievance,

it was submitted to arbitration pursuant to Paragraph 51 Step 4 of the Agreement. Using

the services of the American Arbitration Association (AAA), this Arbitrator was selected.

The arbitration hearing took place on October 18 and 19 and November 7, 2017

at Burke Lakefront Airport, 1501 North Marginal Road, Cleveland, Ohio. During the

hearing, the parties had the full opportunity to examine and cross-examine witnesses,

introduce relevant exhibits, and argue their positions. Witnesses were sworn and

separated. Both parties raised an issue of arbitrability. The Union alleged that the

Employer failed to meet the time limit for filing administrative charges against the

Grievant, while the Employer submitted that the Union did not provide the proper notice

of arbitration and the grievance was filed at the incorrect step. The parties agreed that

the Arbitrator would rule on the arbitrability issues and the merits of the grievance in this

Opinion and Award. They timely submitted briefs to the Arbitrator no later than March 5,

2018 and the matter was submitted.

II. ISSUE

The parties stipulated that the issue in this matter was:

Whether there was just cause for the ten day suspension of the Grievant?
If not, what shall be the remedy?

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III. RELEVANT PROVISIONS OF THE AGREEMENT AND EMPLOYER POLICY

WITNESSETH

The parties acknowledge that during the negotiations and/or interest arbitration which
resulted in this Contract each had the unlimited right and opportunity to make demands
and proposals with respect to any subject or matter not removed by law or regulation
from the area of collective bargaining and that the understanding and agreements
arrived at by the parties after the exercise of those right and opportunities are set forth
in this Contract. Therefore, the parties voluntarily waive the right to demand new
proposals on any subject or matter, not included herein, during the term of this Contract,
even though such subject matter may not have been within the knowledge or
contemplation of either or both of the parties at the time they negotiated or signed this
Contract. If an agreement is reached between the CPPA and the City, any such
supplemental agreement shall be in writing and subject to the prior approval of the
Executive Board of the CPPA and the City or their respective designated
representatives.

ARTICLE IV
MANAGEMENT RIGHTS

(4) Except as expressly limited by the terms of this Contract, any and all rights
concerned with the management of the Division of Police are the exclusive and sole
responsibility player. It is further recognized that the City has the right to:

(e) suspend, discipline, demote or discharge for just cause, layoff [sic],
transfer, assign, schedule, promote, or retain employees…

ARTICLE VIII
BILL OF RIGHTS

(12) Bargaining unit members shall be entitled to the following rights:

(l) In such cases where the administrative investigation is initiated

without a citizens’ [sic] complaint, in the investigation could not lead to criminal charges,
the City shall not bring administrative charges later than one (1) year after the date
within which the Chief had knowledge of the alleged violation. If the administrative
charges are not brought within one (1) year, the accused member may be ordered to
respond to the complaint and to the investigation, but shall not be subject to disciplinary
action. The City may be granted an additional ninety (90) days for good cause shown.

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 ARTICLE XXII
GRIEVANCE PROCEDURE

(50) It is mutually agreed that the prompt presentation and settling of

grievances is to the benefit of both the City of Cleveland and the members of the
bargaining unit. Discipline shall fall under the grievance procedure and shall be based
upon internal investigation within the Department of Public Safety.

(51) The term “grievance” shall mean any dispute arising out of or connected
with the subject matter of this Contract or the interpretation, application or enforcement
of any of its terms.

Step 4. If any grievance is not satisfactorily settled by the Safety Director or

pursuant to Step 3-A, the Union, and only the Union, may submit the matter to
arbitration within thirty (30) calendar days after the receipt of the answer. The Union
shall notify the American Arbitration Association and the City at the same time of its
intent to appeal the grievance…

The time limits set forth in the Grievance Procedure shall, unless by mutual
written agreement of the City and the Union, be binding, and any grievances not timely
presented, or timely processed thereafter, shall not be considered a grievance under
this Contract and shall not be arbitrable. Any grievance not timely processed by the City
at any of the preceding steps may be placed by the Union in the next Step.

Calendar days as provided within the Grievance Procedure shall not include
Saturdays, Sundays or Holidays.

MANUAL OF RULES AND REGULATIONS

STATEMENT OF POLICY

The rules of conduct contained in this manual are administered under the provisions of
the Charter of the City of Cleveland and the laws of the State of Ohio and are published
for the governance, discipline and administration of officers and employees of the
Division of Police.

The Manual of Rules and Regulations sets forth the conduct and behavior to be
followed by officers and employees. Any violation of these rules and regulations shall be
a basis for disciplinary action. Disciplinary action includes, but is not limited to, verbal
and written reprimands and the preferring of divisional charges which can result in
suspension, loss of pay, demotion or termination. The rules, regulations, and standards
contained in this manual shall apply whether the officer of employee is on or off duty.
Where a conflict exists between a Rule and Regulation and General Police Order, the
Rule or Regulation provision shall be adhered to.

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…

I. SWORN POLICE RANKS

1.07: Patrol Officer

Patrol Officers shall be held responsible for the good order of their
assignment and shall be prepared at all times to inform their superior
officers of the conditions of their post, beat, or zone.

They shall be under the immediate supervision of the head of the

administrative unit to which assigned. They shall perform such duties and
work such hours as designated by their superior officer. They shall
cooperate with all other personnel in the performance of police duties.

They shall acquire a thorough knowledge of the criminal laws and the
rules of evidence so that they may carry out their duties in an efficient
manner.

II. ADMINISTRATIVE COMPLIANCE

2.02 Personnel shall not willfully disobey any rules, General Police Orders or
directives of the Division of Police, or any lawful orders, written or oral, issued to
them by a superior officer of the Division of Police.

2.03 Personnel shall perform all duties required by rules, General Police Orders,
directives, or orders of the Division of Police.

2.04 Personnel shall study all rules, General Police Orders and directives pertaining to
their duties, and shall be held accountable for any action contrary to these
instructions.

2.14 The following are additional grounds for disciplining personnel, including removal,
in addition to the grounds stated in Civil Service Commission rule 9.10:

a. Incompetence
b. Gross neglect of duty
c. Gross immorality
d. Habitual drunkenness
e. Failure to obey orders given by proper authority

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 f. Any other reasonable and just cause

IV. DUTY

4.05 Officers shall use only the amount of force reasonably necessary to effect the
arrest and detention of subjects as governed by Division of Police policy and
directives.

VII. COMMUNICATION

7.03 Personnel shall report arrival time to the radio dispatcher immediately upon
arriving at the location of a radio assignment.

GENERAL POLICE ORDERS

General Police Order 1.1.01

CITY OF CLEVELAND MISSION STATEMENT AND ETHICS POLICY

PURPOSE: To establish a Mission Statement that provides vision, purpose and

direction for the Division of Police and to establish an ethics policy to
guide the actions of all its members.

POLICY: Members of the Division of Police shall carry out their mission in
accordance with the strictest ethical guidelines. Division members shall
conduct themselves in a manner that fosters public confidence in the
integrity of Cleveland’s government, its processes, and its
accomplishments. Members of the Division of Police shall be guided by
the values expressed in the City of Cleveland Mission Statement, the City
of Cleveland Ethics Policy, and the Division of Police Manual of Rules and
Regulations.

City of Cleveland Mission Statement

We are committed to improving the quality of life in the City of Cleveland by

strengthening our neighborhoods, delivering superior services, embracing the
diversity of our citizens and making Cleveland a desirable, safe city in which to
live, work, raise a family, shop, study, play and grow old.

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General Police Order 1.1.02
VALUES MISSION STATEMENT

PURPOSE: To establish a Values Mission Statement for the Division of Police that
provides vision, purpose and direction for the members of the Division.

POLICY: Members of the Division of Police shall not only be guided by the City
Mission Statement, but by the values that the members of the Division
shall live by.

Values Mission Statement of the Cleveland Division of Police

The Mission of the members of the Cleveland Division of Police is to enhance the
quality of life, strengthen our neighborhoods and deliver superior services with
professionalism, respect, integrity, dedication and excellence by working in partnership
with our neighborhoods and community.

Professionalism We take pride in ourselves, our profession and our community. We

will be role models for our community by enthusiastically excelling
in quality performance.

Respect We will treat all people with dignity, compassion, courtesy and
without prejudice. We will protect the constitutional and civil rights
of everyone through impartial enforcement of the law.

Integrity We hold ourselves accountable to the highest standards of moral

and ethical conduct, we maintain public trust by being honest,
competent and consistent with our values and actions.

Dedication We dedicate ourselves to improving the quality of life by developing

a partnership with the community and being committed to
protecting life and property, thus reducing fear which leads to a
safer community for all.

Excellence We hold ourselves to the highest standards of law enforcement. We

will continuously improve the quality of service to the community
through education, training and development.

We the members of the Cleveland Division of Police take P.R.I.D.E. in the

community that we serve.

General Police Order 1.1.11

DISCIPLINARY GUIDANCE

PURPOSE: To establish guidelines for the imposition of discipline within the Cleveland
Division of Police. Written guidelines provide all members of the Division

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 the assurance that discipline will be imposed in an equitable manner while
providing management with the discretion necessary to maintain the
fairness and the good order of the Division.

POLICY: To ensure compliance to all laws of the United States, the State of Ohio,
the Charter provisions and ordinances of the City of Cleveland, and the
written directives of the Division of Police and the City of Cleveland.
Additionally, members of the Division shall be responsible for adherence to
all criminal laws in the jurisdictions in which they may be traveling.

An effective discipline system is one that is based on the principles of

fairness and consistency. It reflects the values of the Division while
protecting the rights of both officers and citizens. The system strives to
encourage respect and trust among members of the Division and the
community in overseeing the Division’s employees’ adherence to laws,
policies, procedures, and directives. The establishment of Disciplinary
Guidance is intended to create a culture of public accountability and
promote individual responsibility while maintaining the highest standards
of professionalism in policing.

Supervisors shall follow the contractual procedures of the respective

bargaining units.

Disciplinary Guidance is designed to accomplish the following goals:

1. Establish standards of corrective action to encourage compliance with

all applicable laws, ordinances, rules, and directives.

2. Delineate categories of conduct for specific policy violations.

3. Outline specific discipline ranges within those categories and for

specific policy violations based upon the severity of offenses.

4. Give notice to officers and the community of the likely sanction for a
particular violation.

5. Identify aggravating and acceptable mitigating circumstance

requirements.

6. Provide the framework for consistent and fair discipline.

I. Table of Discipline

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A. The Table of Discipline shall outline guidelines for discipline for specific
types of policy/procedural/protocol/rule violations so that discipline for
sustained violations may be imposed in a fair and consistent manner.
Exacerbating or mitigating factors may result in discipline being imposed
that is greater or lesser than that which will generally be imposed
according to the disciplinary matrix and will be documented in the
disciplinary letter.

1. All final decisions regarding discipline up to and including a 10-day

suspension rest with the Chief of Police. The Chief of Police
reserves the right to hold any number of suspension days in
abeyance for 2 years, and may impose those days in addition to
any subsequent disciplinary action in the intervening 2 years.

2. All final decisions regarding discipline greater than a 10-day

suspension, demotion, and termination rest with the appointing
authority (Director of Public Safety). The Director of Public Safety
also reserves the right to hold any number of suspension days in
abeyance for 2 years, and may impose those days in addition to
any subsequent disciplinary action in the intervening 2 years.

B. The Table of Discipline will be reviewed and revised as necessary on an

annual basis by the Case Preparation Officer with the consultation of the
Chief of Police to ensure that it represents current law enforcement values
and standards.

C. Unacceptable conduct is divided into three groups of offenses based on its

seriousness. The severity of the discipline chosen shall fit the seriousness
of the offense. If there are mitigating circumstances, supervisors shall
include them in their request for discipline.

D. Three or more sustained violations in a lower category occurring within

two years of the first sustained violation automatically progresses the
discipline into the next higher group.

E. Multiple offenses arising from a single event or incident may escalate the
discipline action to the maximum group range.

F. Procedural steps for imposing discipline are set forth below. The failure
of a supervisor to follow these procedural steps will not, by itself, make the
discipline invalid or improper, but an employee may separately grieve a
supervisor’s failure to follow appropriate procedure, provided that such
grievance is filed in a timely manner. The sole remedy for such grievance
shall be correction of the procedural error.

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The following are examples of offenses within each disciplinary category.
The offenses listed are not intended to be all inclusive.

1. Group I Offenses
- Absence from duty without leave
- Court, Failure to Appear
- Discourtesy
- Equipment, Failure to properly control or maintain
- Equipment, Unauthorized
- Erroneous daily duty report
- Failure to notify supervisor
- Firearms, Unattended, careless handling (no injury)
- Grooming and Uniform regulations, Violations of
- Leaving district, or city without supervisory approval
- Mishandling or improper preparation of criminal or traffic case
resulting in prosecutorial declination to prosecute or dismissal -
Parking, Illegal parking of police vehicle
- Police vehicle, Failure to properly maintain, preventable motor
vehicle accidents on duty
- Police vehicle operations, flagrant violations (e.g. excessive
speed)
- Prisoners, Improper booking failure to properly secure, search,
handcuff
- Reports, Failure to submit or timeliness, failure to notify supervisor
- Response status, improper or unauthorized emergency response
- Secondary employment, unapproved (1 day suspension for first
offense)
- Tardiness
- Traffic laws, Violation of minor traffic laws
- Unsatisfactory performance
- Vehicular pursuit/Emergency Driving, Unauthorized/Improper -
Zone, leaving without supervisory approval
- Other similar violations

2. Group II Offenses
- Abusive/demeaning language
- Calls for Service, Failure to respond, investigate, arrest, and/or
properly clear
- Conduct unbecoming
- Harassment
- Insubordination
- Misconduct, to other officers or citizens
- Prisoners, Failure to properly search or secure resulting in escape
or discovery of weapon or contraband
- Sleeping on duty
- Social media policy, violations of

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 - Other similar violations

3. Group III Offenses

- Alcohol-related offenses
- Criminal law offenses
- Alcohol/Drug use on duty
- Drug-related offenses
- Firearms violations, Careless handling resulting in injury
- Firearms violations, (e.g. unreported discharges)
- Force, Excessive use of
- Gross immorality
- Neglect of Duty
- Operating motor vehicle while privilege revoked or suspended
- Police vehicle, Operation of after consuming alcohol and/or drugs
- Reports, False
- Statements, False
- Engaging in sexual activities while on duty
- Other similar violations

D. Ranges of Non-Disciplinary and Disciplinary Actions

1. Group I Offenses - Disciplinary action shall range from non-

disciplinary Verbal Counseling to a 5 day suspension without pay.
Suspension days, including any number of which may be held in
abeyance, shall be determined at the discretion of the Chief of
Police.

a. First offense, mitigating factors, no prior disciplinary or non-

disciplinary action (non-disciplinary Verbal Counseling-
Written Reprimand)

b. First offense, aggravating factors, no prior disciplinary or

non-disciplinary action (1 to 2 day suspension without pay)

c. Second offense, mitigating factors (2 to 3 day suspension

without pay)

d. Second offense, aggravating factors (3 to 5 day suspension

without pay)

2. Group II Offenses - Disciplinary action shall range from a 6 day to

a 10 day suspension without pay. Suspension days, including any
number of which may be held in abeyance, shall be determined at
the discretion of the Chief of Police.

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 a. First offense, no prior discipline or non-disciplinary action (6
to 8 day suspension without pay)

b. Second offense (8 to 10 day suspension without pay)

3. Group III Offenses - Disciplinary action shall range from a 10 day

suspension to temporary or permanent demotion to termination.
Suspension days, including any number of which may be held in
abeyance, shall be determined at the discretion of Director of Public
Safety.

a. First offense, no prior discipline or non-disciplinary action (up

to 30 day suspension without pay)
b. First offense, criminal law offenses, drug offenses, drinking
on duty, gross immorality offenses, gross neglect of duty,
probationary status employees (up to 30 day suspension
without pay, demotion, termination)

c. Second offense (up to 30 day suspension without pay,

demotion, termination)

E. The ranges of discipline indicated serve as a guide only. Actual discipline

for each range may vary. However, the Division shall ensure that discipline
is applied consistently within that range. For example, two employees with
identical first-time Group II infractions without any mitigating
circumstances should not result in one employee being disciplined with a
6 day suspension and the other with a 20 day suspension.

F. For members of the Cleveland Police Patrolmen’s Association (CPPA),

written reprimands shall not be considered after six (6) months from the
date the discipline was administered. Suspensions shall not be considered
after two (2) years from the date the discipline was administered.

G. For members of the Fraternal Order of Police, Lodge 8 (FOP), all

disciplinary actions or penalties will not be considered after two (2) years
from the date of action.

General Police Order 2.1.01

USE OF FORCE

PURPOSE: To establish guidelines for members of the Cleveland Division of Police

relative to the use of force. To provide direction and clarity in those
instances when a person’s actions require an appropriate use of force
response.
POLICY: A respect for human life shall guide members in the use of force. Division
members shall use only the force that is objectively reasonable to

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 effectively bring an incident under control, while protecting the life of the
member or others. Excessive force is strictly prohibited.

A member’s responsibility is the protection of the public. Standards for the

use of force are the same on-duty and off-duty. Members shall not use
force that may injure bystanders or hostages, except to preserve life or
prevent serious bodily injury. Deadly force is never justified solely to
protect property. The use of force is not left to the unregulated discretion of
the involved member. Use of force decisions are dictated by the actions of
the resistant or combative person, Division policy, proper tactics, and
training. Justification for the use of force is limited to the facts actually
known or reasonably perceived by the member at the moment that force is
used. Deadly force shall not be used to effect an arrest or prevent the
escape of a person unless that person presents an imminent threat of
death or serious bodily injury to members or others.

General Police Order 3.3.01

ACTIVE SHOOTER RESPONSE

PURPOSE: To empower the patrol officer or first responder to confront an active

shooter when any delayed response or a failure to act constitutes a
greater risk than waiting for a specialized response. To establish a plan of
action for first responders to follow when such an active shooter event
occurs.

POLICY: In order to prevent death or serious harm to innocent persons, officers

responding to an active shooter incident shall have the authority to and
shall attempt to make immediate contact with and stop the active shooter.
Secondarily, responding officers shall deny the active shooter access to
additional victims and shall rescue injured/potential victims. Officers shall
rely on their Rapid Action Immediate Deployment (RAID) training to
quickly and efficiently mount an immediate response prior to the
availability of a tactical unit. In active situations, delayed response can
result in additional loss of life or serious physical harm.

This policy shall not be construed to mandate that responding officers

place themselves in harm’s way in a manner that is beyond what is
reasonably and objectively expected based upon the officers’ skill,
training, experience, equipment, and responding environment. RAID
deployment is not a substitute for specialized response by officers
specifically trained for such encounters.

DEFINITIONS:

Active Shooter: The suspect's activity and use of a firearm (or any other deadly
instrument, device, machine, dangerous ordnance, or deadly hazard) is causing or

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attempting to cause immediate death and/or serious physical harm in a well populated
area (target rich environment), such as a school, church, business, or any other public
place. The activity is continuing and there is an immediate and ongoing threat of death
or serious physical harm to potential victims. Escape from a law-enforcement response
is not a priority of the active shooter…

CIVIL SERVICE COMMISSION RULES

RULE 9.00
DISCHARGES, SUSPENSIONS AND DEMOTIONS

9.10 Tenure

The tenure of every officer or employee in the classified service shall be during
good behavior and efficient service.

No such officer or employee shall be discharged, suspended, or demoted for

political, racial or religious reasons, or for refusing to contribute to any political
fund, or refusal to render political service.

But any officer or employee in the classified service may be discharged,

suspended, or reduced in rank for any one or more of the following causes:
1. Neglect of duty.
…
3. Incompetence or inefficiency in performance of duties.
…
5. Conduct unbecoming an employee in the public service.
…
18. For other failure of good behavior which is detrimental to the service, or for
any other act of misfeasance, malfeasance, or nonfeasance in office.

IV. FACTS

The City is the largest municipality in northeast Ohio, with an estimated

population of 385,000. Its Division of Police falls within the Department of Public Safety.

The Division has issues a Manual of Rules as well as a number of General Police

Orders (GPOs) covering various subjects. (CX 1-4, 23-24). One of the GPOs is titled

“Disciplinary Guidance.” (CX 1). The Division uses it as guidance to ensure that

discipline complies with the law and is fair. The CPPA represents the Patrol Officers in

the Division of Police. (JX 1). The parties have had a collective bargaining relationship

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for decades. The Grievant joined the Division in 2008 as a Patrol Officer. He was

assigned to the First and Third Districts and became a Field Training Officer (FTO) in

2014. An FTO must have at least three years of experience and a good reputation in the

Division. Selected by a committee, an FTO is a certified patrol officer who is tasked with

the teaching, coaching, mentoring, and evaluation of a Probationary Patrol Officer

(PPO) during the PPOs training period. (CX 24). The Grievant was a Patrol Officer and

an FTO at the time of the suspension at issue here. He had no prior discipline.

On November 22, 2014, the Grievant was working on the B platoon (second

shift) in the First District. The B platoon began at 14:30 (2:30 p.m.). The Grievant was

assigned as the FTO to Probationary Patrol Officer Timothy Loehmann. Loehmann was

hired by the Division on March 3, 2014 and was still serving his training period. The

training of a PPO consists of several phases, including riding for eight weeks in a two-

person car. Loehmann was a PPO of approximately three months in Phase 5 of his

training, in his fifth or sixth week with the Grievant. Phase 5 involves:

6.5 Phase 5 (Patrol: Two-Officer Dispatch Phase)

Phase 5 is eight weeks assigned to a two-officer car in company with a FTO.

Phase 5 will focus on basic two-officer zone car related skills (investigations,
interviews, arrest procedures, verbal de-escalation, report writing, etc.). FTOs/
PPOs in Phase 5 are still responsible to handle any incident which they observe.

(CX 24, p. 13). In a two-person car, one is responsible for driving while the other

operates the radio.

On November 22, 2014, the Grievant and Loehmann were assigned to car 1

Adam 25. The vehicle was equipped with an Automatic Vehicle Locator (AVL). The

Grievant was the driver and Loehmann the passenger. For the five or six weeks with the

Grievant, Loehmann operated the radio while the Grievant drove. They worked well

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together and communicated well. After roll call, they serviced the cruiser and responded

to an alarm call at St. Ignatius Church at 10205 Lorain Road. (CX 15, p. 3; CX 17 p. 23).

At 15:24:56 (3:24:56 p.m.), Police Dispatch broadcast a Code 1. Code 1 is top

priority.

All right, 1524, broadcasting a code one, if anybody can break, at Cudell, in the
park by the youth center, supposed to be a male, sitting on the swings, pointing a
gun at people.

(CX 14). As all cars were busy, no one immediately responded. Dispatch contacted a

supervisor, who suggested pairing up two one-person cars. However, the alarm call at

St. Ignatius was resolved quickly and the Grievant instructed Loehmann to tell Dispatch

they would take the call. At 15:27:23, Loehmann radioed “Adam 25, we’ll take it. The

alarm checks okay.” Dispatch then provided the address and a description:

…Uh, it’s at Cudell Rec Center, Nineteen-ten West Boulevard, 1-9-1-0 West
Boulevard. Scott’s calling, he said in the park, by the youth center, there’s a black
male sitting on the swings. He’s wearing a camouflage hat and a gray jacket with
black sleeves, said he keeps pulling a gun out of his pants and pointing it at
people. Code One, CAD is 8418, eighty-four eighteen.

(CX 14). The Grievant testified that it is common knowledge among Cleveland Police

Officers that most calls involving a gun do not actually involve a person with a gun.

The Grievant was familiar with Cudell Recreation Center and Park, having

responded there a number of times before. He testified that the Cudell area has two or

three gangs, with lots of drugs and shootings, usually every weekend. Additionally, a

couple Police Officers had been killed in the area in recent years. He considered it a

high crime area. St. Ignatius Church is not far from Cudell. It took the Grievant

approximately one minute to drive to Cudell. He drove northbound on West Boulevard

to Madison Avenue, then east on Madison until turning northbound on W. 99th St, using

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lights and siren until turning onto Madison so as not to alert anyone of their approach.

(CX 15, pp. 5-6).

The Grievant chose to enter the park via W. 99th Street because it dead-ends

into the park near the swing set where the suspect was reported to be, it provided some

cover and concealment, and he knew W. 99th was an often used escape route for

suspects fleeing on foot. According to the Grievant, it was the best approach from a

tactical point of view. (CX 9, 11, and 17). Additionally, from W. 99th, he and Loehmann

would have a good view of the swing set and good access to the park, as there were no

barriers to automobiles, unlike approaching through the parking lot. (CX 19). During the

drive, the Grievant and Loehmann discussed the route and different scenarios that

might arise. He told Loehmann to have his gun out and in his lap, so he would be

prepared for the worst case, that is, someone shooting at him.

While driving there, at 15:28:34, car 1 Adam 26 radioed that they had completed

their domestic call and would take the Cudell call because it was their zone. Dispatch

then instructed Adam 25 that Adam 26 would be primary and Adam 25 secondary. At the

time, Adam 26 was near W. 159th Street and Lorain Avenue, 3.5 to 4 miles away. (CX

14). Since the Grievant and Loehmann were much closer, they arrived at Cudell first.

One of the surveillance cameras at Cudell includes time stamps, indicating that Adam

25 arrived about four seconds after 15:30 (3:30 p.m). (CX 10). However, it must be

noted that these times differ from the Dispatch times, which indicate the incident was

over by 15:30. (CX 14). Using the camera times, it appears it was no more than 30

seconds from the time Adam 25 arrived at Cudell until the incident was over.

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 Upon turning north onto W. 99th, they had a clear view into the park. The

Grievant did not see the suspect at the swing set, but could see someone under the

gazebo, though he could not make out anything until they got closer. (CX 15, p. 6).

Loehmann did not radio their arrival and the Grievant did not instruct him to do so. The

Grievant continued on W. 99th to where it dead-ends into the park. He then drove onto

a concrete walkway and around some trees. (CX 6, 7, and 9). The Grievant testified that

the person sitting at a picnic table under the gazebo matched the description of the

suspect. The gazebo was not far from the swing set, but this put the suspect closer to

the recreation center, which was open and likely filled with people from the

neighborhood, including children. According to the Grievant, no one else was in the

park. Surveillance footage from the recreation center appears to show the zone car was

visible from the gazebo once it entered the park, though the views from the camera and

the gazebo are not identical. (CX 7 and 10).

The Grievant drove off the concrete walkway onto the grass, passing over a

sewer grate and the corner of the swing set, which was set slightly below ground level.

These caused the light from the headlights to fluctuate or flash. (CX 6, 7, and 9). He

testified that he initially intended to stop on another concrete walkway between the

swing set and the gazebo to confront the suspect. (CX 11). However, while driving, the

suspect stood up from the picnic table. The Grievant believed the suspect intended to

flee north toward the recreation center or Detroit Avenue, and thought there was a

threat to the center. He told Loehmann several times “He’s going to run,” or words to

that effect, so he continued past the concrete walkway toward the gazebo. (CX 9). The

suspect then came around the table and began walking toward the vehicle. Loehmann

18
began yelling “Show me your hands.” The Grievant saw the suspect lift up his shirt and

pull what appeared to be a black gun out of his waistband. (CX 15, pp. 23-25). The

Grievant hit the brakes, but the vehicle slid due to snow that had fallen the night before

and wet grass and leaves on the ground. When they came to a stop, they were very

near the suspect, approximately twelve feet according to the Grievant. Loehmann exited

the vehicle only feet away from the suspect shouting “Show me your hands.” During the

investigation, Loehmann testified the suspect did not show his hands. The Grievant

testified the suspect did not say anything. Loehmann almost immediately fired two shots

at the suspect, who fell to the ground. The Grievant approached the suspect, whom he

initially reported as about twenty years old. (CX 14, p. 1). The weapon was a foot or two

away from the suspect and he kicked it away.

At 15:29:47 (2:24 after radioing they would take the call), Adam 25 radioed

“Shots fired. Male down.” Dispatch asked: “Are you at Cudell?” Adam 25 responded

“Yes, ma’am, at Cudell. He’s got a gunshot wound to the abdomen.” (CX 14). The

Grievant several times requested that Dispatch send EMS, and then asked that the Fire

Department be sent. By this time, a joint task force unit with a Cleveland Detective and

an FBI agent had responded and the FBI agent and the Grievant began giving medical

aid to the suspect. (CX 15, pp. 28-31). The primary car, 1 Adam 26, arrived about 4

minutes after the Grievant reported the shots fired. During this time, a young woman ran

toward the suspect screaming “You shot my brother” or words to that effect. The

Grievant grabbed her by the torso to preserve the scene and she fell to the ground. He

testified that it was then he realized the subject was not an adult and the weapon was

not real, but a pellet gun. Tragically, the suspect, Tamir Rice, died hours later.

19
 Whenever there is a use of force the Police Division investigates to determine

whether the force was necessary. An investigation was begun immediately by the Use

of Deadly Force Investigation Team (UDFIT). (CX 12). The Grievant had his Garrity

interview on November 25, 2014 at 12:20 pm. (CX 15). Because the incident resulted in

a fatality, the Cuyahoga County Sheriff, together with the Ohio Bureau of Criminal

Identification and the Cuyahoga County Prosecutor took primary responsibility for

completing the criminal portion of the investigation. (UX A). The Sheriff’s Office

assumed the Use of Deadly Force investigation on January 2, 2015 and issued its

report on June 2, 2015. (UX M). The Division of Police, however, continued its

administrative review of deadly force.

On February 9, 2015, Sergeant Timothy Stacho issued the Internal Affairs Unit

Investigative Report. (CX 5). Internal Affairs recommended no action be taken against

the Grievant for his use of force against Rice’s sister (i.e., grabbing her to keep her

away from the scene). Stacho did recommend a disposition of substantiated as to the

Grievant failing to employ proper tactics in operating the zone car close to Tamir Rice in

violation of GPO 2.1.01 and recommended that the Grievant be disciplined. According

to Stacho, the approach was deficient and the Grievant should have chosen an

alternative approach. Stacho’s report and recommendations were reviewed by

Lieutenant Monroe Goins, who was in charge of Internal Affairs (now retired) at that

time. Goins agreed with Stacho’s conclusions. The Report was then reviewed by BIC

Commander Brian Heffernan. Heffernan wrote:

The tactics used by [the Grievant] are addressed and Sgt. Stacho recommends
discipline. Initially I was also very critical of the tactics. In reviewing [the
Grievant’s] statement though I understand why he approached the way he did.
[The Grievant] explains his rationale and thought process to include the expected

20
 outcome of the suspect fleeing on foot. In my opinion the approach used on that
day would have been better suited for working with a regular partner or more
senior officer. There is something to be said with familiarity among partners. That
being said, [the Grievant] was assigned as a Field Training Officer when the
UDFIT took place. This fact should have overridden any other reasoning and a
safer approach should have been utilized. I agree with the recommendation. Sgt.
Stacho also makes a good point identifying this type of scenario as an area
where the Division could use additional training.

On February 9, 2015, Chief of Police Calvin Williams concurred with the charges and

forwarded the matter to the Safety Director for hearing. (CX 5). Williams forwarded it to

McGrath because McGrath had the authority to suspend a Division employee for more

than 10, while he did not. (CX 1).

At the time the Report was submitted, Internal Affairs did not have certain

information that would normally be included in a complete UDFIT investigation, because

Cuyahoga County was investigating any possible criminal charges. The Division of

Police decided to suspend any administrative action based on the Internal Affairs Report

until the criminal investigation was completed by the County Sheriff and reviewed by the

Prosecutor. The Grievant did not appear before the Grand Jury, submitting a statement

instead on November 30, 2015. (CX 19). On December 28, 2015, the Grand Jury issued

a no bill on any criminal charges regarding the use of deadly force. The Prosecutor then

released its findings that no criminal charges would be filed. In February 2016, Williams

decided to suspend indefinitely the Internal Affairs Report and transferred responsibility

for administrative review to an ad hoc Critical Incident Review Committee (CIRC) led by

Deputy Chief Dornat Drummond. Drummond was familiar with Cudell and the area,

having previously been assigned to the First District. According to a memo written by Lt.

Goins, the prior administrative investigation therefore yielded authority to the findings of

21
the CIRC. (UX A). This was only the second time in the history of the Division that a

CIRC was empaneled.

The CIRC was tasked with an administrative review of the actions of all Police

personnel involved in the November 22, 2014 shooting. Its role was to investigate, find

facts and explain what happened, determine whether rules and regulations were

followed, and make recommendations. Chief Williams could disagree with those

recommendations. The CIRC did not have decision-making authority and could not

initiate discipline. It considered all the evidence obtained by the UDFIT, Internal Affairs,

the Sheriff, and the Prosecutor. It also considered investigative reports by a forensic

analyst who reviewed the video evidence taken by surveillance cameras at Cudell, the

Ohio State Highway Patrol, which attempted to determine the speed of the zone car as

it approached Rice, a Sheriff’s Office report reviewing the surveillance cameras, and a

report from the Medical Examiner. (CX 6-10 and 13). The Grievant had his Garrity

interview as part of the investigation on April 4, 2016. (CX 17).1 The CIRC also had the

Grievant’s Garrity statement and the statement he read to the grand jury. (CX 17 and

19). It visited Cudell Recreation Center and Park to recreate the incident based on the

physical evidence available. The CIRC consisted of nine individuals, mostly law

enforcement with a few civilians. Nancy Kelly, Assistant Law Director for the City,

recused herself from the committee for personal reasons.

The CIRC met from February into October 2016. George Kwan, a Division of

Police Academy Instructor, who was the most knowledgeable individual on the

committee as to police tactics, drafted the majority of the CIRC’s Report. (CX 6). The

1 Shortly after this, on April 25, 2016, the City settled a civil suit filed by the family for $6,000,000.

22
Report was submitted to Drummond in October or November 2016. Drummond testified

that he sent it to the Chief, spoke to him about it, and the Chief requested a review of

certain items. Additionally, it was not possible to get the CIRC members together to

meet and discuss the items, but he contacted each member individually to get their

input. Kwan testified that, in January 2017, Drummond asked him to provide everything

on a flash drive. On January 4, 2017, Drummond asked him to clarify three points.

Kwan further testified that he, Drummond, and Chief Williams discussed the Report that

day and the Chief had four or five points he wanted clarified. According to Kwan, the

Chief wanted some changes in the Report, but he told the Chief that could not be done

because the CIRC had voted unanimously on it. However, he could do an Addendum

and send it out. Kwan also testified that he drafted most of the Addendum, but not page

4. (UX F-L and CX 6). Drummond testified that he drafted that page because he did not

need Kwan’s expertise for the items included in it. According to Drummond, Kwan

objected to page 4. As to the Grievant, the CIRC initially concluded:

After a thorough review of [the Grievant’s] actions on 11/22/14 there are no

apparent rule or policy violations. Based on the information we reviewed relative
to training and tactics, it appears that [the Grievant’s] actions were consistent
with his training and experience.

(CX 6, p. 20). It did recommend additional training of all Police Officers as to driving off

roadway and in different conditions.

The Addendum reviewed three points: that the Grievant and Loehmann did not

request additional information from Dispatch while driving to Cudell; that they did not

request backup and responded without waiting for backup; and that they did not

announce their arrival at the scene. Chief Williams testified that he asked the CIRC to

address these additional points because he had concerns they were not addressed. He

23
believed the Grievant might have made tactical errors, but did not request changes to

the CIRC’s conclusions. The CIRC found no fault on the part of the Grievant on the first

two points, but found he might have violated the Manual of Rules and Regulations, Rule

7.03, in not reporting the arrival time to the radio dispatcher immediately upon arriving at

the location of the radio assignment (Cudell). Kwan testified that he had no problem

including that recommendation and felt no pressure to do so. However, regarding the

alleged failure to wait for backup, Kwan testified that he and Drummond discussed that

waiting for backup and where to stop were not addressed in the 2013 in-service training.

Page 4 of the Addendum, written by Drummond, noted that Internal Affairs found

a violation when the Grievant drove the car close to Rice, while the CIRC concluded

differently. The Addendum specifically noted:

Ultimately a trier of facts will make the final determination on the findings and
recommendations from the CIRC as well as the Internal Affairs investigative
reports.

Page 4 also noted that the Division of Police drafted a new Use of Force Policy in

cooperation with the U.S. Department of Justice, and that Police Officers would receive

training in several areas, including radio procedures and coordinating responses with

backup units. (CX 6, Addendum p. 4).

On January 13, 2017, Chief Williams reviewed the CIRC Report and wrote on

page 22:

I have reviewed this CIRC Report & concur with most of the conclusions and
recommendations. I do not concur with the Committee’s findings as they relate to
[the Grievant], therefore I stand with my prior review & concurance for discipline
contained in the Internal Affairs investigation completed by Sgt. T. Stacho…

(CX 6). A press conference was held in the red room at City Hall to announce the results

of the investigation and that charges would be forthcoming. The charging letter was

24
issued that day. (JX 5). Because the Chief recommended discipline in excess of ten

days, the proposed discipline went before Public Safety Director Michael McGrath. The

Pre-Disciplinary Conference (PDC) was scheduled, but continued twice. The final,

March 3, 2017 charging letter contained two specifications:

Specification #1: On November 22, 2014, you…did not employ proper tactics
when you operated the zone car up to what was reported to be an armed suspect
thereby violating the Policy of General Police Order 2.1.01.

Specification #2: On November 22, 2014, you… Failed to report your arrival time
to the radio dispatcher immediately upon arriving at the location of your radio
assignment.

The letter cited violations of the Manual of Rules and Regulations, Rules 1.07, 2.02,

2.03, 2.04, 2.14, 4.05, 7.03, GPOs 1.1.01, 1.1.02, 2.1.01, and Civil Service Commission

Rule 9.10. (JX 7). The PDCwas held on March 13, 2017. (JX 8).

From January 30 to February 28, 2017, lawyers representing the family of the

suspect communicated primarily with the City Law Department as to discipline for the

Grievant and others involved in the incident. (JX 11). Additionally, Tamir Rice’s mother

emailed a letter to McGrath asking him to fire the Grievant. (JX10). McGrath’s assistant

told him that the letter had been received and he instructed her to forward it to the Law

Department. McGrath testified that he did not read the letter and had no contact with the

family or its attorneys. Williams testified that he met with Mrs. Rice, but would not

discuss discipline with her. According to Williams, he told her that the decision to

discipline was not his.

On May 30, 2017, Director McGrath issued his letter of findings. (JX 9). He found

the Grievant guilty of both charges. Specifically, he found that:

• You did not employ proper tactics when you failed to stop your zone car
immediately upon entering Cudell Park.

25
 • You failed to report your arrival time to the radio dispatcher immediately
upon arriving at the location of your radio assignment. You failed to
coordinate your approach with the primary car or notify Communications
Control Section that you observed the suspect at the Gazebo.

• As a consequence of your actions, you did not know the location of the
primary zone car when you entered the park, which prevented you from
coordinating your actions with those of the primary car. You approach the
suspect without backup.

McGrath based his conclusions upon certain facts.

1. Upon reaching the entrance to the park, you indicated that you saw a
person sitting alone at the picnic table under the gazebo who matched
completely the description of the suspect. The person was not moving at
that time. You indicated in your April 4, 2016 interview that no other
persons passed you as you entered the park; you also indicated that you
did not think that anyone else was there.

Therefore, when you entered the park entrance and observed the
circumstances, the person sitting at the picnic table was not an
active shooter, and you were not required to treat the situation as
involving an active shooter. The person did not present an
immediate threat.

2. You had a probationary officer (3 months).

Therefore, you needed better manpower coverage of the situation,

which required obtaining assistance from the primary zone car.

3. Your zone car was the back-up, not the primary, car. You failed to report
your arrival time to the radio dispatcher. You failed to make radio contact
at any time before the shooting occurred. The primary car arrived only a
few minutes after your arrival. You acknowledged in your April 4, 2016
interview that it is standard practice to have at least two cars anytime
there was a gun involved, indicating “the more we have it’s better for us.”

No one knew where you were or what you were doing, and you did
not know where anyone else was or what they were doing, until
after the shooting occurred. You did not know where the primary car
was located or its ETA on the scene.

You never requested instructions from the primary car or otherwise

coordinated your efforts with the primary car. You never gave the
primary car the opportunity to decide on the best strategy.

26
 Your insistence that you had to take actions because it was an
active shooter situation is not supported by the facts.

(JX 9). McGrath testified that he did not consider Cudell a “high profile” area for gun

violence, and past grant funded programs had not targeted it as a top area for violent

crime.

The City uses a disciplinary matrix that groups non-exhaustive examples of

similar offenses and prescribes corresponding guidelines for disciplinary determinations.

(CX 1). McGrath determined that the Grievant’s conduct escalated the situation

unnecessarily, exposed both him and Loehmann as well as Rice to unreasonable risk of

harm, and precipitated the fatal shooting. He found a Group III Offense and issued a 10

workday suspension without pay, the lowest penalty for a Group III violation. In addition,

the Grievant was required to attend tactical retraining provided by the Ohio Police

Officer Training Academy (OPATA) beyond what is provided at the required in-service

training. This grievance followed.

The grievance was filed on May 30, 2017 at Step 3A (Labor Relations Manager).

(JX 2). The grievance alleged that

Grievant was suspended for ten (10) days and was required to attend
tactical training above and beyond that required of other officers without
just cause in violation of Article IV of the collective bargaining agreement
between the City and CPPA.

(JX 2). When it was denied, counsel for the CPPA filed a Demand For Arbitration directly

with the AAA by email on June 28, 2017. The City was not copied on the email and not

otherwise notified in writing. (JX 3). Detective William Gonzalez has been the CPPA

Vice President since January 1, 2015. He has also served on the Board of Trustees and

as Sergeant-at-Arms. Gonzalez testified that the Grievant was suspended in January

27
2017 and charged on May 30, 2017. The grievance was filed that day. (JX 2 and 5-7).

According to Gonzalez, he and City Case Preparation Officer (then) Sergeant Brian

Carney agreed to file grievances at the next higher level from where discipline was

imposed because it made no sense to file the grievance with the person who made the

contested decision. For example, if the Safety Director issued discipline, the grievance

would be filed with the Human Resources Director. Gonzalez does not believe the City

has raised the issue as to which step the grievance should be filed prior to this

arbitration. The agreement between him and Carney was verbal and is not found in the

language of the Agreement. Additionally, the CPPA has filed about 300 grievances since

2015. When arbitrating them, the CPPA has only ever sent the Demand to the AAA,

which then notifies the City. The City has not raised this issue before. Finally, Gonzalez

testified that the CPPA and the City disagree on the interpretation of Article VIII, Section

(l). Several cases have been dismissed because the administrative charges were

brought untimely. The CPPA raised the timeliness issue with the Safety Director.

V. POSITION OF THE EMPLOYER

The grievance should be denied both procedurally and on its merits. The

grievance was filed at the incorrect step and the demand for arbitration was not sent

simultaneously to the City, so it is not arbitrable. If the Arbitrator determines the

grievance is arbitrable, the City had just cause to discipline the Grievant. The evidence

demonstrated that the Grievant failed to use proper tactics in violation of Division

policies and precipitated the fatal shooting. Finally, the Grievant received the

appropriate due process and his discipline should be upheld.

28
 The Agreement is clear that the Union is required to notify the City of its desire to

arbitrate a grievance. The Union failed to notify the City of that intent, sending the

Demand for Arbitration to the AAA, but not the City. The AAA then notified the City. The

only explanation the Union provided was that there was a past practice waiving such

notice. The only evidence of such a practice was the testimony of Detective Gonzalez,

but the record is clear. The Demand for Arbitration was sent to the AAA only.

Additionally, the Union argued that the discipline was untimely, but the Agreement

clearly provides that discipline is held in abeyance while criminal proceedings are

ongoing, and that the City has one year and 90 days to bring discipline after criminal

proceedings are ended. The Union relies on Article VIII, Section (l), but that provision

deals with an investigation that could not lead to criminal charges. The Union interprets

this to mean that, if there are no criminal charges filed, then administrative charges

must be filed within a year. Thus, the City had notice on December 28, 2015 that there

would be no criminal charges and the City had until December 28, 2016 to bring

administrative charges. However, the Union offered no evidence in support of this

argument. On the contrary, administrative investigations in the Division routinely are

held in abeyance pending the outcome of criminal proceedings and the language of

Section (l) is clear that any administrative charges are contemplated only after criminal

proceedings are exhausted.

Furthermore, the language recognizes that some situations are complex and may

take longer, and gives the City an additional 90 days for good cause shown. No notice

or prior permission is required and, when challenged, the City only need articulate a

proper basis for the additional time. Here, more time was needed for the CIRC to fully

29
discharge its directive and investigate the incident. This was only the second time a

CIRC had been impaneled and the amount of information and material for it to review

was voluminous. Arbitrators excuse tardy imposition of discipline where the employer

provides an acceptable reason for the delay. Even assuming there was a one year

deadline, there can be no doubt there was good cause for granting an additional 90

days. Factoring in the 90 days, the January 13, 2017 notice of charges was timely.

The evidence established there was just cause to discipline the Grievant.

Although the route he chose was not a specification for discipline, analyzing the

Grievant’s reasons for choosing it is essential to understanding the tactical failures that

served as the basis for discipline. The Grievant testified that he chose W. 99th because

it would put him and Loehmann near the swing set where the suspect was reported, it

offered some cover and concealment, and was commonly used as an escape route. His

reliance on cover and concealment is questionable, however. Surveillance camera

footage shows there was little cover or concealment as the trees had lost their leaves.

Indeed, the leaves had fallen and contributed to the zone car’s sliding when he hit the

brakes. The Grievant testified that the tree trunks would provide some concealment, but

again the camera footage shows the zone car to be visible from a distance.

Additionally, he did not use the mound near where W. 99th dead-ends. Instead,

the route he chose made the vehicle visible and caused the headlights to flash, giving

away his position. The Grievant’s reasoning that W. 99th served as an escape route

also makes no sense. He turned off the lights and sirens well in advance of turning on

W. 99th and no other zone cars arrived for several minutes, so nothing would have

prompted Tamir Rice to flee. And it did nothing to cut off the other escape routes,

30
including into the recreation center, which the Grievant’s route left unprotected. Had

Rice fled toward the center, the Grievant and Loehmann would have had to follow on

foot, exposing themselves in the process. Moreover, the Grievant’s overriding concern

should have been the safety of his rookie. Heffernan pointed out in his comments to the

Internal Affairs report that the approach was better suited for a regular partner or more

senior officer, not a PPO. The Grievant’s explanation was simply a post-hoc

rationalization.

This was not an active shooter situation, as the Grievant characterized and the

CPPA argued. GPO 3.3.01 defines what an active shooter situation is and the evidence

showed this was not such a situation. The Grievant’s testimony was clear that Rice was

not using the weapon he had and was not causing or attempting to cause death or

serious harm as defined in the policy. No one else was in Cudell Park, so it was not a

target rich environment. Simply put, there was no continuing danger from Rice’s activity,

since he was merely sitting at the time. While a Code 1, Dispatch did not broadcast an

active shooter situation, only that someone was pointing a gun. The Grievant

acknowledged that it is common knowledge among Police Officers that a report of a gun

is often not accurate. The Grievant heard no gun shots or screams and saw no one

fleeing or signs of panic. Each City witness was clear that this was not an active shooter

situation and should not be viewed as such. Even assuming it was, the Grievant did not

comply with GPO 3.3.01. He did not assess the situation, report the appropriate

information, or wait for backup. He was not excused from relaying his arrival to Dispatch

and coordinating with other responding units. Rather, he continued toward Rice with a

31
rookie partner. His decision to approach what he considered an active shooter was

improper.

The Employer proved Specification 1, that the Grievant did not employ proper

tactics by operating the zone car up to the reportedly armed suspect. McGrath found

that the Grievant failed to stop upon entering Cudell Park and approached Rice without

backup. The Grievant’s response — to stop between the swing set and gazebo to

confront Rice — was disproportionate to the threat apparent to him upon arriving. Cudell

was not an enclosed area that one vehicle could cover. The Grievant should have taken

cover behind the mound near where W. 99th dead-ends and waited for Adam 26 to

arrive, or at least announce where it was so they could coordinate their approaches.

The Grievant’s actions prove that he was not concerned with the safety of the recreation

center, Loehmann, Rice, or himself, he wanted to apprehend the suspect. That Rice

was no longer at the swing set, but in the gazebo, was cause for greater caution, not

recklessness. It was even more reason to coordinate with Adam 26 or lock down the

recreation center, or both. He did neither. In fact, his actions increased the danger. An

FTO, he set a poor example for Loehmann.

The City proved Specification 2 — the Grievant failed to report his arrival at

Cudell or instruct Loehmann to report it. Director McGrath found that the Grievant failed

to report his arrival to Dispatch, to coordinate with the primary car, or notify Dispatch

that he located the suspect. McGrath further found that this was compounded by having

a PPO, that better manpower coverage was necessary, and that this required

coordination with the primary car. This violated Rule 7.03 and implicated numerous

others, including Rules 1.07, 2.02, 2.03, 2.04, 4.05, GPOs 1.1.01, 1.1.02, 2.1.01, and

32
Civil Service Commission Rule 9.10. The Grievant conceded that Division policy was to

radio his position and status upon arriving at the scene. The Dispatch transcript proves

no call was made to report arriving at Cudell. McGrath concluded the Grievant should

have instructed Loehmann to radio their position upon arriving, which deprived them of

tactical coordination with Adam 26, and that the suspect was no longer at the swing set.

The Grievant did not know the position of Adam 26 or when it would arrive; Adam 26 did

not know the Grievant had arrived or his location. Adam 26 arrived four minutes after

shots were reported and radioed its arrival to Dispatch. McGrath also cited the

Grievant’s failure to contact the recreation center, even though he was concerned the

suspect might enter the center. McGrath testified that communication is key to tactics

and the Grievant’s failure to communicate was a major contributing factor in the fatal

shooting of Tamir Rice. Even though Loehmann was operating the radio, the Grievant

acknowledged he was responsible for directing Loehmann to communicate when

necessary.

The Grievant received ample due process. While the Division immediately began

an Internal Affairs investigation, this was suspended while the criminal investigation

proceeded. Upon the criminal investigation being concluded, Chief Williams impaneled

the CIRC to conduct the administrative investigation. When the CIRC issued its report,

Director McGrath issued a charge letter and the disciplinary process commenced. A

PDC was held where the Grievant was represented by counsel and afforded the

opportunity to respond and explain his side of the incident. The City rebuffed any

attempts by the Rice family to intervene and the process was private. The CPPA

contends, however, that the Grievant was denied due process.

33
 The Union argues that the CIRC investigation had a preordained outcome.

However, it provided nothing but conjecture and innuendo. The Division was not

required to make the thorough investigation conducted by the CIRC. After all, Internal

Affairs had reviewed much of the evidence and recommended discipline. If the City

wanted something to justify discipline, it already had it in the Internal Affairs

investigation. Chief Williams acted within his discretion and authority to request the

CIRC look at several issues that were overlooked. However, the Union sees something

nefarious in doing so. Drummond testified that he was responsible for these omissions

and it is obvious from the CIRC report that it was focused on the issues as to the zone

car’s approach, its final stopping point, and why Loehmann shot Rice. Drummond and

Kwan made it clear that they, not the Chief, wrote the Addendum, that it was the product

of input from the entire CIRC, and that there was disagreement. Kwan testified he did

not agree with the last page of the report written by Drummond. While reasonable minds

can disagree whether the facts as found by the CIRC implicated discipline, it was

Director McGrath’s decision to make in the end and he made it based on the CIRC

report and the Addendum. The Arbitrator should not substitute his judgment for

McGrath’s.

The City did not bow to public pressure to discipline the Grievant. The CPPA tried

to undercut the CIRC report based on the manner it was released. However, given the

public outcry resulting from this incident and others around the nation, the Employer had

an obligation to be responsive to the public. Its actions have avoided the riots and

violence seen elsewhere. There is no dispute that this case is among the most politically

charged the Public Safety Department has faced, but public accountability and

34
administrative due process are not mutually exclusive. The CPPA tries to equate the

Employer’s efforts to be responsive to the public to the deprivation of due process. This

is a false narrative and the Arbitrator should reject it. The Employer does not deny that

the Rice family and its attorneys tried to involve themselves in this internal matter. But it

does not constitute the smoking gun the CPPA claims it to be. When the family sent

letters to Director McGrath and Chief Williams, they forwarded them to the Law

Department without reading them. The family and its entourage did try to speak with

Chief Williams, but he met only with Mrs. Rice and refused to discuss discipline with her.

The family had no influence in the decision to discipline the Grievant, the CPPA’s

insinuations notwithstanding.

The Union argues that a letter from one of the family’s attorneys, which claims

Chief Williams implied Loehmann would be fired and the Grievant punished, shows the

Chief was somehow influenced and there was a predetermined outcome. It further relies

on the Law Director’s letter indicating the Chief read the letter sent to him. This

argument fails. The Law Director was incorrect when she wrote the Chief had read the

letter; he had not. The family’s attorney had no first hand knowledge of the meeting and

the Union did not call any witness to testify about the meeting between Mrs. Rice and

the Chief. Additionally, the meeting took place on the day the Grievant’s PDC was

planned and his charging letter was public record. It does not take much to guess

possible outcomes based on the charging letters. Even the City’s disciplinary matrix is

publicly available. The Chief testified that, despite the family’s efforts, the Division took

its time and did its due diligence. Had the City succumbed to pressure, it would have

acted much more quickly. One of the family’s major concerns was the length of time for

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any action to be taken. Despite the acknowledged public outcry, the Division balanced

the need for due process with accountability to the public. The CIRC functioned

objectively and independently in reaching its conclusions, which Director McGrath used

as the basis for his decision to suspend the Grievant. The investigatory process was

shielded from public and family pressure.

The Grievant’s suspension was not a matter of Monday morning quarterbacking.

The evidence demonstrated that the City suspended the Grievant because he failed to

comply with his training and Division policies based on his actions in response to the

information available to him during the incident. That Tamir Rice was actually twelve and

had a pellet gun had no bearing on the conclusion that the Grievant failed to radio his

arrival and position at Cudell, or that it was not an active shooter situation. The City’s

decision to suspend was based on objective fact-finding by the CIRC and McGrath’s

review of the evidence.

The 10 day suspension was an appropriate penalty. The City adopted the

disciplinary matrix in 2014. Director McGrath followed the matrix in deciding upon the

penalty. He found a Group III violation and concluded that the failures to communicate

with Dispatch and wait for backup were similar violations. The penalty ranged from a 10

day suspension to demotion to termination. McGrath concluded the Grievant’s conduct

warranted discipline and that the 10 day minimum was appropriate. He based his

conclusions on his review of all available materials and the facts as found by the CIRC,

as well as his decades of experience, his inspections of Cudell Park, and his research

into the Grievant’s background. The discipline was proper given the circumstances.

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 Finally, in its post-hearing brief, the CPPA attached several exhibits that were not

introduced at the hearing. These and the CPPA’s entire brief should be stricken as

improper. Post-hearing attempts to introduce new evidence are not allowed under AAA

rules and typically not permitted by arbitrators, with certain exceptions that do not apply

here. There was a full opportunity by both parties to present evidence at the hearing.

They rested and the Arbitrator declared the hearing closed. Allowing the evidence would

deprive the Employer of its ability to cross-examine or respond. The parties did not

agree to submit additional evidence, the Arbitrator did not request such evidence or

information, and it was not discovered or did not become available until after the

hearing. The CPPA argued there was a past practice of permitting such evidence, but it

failed to prove such a practice. The cases upon which it relied for the practice do not

support its position. The Employer objected to such evidence. Indeed, in one case the

Employer asked to be allowed to supplement the record and the CPPA objected. In

those cases where post-hearing evidence was allowed, the evidence was only available

after the hearing had concluded. The evidence should be excluded.

VI. POSITION OF THE UNION

The grievance should be granted. The grievance was properly filed as was the

Demand for Arbitration. However, the administrative charges against the Grievant were

filed more than a year after it was determined that no criminal charges would be filed —

this violated the Agreement and the Grievant’s due process rights. The City did not have

just cause to suspend the Grievant for 10 days, and such a suspension was improper

given the circumstances in this matter. The Grievant’s suspension should be overturned,

all lost benefits restored, and any other appropriate relief granted.

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 The Demand for Arbitration was properly filed. Prior to 2016, the CPPA filed

demands through AAA’s electronic portal, but was told that there were problems with the

system. On January 6, 2016, the AAA emailed the CPPA instructing it to complete a

form and send it to the AAA. The CPPA began doing so and did so in this matter on

June 27, 2017, which the AAA sent to the City the next day. The City has not protested

this manner of filing demands, even though at least 50 demands have been filed this

way. The Arbitrator should find the Demand for Arbitration was timely and properly filed.

The Grievant was denied his due process rights. The City waited 918 days from

November 22, 2014 to impose discipline for administrative violations. On December 28,

2015, the Cuyahoga County Grand Jury issued a no bill, recommending no criminal

charges be filed against the Grievant. It was another 382 days before administrative

discipline was imposed. Due process includes that an employer take timely action. This

is memorialized in Article VIII, Bill of Rights, Section (l), which requires the City to bring

administrative charges no later than one year after the date the Chief had knowledge of

the alleged violation. Here, the Chief had knowledge of any alleged violations he wanted

to pursue against the Grievant on December 28, 2015, when the no bill was issued. The

CIRC completed its investigation on October 11, 2016, two months before the one year

deadline in Section (l).

The City has failed to demonstrate good cause to wait until January 2017 to

issue the notice of charges to the Grievant. Further, the Witnesseth section of the

Agreement provides that any agreement between the CPPA and the City must be in

writing and subject to prior approval of the parties, yet there was no written agreement

to waive the one year requirement. Therefore, the Grievant cannot be subject to the

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disciplinary action here. Additionally, the excessive delay to impose a 10 day

suspension must be considered a mitigating factor when considering whether the

discipline was punitive. The delayed suspension did not serve as a timely message to

the Grievant and other Police Officers, another important aspect of due process. There

are many instances where arbitrators have set aside discipline that was untimely. Given

the years that passed between the incident and the suspension, the City violated the

Grievant’s due process right to timely discipline.

The Grievant’s tactical decisions should not be evaluated in hindsight. Even

Director McGrath acknowledged this. Given the information available to him, he made

tactically safe and sound decisions. The Grievant did not have hours to take

measurements, review photographs, and compile sketches or drawings to determine

the best approach and cover available. He responded reasonably pursuant to his

training, given the facts and circumstances he faced on November 22, 2014. The route

he chose did not violate any GPOs or Division policies. So long as the Grievant’s

actions were reasonable, a third party should not substitute its judgment for a Police

Officer’s and some leeway must be given for judgments made by an officer during the

uncertainty of a confrontational encounter. The City has repeatedly tried to pick apart

the Grievant’s actions. Commander Heffernan’s statement is instructive. While initially

he was critical of the tactics, he understood them once the Grievant explained his

rationale and thought process. Additionally, the CIRC, particularly Kwan, determined the

Grievant’s tactics were reasonable, as did the Grand Jury and the Prosecutor.

There is no way to train Police Officers for every possible scenario. Instead, they

are given skills to deal with various situations and told to use their best judgment. Being

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a Cleveland Police Officer is an extremely dangerous job. The officer must always be

diligent and aware of his or her surroundings and potential danger. Here, the Chief and

Safety Director used hindsight to argue that the Grievant should have taken minor

different actions, but none of these were made instantaneously at the scene.

Reasonable minds can differ, but that does not mean one person is right and another is

wrong. As Kwan testified, objective reasonableness should be the standard in

evaluating the actions of an officer. The Grievant acted reasonably under the

circumstances.

The City did not have just cause to discipline the Grievant. The 10 day

suspension was excessive and violated the parties’ past practice. The range of

disciplines set forth in the disciplinary matrix are a guide only and need not be strictly

followed. Group III offenses are the most severe and include alcohol and drug related

offenses, criminal law offenses, firearms violations, and making false statements. The

specifications against the Grievant are not nearly as serious as these and should not be

included in a Group III offense. Improper tactics in operating a zone car and failing to

report arrival time should not be lumped in with the serious misconduct listed there.

Furthermore, the disciplinary matrix is not incorporated into the collective

bargaining agreement and cannot be used in determining just cause. Indeed, it did not

exist before 2014 and has only been upheld as a guideline for the City in imposing fair

and consistent discipline. Just cause still must be followed. The Agreement specifically

provides for just cause. Relying on something outside the Agreement would mean the

Arbitrator’s decision was not rationally derived from the Agreement, there was no

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rational nexus between it and the award, and the essence of the award was not drawn

from the Agreement.

Specification 1 alleged improper tactics. There is no administrative allegation or

charge that he failed to wait for backup and Kwan testified that the 2013 in-service

training did not cover waiting for backup and where to stop. Additionally, the Grievant

testified that he did not wait for backup because he thought there was a viable threat to

the recreation center and those inside, likely including children. There is no requirement

that a Police Officer wait for backup before responding to a Code 1 call, so any possible

violation for failing to wait must be disregarded. As to the route the Grievant took, the

CIRC found the route was appropriate and the Grievant employed proper tactics. The

Grievant explained his reasons for the route, that he had taken it before, and that it

would provide some cover and concealment. The CIRC concluded that the Grievant’s

actions were reasonable and in response to Rice’s actions. It found no apparent rule or

policy violations and the Grievant’s tactics were consistent with his training and

experience. The Arbitrator should find the City did not prove Specification 1.

The second Specification was for failing to report the arrival time. There is no

dispute that the passenger is responsible for operating the radio. As the driver, the

Grievant’s responsibility was to drive. Again, the CIRC found that the Grievant was not

responsible for or in violation of any GPO for not operating the radio. According to

Drummond, as the FTO, the Grievant should have advised Loehmann to report their

arrival, but the Grievant was not charged with failing to instruct Loehmann to do so.

Moreover, the vehicle was equipped with an AVL, so Dispatch would know its location.

Given that Loehmann was responsible for reporting their arrival, and Grievant at most

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failed to instruct Loehmann to report arriving, such a violation would warrant only low

level discipline, not a 10 day suspension and the Arbitrator should reduce the penalty.

On this record, it is clear the City succumbed to pressure from the public and the

Rice family to impose harsher discipline than was warranted. City witnesses

acknowledged the family was pressuring the City and Mrs. Rice showed up for a

scheduled PDC. The Arbitrator should consider the evidence as to pressure to ensure

the Grievant is treated fairly without any political pressure.

The 10 day suspension violated the Agreement. While the contract gives the

Employer the right to discipline, it must be for just cause, which includes due process.

Given that the Grievant is charged with morally reprehensible conduct, the Employer

must prove a violation by a high standard of proof. Here, the Employer failed to prove

that the Grievant violated a rule or policy. Additionally, the penalty was too severe based

on the seriousness of the misconduct. The political pressure on the Employer to

discipline more severely was based on Tamir Rice’s age and the discovery that the

supposed weapon was actually a pellet gun. Further, the Grievant has served the

Employer for 10 years with no prior discipline. This should be a mitigating factor in any

discipline imposed. Furthermore, the Employer did not impose intervening measures of

rehabilitation and retraining before assessing a lengthy suspension. There was no

attempt to progressively discipline. Discipline is meant to correct behavior, not simply

punish the offender.

Moreover, the degree of the penalty should be proportionate to the seriousness

of the offense. That is, the punishment should be reasonable based on the facts. Here,

the suspension was unreasonable considering the circumstances. At best, Specification

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2 was sustained, which does not justify a 10 day suspension. If the Arbitrator finds that

Specification 2 was sustained, the punishment should be reduced to a verbal reprimand

or counseling.

The City’s Motion to Strike the CPPA’s post-hearing brief should be denied. The

exhibits attached to the brief are not trial by ambush. Exhibit A is an email from the AAA

explaining the new filing process. This was submitted in response to the City’s argument

at the hearing that the Demand for Arbitration was filed improperly. Exhibits B and C are

awards the Grievant received regarding his service. These supplemented testimony at

the hearing as to the Grievant’s work record and did not contradict any hearing

evidence. The Arbitrator can give them the weight he deems appropriate without striking

the entire brief. Exhibit D is a sample of other discipline for radio dispatch rule violations

and goes to whether the City imposed discipline consistently. It speaks for itself and the

Arbitrator can give it the weight he finds appropriate. There is no need to strike the

entire brief. No new issues were raised by any of these documents. Further, exhibits

submitted with post-hearing briefs have been accepted in other cases involving the

CPPA and the City.

VII. OPINION

Preliminary Matters

Post-Hearing Exhibits

In its post-hearing brief, the CPPA attached Exhibits A through D. Exhibit A was

an email exchange between the AAA and counsel for the CPPA regarding the demand

for arbitration, Exhibits B and C were commendations received by the Grievant, and

Exhibit D was a summary of the disposition of prior disciplinary actions the CPPA argues

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were for the same or similar conduct as the Grievant. The City objected and filed a

Motion to Strike the CPPA’s entire brief along the exhibits and the CPPA responded. The

Arbitrator made the following ruling in an email to the AAA on March 27, 2018, which is

set forth below and incorporated into this Opinion and Award:

The City’s Motion to Strike is denied as to striking the Union’s entire post-hearing
brief. This is not necessary to achieve what the City requests in its motion. The
Union makes a number of arguments in its brief that are not related to the
attached exhibits. It would be unfair and improper to disregard those arguments
as a penalty for attaching additional evidence. The City’s motion is granted as to
Exhibits B, C, and D to the Union’s post-hearing brief. This is an attempt to
introduce additional evidence going to the merits of the grievance, that is, the
Grievant’s overall record that serves as mitigation for discipline. Additional
evidence is typically not permitted in a post-hearing brief unless agreed to by the
parties or requested by the arbitrator. Exhibit A will not be stricken. This evidence
goes to the procedural issue argued on the first day of the hearing that arbitration
was improper since the Union had not served the demand for arbitration on the
City. The Union argued that service on the City was not required as it was
informed by AAA it was not needed. While the better practice would have been to
introduce Exhibit A during the hearing so the City could respond if it so decided,
this does not impact the facts going to the merits of the grievance and the City’s
decision to discipline the Grievant.

Not Notifying the Employer of the Demand for Arbitration at the Same Time it Was Filed
with the AAA Did Not Make the Grievance Non-Arbitrable

The arbitrability of a grievance is an affirmative defense to the grievance. The

Employer bears the burden of persuasion. When a party argues procedural arbitrability,

that is, that a grievance was untimely or somehow processed improperly, the Arbitrator

must balance two factors.  One is that contract provisions as to the processing of

grievances should be followed. The due process and procedural protections set out in a

contract are just as enforceable as any other provision. They are negotiated so that the

parties are put on notice of a dispute, know where that dispute is in the process, and are

pursued while evidence is still fresh. This ensures that the parties are not prejudiced by

being unable to adequately present their case and arbitrators are presented with as

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much of the full story as possible without undue delay.  Here, Step 4 of the grievance

procedure sets forth that the Union shall notify the American Arbitration Association and

the City at the same time of its intent to appeal the grievance. On the other side of the

equation is that grievances are meant to be heard on their merits unless the contract

provides otherwise.

This is not a situation where the demand was not timely filed. There is no dispute

it was timely filed with the AAA. Rather, the Employer argues that, since it was not

copied or simultaneously notified when the demand was filed, the grievance cannot be

arbitrated. The Arbitrator disagrees. Step 4 is a notice provision so that the Employer is

advised when the CPPA appeals a grievance to arbitration and is not somehow

prejudiced. The contract language does not indicate that failure to notify the Employer of

the demand when it is filed with the AAA means the grievance cannot go to arbitration.

There is language in Step 4 that the time limits set forth in the grievance procedure are

binding and any grievances not timely filed or processed shall not be considered a

grievance and shall not be arbitrable. As noted above, however, there is no dispute that

the demand was timely filed with the AAA. Indeed, the AAA sent a letter to the CPPA’s

and the City’s attorneys the day after the demand was filed. (JX 3). While not

simultaneous, the notice was prompt so that the City was not prejudiced by late notice.

Nor is it likely the City was surprised that the CPPA appealed the grievance to

arbitration. Moreover, procedural or claim-processing rules seek to promote the orderly

process of litigation by requiring parties to take certain steps at certain specified times.

They should not be considered jurisdictional. The Step 4 language requiring the Union

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to simultaneously notify the Employer is such a procedural or claim-processing rule. It is

not jurisdictional. Therefore, the grievance is arbitrable.

Having found the grievance to be arbitrable here, the Arbitrator also notes that

the language is mandatory. “The Union shall notify the AAA and the Employer at the

same time of its intent to appeal the grievance.” (JX 1, p. 43). Though not jurisdictional,

the Union is required to give notice to the Employer when it files its demand with the

AAA. That the AAA informed the Union of the new filing process did not exempt it from

the duty to notify the Employer. Simply copying the Employer on the email transmitting

the demand to the AAA would be sufficient. And while the AAA promptly notifies the City

that a demand has been filed, this does not relieve the Union of its obligation. Even

though not copying the Employer does not make a grievance non-arbitrable, the Union

agreed to notify the Employer simultaneously and, until the language is changed or

removed, the Arbitrator orders the Union to notify the AAA and the City at the same time

of its intent to arbitrate a grievance.

The Administrative Charges Were Brought Timely

The CPPA contends that Article VIII, Section (l) requires the City to file any

administrative charges against the Grievant within a year from the date the Grand Jury

issued a no bill. The City counters that Section (l) applies only when the investigation

could not lead to criminal charges, which is not the case here. Additionally, if Section (l)

applies, then there was good cause shown for a 90 day extension. The Arbitrator

disagrees that Section (l) did not apply here. The investigation that led to the

administrative charges against the Grievant was the CIRC investigation. The CIRC was

not impaneled until February 2016, after the Grand Jury issued the no bill and the

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Prosecutor determined no charges would be filed. At the time, Chief Williams

suspended the Internal Affairs investigation and the authority for any investigation was

transferred to the CIRC. (UX A). Thus, when the CIRC investigation began, it could not

lead to criminal charges and Section (l) applied. There is no question the initial charging

letter was not issued until January 13, 2017, beyond the one year period. (JX 5).

The Arbitrator agrees with the City that there was good cause for an additional 90

days. Section (l) provides only that the City show good cause, it need not get the

CPPA’s permission for additional time beforehand. Furthermore, the City has shown

good cause here. The Tamir Rice fatal shooting was unique and complex. Many parties

and agencies took part, from the City to the Prosecutor to the Sheriff’s Office to the Ohio

State Highway Patrol. There was voluminous information to consider to make certain a

decision was reached appropriately. The City was entitled to an additional 90 days and

there is no question that the January 13, 2017 charging letter was issued within the

additional 90 days. The charges were brought timely.

The Merits

The Employer bears the burden of proving that just cause exists for the

Grievant’s discipline. Just cause generally requires persuasive proof that the rules or

policies cited for the discharge were violated and the discipline was proportionate to the

offense. That is, the discipline imposed was reasonable under the totality of the

circumstances. Usually, the just cause standard favors progressive discipline, which

gives the employee an opportunity to correct behavior and provides notice that failure to

do so will lead to more severe discipline. However, progressive discipline need not

always follow an oral warning, written warning, suspension, and discharge in lock step

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order. The facts and circumstances of each particular case dictate the appropriate

disciplinary level. Finally, no citation is needed for the principle that employers have the

initial discretion to impose discipline for proven misconduct. Generally, arbitrators will

not second guess management so long as the penalty imposed is reasonable under the

facts and circumstances.

The Arbitrator believes it is important to note that the discipline and this

grievance, while they stem from the tragic shooting of Tamir Rice, are not based on the

actual fatal shooting. That is to say, the Grievant was not disciplined for any use of force

that resulted in Tamir Rice’s death. The use of force issue was determined by the

Cuyahoga County Grand Jury and Prosecutor. The discipline in question here was set

forth in the three charging letters:

Specification #1: On November 22, 2014, you…did not employ proper tactics
when you operated the zone car up to what was reported to be an armed suspect
thereby violating the Policy of General Police Order 2.1.01.

Specification #2: On November 22, 2014, you… Failed to report your arrival time
to the radio dispatcher immediately upon arriving at the location of your radio
assignment.

(JX 5-7). Simply put, the Grievant was suspended for using improper tactics and not

reporting his and Loehmann’s arrival at Cudell. The issue for the Arbitrator is whether

the Employer proved it had just cause for the 10 day suspension.

Public Safety Director William McGrath’s May 30, 2017 decision sets forth his

analysis and reasoning for the 10 day suspension. He found that the Grievant did not

employ proper tactics when he failed to stop upon arriving at Cudell, that he failed to

report his arrival time so he could coordinate with Adam 26, and that he approached

Rice without backup. He disagreed with the Grievant’s belief that this was an active

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shooter situation since, upon reaching the entrance to the park, the Grievant observed

Rice sitting at a picnic table under the gazebo. (JX 9). In other words, since Rice was

not in the act of shooting, there was no immediate threat and it was not an active

shooter situation. The Arbitrator finds that the Grievant violated Rule 7.03. He did not

radio in the arrival time. The CPPA argues that the Grievant was the driver and

Loehmann operated the radio, so the Grievant could not violate Rule 7.03. However, it

is undisputed that the Grievant was the FTO for Loehmann, that his duties included

teaching and mentoring Loehmann, which included instructing him on proper tactics and

procedures. (CX 17, pp. 17-18). It was proper procedure to radio the arrival time, Rule

7.03 is clear on that issue, so the Grievant should have instructed Loehmann to radio

their arrival. The City proved Specification 1.

As to Specification 2, there is no specific rule regarding the proper use of tactics.

Many of the rules and policies cited by the City are general and some certainly could

cover tactics. For example, Rule 1.07 makes every Police Officer responsible for the

good order of his or her assignment and requires each officer to cooperate with all other

personnel in the performance of police duties. The Excellence paragraph of GPO

1.1.02, the Values Mission Statement, indicates that members of the Division of Police

hold themselves to the highest standards of law enforcement and will continue to

improve through training. Additionally, there is general language in other rules requiring

Police Officers to obey any rules, GPOs, and lawful orders issued by a superior officer.

The concept of just cause includes that employees are put on notice of the rules so that

they know what is expected of them, that the rules are clear enough so employees

understand what they can and cannot do, and that, if they do not abide by the rules,

49
they know what discipline could result. However, the City can point to no specific rule or

standard of conduct.

That there is no specific rule against particular conduct does not end the inquiry.

Certain conduct is obvious to any employee and engaging in such conduct can

automatically result in termination. Theft, falsifying documents, violence against another

employee, and failure to show up for work without a justifiable excuse can be reasons

for immediate discharge. Furthermore, the City is entitled to have its Police Officers use

appropriate tactics. After all, it serves neither the public nor the Division to have its

officers use improper tactics. For example, it would serve no one to use riot tactics in

response to a peaceful protest, just as it would serve no one when there is a riot to

respond as though it were a peaceful protest. The issue here is whether the Grievant

knew or was aware of the tactics that the City claims he did not employ.

During his April 4, 2016 Garrity statement, the Grievant acknowledged that his

role as Loehmann’s FTO included orienting him on tactics. He further acknowledged

that he believed more backup was needed to respond to Cudell and that “any time there

is a gun involved there is — usually have at least two cars” and “You know, the more we

have it’s better for us.” He also stated that certain situations call for stopping away from

the exact location of the reported scene. In discussing his role as FTO, the Grievant

responded “…You get them oriented into tactics on if you approach a house, that you

don’t pull up right on the house for a DV [domestic violence].” (CX 17, p. 17-19). Simply

put, there is evidence that the Grievant knew backup was needed and not to pull up

directly to a dangerous situation such as the report of someone with a gun. That is, he

was aware of the tactics the City had trained him on and wanted him to use. On the

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other hand, Kwan testified that he and Drummond discussed that waiting for backup

and where to stop were not addressed in the 2013 in-service training. (UX Q). Though

reasonable minds can differ on this point, the Arbitrator concludes there was enough

evidence for McGrath to conclude the Grievant employed improper tactics. The City

proved Specification 2.

After reaching the conclusion that Specifications 1 and 2 were substantiated,

McGrath found these were Group III violations based on GPO 1.1.11, Disciplinary

Guidance and imposed a 10 day suspension, the shortest suspension allowed under

Group III. (CX 1). It is important to note that the Disciplinary Guidance was not

negotiated as part of the Agreement between the parties. It was unilaterally

implemented by the Division as a guide when imposing discipline. As such, the

Arbitrator is not bound by it and must look instead to the just cause provision of the

Agreement, Article IV(4)(e), and the well-established arbitral concept of just cause. (JX

1, p. 3). Generally speaking, Group I violations are the least serious and Group III the

most. Group III includes such violations as alcohol and drug offenses, criminal law

offenses, firearms violations, excessive use of force, and making false statements.

None of these have anything to do with the use of tactics. They are quite serious and

include conduct that could lead to immediate discharge. As noted above, making false

statements and such criminal offenses as theft can warrant summary discharge for the

first offense. Simply put, the Arbitrator concludes that employing improper tactics is not

as serious as the types of conduct listed in Group III. Therefore, a finding of a Group III

violation was improper. Additionally, the Arbitrator notes that Group III offenses include

excessive use of force. However, the Grand Jury and the Prosecutor determined that no

51
use of force charges were warranted. It is curious that McGrath would conclude that,

even though no criminal charges for excessive force would be filed, employing improper

tactics was just as serious.

Since McGrath imposed the 10 day suspension based on it being the shortest

suspension for a Group III violation, the Arbitrator concludes the 10 day suspension was

inappropriate. The next question is what is the appropriate penalty. Both Specifications

were proved. Additionally, employing improper tactics, while not as serious as the

conduct listed in Group III, is more than a minor violation and warrants more than a

warning. On this record, the Arbitrator determines that a five day suspension is

appropriate. McGrath also required additional training provided by OPATA. The

Arbitrator is of the opinion that more training is better. While the Division has added

training based on this incident, the OPATA tactical training likely will cover additional

topics. Further, training serves the corrective purpose of discipline, to give the employee

an opportunity to correct behavior. The OPATA training will provide the Grievant with

additional skills and knowledge to help him perform his duties.

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VIII. AWARD

The grievance is granted in part and denied in part. The City had just cause to

discipline the Grievant, but the penalty was too severe. The 10 day suspension is

reduced to five days. The Grievant’s record should be corrected to reflect only a five day

suspension and he should be made whole for the five additional days imposed by the

City. If not already completed, the Grievant is required to attend additional OPATA

tactical training as determined by the Division. The Arbitrator retains jurisdiction for 60

days to resolve any disputes as to remedy only.

Dated: April 4, 2018

Daniel G. Zeiser
Arbitrator

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