Gulfport Police Chief “Retaliatory and Excessive”

Gulfport Police chief Rob Vincent stripped Sergeant Rob Burkhart (pictured) of his rank in 2019, and suspended him and Officer Cory Smith. A mediator ruled last week that the Chief meted out discipline unfairly, reinstated Burkhart as sergeant, and ordered him three years of back pay, which could total $50,000.
Gulfport Police Department

More than three years after a St. Patrick’s Day incident that resulted in two officers getting suspended and one getting a demotion, a mediator has ordered the Gulfport Police Department to reinstate Rob Burkhart as a sergeant and give him back pay, which could total $50,000. She’s also ruled in favor of Officer Cory Smith, who received a suspension after the same incident.

Mediator Kitty Grubb ruled that Gulfport Police Chief Robert Vincent meted out discipline toward Officer Smith that was “retaliatory and excessive;” she also said Vincent used discipline as retaliation against Sergeant Burkhart.

Vincent, upset the officers did not make an arrest that night, in which one of two brothers retreated to the roof at their home, demoted Burkhart from sergeant to officer and suspended him without pay for 84 hours. Vincent also suspended Smith without pay for 36 hours. 

 Both officers challenged their reprimands via a mediation process that’s part of the collective bargaining agreement between GPD and the police union representing officers. Arbitrator Kitty Grubb oversaw the 13-hour mediation hearing in October 2020. Almost two years later, on the evening of Sept. 16, she issued a ruling. In it, she sided with the two police officers.

The officers and Fraternal Order of Police attorney Ken Afienko challenged the punishments, saying that Vincent unfairly increased them after the officers appealed the initial decision and requested mediation, according to Afienko.

“There was no ‘just cause’ for Grievant Burkhart’s demotion, nor for the doubling of his suspension time,” Grubb wrote in the ruling, pointing to the original suspension of 48 hours recommended by an internal GPD panel. “Grievant Burkhart’s discipline shall be reduced to a 48-hour suspension, with there being no demotion.”

She also ruled that Smith’s discipline get reduced from 36 hours to 24 hours,  also originally recommended by an internal police panel.

Burkhart’s reinstatement to the rank of sergeant will be retroactive to his 2019 demotion date. That could result in some significant back pay, Afienko said.

Grubb said the two officers and the City will have to determine appropriate interest to be included in the back pay for both officers.

“The arbitrator further awards reasonable and lawfully-compliant interest on the monies decreed herein to be owed and payable by the City to the grievants. … hopefully the parties can and will agree in writing as to the  rate of interest and corresponding amount of additional interest-monies owed to both grievants,” Grubb wrote in her decision.

“He got demoted three years ago … This is going to be a substantial sum of money owed to Burkhart,” Afienko, the police union attorney said in an interview with The Gabber. Afienko welcomed the ruling, which is binding under CBA rules between GPD and the union.

Mediator Kitty Grubb called Gulfport Police Chief Rob Vincent’s discipline toward Officer Cory Smith (pictured here) “excessive and retaliatory,” and ruled that the police department should not have increased suspensions for Smith and Burkhart after they appealed the initial discipline.
Gulfport Police Department

“The Chief was mad because we called him out for retaliation,” Afienko said.

Burkhart declined comment, citing GPD policy.

In her ruling, Grubb said Vincent and GPD ran afoul of Florida’s statutory protections for law enforcement officers — via the Law Enforcement Officers Bill of Rights — as well as procedural rules in the police officers’ collective bargaining agreement with the City.

She cited Vincent’s expansion of the punishments after the officer and police union challenged previous internal decisions. The FOP attorney argued that Burkhart and Smith were punished, although other officers received no official sanctions for other transgressions. One example included a commander who left an assault weapon unsecured in the department, didn’t tell anyone when it disappeared off his desk, and received no formal discipline.

Afienko and the officers also argued that a GPD commander signed off on the decision to leave the St. Patrick’s Day incident and hold off on an arrest until the next day. Vincent said during the 2020 hearing that the officers should have returned later that night to check on the situation. Officers made an arrest the next day.

Officials with the City of Gulfport and Gulfport Police Department did not respond to multiple requests for comment on the decision. That includes how much back pay the two officers, in particular Burkhart, might be owed. A basic estimate suggests Burkhart could get more than $50,000 with back pay and interest. 

Burkhart started with GPD in 2000, first as a dispatcher, then as a sworn officer; Smith has served since 2016.

Gulfport City Councilman Michael Fridovich – who sat through the entire lengthy arbitration hearing in October 2020 — also declined comment on the long-anticipated ruling, deferring to Gulfport City Manager Jim O’Reilly for the next steps related to the ruling. 

“Unfortunately, it is the City’s policy not to comment on specific individual employee’s issues,” O’Reilly, who initially signed off on Vincent’s punishments for the two officers, told The Gabber. However, he added, “we do have concerns in regards to issues related to the application of the process; the City attorney and I will be considering the City’s options.” 

Why Did the Arbitration Take So Long?

“This is a complicated case,” said Afienko of the circumstances, the multiple internal probes conducted by GPD, and the lengthy delays for a ruling.

In the decision, Grubb also pointed to the complicated nature of the dispute and cited COVID-19 as part of the reason for the extremely long delay for a ruling.

“COVID has been claimed as a defense, an excuse, for all manner of this’s or that’s [sic]. It is fair to share, regrettably, the arbitrator did not escape COVID, unscathed, nor escape related medical, especially longer-term, physical-concerns, unscathed, either, nor did the dementia-patient for  whom she serves as sole POA (power of attorney). There were frequently FMLA-concerns and -needs arising,” Grubb wrote in her ruling.

Grubb also said she was not going to bill the parties for work. The National Mediation Board lists Grubb’s fees as $1,575 per day (up to eight hours) for labor mediation, with $196.88 per hour fees for additional research. Grubb charges $950 per day for grievance mediations with a $118 per hour for additional research. She also charges an $118.75 per hour fee for travel time, according to the federal mediation group.

Read the full text of Grubb’s ruling below. Please note: The Gabber transcribed this verbatim from the PDF document, leaving any grammatical, syntax, or spelling errors as stated in the original document.

UNITED STATES FEDERAL MEDIATION AND CONCILIATION SERVICE (FMCS) IN THE MATTER OF THE ARBITRATION BETWEEN ROBERT BURKHART, and CORY SMITH,

( collectively sometimes “Grievants”),

– and-

CITY OF GULFPORT, Employer (sometimes “City”).

Case#: 201118-01452

Issue: Discipline

Arbitrator: Kitty Grubb

Final Decision and Award (sometimes “Final Award”)

Introduction. Employment Contractual Matter Involving Both Grievants.

 The underlying matter involved a criminal domestic-violence dispute, involving both Grievantc; in their official City-duties; the Grievants were law-enforcement officials investigating and/or serving as back-up police-protection, and concerning Grievant Burkhart, his providing direct supervision for Grievant Smith for the City’s Police Department (sometimes “Police Department” or “City Police Department”). But, this arbitration’s grievances absolutely and emphatically do not in any way, shape, or form involve a criminal matter either Grievant is alleged to have committed, but rather, each involves an employment contractual matter – that Grievants allegedly violated City Standard Operating Procedures (sometimes “SOPs” and Written Directives (sometimes “WD”). All readers hereof are respectfully-notified and – requested to remember and remind themselves of such critical fact and distinction. In fact, at the Hearing, in some of her closing remarks, the arbitrator stated on the record, One of the first things it will say in my decision (and) award is-the first thing is, ‘This is not a criminal hearing . . . I (The arbitrator) want everybody right upfront to know what isn’t involved here, because so many people, either in the community, or in the department. or here or there, hear various things. And, it gets very twisted.’ (Remarks of the arbitrator, Hearing Transcript, p. 595, I. 13-20.) (And, as all readers hereof will note, of course, the arbitrator did herein exactly what she related to the parties she would indeed do.)

Contested Discipline at arbitration. 

Rather, this arbitration involves the discipline ultimately issued by the City to both Grievants resulting from the Grievants’ respective employment performance as police officers, and in Grievant Burkhart’s situation, also involving his supervision of Grievant Smith concerning such domestic-dispute’s handling; the issued discipline to both Grievants was challenged by way of two (2) grievances, one (l) filed by each Grievant. The Grievants have each completed their respective suspension. (Hearing Transcript, p. 22, l. 6-9)

Attorneys.

For Grievants: Kenneth J. Afienko, Esq.-

For Employer: Andrew J. Salzman, Esq.-

General Differences. 

The following paragraphs contain some general information about the differences between this or that form of litigation; as noted, and as this arbitrator shares with the reader, these are generalizations, to which there can be and often are differences, if not major differences, depending on the case.

An Arbitration Matter. 

Arbitration is a form of alternate dispute resolution (ADR), a way to resolve disputes; in general, arbitration involves the hearing and deciding of a grievance one (1) party to a contract filed against the other party to that contract. The parties often negotiate and bargain about terms and conditions of this or that, such as employment-matters, including discipline. The parties discuss and decide if a dispute-a controversy can be grieved ( complained about and challenged), and if so, then the agreement usually specifies the method, time-frames, issues, arbitrator-selection method, and so forth. Those bargaining-parties often reach an agreement and entitle it a collective bargaining agreement (“CBA”) or some similar wording. Here, the involved contract” … was entered into between the City of Gulfport, Florida, and the Fratemal Order of Police (“FOP”), Pinellas Lodge #43″. (Please see CBA, Article 1, Preamble 1.1, 1st sent.) The person involved in filing the grievance, or on whose behalf a labor association, and so forth might file the grievance, is called the “grievant”.

Arbitrators. 

The arbitrator is generally a person mutually-selected by the involved-parties; the vast preponderance of all arbitrators have many years, if not decades (plurals), of experience in litigation and dispute-resolution often possess specialized knowledge in fields, such as labor and employment law, and have often heard and decided many. many arbitrations. Arbitrators must be fair, impartial, ethical, and neutral; those are not only professional requirements, they are also business necessities. As arbitrators are usually mutually agreed-upon and selected, it would be most imprudent, to the point of silliness, to pick someone already having pre-formed an opinion against a party, against his/her/its case, or against an issue. Who would select and agree to pay a decision maker who wouldn’t be fair, impartial, ethical, and neutral to you, your case, and/or your issue? So professionally, as well as by business necessity, arbitrators must be above reproach. The arbitrator herein was mutually and also jointly selected from the list tendered by the US FMCS.

A Civil Matter. 

There are differences in the standards of proof, the decision-makers, and so forth depending on which type of legal adjudicatory system someone is reviewing. A civil matter might involve a judge and a jury, and the matter is usually brought by the alleged injured person, often called the .. plaintiff’. There are different parties, as the party pursuing a civil case is a plaintiff, who files the litigation (not the state-entity by its prosecutor, as is usually found in a criminal matter). Civil cases are usually adjudicated in civil lawsuits and involve the legal responsibilities and duties each party owed the other. Remedies for being adjudged liable or admitting to liability might be, for example, an award of monetary damages and/or an injunction and so forth. The burden of proof rests with the plaintiff to prove his/her allegations and also his/her damages “by a preponderance of the evidence” which means ”more likely than not”, ”more probable than not”, “more likely it happened”, etc.

A Criminal Matter. 

A criminal matter involves someone’s being charged with an alleged violation of a criminal statute, ordinance, and so on. Even if the alleged harm(s) be done to a certain person or persons in whatever jurisdictional-entity. a criminal matter is considered an offense committed against the state or against society as a whole; as such, it is prosecuted by the state-entity. In such regard, the prosecutor files the matter. Further, the accused has protections under our U. S. Constitution and also under the State of Florida Constitution. If convicted of the charged criminal-offense, the accused person could be deprived of his/her liberty and freedom; thus, the accused-defendant is often entitled to a lawyer to represent him/her. An accused individual is brought to trial for the alleged crime(s)-the offense(s) against the state, and he/she is often tried before a judge and a juzy. If convicted, or if pleading guilty, for example, there may be a criminal fine and/or incarceration. In criminal cases, the standard and burden of proof borne by the prosecuting-entity is high, such as “beyond a reasonable doubt” the accused-defendant committed the crime(s)-the offense(s) for which he/she was criminally-charged.

The Parties.

Grievant Burkhart. 

Grievant- Sargent Burkhart is a long-time, and also senior, employee of the City’s Police Department. At the time of the underlying domestic-violence matter in which he was involved only in his official duties in law enforcement, Grievant Burkhart had in excess of twenty (20+) years of law-enforcement service for the City’s Police Department; over fourteen (14+) of those years were in a supervisory capacity as a police sergeant. (Hearing Transcript, p. 211 ). Historically, he received good personnel-evaluations and was the senior sergeant, prior to his demotion due to the discipline at-issue; he has challenged and grieved over that employment discipline. (Id; also, Joint Exhibit 18, generally). Grievant Burkhart was Grievant Smith’s direct supervisor before his (Burkhart’s) demotion challenged-herein. Grievant Burkhart did have prior discipline, which was converted into the City Police Department’s personnel new point-system.

Grievant Smith. 

At the time of the underlying domestic-violence matter in which Grievant Smith was involved only in his official duties in law enforcement, Grievant-Officer Smith possessed four plus (4+) years of service with the City Police Department; he had no (0) prior discipline history. (Id. at p. 103). Additionally, Officer Smith earned excellent job-evaluations and was an acting supervisor on several occasions. (Id. at p.104-105; also, Joint Exhibit 24(b) generally). Further, before joining the City’s Police Department, Grievant Smith possessed about a decade of service and experience dealing with those who had been/were drinking alcohol/drunk from imbibing alcohol and so forth.

City-Employer. 

The City of Gulfport is a city located in Pinellas County, Florida; it borders St. Petersburg, South Pasadena, and the water, i.e., Boca Ciega Bay. Per the 2010 US Census, the City’s population was a little over 12,000. The City operates its own Police Department, which employed both Grievants as law-enforcement personnel. 

Brief Summary of the Facts of the Underlying Incident. 

Joint Exhibit 24 provides more, further, and in-depth details about the underlying incident. Again, the reader is reminded, this Final Award does not deal with a criminal matter; rather, it focuses on a disputed contractual employment-matter. Thus, the arbitrator shares only the facts she deems relevant and necessary to the issue at arbitration.

St. Patrick’s Day

March 17, 2019 was a Sunday; it was also St. Patrick’s Day, a day when there is often much feasting, partying, and also drinking of various beverages. Specifically, that day was a publicized and also advertised time of celebration in the City area. The City’s merchants, particularly the bars, grills, and restaurants, drew many partyers; the City then-had l.000’s of celebrating-individuals, enjoying and experiencing St. Patrick’s Day in the City. For a city of about 12,000 in population. having that very many partyers, some of whom were drinking, was of course a significant event. As law and order in the City could possibly become an issue, the City Police Department was of course aware of and mindful of such event.

Domestic-Dispute Call, and Corresponding Police Dispatch. 

That St. Patrick’s Day, a local resident, located in a local home within the City, called the Police Department. The caller stated brief facts, relating to a dispute at that address; the caller-the mother of the involved parties in that intra-family situation shared with the dispatch, she was fearful of the suspect. (In such regard, the suspect had previously battered his mother-the caller. (Hearing Transcript II, p. 222:13-25)) At or about 6:29PM, Grievant-Officer Smith was dispatched to that address in the City.

The nature of such call was an alleged domestic-battery situation and Grievant Smith was sent to investigate. Grievant Burkhart arrived some time later, and provided incident back-up. The individuals generally in the domestic-dispute situation (two (2) brothers and their mother) were known to the City from prior incidents.

Dispute If There Were Any Injury. 

The facts Grievant Smith determined were, earlier in that evening, an adult brother had purportedly pushed/shoved his adult brother, causing very minor injury after he fell, such as scraping and the like. (Arbitrator’s note: In their Brief, p. 6, para. 5, Grievants deny there was injury to the victim-brother. In its Brief, p. 3, the City stated, “The dispute became physical resulting in an injury to the (victim-brother)”.) No (0) medical treatment was then-rendered to the victim-brother by either Grievant, nor his mother, nor by the suspect-brother; likewise, no (0) medical assistance, such as EMT’s, were then-called-for by anyone, including none (0) being summoned by the victim-brother. Both brothers were still on the premises.

Drinking Involved. 

During the course of his official investigation, Grievant Smith discovered, the alleged pushing/shoving incident was effectuated by the brother while and after he was drinking, possibly intoxicated. Regrettably, the suspect had ostensibly been drinking, and would sometimes become violent when intoxicated. (Hearing Transcript 116, 1. l 13) Such dispute arose due to the victim’s, i.e., the alleged pushed/shoved-brother’s, refusal to provide any more alcohol to his drinking-brother. After being so-refused any more alcohol, the alleged suspect-brother shoved his brother-victim purportedly to the living-room floor. [While terms such as “pushing,” shoving”, “minor” and derivations thereof are used herein, this was indeed a matter involving the police/these Grievants in a law-enforcement and protective capacity; such words are not used to demean nor minimize what occurred, but rather, to share the alleged type of force use, resulting injury, aod so forth.]

Pushing/Shoving-Suspect Brother on the Home’s Roof – Yes, the Roof. 

During the course of his investigation, Grievant Smith naturally wished to speak with the alleged suspect. He then discovered that said individual had located himself to the home’s roof and pulled the ladder up from the ground and put that ladder on the roof with him. When he is upset, ostensibly, the suspect-brother will climb on the roof and reside there. (Hearing Transcript, p. 113, I. 13-25) Per the City’s Brief, this is a “case of first impression” according to both Grievants and their Commander …. ” “The City had not dealt with a previous case where an intoxicated suspect had been found on a roof and left there by law enforcement officers. ((please see City’s brief, p. 367, 1st full para.) Further, said suspect-brother refused to talk with Grievant Smith and also refused to come down off of the roof, likewise. (Per Grievant Burkhart, both the witnesses and victim were uncooperative at the scene.) Grievant Smith’s investigation decided, probable caused existed for charging domestic battery. Both Grievants thought it was not safe, in fact, would be unsafe, to arrest/try to arrest the suspect while he was on the residence’s roof in an alleged intoxicated state and with the ladder’s being pulled up, too; but, rather than making that decision jointly and also unilaterally, Grievant Burkhart elected to seek higher-level Police-Department communications and approval.

Higher-Level Communications, and also Status of the Brother. 

In such regard, Grievant Burkhart sought to inform his supervising Commander who was then-working the “off-duty” detail at the St. Patrick’s Day events in the City. That Commander has been Grievant Burkhart’s direct supervisor for then-six (6) years and was very familiar with him, his work, his knowledge, and so forth. Grievant Burkhard explained the situation concerning the two (2) brothers, the alleged domestic dispute, and so forth to that/his Commander. That Commander is an experienced law-enforcement officer; said supervising-official (Commander) gave approval for there not being an arrest then of the alleged suspect-brother, due to: his being on the roof, his purportedly being intoxicated, and so forth. 1be Grievants then completed the interviews, and the purported victim-brother was going to leave the home for the evening. The Grievants then departed the incident-scene themselves, with the brother still on the roof.

“Follow-up”

The parties dispute whether there was any “follow-up” on the domestic case involving the two (2) brothers. The City asserts, neither Grievant “returned to the house or check(ed) on the status of the (pushing/shoving, possibly intoxicated-brother, then on the roof, and that reflected a lack of”follow-up”)”. (City’s Brief, p. 12, 1’1 full para.) Later in that Brief, the City detailed:

(The) Chief … stated, While I (the Chief) can understand the decision not to forcefully apprehend the suspect while on the roof, there is no justification for leaving the scene entirely with no plan to return”, citing (Joint Exhibits 8 and24).

In contrast, in their Brief, the Grievants assert:

… (I)it must be noted that the concerns that the (C)hief expressed that there was no “follow up” done on the case is without merit. As pointed out in testimony, (Grievants) Sgt. Burkhart and Officer Smith did follow up by alerting dayshift personnel to arrest the defendant in the morning, which they did. There is no general order or policy that defines what suffices as “follow up” on this type of case. The Chief testified that he was displeased that the officers never went back during their shift, which ended at 4 am, to effect an arrest. As much as the (C)hiefwas displeased, the officers did follow up, just not to the liking of the (C)hief, which does not amount to a policy violation supporting the discipline given out in this case. (Please see Grievant’s Brief, p. 19, para. 3)

Later Events concerning the Brother on the Roof. 

The suspect-brother on the roof was later apprehended by the day-shift officers the next morning; such apprehension occurred without incident. In such regard,, and as stated in the City’s Brief, p. 13, end of 1st full para., Sargent Burkhart told Officer Smith to check (the brother on the roofs) criminal history concerning prior convictions for battery. Officer Smith responded later in the shift that said brother had a prior conviction for battery and was charging said brother with felony battery. (Joint Exhibit 7).

Booking him, however, with a felony (vs. misdemeanor) domestic battery was improper (“overcharging”). That brother was also cited for obstructing (resisting arrest) and put in the County jail. (Joint Exhibit 24) Also, no (0) other incidents, nor calls to the City Police Department, nor the like were reported at/from that residence for the remainder of the evening.

Concerns Arise.

Grievant Burkhart later learned from another officer on the next shift that the brother on the roof did not have a felony conviction for battery. As the City’s Brief recounts, upon learning such information, Grievant Burkhart called the Chief concerning the correct charge. (Please see City’s Brief, p. 13, para 2) Later, concerns arose over the paperwork Grievant Smith submitted, his failure to provide proper and timely notice of victims’ rights, the Grievants’ failure to effectuate an arrest or check-in on the scene and the status of the various individuals, i.e., the mother, and her two (2) sons, including but not limited to, the alleged suspect-brother on the roof, etc. Further, Grievant Burkhart failed to log in the incident video evidence in his body-camera. And so forth.

Disciplinary Notices. 

Each Grievant received a disciplinary notice, as follows; Grievant Burkhart received his first, and thus, his notice is discussed herein first. 

Grievant Burkhart. 

On June 5, 2019, the City by its Police Department Chief (sometime “Police Chief’ or “Chief’)”) issued a ”Notice of Suspension, Termination or Disciplinary Action” memorandum to Grievant Burkhart (sometimes ”Notice to Grievant Burkhart”). That Notice notified of his (Grievant Burkhart’s) suspension for eighty-four (84)-hours and additionally, of his demotion – from sergeant back to officer. Tue effective date of such Notice was July 2, 2019 (Joint Exhibit 16)

Because that was the discipline challenged and at-issue herein concerning Grievant Burkhart, the relevant portion of such Notice to Grievant Burkhart is supplied as follows: 

On 3/17/19, (Grievant) Sergeant Burkhart made an intentional decision to not follow up on a domestic violence investigation (GP19-5858), despite being aware of the following facts: the victim had sustained an injury as a result of a battery committed against him by the suspect; all officers left the scene without arresting the suspect, leaving both the suspect and the victim together at the same residence; and the suspect had a history of committing violence against his family members in this household. This is a violation ofWD 417 and, by extension, 200.041 IV.I, which is a level four violation (60 points).

Further, Sergeant Burkhart failed to appropriately supervise his subordinate officer in this case. He approved a report which was missing required elements and which included investigative errors. He allowed the officer to go home, and he himself went home, without correcting the errors. Had the errors not been promptly noticed by command staff, a resident would have been falsely charged with a felony crime. This is a violation ofWD 200.041 III.30(e), which is a level three violation (30 points). Sergeant Burkhart has 60 carryover points from two similar violations effective 12/26/16.

Further, Sergeant Burkhart failed to submit and document video evidence that he collected io this case, which is a violation ofWD 200.041 11.20 (10 points) and 200.041 111.30 (c) (30 points). Sergeant Burkhart has 30 carryover points for a similar violation 12/26/16.

Total points counted toward progressive discipline= 220. In accordance with Police Department written directive 200, the disciplinary range for 160-plus points is termination. The administrative review board convened on 5/30/19 and recommended leniency in recognition of Sergeant Burkhart’s tenure: 84 hours’ suspension without pay and demotion from Sergeant to Police Officer. The Chief of Police concurs with that recommendation.

This disciplinary action is subject to the grievance procedure established in the relevant collective bargaining agreement.

Grievant Smith. 

About three (3) weeks later, Grievant. Smith received his disciplinary notice from the City. On June 28, 2019, the City Police Chief issued Grievant Smith a “Notice of Suspension, Termination, or Disciplinary Action” memorandum (sometimes ”Notice to Grievant Smith”) . In sum, that Notice to Grievant Smith informed him of his being suspended for twenty-four (24) hours. (Joint Exhibit 18) The Notice provided as follows:

On 3/17/19, Grievant (Officer) Smith made an intentional decision to not follow up on a domestic violence investigation (GP19-5858), despite being aware of the following facts: the victim had sustained an injury as a result of a battery committed against him by the suspect; all officers left the scene without arresting the suspect, leaving both the suspect and the victim together at the same residence; and the suspect had a history of committing violence against his family members in this household. This is a violation ofWD 417 an.4 by extension 200.041 IV.l, which is a level four violation (60 points).

Further, Officer Smith submitted a report which contained factual errors and which omitted required elements of a domestic violence investigation. He also submitted probable cause affidavits that contained several spelling and grammatical errors and which failed to thoroughly articulate the evidence supporting the relevant charges. This is a violation of WD 200.041 II.19, which is a level two violation (10 points).

Further, Officer Smith incorrectly interpreted the suspect’s criminal history record, resulting in an incorrect elevation of the charge from a misdemeanor to a felony. This is a violation ofWD 200.04111.19, (10 points).

Officer Smith has no disciplinary history, so the total points counted toward progressive discipline= 80. In accordance with Police Department written directive 200, the disciplinary range for 80-95 points is 32-48 hour suspension without pay. The administrative review board convened on 6/19/19 and recommended that the level two violations be merged into one, for a total of 70 points. They further recommended discipline in the form of a 24-hour suspension without pay. The Chief of Police concurs with that recommendation. (Such suspension was later increased by the Chief to a thirty-six (36) hour suspension)

This disciplinary action is subject to the grievance procedure established in the relevant collective bargaining agreement.

Position of Grievants. 

The Grievants’ positions respectively are detailed in their Brief, p.7-8 and as follows:

For (Grievant) Burkhart: 

Sgt. Burkhart maintains that the discipline imposed was not based upon the “just cause” standard as outlined in the FOP collective bargaining agreement. He presented facts and evidence at the arbitration which showed that he did follow up on the investigation and that he did supervise the scene according to the agency’s (City’s Police Department’s and the City’s) rules and regulations.

Sgt. Burkhart also maintains that his supervisor knew about the situation and approved of his actions of not going on the roof to attempt an arrest of the perpetrator. As presented in the arbitration, Sgt. Burkhart’ s actions were never questioned by his supervisor until the (C)hief summarily decided that Sgt. Burkhart should be disciplined for failing to supervise Officer Smith. (JE [Joint Exhibit]: 8)

Moreover, Sgt. Burkhart’ s failure to put his body camera video into evidence was a result of him not remembering that he had recorded part of the incident.

In summary, Sgt. Burkhart maintains that he was retaliated against by the (C)hief because Sgt. Burkhart complained about his rights being violated during the investigation, which was deemed [Joint Exhibit] intentional and in violation of the Florida Police Officers’ Bill of Rights, section 112.532, Florida Statutes (P:4).

For (Grievant) Smith: 

Officer Smith maintains that he did have some typographical errors on the probable cause affidavits (JE [Joint Exhibit]:24) and did mistakenly believe the battery charges against the (suspect) were a felony rather than a misdemeanor because Officer Smith had arrested the perpetrator for a previous battery but failed to notice that there was no conviction for the battery on his criminal history summary. Although these were careless mistakes, the punishment of a 24-hour suspension, which was increased to 36-hours by the (C)hief, was retaliatory and excessive because the chief was very upset during Officer Smith’s grievance before him.

Position of the City. 

The City’s positions respectively are found throughout its brief. They are stated in part at pp. 35-37as follows:

Equal treatment and penalty require criteria that the department apply its rules, orders and penalties evenhandedly. (Grievant) Officer Smith had not received prior discipline. ( Grievant) Sergeant Burkhart testified that he had received three prior level III disciplinary violations which were still in effect at the time of the incident at bar. (T II 58-60) There is no evidence to refute that both Grievants received equal treatment and penalties for the violations.

The record reflects that the Daugherty criteria have been met and just cause exists for the disciplinary suspension of 24-hours for Cory Smith and the 84-hour suspension and demotion of Robert Burkhart. Based on the record, both individuals properly could have received more severe discipline, but both received the benefit of their service to the Gulfport Police Department and their general employment history as mitigating factors.

The Grievants, Sergeant Burkhart in particular, have alleged disparate treatment regarding the discipline they received. They raise as examples officers who were speeding. It should be noted that investigations are complaint driven and the individual police officer they asserted was speeding was in fact disciplined. (Arbitrator’s note: Please note, “investigations are complaint driven”) ( emphasis supplied)

Other sergeants have been demoted as part of their discipline (T II 99:8-10) “X” received an eight-hour suspension and a transfer for inappropriate comments towards a subordinate. (T II 168:8-11)

To establish disparate treatment Sergeant Burkhart must prove that other employees were similarly situated to the (G)rievant in all respects. 11It is not enough that an employee was treated differently than others; it must be established that the circumstances surrounding his/her offense were substantially like those individuals who received more moderate penalties.” Genie Co., 97 LA 542 (Arbitrator Dworkin) “Variations in penalties assessed do not necessarily mean that management’s actions has (sic) been improper … There is no discrimination, or departure from the consistent or uniform treatment of employees, merely because of variation in discipline reasonably appropriate to the variations in circumstances.” Elkouri & Elkouri, How Arbitration Works, 6th Ed., citing Alan Wood Steel Co., 21 LA 843 (Arbitrator Short) As (the) Chief … noted not every situation requires some kind of investigation or discipline. (T III 84:8-9)

As stated by Sergeant Burkhart, Officer Smith and (his) Commander “Y”, this is a case of first impression. The (Police) Department had not dealt with a previous case where an intoxicated suspect had been found on a roof and left there by law enforcement officers. This case involved the potential harm related to leaving a violent offender at the scene with the victim and a victim of a previous case. (T III 64: 18-25) Both Officer Smith and Sergeant Burkhart independently decided no one was going to make an arrest that night and used factors that were prohibited from use in rendering their decision; the suspect was violent; he had a history of violence and he was intoxicated. (T Ill 80:12-23) The violations found for this incident of first impression were appropriate and in conformity with the rules, regulations and policies of the (Police)Department based on the totality of the circumstances.

Sergeant Burkhart has also asserted that the violations arising from (the) Chief(‘s) investigation, after the Compliance Meeting, was retaliation for exercising his rights. However, as both Commander “Y” and (the) Chief … testified to, after (the) Chiefs investigation they learned that Sergeant Burkhart and Officer Smith both intentionally, consciously decided not to go back to the scene. The intentional act was not known until (the) Chie:fl’s) investigation. (T II 210:16-17; III 28:10-12) As noted, by(the) Chief … , before discipline comes before him, the potential discipline has already been reviewed by numerous other people. {T III 82: 12-18) In this case the Administrative Review Board, made up of Commander “Y’, Sergeant “Z” and Sergeant “AA”. There is no support for Sergeant Burkhart’s bare allegations of retaliation.

Sergeant Burkhart’s prior discipline was under the Police Department’s former disciplinary policy. The new violation was under the new policy which provided numerical points. Sergeant Burkhart’s prior discipline was adjusted to the new policy in determining numerical values. The old policy involved elevations of violations, so Sergeant Burkhart’s prior level III violation would elevate to a level IV upon his next disciplinary violation. (T III 76:5-25) The new policy limited the discretion of the Police Chief and provided a more finite range. (Till 77:5-10) His prior level III violations equated to 30 points each. (T 255:12-25)

Consideration was given by the Administrative Review Board and subsequently agreed to by (the) Chief … and City Manager … that mitigating factors would be invoked and both Grievants received reduced discipline. The numerical values were reduced, and the range of discipline was also reduced proportionately. {T 1176-77)

The discipline was reasonably related to the seriousness of the violations and the potential liability for their actions. (The) Chief … sought harsher penalties, including termination for Sergeant Burkhart, but accepted the conclusions of the Administrative Review Boards.

Arbitrators have held demotion is appropriate where there is a “lack of efficiency or competence” is demonstrated. Duqesne Light Co., 48 LA. 1108, 1111 (McDermott 1967) The Daugherty criteria have been met and just cause clearly exists for the violations and subsequent discipline of Officer Smith and Sergeant Burkhart. The minimal suspensions and demotion of Sergeant Burkhart are justified by the totality of the circumstances.

The Arbitration and Pending-Grievances. 

Grievants Burkhart and also Smith are direct beneficiaries thereof the City’s and the FOP’s CBA. Under the applicable and binding CBA, Article 4, the grievances at-arbitration were submitted for a final and binding decision by the arbitrator. Both grievances properly were administrative processed through the mandated grievance-steps outlined in the CBA; regrettably, a mutually satisfactory and agreeable resolution could not be then-reached by the parties. The parties jointly agree, the grievances were timely filed and the administrative grievance-steps were properly exhausted, but no (0) resolution was reached satisfactory to all involved.

Relief Sought by Each Grievant, via his/their respective Grievance. 

Per the Grievants’ Brief, p. 20, and provided directly-hereinbelow, the relief sought by each Grievant in his/their respective grievance:

Based upon the testimony and evidence presented at the arbitration, Sgt. Burkhart is requesting that his grievance be sustained and all charges against him dismissed, and to make him whole by a finding that he be reinstated to the rank of sergeant, along with retroactive pay, seniority, and all other benefits not realized from the time he was demoted.

Based upon the testimony and evidence presented at the arbitration, Officer Smith is requesting that his grievance be sustained and that his discipline be reduced to one count of “II.19 Performance of duties” and be given the minimum discipline allowed (reprimand) in addition to making him whole by ordering the city to reimburse him for the time he served suspended without pay and any other benefits not realized as a result of the discipline imposed.

Jurisdiction and also Authority. Full and Fair Hearing. Venue and Related Details.

The Arbitrator has jurisdiction and authority to decide the grievances on their merits. The arbitration was held on October 22, 2020. The Hearing was conducted in Gulfport City Hall, Gulfport, Florida. At such time, both Grievants and also the City were conferred a full and fair Hearing, facts to which their Counsels both agreed on the record. (Please see Hearing Transcript, p. 596, I. 25 – p. 597, I. 18); in such regard, the Grievants and the City had liberal opportunities: to present sworn testimony, introduce evidence, witnesses, and Exhibits; present arguments, and rebuttal arguments, in support of their contentions; and to liberally cross-examine witnesses. The parties chose to present closing arguments in post-hearing briefs, with the arbitrator’s allowing Counsel to decide the due-date of those briefs. In such regard, the arbitrator stated on the record to Counsel concerning their briefs:

Please don’t incur overtime or bum your (Counsels’ respective) staff out or bum yourself (Counsel) out. If we need more time, I (the arbitrator) will give that time if there would be any way possible to be fair.

* * * *

Like I (the arbitrator) said, there’s no beat the clock.

… Remember my (the arbitrator’s) goal is to have a better product, not to have a lot of overtime burned up with your own staffs. (Hearing Transcript, p. 598, I. l0-13, and p. 599, I. 17-22).

Respective Statement of the Issue.

City’s-Employer’s Statement of Issue: Whether the City of Gulfport had just cause to discipline Robert Burkhard and if so, what is the appropriate discipline? Whether the City of Gulfport had just cause to discipline Cory Smith and if so, what is the appropriate discipline? (“City of Gulfport’ s Arbitration Brief’ (sometimes “City’s Brief’), p. I, 2” para.)

Grievants’ Statement of Issue: Whether the City of Gulfport had just cause to discipline Officer Smith and Sgt. Burkhart; and if so, what is the appropriate discipline? (Grievants’ “Post-Hearing Brief’ (sometimes “Grievants’ Brief’), p. 2, and also p. 4 under the heading “Argument”)

(Arbitrator’s note: The above statements of the issue at-arbitration are virtually identical. The arbitrator decides and holds, it makes no (0) meaningful difference which version of the issue, be it the City’s or the Grievants’, she adopts and rules upon.)

Authorities.

The State of Florida’s Law Enforcement Officers’ Bill of Rights (sometimes “LEO BR”). 

One must first be somewhat generally conversant with “LEO BR”, as that statute is involved herein and was cited administratively by the Grievants. The arbitrator thus shares such in relevant portion:

The State of Florida’s Law Enforcement Officers’ Bill of Rights (“LEOBR”)

Title X

PUBLIC OFFICERS, EMPLOYEES, AND RECORDS

Chapter 112

PUBLIC OFFICERS AND EMPLOYEES: GENERAL PROVISIONS

112.532 Law enforcement officers’ … rights. –

All law enforcement officers (here, Grievants) … employed by or appointed to a law enforcement agency (here, the City) … shall have the following rights and privileges:

(1) RIGHTS OF LAW ENFORCEMENT OFFICERS … WHILE UNDER INVESTIGATION. -Whenever a law enforcement officer (such as Grievants Burkhart and Smith) … is under investigation and subject to interrogation by members of his or her agency (as Grievant was with the City’s Police Department) for any reason that could lead to … (discipline), the interrogation must be conducted under the following conditions:

(a) The interrogation shall be conducted at a reasonable hour, preferably at a time when the law enforcement officer (Grievants) … is on duty, unless the seriousness of the investigation is of such a degree that immediate action is required.

(b) The interrogation shall take place either at the office of the command of the investigating officer or at the office of the local precinct . . . in which the incident allegedly occurred, as designated by the investigating officer or agency.

( c) The law enforcement officer … under investigation shall be informed of the rank, name, and command of the officer in charge of the investigation, the interrogating officer, and all persons present during the interrogation. All questions directed to the officer under interrogation shall be asked by or through one interrogator during any one investigative interrogation unless specifically waived by the officer under investigation.

( d) The law enforcement officer . . . under investigation must be informed of the nature of the investigation before any interrogation begins, and he or she must be informed of the names of all complainants. All identifiable witnesses shall be interviewed, whenever possible, prior to the beginning of the investigative interview of the accused officer. The complaint, all witness statements, including all other existing subject officer statements. and all other existing evidence, including, but not limited to, incident reports, GPS locator information, and audio or video recordings relating to the incident under investigation, must be provided to each officer who is the subject of the complaint before the beginning of any investigative interview of that officer. An officer, after being informed of the right to review witness statements, may voluntarily waive the provisions of this paragraph and provide a voluntary statement at any time.

( e) Interrogating sessions shall be for reasonable periods and shall be timed to allow for such personal necessities and rest periods as are reasonably necessary.

(t) The law enforcement officer … under interrogation may not be subjected to offensive language or be threatened with … disciplinary action. A promise or reward may not be made as an inducement to answer any questions.

(g) The formal interrogation of a law enforcement officer …• including all recess periods, must be recorded on audio tape. or otherwise preserved in such a manner as to allow a transcript to be prepared, and there shall be no unrecorded questions or statements. Upon the request of the interrogated officer, a copy of any recording of the interrogation session must be made available to the interrogated officer no later than 72 hours, excluding holidays and weekends, following said interrogation.

* * * *

(i) At the request of any law enforcement officer … under investigation, he or she has the right to be represented by counsel or any other representative of his or her choice, who shall be present at all times during the interrogation whenever the interrogation relates to the officer’s continued fitness for law enforcement ….

1. G) Notwithstanding the rights and privileges provided by this part, this part does not limit the right of an agency to discipline … an officer.

(4) NOTICE OF DISCIPLINARY ACTION; COPY OF AND OPPORTUNITY TO ADDRESS CONTENTS OF INVESTIGATIVE FILE; CONFIDENTIALITY. –

(a) (Discipline), … that might result in loss of pay or benefits or that might otherwise be considered a punitive measure may not be taken against any law enforcement officer unless the law enforcement officer … is notified of the action and the reason or reasons for the action before the effective date of the action.

(b) Notwithstanding s. 112.533(2), whenever a law enforcement officer … is subject to disciplinary action … , the officer or the officer’s representative shall, upon request, be provided with a complete copy of the investigative file, including the final investigative report and all evidence, and with the opportunity to address the findings in the report with the employing law enforcement agency before imposing disciplinary action . . . . The content<; of the complaint and investigation shall remain confidential until such time as the employing law enforcement agency makes a final determination whether or not to issue a notice of disciplinary action …. This paragraph does not provide law enforcement officers with a property interest or expectancy of continued employment, … as a law enforcement officer.

(5) RETALIATION FOR EXERCISING RIGHTS. – No law enforcement officer shall be … disciplined, demoted, … or otherwise discriminated against in regard to his or her employment or appointment, or be threatened with any such treatment, by reason of his or her exercise of the rights granted by this part. (emphasis supplied)

(6) LIMITATIONS PERIOD FOR DISCIPLINARY ACTIONS. –

(a) Except as provided in this subsection. … (discipline) may not be undertaken by an agency against a law enforcement officer … for any act, omission, or other allegation or complaint of misconduct, regardless of the origin of the allegation or complaint, if the investigation of the allegation or complaint is not completed within 180 days after the date the agency receives notice of the allegation or complaint by a person authorized by the agency to initiate an investigation of the misconduct. If the agency determines that disciplinary action is (sic) appropriate, it shall complete its investigation and give notice in writing to the law enforcement officer … of its intent to proceed with disciplinary action, along with a proposal of the specific action sought, including length of suspension, if applicable. Notice to the officer must be provided within 180 days after the date the agency received notice of the alleged misconduct, regardless of the origin of the allegation or complaint, except as follow~:

1. The running of the limitations period may be tolled for a period specified in a written waiver of the limitation by the law enforcement officer ….
2. The running of the limitations period is tolled during the time that any criminal investigation or prosecution is pending in connection with the act, omission, or other allegation of misconduct.
3. If the investigation involves (sic) an officer who is incapacitated or otherwise unavailable, the running of the limitations period is tolled during the period of incapacitation or unavailability.
4. In a multi.jurisdictional investigation, the limitations period may be extended for a period of time reasonably necessary to facilitate the coordination of the agencies involved.
5. The running of the limitations period may be tolled for emergencies or natural disasters during the time period wherein the Governor has declared a state of emergency within the jurisdictional boundaries of the concerned agency.
6. The running of the limitations period is tolled during the time that the officer’s compliance hearing proceeding is continuing beginning with the filing of the notice of violation and a request for a hearing and ending with the written determination of the compliance review panel or upon the violation being remedied by the agency.

(b) An investigation against a law enforcement officer . . . may be reopened, notwithstanding the limitations period for commencing disciplinary action, demotion, … if:

1. Significant new evidence has been discovered that is likely to affect the outcome of the investigation.
2. The evidence could not have reasonably been discovered in the normal course of investigation or the evidence resulted from the predisciplinary response of the officer. Any disciplinary action resulting from an investigation that is reopened pursuant to this paragraph must be completed within 90 days after the date the investigation is reopened.

112.533 Receipt and processing of complaints. –

(1)(a) Every law enforcement agency (here, City Police Department) … shall establish and put into operation a system for the receipt, investigation, and determination of complaints received by such agency from any person, which shall be the procedure for investigating a complaint against a law enforcement (officer) (here, Grievants) … and for determining whether to proceed with disciplinary action or to file disciplinary charges, notwithstanding any other law or ordinance to the contrary. When law enforcement … personnel assigned the responsibility of investigating the complaint prepare an investigative report or summary, regardless of form., the person preparing the report shall, at the time the report is completed:

1. Verify pursuant to s. 92.525 that the contents of the report are true and accurate based upon the person’s personal knowledge, information, and belief.
2. Include the following statement, sworn and subscribed to pursuant to s. 92.525:

“I, the undersigned, do hereby swear, under penalty of perjury, that, to the best of my personal knowledge, information, and belief, I have not knowingly or willfully deprived, or allowed another to deprive, the subject of the investigation of any of the rights contained in ss. 112.532 and 112.533, Florida Statutes.”

The requirements of subparagraphs 1. and 2. shall be completed prior to the determination as to whether to proceed with disciplinary action or to file disciplinary charges. This subsection does not preclude the Criminal Justice Standards and Training Commission from exercising its authority under chapter 943.

* * * *

112.534 Failure to comply; official misconduct. –

(1) If any law enforcement agency (here, City Police Department) … , including investigators in its internal affairs or professional standards division, or an assigned investigating supervisor, intentionally fails to comply with the requirements of this part, the following procedures apply. For purposes of this section, the term “law enforcement officer” … includes the officer’s … legal counsel, except in application of paragraph ( d). ( emphasis supplied)

( a) The law enforcement officer (here, Grievants, including his/their joint ” … legal counsel”) … shall advise the investigator (here, the City) of the intentional violation of the req_uirements of this part which is alleged to have occurred. (Grievants, including his/their joint ” … legal counsel’s”) notice of violation is sufficient to notify (the City) of the requirements of this part which are alleged to have been violated and the factual basis of each violation.

(b) If (the City) fails (sic) to cure the violation or continues (sic) the violation after being notified by (Grievants, including his/their joint” … legal counsel”), the (Grievants, including his/their joint ” … legal counsel”) shall request the (Police Chief) or his or her designee be informed of the alleged intentional violation. Once this request is made, the interview of the officer shall cease, and the officer’s refusal to respond to further investigative questions does not constitute insubordination or any similar type of policy violation.

* * * *

(d) Unless otherwise remedied by the (City Police Department) before the hearing, a compliance review hearing must be conducted within 10 working days after the request for a compliance review hearing is filed, unless, by mutual agreement of the (Grievants) and (City Police Department) or for extraordinary reasons, an alternate date is chosen. The panel shall review the circumstances and facts surrounding the alleged intentional violation. The compliance review panel shall be made up of three members: one member selected by the (Police Chief), one member selected by the (Grievants) filing the request, and a third member to be selected by the other two members. The review panel members shall be law enforcement officer … who are active from the same law enforcement discipline as the officer requesting the bearing. Panel members may be selected from any state, county, or municipal agency within the county in which the (respective Grievant) work. The compliance review hearing shall be conducted in the county in which the (respective Grievant) work(). ( emphasis supplied)

* * * *

(f) The (Grievant) bears the burden of proof to establish that the violation of this part was intentional. The standard of proof for such a determination is by a preponderance of the evidence. The determination of the panel must be made at the conclusion of the hearing, in writing, and filed with the (then-Police Chief) and the (respective Grievant). ( emphasis supplied)

(g) If the alleged violation (be) sustained as intentional by the compliance review panel, the (Police Chief) shall immediately remove (the violating-employee) from any further involvement with the investigation of (Grievant). Additionally, the (Police Chief) shall direct an investigation be initiated against (the violating-employee) determined to have intentionally violated the requirements provided under this part for purposes of (City Police Department) disciplinary action. That investigation (be) sustained, the sustained allegations against (the violating-employee) shall be forwarded to the Criminal Justice Standards and Training Commission for review as an act of official misconduct or misuse of position. ( emphasis supplied)

(2)(a) All the provisions of s. 838.022 shall apply to this part.

(b) The provisions of chapter 120 do not apply to this part.

Pertinent CBAs Provisions

There are separate CBAs for Police Sergeant.., such as Grievant Burkhart, and Police Officers, such as Grievant Smith; unless noted otherwise. the language below is the same for both CBAs. Such are found at Joint Exhibit I.

Article 1, Preamble 1.1:

This Agreement (CBA) is entered into between the City of Gulfport, Florida, and the Fraternal Order of Police, Pinellas Lodge #43. It is the intent and purpose of this Agreement {CBA) to assure sound and mutually beneficial working and economic relationships between the parties hereto, to provide an orderly, peaceful and timely means of resolving any misunderstandings or differences which may arise, and to set forth herein the full agreement between the parties concerning rates of pay, wages, hours, and other terms and conditions of employment as pursuant to FS 447.309

* * * *

Article 3,, Rights of Parties, Section 3.l{A )- Management Rights:

A: Management Rights

Except as expressly provided for in this Agreement or by statute or ordinance, the City retains the sole right to manage its operation and direct the working force, including the rights to decide the size of and number in its working force; the scope of service to be performed; the method of service; to determine the schedule of work time; to determine whether and to what extent the normal routine work performed in the past required in its operations, shall be performed by employees covered by this Agreement; to assign work and work to be performed; to maintain order and efficiency; to curtail or discontinue temporarily or permanently in whole or in part, operations whenever in the opinion of the City good business judgment makes such curtailment or discontinuance advisable; to establish and change hiring procedures; to hire, lay off, assign jobs, work and locations, transfer, to suspend, discharge, or discipline for just cause, promote and determine the qualification of employees covered by this Agreement {CBA); to determine and change standards of fitness of employees to perform; to require any applicant for employment to take a polygraph examination at the discretion of the chief of police except as specifically prohibited by State law; to determine the starting and quitting time and the number of hours to be worked; to transfer work from one department or employee to another; to abolish or change existing jobs; to subcontract out any or all of the work performed by the employees in the bargaining unit when in the opinion of the City Council, such subcontracting will be beneficial to the operation of the City government; to establish new jobs, and to have complete authority to exercise those rights and powers incidental thereto, including the right to alter or vary past practices as the City may determine to be necessary for the orderly and efficient operations of the City, subject only to such restrictions governing the exercise of these rights as are expressly and specifically provided in this Agreement. (Please note, also the use and specific reference of the “just cause” standard.) (emphasis supplied)

* * **

Article 3, Rights of Parties, Section 3.4(C) – Work Rules and Prevailing Rights:

* * * *

C: Existing Rules

1. Employees shall be required to observe and comply with all current and future written rules and regulations as set forth in Departmental procedures and such special and general orders and other written communications, except those which are in conflict with this Agreement (CBA). 

Article 4, Grievance and Discipline, Section 4.1.3- Arbitration:

* * * *

(c) The hearing on the grievance shall be informal and the rules of evidence shall not apply; however, to assure an orderly hearing, the rules of judicial procedure should be followed as closely as possible.

(d) The decision of the arbitrator shall be final and binding upon the aggrieved employee(s) or the Fraternal Order of Police, Pinellas Lodge #43 and the Employer.

(e) The costs of the arbitrator shall be borne equally by the parties, except that each party shall bear the costs of its own attorney and the cost of any transcripts desired by that party.

Section 4.2: Performance and Discipline- Subsection 4- Disposition of Investigation:

When an investigation of an employee by the Department is completed, the employee’s file shall reflect one of the following as his/her case disposition:

(a) Unfounded: The investigation conclusively proved that the act or acts complained of did not occur.

(b) Exonerated: The acts which provided the basis for the complaint or allegation occurred; however, investigation revealed that they were justified, lawful and proper.

(c) Not Sustained: Investigation failed to disclose sufficient evidence to prove clearly the allegation made in the complaint or to disprove conclusively such allegation.

(d) Sustained: The investigation disclosed sufficient evidence to prove clearly the allegation made in the complaint.

(e) Policy Failure: The action of the agency or the officer was consistent with agency policy; however, the policy requires amending or revision.

(f) Misconduct Not Based on Original Complaint Sustained: New substantiated misconduct not mentioned in the initial allegation was disclosed by the investigation and is sustained. The original complaint may be unfounded, not sustained or exonerated.

Section 4.3: Discipline and Discharge:

* * * *

B: Degree of Discipline

* * * *

Discipline of regular employees may only be for just cause with proof that a

violation has occurred, and the punishment is reasonable. Employees may be disciplined by written warning, demotion, suspension or discharge for violation of the City or department rules and regulations or any action or failure to act which in the opinion of the Chief or his/her designee adversely affects the ability of the employee and/or fellow employees to efficiently perform their job responsibilities and/or adversely affects the efficient operation of the City Government or any department, division, or area of the City. Written warnings are subject to the grievance procedure only through Step 3, City Manager, and not subject to arbitration. Suspension, demotions and discharges of non-probationary employees are subject to the grievance procedure and arbitration. (Joint Exhibit 1, p. 23) (emphasis supplied}

C: Types of Discipline

The City recognizes the fact that each situation differs in many respects with somewhat similar ones. Thus, the City retains the right to determine the appropriate discipline on a case-by-case basis.

The City recognizes the following types of disciplinary action:

(1) Written warning

(2) Suspension without pay

(3) Demotion

(4) Discharge

D: Written Warnings

Written warnings shall not be placed in the employee’s personnel files before the employee has been informed of such action. The employee shall be requested to date and sign all written warnings; however, the signature does not imply agreement. If the employee refuses (sic) to sign a written warning, this action shall be noted on the document.

E: Notification of Personnel Action

Upon written authorization from the employee, the City will furnish to the Pinellas Lodge 43 of the Fraternal Order of Police representative copies of the forms prepared by the City covering the personnel action.

Standard Operating Procedures (sometimes “SOP”)

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SOP 2001 Standards of Conduct and Discipline:

200.00 Purpose:

The purpose of this directive is to establish a standard of conduct that must be followed by all employees of the department, as well as a fair and uniform process for reviewing violations and imposing corrective action.

200.01 Definitions:

1. Administrative Review Board: A supervisory panel convened to review policy violations and make recommendations to the chief of police regarding disciplinary action. (emphasis supplied)
2. Counseling: Non-disciplinary and informal corrective action where a supervisor has reason to believe that a policy violation has occurred. Counseling need not be documented~ but if so, it is in the form of a note in the employee’s performance evaluation.
3. Discipline: Corrective action imposed upon confirmation of a policy violation on the part of any employee of the agency, ranging from a written warning up to termination of employment.
4. Pre-termination hearing: A hearing conducted by the chief of police subsequent to the ARB but prior to termination of employment as disciplinary action.

200.02 : Administrative Review Board: Whenever the chief of police or his designee sustains a violation of policy for level I through level 5, an Administrative Review Board (ARB) will be convened to review the case. (emphasis supplied)

1. The ARB will be composed of the employee’s Immediate supervisor, commander, and one other supervisor selected by the chief of police or his designee. Surrogates can be selected in exigent circumstances, such as any of the aforementioned supervisors being on extended leave. (emphasis supplied)

The purpose of the ARB is to recommend disciplinary action, not to re-investigate the case. The ARB will review all available records and evidence and shall afford the affected employee an opportunity to be heard.

1. The ARB members shall come to a unanimous decision before making their recommendation to the chief of police. (emphasis supplied)
2. The chief of police or designee will make the final decision on discipline after consideration of the recommendation from the ARB.
3. Rights of employees during the ARB process:
4. All elements of the police officers Bill of Rights as outlined in FSS 112 shall apply to all sworn officers during an ARB. (Please note, the previously-cited herein Florida statute, “LEO BR”, is specifically incorporated by reference in the City’s SOP, Section 200.02 (d) (1)) (emphasis supplied)
5. All employees have the right to review all records and evidence prior to the ARB.
6. All employees who are sworn officers have the right to representation by counsel or union representative.
7. The ARB will be audio recorded, and the employee will be sworn in prior to making any statements during the ARB.

200.03 Progressive Discipline: The disciplinary scale is divided into minimum and maximum disciplinary ranges which are based on a point system. The points are calculated by determining the level of violation of written directive, combined with the number of charges per level. In the event the employee under investigation is a supervisor, the chief of police may impose demotion in lieu of, or in addition to, other discipline. (emphasis supplied)

200.031 Point System:

1. Points will be retained and count toward future disciplinary action for significantly similar violations. A Level I violation is no longer considered after I year from the date discipline is rendered, Level 2 after two years from the date discipline is rendered, Level 3 after three years from the date discipline is rendered, and Level 4 after four years from the date discipline is rendered. Level 5, 50% of the points are no longer considered after 10 years, but the remaining 50% stay for the remainder of employment.
2. A single level I violation has no point value and as a result, no points will be carried forward. For this reason, in keeping with progressive discipline, repetitive written warnings will accumulate points on the following basis as per the established disciplinary range.
3. Second written warning received equals ten points.
4. Third written warning received equals fifteen points.
5. Any misconduct which would result in the employee receiving a fourth written warning within a twelve-month period will be determined by the A.R.B. If the complaint is sustained, the employee will receive 8 – 12 hours and 25 progressive discipline points. Any further Level I violations within the twelve-month period by the employee will be determined by the A.R.B. The amount of discipline will be consistent with progressive discipline and will follow the disciplinary range scale in sequence.
6. If the point value falls between disciplinary ranges, the lower point value will be utilized for determining discipline.
7. With the exception of written warnings given to employees at the command level, all discipline will be based on the disciplinary points accrued by the employee.

200.04 : Levels of Misconduct: Levels of violation and the attendant levels of discipline are established to give guidance in disciplinary matters. Employees have a duty to be cognizant of all. (sic) written directives, rules and regulations, and the respective guidelines, and to make every effort to conscientiously and consistently meet those guidelines and department expectations.

200.041 Levels are, however, only guidelines, and each disciplinary matter must be viewed in conjunction with the overall performance of an employee. Past performance to include exemplary performance as well as past discipline and other circumstances such as multiple violations and intent must be weighed as part of the disciplinary process. Additionally, all disciplinary actions are subject to the appropriate grievance process as outlined in the … respective collective bargaining agreement (CBA) for union employees. ( emphasis supplied)

Rules and regulations and subsequent violations are divided into five (5) distinct categories. A Level Five is the most serious violation and carries the most serious discipline. Level One violations are the least serious.

200.11 Levels of violation and the attendant levels of discipline are established to give guidance in disciplinary matters. Members have a duty to be cognizant of all written directives, rules and regulations, and the respective guidelines, and to make every effort to conscientiously and consistently meet those guidelines and department expectations.

200.12 Levels are, however, only guidelines, and each disciplinary matter must be viewed in conjunction with the overall performance of an employee. Past performance to include exemplary performance as well as past discipline, past counseling and other circumstances such as multiple violations and intent must be weighed as part of the disciplinary process. Additionally, the city manager reserves the right to reduce or increase any disciplinary penalty decisions of a department director.

* * * *

200.041 V.18: Conduct unbecoming a police employee. No employee shall commit acts that constitute conduct unbecoming a police employee, which includes but is not limited to:

* * * *

(d) Failure to take appropriate action to preserve and protect life or property.

* * * *

202.03 Supervisory Responsibility: All supervisory personnel within the department are charged with providing guidance and assistance to their subordinates and evaluating their performance. Supervisors shall make regular observations of subordinates’ performance and discuss with the employee those areas in which the employee ls (sic) work performance or conduct is unsatisfactory as soon as the problem becomes evident.

202.031 At every level of the department, employees should be given the authority to make decisions necessary for effective execution of their responsibilities. Commensurate authority must accompany responsibility. Each supervisor and employee is (sic) accountable for the use of delegated authority, as well as failure to use it.

202.032 To achieve effective direction, coordination and control, supervisory personnel are accountable for the performance of employees under their immediate control.

* * * *

445.07 security gf Evidence Any and all records of evidentiary value shall be secured as soon as practical, but no later than the end of the shift during which the video was recorded. Sworn members will secure body worn camera video and in-car video in the appropriate electronic database prior to the end of their shift. Officers will ensure that the item of evidence is noted in the property section of their offense report. Officers will also ensure that the electronic video file is properly annotated with the proper case number and ensure that the file is categorized as “evidence”.

Written Directive 417-Policy: Recent domestic violence research clearly reveals that when abusers are not punished, they are culturally encouraged to repeat such abhorrent behavior. Domestic violence is a crime, and frequently, the police are the only agency called for help. Law enforcement intervention is vital to the process of breaking the cycle of violence. An arrest sends the message that this community will not tolerate domestic violence, and an arrest provides safety to victims, families and the community. In accordance with sections of State

Florida Statutes 741 and 901.15, the Gulfport Police Department has adopted the policy that. in situations involving domestic violence and where appropriate probable cause exists, the preferred police response is arrest of the offender. (emphasis supplied)

* * * *

417 .091 The following factors should not be considered in determining whether an arrest will be

made:

* * * *

1. The victim’s request that an arrest not be made
2. A belief that the victim will not participate with criminal prosecution or that the arrest may not lead to a conviction;

* * * *

1. Disposition of previous police calls involving the same victim or suspect;

* * * *

1. Chemical dependency or intoxication of the parties. (emphasis supplied)

Level Four (IV) Violations: Level four violations are acts or omissions that may subject an employee to a disciplinary suspension of 24 – 36 hours, or more, based on accumulated disciplinary points. Level Four violations include:

IV.I Critical Responsibility Failure: No employee shall fail, by an act of omission or commission:

1. To prevent crime; and/or,
2. Enforce all state and local ordinances coming within agency jurisdiction.

Level Three (III) Violations: Level (T)hree violations are acts or omissions that may subject an employee to a disciplinary suspension of 8 hours to 12 hours, or more, based on accumulated disciplinary points. Level Three violations include:

III 30. Inappropriate conduct No employee of the agency shall participate in inappropriate conduct, which may include:

* * * *

1. Failure to submit properly written reports as required.

* * * *

1. Failure to properly supervise subordinates, to refer disciplinary charges or take other appropriate disciplinary action.

Level Two (II) Violations: Level Two violations are acts or omissions that may subject an employee to a minimum of a written warning. Level Two violations include:

* * * *

II 19. Performance of duties. All personnel shall perform their duties as required or directed by law, agency rules, policies and procedures, or other lawful orders of a supervisor. All lawful duties required by competent authority shall be performed promptly as directed, notwithstanding the general assignment of duties and responsibilities.

II 20. Property and evidence handling. Employees charged with receiving, storing and releasing property and evidence are required to handle such items in accordance with established procedures.

Cited City Policies per Each Grievant.

Grievant Burkhart.

The policy Grievant Burkhart was cited as violating was WD 200.041 III.JO (e). (Please see Joint Exhibit 2). Grievant Burkhart denies such violation. That cited-provision reads as follows: 

111.30 Inappropriate conduct No employee of the agency shall participate in inappropriate conduct, which may include:

* * * *

1. Failure to properly supervise subordinates, to refer disciplinary charges or take other appropriate disciplinary action ( emphasis supplied)

Certain Administrative History re: Grievant Burkhart. 

Pursuant to notice of the above alleged violation, in total, two (2) Administrative Review Boards (“ARBs”) were convened; the ARBs were to administratively process such alleged violation by Grievant Burkhart and make a recommendation; such ARB’s will be referenced herein as ARB #1 and ARB #2. (Arbitrator’s note: There was more than one (1) Board-process involved concerning Grievants, including two (2) ARBs for Grievant Burkhart; to add possibly an even further/another source of potential confusion, later, there was yet-another Review/Board involved, a Compliance Review Board (sometimes “CRB”). Readers are urged to remember and also distinguish which Review/Board was which, and also which Board did what.) 

ARB #1. Recommended Discipline. 

A Commander chaired the Board; two (2) other supervisors, both sergeants participated. 1brough his Counsel, Grievant Burkhart objected to such ARB # 1. Said Counsel asserted, there had been violation(s) of the Florida Police Officers’ Bill of Rights (LEOBR), Florida law, i.e., Florida Statute, section 112.534. (Joint Exhibits 8; and 10). Grievant’s Counsel asserted Grievant was not provided any evidence, supporting statement, or other documentation; That Counsel contending it was not only a violation of the LEOBR, but also of fundamental rights guaranteed to governmental employees under the Supreme Court’s decision in Cleveland Board of Education v. Loudermill (470 US 532). Yet, despite said Counsel’s citing and alleging a specific violation of Florida law, ARB# 1 continued on, i.e., that ARB # 1 did not resolve such contention of a violation of the Florida LEO BR statute, for having an insufficient investigation, nor postpone, nor re-schedule, nor the like.

Counsel Afienko and his client-Grievant Burkhart departed that meeting, yet the Board continued to deliberate Grievant Burkhart’s alleged violation of “Failure to Supervise” provisions; ARB # 1 decided he did violate such provision; his recommended-discipline for that was forty-two (42) hours of suspension, but no (0) demotion. (Please see Joint Exhibit 9. See also Hearing Transcript, pp.379-83 and 450-462). While it was recommended Grievant Burkhart not lose his then-current-rank, i.e., Sargent, nevertheless, it was also recommended he lose roughly the equivalent of a week’s pay – not an insubstantial discipline.

Compliance Review Board (sometimes “CRB” or “Board”) Its LEOBR-Hearing. Its Determination. 

A Compliance Review Board was convened in response to Grievant Burkhart’s asserted violations of his LEO BR rights. A related hearing was conducted on April 9, 2019. The CRB heard testimony, examined evidence, reviewed the applicable law, and found that indeed, Grievant Burkhart’s LEOBR-rights had been willfully violated. (P:4) To this arbitrator that was a significant and noteworthy decision. In response to the sustained Board’s findings, the City’s Police Chief elected to re-do the widerlying investigation by directing an internal investigation to redo the investigation by ordering an internal investigation into the pending matter; that occurred a couple of weeks or so later. (Joint Exhibit 12JE:12).

ARB #2 and its Two (2) New/Added Alleged Violations concerning Grievant Burkhart. 

The internal investigation was later-conducted by a Commander, and later, there was yet-again, another ARB held. (The arbitrator has denominated that as ARB# 2) Such ARB # 2 was held on May 13, 2019. (Joint Exhibit 14). However, and contrary to ARB#!, concerning ARB# 2, the City added two (2) more additional charges/new/alleged violations of City policies. More specifically, in addition to the original charge of “Failure to Supervise”, two (2) more disciplinary-charges were alleged to have been violated and were now-added. The two (2) newly-added additional items were:

IV.I Critical Responsibility Failure: No employee shall fail, by an act of omission or commission:

1. To prevent crime; and/or,
2. Enforce all state and local ordinances coming within agency jurisdiction

and

11.20 Property and evidence handling. Employees charged with receiving, storing and releasing property and evidence are required to handle such items in accordance with established procedures. (Please see Joint Exhibit 2)

Statement of Grievant Burkhart at such ARB. 

At that ARB, Grievant Burkhart made the following statement:

Thank everyone for being here today. First, I’d like to apologize, I mean I know this isn’t easy for anybody, especially getting this group (ARB #2 Board) together. There’s definitely things I did wrong here and there are things I could have done better. After the course of the investigation ya know I realized there’s things that I didn’t realize at the time that I did do wrong and I have taken steps to ensure that those things won’t happen again. I do apologize for that. I’ve taken steps for example, there’s no paperwork that gets by me, and it’s all going to come to my desk. I’ve already addressed that with my squad. As far as the body cam video, I had no, no intention of not putting .. .I just didn’t realize it was evidence at the time – I really didn’t. Now that I’ve been made aware of that, I’ll be more cognizant of that next time. (Joint Exhibit 14)

ARB# 2’s Determination and Recommendation. 

In ARB # 2, a hearing was conducted. After all evidence and so forth were presented, the ARB # 2 proceeding concluded; ARB # 2 then decided and recommended Grievant Burkhart should lose his rank of sergeant, a position he had held for fourteen years (14), i.e., be demoted, and also, he would be suspended for eighty-four (84) hours (the equivalent of losing two (2) weeks of pay, approximately). (Please see Joint Exhibit 6). (Arbitrator’s note: In sharp contrast to ARB# I which rejected recommending Grievant Burkhart be demoted, ARB # 2 recommended both demotion and increasing Grievant Burkhart’, length of suspension, by doubling it.)

Decision of the City’s Police Chief. Effect on Grievant Burkhart. 

The City’s Police Chief agreed with ARB# 2 ‘s recommendation. Thus, effective July 2, 2019, Grievant Burkhart lost his sergeant’s rank, and for all worked-time thereafter, he would earn less pay each pay-period, every pay-period; also, he lost approximately two (2) weeks’ pay, due to his being suspended. (Please see. Joint Exhibit 16) Upon receiving the City’s ultimate decision, Grievant Burkhart then filed a timely grievance. That grievance was rejected and denied at every administrative step of the process. Then, Grievant Burkhart filed for an arbitration Hearing (Joint Exhibit 3), which Hearing was later-conducted by the arbitrator herein (me).

Grievant Smith’s ARB and Alleged Violations. 

As Grievant Burkhart, Grievant Smith also had an ARB hearing. He was charged with:

IV.I Critical Responsibility Failure: No employee shall fail, by an act of omission or commission:

a To prevent crime; and/or,

1. Enforce all state and local ordinances coming within agency jurisdiction

and

Four Counts of allegedly violating “11.19 Performance of duties.

All personnel shall perform their duties as required or directed by law, agency rules, policies and procedures, or other lawful orders of a supervisor. All lawful duties required by competent authority shall be performed promptly as directed, notwithstanding the general assignment of duties and responsibilities.”

ARB Recommendation for Grievant Smith. Grievant Smith Files a Grievance. 

The ARB recommended, Grievant Smith be suspended for twenty-four (24) hours .. The City’s Police Chief concurred with that ARB Recommendation, and effectuated a twenty-four (24) hour suspension of Grievant Smith. (Please see Joint Exhibit 18, p.3). Again, as Grievant Burkhart, Grievant Smith likewise filed a grievance over his discipline, alleging such not to be justified. His grievance was denied through every administrative step, and thus, he, too, requested arbitration. (Id)

Per the City’s Chief of Police, Grievant Smith’s Alleged “Lack of Character”. Corresponding Enhancement of Discipline by the Chief. 

One of the grievance’s administrative steps involved a meeting with Chief; said Chief then-decided to raise Grievant Smith’s discipline from twenty-four to thirty-six (36) hours suspension. (Please see Joint Exhibit 21) At that time, the Chief stated, he was “appalled” by Grievant Smith’s “lack of character” and on his (Chief’s) own volition, decided to increase Officer Smith’s suspension from twenty-four (24) hours to thirty-six (36) hours. (Id.)

Final Award Results from Various Sources of Information, Determinations, and Understandings. 

This was a heavily litigated arbitration, involving two (2) Grievants and rather extensive, preceding. administrative-procedural steps; the Hearing was a lengthy one, featuring both Grievants and their respective grievances’ being at-arbitration in a combined/joined Hearing. To illustrate how heavily ligated this matter was, the Hearing transcript, alone, is 628 pages (excluding/not counting therein such number the many Exhibits Introduced and their corresponding pages. The Grievant’s “Post-Hearing Brief’ was twenty (20) pages, and the City’s-Employer’s, thirty-eight (38) pages. All total, the arbitrator had seven (7), three (3)-ring binders/notebook mostly or completely full of documents, briefs, Exhibits, and so forth, with her making efforts to separate similar or like type documents into the same binder/notebooks. This Final Award is based on the arbitrator’s review of all the mos/extensive: file and related documents, the Parties’ truly excellent briefs, observations made by the arbitrator during the very long day into the later-night of Hearing, her close and careful review of Hearing Transcript, the related Exhibits, and so forth.

Disputed Facts, Disputed Testimony, and the Like. Credibility- and Plausibility

Determinations. 

This Final Award also represents the arbitrator’s best understanding and interpretation of the ‘just cause” provision of the CBA. It is fair to share, there was sometimes disputed testimony, really testimonies (plural’s ), if not highly-disputed and conflicting testimonies; occasionally, there were somewhat significant, inconsistent testimonies, sometimes made by a witness, himself/herself. The arbitrator further made credibility- and plausibility-determinations, where appropriate, and such determinations factored into this Final Award. Any arguments not specifically addressed herein are deemed unpersuasive and are rejected. Any evidence not specifically mentioned was most-surely considered, but did not, in the arbitrator’s professional opinion, merit expressed discussion.

Discussion. Applicable CBA, Article 4.3 (B). 

As previously-cited, but again, re-shared, wider the applicable CBA, Article 4.3 (B), Degree of Discipline:

Discipline of regular employees may only be for just cause with proof that a violation has occurred, and the punishment Is reasonable. Employees may be disciplined by written warning, demotion, suspension or discharge for violation of the City or department rules and regulations or any action or failure to act which in the opinion of the Chief or his/her designee adversely affects the ability of the employee and/or fellow employees to efficiently perform their job responsibilities and/or adversely affects the efficient operation of the City Government or any department, division, or area of the City. Written warnings are subject to the grievance procedure only through Step 3, City Manager, and not subject to arbitration. Suspension, demotions and discharges of non-probationary employees are subject to the grievance procedure and arbitration. (emphasis supplied)

Both Counsels agree on the standard of “just cause” being required. (Please see City’s Brief, p.

28, starting under the heading “V. EMPLOYER’S POSITION” and continuing through p. 37; and see Grievant’s Brief, p. 2, under the heading “STATEMENT OF ISSUE” and its related analysis thereafter.) Such “just cause” standard is further provided in Article 3, Rights of Parties, Section 3 I (A) – Management Rights. Included in the standard of “just cause” is that the “punishment” must be “reasonable”; in fact, the element of ”reasonable(ness )” is specifically stated and required in the CBA at-issue, and cited-above in Article 4, as well as Article 3.

Arbitrators have held there are a variety of factors in determining whether an employer, here, the City, has met its burden of proving “just cause” (here as required by the applicable CBA Articles (plurals) (noted-above). One arbitrator has posed seven (7) questions, which questions have become somewhat ‘”the hallmark” for analysis by arbitrators; those seven (7) factors are often cited by arbitrators in their award and by attorneys citing them to judges and arbitrators. In fact, both Counsel analyzed the “just cause” standard using the seven (7)-factor framework. Each of the seven (7) questions must be answered in the affirmative in order to find an employer had ‘just cause” for discipline:

1. The employee was forewarned.
2. The employer’s position with respect to employee’s conduct was reasonable.
3. The employer investigated before disciplining.
4. The investigation was fair.
5. Substantial evidence supports the charge against the employee.
6. There was no discrimination.
7. The degree of discipline was reasonably related to the nature of the offense and the employee’s past record.

Atlantic Richfield Co., 70 Lab. Arb. (BNA) 707, 715-16 (1978) (Fox, Arb.).

“Just Cause” Questions. 

A “No” answer to any one or more of the above seven (7) questions normally signifies, ”just cause” did not exist. See also Grief Bros. Cooperage Corp., 42 Lab. Arb. (BNA) 555, 557-59 (1964) (Daugherty, Arb.), quoted in Roger I. Abrams & Dennis R. Nolan, Toward a Theory of “Just Cause” in Employee Discipline Cases, 1985 Duke L.J. 594, 599-601 n. 30 (1985). In effect, the ‘just cause” criterion seeks to prevent employers from disciplining employees not forewarned as to proscribed conduct. The rule is also designed to ensure an employee’s ”punishment” fits the “crime” (that word “crime” is metaphorically used, as again, this is not a criminal matter – a fact about which this arbitrator has previously written, emphasized, and distinguished.) Lockheed Aircraft Corp., 28 Lab. Arb. (BNA) 829, 83 I (1956) (Hepburn, Arb.) (“Just cause” requires that employees be informed of a rule, infraction of which may result in suspension or discharge, unless conduct is so clearly VII’ong, a specific reference is not necessary.”); Shenango, Inc., 67 I.ab. Arb. (BNA) 869, 870-71 (1986) (Cahn, Arb.); Safeway

Stores, Inc., 81 Lab. Arb. (BNA) 772, 773-74 (1983) (Yaney, Arb.).

Discussion. 

The issue to be determined in this arbitration is whether the Employer had just cause to discipline the Grievants under the terms of the CBA based on all of the facts and testimony in evidence. The just cause standard has been defined and incorporates seven tests, See: Enterprise Wire Co., 46 LA 359, 363-64 (1966):

1. Did the company give the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee’s conduct?

Yes, the Grievants do not challenge that the City has comprehensive rules and regulations that purport to subject both Grievants to discipline.

2. Was the company’s rule or numagerial order reasonably related to (a) the orderly, efficient, and safe operation of the company’s business and (b) the performance that the company might properly expect of the employee?

Yes.

3. Did the company, before administering discipline to an employee, make an effort to discover whether the employee did, in fact, violate or disobey a rule or order of management?

No.

For Burkhart: No. The City conducted an internal affairs investigation into the allegations against Grievant Burkhart; it was only after filing a formal complaint that his LEOBR-right were violated.

Prior to the internal affairs investigation that led to the sustained charges against Grievant Burkhart, the Chief decided that Grievant Burkhart should be disciplined for violating general order WD 200.041111.30 (e) (failure to supervise Officer Smith) (Joint Exhibit 8, p. 2).

However, when a Commander initiated the ARB # 1 to address the alleged violation, Grievant Burkhart then-invoked the provisions of Florida Statute. section 112.534 (LEOBR) because his rights were being violated. Upon requesting a CRB hearing pursuant to Florida Statute, section 112.534, the investigation was suspended until the conclusion of the CRB hearing.

Upon the conclusion of the CRB hearing, the City was found to have intentionally violated Grievant Burkhart’s statutory rights (P:4). In response to the adverse ruling against the City, the chief then-decided to initiate an internal affairs investigation into the actions of Grievant Burkhart.

For Smith: Grievant Smith “does not argue any lack of proper investigation into the situation but does maintain that the discipline imposed was excessive and retaliatory.”

4. Was the employer’s investigation conducted fairly and objectively?

No.

For Burkhart: Sgt. Burkhart was first aware that he was subject to discipline when he received notice that he was sustained for Failure to Supervise (JE:8). The policy (WD 200.041111.30 (e)) that Sgt. Burkhart was found to be in violation of reads (JE:2):

“III.30 Inappropriate conduct. No employee of the agency shall participate in inappropriate conduct, which may include:

* * * *

1. Failure to properly supervise subordinates, to refer disciplinary charges or take other appropriate disciplinary action

* * * *

A Commander chaired the Board with two other supervisors participating. However, Grievant Burkhart’s Counsel objected to the Board and claimed a LEBOR rights violation pursuant to Florida Statute, section ll2.S34 (Joint Exhibits& aod 10). Inexplicable, rather than concluding, after Grievant Burkhart and his Counsel departed, the Board continued to deliberate Grievant Burkhart’s alleged violation of”Failu.re to Supervise” and concluded that he deserved to be suspended for 42-hours, with no (0) demotion (Joint Exhibit 9, p.3; Hearing Transcript. 3 79-83 and 4 50-62).

In response to the LEOBR-violation, a CRB hearing was later held. After hearing testimony and examining evidence, that CRB determined Grievant Burkhart’s statutory rights had been intentionally violated. In response to the sustained ( and possibly embarrassing) finding of the CRB, the Chief elected to have the investigation re-conducted; he thus ordered an intern.al investigation into the matter. (Please see Joint Exhbit:12).

5. At the investigation, did the ”judge” obtain substantial evidence or proof that the employee was guilty as charged?

No.

For Burkhart: Sgt. Burkhart freely admits, he failed to recognize having body-cam video evidence and not properly handling same. Grievant Burkhart vehemently denies the sustained violations of “Failure to Supervise” and “Critical Responsibility Failure” did not occur as there was no evidence of either violation. Grievant Burkhart maintain, the violations were sustained as a form of retaliation for exercise of his statutory rights under LEO BR, which he contended at ARB # 1. The arbitrator concurs with that assessment, and finds ARB# 1 ‘s recommendation to be the proper, just, and also fair amount of discipline.

For Smith: Grievant Smith does not dispute, he had several grammatical errors on the probable-cause affidavits and that he failed to recognize the charge should have been properly classified as a misdemeanor, not a felony. However, Grievant Smith contends, the enhancement from twenty-four (24) to thirty-six (36) hours after his administrative-meeting with the Chief) to be retaliatory. The arbitrator concurs. If the Chief thought Grievant Smith had displayed or was displaying a “a lack of character” (be it through lying, stealing, or whatever), then the CBA requires, there to be due process conferred. So, too, does Loudermill. There was no (0) notice, no (0) nothing – just the Chiefs unilaterally raising Grievant Smith’s discipline from a 24- to 36-hour suspension.

6. Has the company applied its rules, orders and penalties evenhandedly and without discrimination to all employees?

No.

In the arbitration, evidence was presented, the Chief violated the very same policy as Grievant Burkhart was alleged to have violated (failing to properly submit and document evidence) on at least two (2) separate occasions (Hearing Transcript, p.:500-517; P:7 and 8). Additionally, the involved-Commander was never formally investigated, nor disciplined, for intentionally violating Grievant Burkhart’s statutory rights at the ARB# 1. Even though the CRB determined, an intentional violation indeed occurred (p:5), that violation was never formally investigated, nor did the LEOBR-rights violator receive any discipline from the Chief, all appearing contrary to Florida Statute, section 112.534.

Moreover, there was testimony that same Commander failed to properly secure an assault weapon; said Commander was never investigated nor disciplined, even though yet-another Commander testified, that was a violation of Police-Department policy and procedure. (Hearing Transcript, pp. 345-53 aod 421-22).

In another case, an officer failed to withdraw a probable-cause arrest affidavit from the computer system; the result of such failure to remove that affidavit was that a person was purportedly falsely arrested. The officer was sustained for violating department policy but received only an 8-hour suspension (Joint Exhibit 24(b) and p:12). In the instant case, the suspect of the battery was properly charged with a misdemeanor (not a felony as Grievant Smith stated originally), before the arrest of the suspect. However, Grievant Smith originally received a 24-hour suspension, but that was later-increased to a 36-hour suspension upon the conclusion of the grievance hearing before the Chief. (Joint Exhibit 21) Although the City contends the disparate nature of discipline was a result of Grievant Smith’s being sustained on multiple counts of the same policy violation, the arbitrator finds, the discipline to be excessive and retaliatory for all the suspension hours in excess of twenty-four (24).

7. Was the degree of discipline administered by the company in a particular case reasonably related to (a) the seriousness of the proven offense and (b) the record of the employee in his service with the company?

No.

For Burkhart: First, Sgt. Burkhart maintains that he never violated:

IV.1 Critical Responsibility Failure: No employee shall fail, by an act of omission or commission:

1. To prevent crime; and/or,
2. Enforce all state and local ordinances coming within agency jurisdiction. (Joint Exhibit 2)

Grievant Burkhart communicated with his supervisor that evening about every significant decision made and received the approval from said supervisor (Commander) not to arrest the suspect while on the roof (Hearing Transcript, p. 220-27). Not only did the Comirumder agree with the decision not to arrest the suspect that evening, Grievant Burkhart authored a memorandum to the Commander the day after the incident, outlining the response to the incident, The Commander responded back via an email stating, “It looks like you (Grievant) covered all your bases” (JE:9; T:411-412).

Moreover, Sgt. Burkhart maintains that this charge was retaliatory as it was not included in the first Administrative Review Board and only sustained subsequently to him claiming a Florida Law Enforcement Officers’ Bill of Rights violation.

In addition, Sgt. Burkhart maintains that he should not be disciplined for allegedly failing to supervise, thereby allegedly violating III.30 – “Inappropriate conduct” 

The reason that Grievant Burkhart received this violation was, he failed to correct errors on Grievant Smith’s report and probable cause affidavits. (Joint Exhibit 16) However, as sworn by another sergeant, sergeants do not always review reports and probable cause affidavits submitted by subordinates (Hearing Transcript, pp. 62 and 96).

In the instant case, Grievant Burkhart had supervised Grievant Smith on several previous occasions and never had issues with his reports and probable-cause affidavits. (Hearing Transcript, p. 231-34) Importantly, Grievant Smith has served as an “acting” supervisor on several occasions and performed without any issue or complaint. It was reasonable and also logical that Grievant Burkhart did not have to supervise Grievant Smith’s closely, much less monitor his every move, every decision, and so forth. That would include reviewing Grievant Smith’s report and probable-cause affidavits before ending their shift at 4:00 AM. (Hearing Transcript: 232).

In such regard, in their Brief, Grievant (Sgt.) Burkhart maintains that he

…. should not be disciplined for violating II.20 “Property and evidence handling”. Grievant Burkhart readily admits, his body-camera footage was not logged into evidence (Id. at : 17), he maintains that this violation was retaliatory as it was not included in ARB #1 and only sustained subsequently to his claiming a LEBOR-violation.

Moreover, the evidence presented at the arbitration clearly showed that the Chief has violated the same policy on at least two (2) occasions, most recently, but no (0) investigation or discipline was administered for those violations. (P’s:7 and 8).

For Smith:

Per the Grievants • Brief, Grievant Smith admitted failing to properly determine the suspect-brother committed a misdemeanor rather than a felony; Grievant Smith further conceded, his ”reasonable cause” and probable cause affidavits contained some grammatical errors. But, he contended, he should not be subject to a thirty-six (36-) hour suspension. In addition, four counts of the same violation clearly demonstrate excessive discipline, especially in light of the fact that the (C)hief recommended an increase in suspension from 24 hours to 36 hours at the step grievance with the (C)hief.

The arbitrator concurs with that. as to the extra hours the Chief assessed and imposed due to Grievant Smith’s “lack of character”.

Grievant Smith also maintains that he did not violate:

IV.1 Critical Responsibility Failure: No employee shall fail, by an act of omission or commission:

1. To prevent crime; and/or,
2. Enforce all state and local ordinances coming within agency jurisdiction

Grievant Smith asserts, here, he was merely following orders and the directions of his two (2) supervisors, his immediate direct supervisor-G:rievant Burkhart and Grievant Burkhart’s supervisor, the Commander. In such regard, an order and directive he contends he followed, was not to arrest the suspect-brother at the time; said suspect-brother was then-on the roof, was purported intoxicated Wicooperative, and so forth and a serious risk to safety was present.

No “Complaint”

The City’s investigation into the allegations of this arbitration were not initiated, nor “triggered”, by a third-party “complaint” nor any outside’s anonymously reporting this or that to the City Police Department. Rather, the complaint was initiated after the Chief decided Grievant Burkhart failed to supervise Grievant Smith, and thus, discipline was merited for such. (Joint Exhibit 8) However, a LEO BR-violation was submitted by Grievant. Burkhart at the ARB# I; the result of that was a later decision that an intentional violation of his statutory rights under Florida law had indeed occurred. However, after claiming a LEOBR-violation, ARB #1 continued to deliberate and concluded Grievant Burkhart’s discipline should be a forty-two (42)-hour suspension, but with no (0) demotion. (Joint Exhibit 9)

Thereafter, the Chief initiated an internal affairs investigation. After the investigation was completed, then, Grievant Burkhart was alleged to have violated two (2) additional policies: Failing to follow-up that evening, and failing to submit evidence. (Joint Exhibit:16). ARB# 2 was then convened; it recommended an 84-hour suspension, and a demotion from sergeant to officer and that was what was submitted to the Chief. (Joint Exhibit:14 and 16).

Yet and importantly, no (0) further information or evidence was discovered from the subsequently-conducted internal investigation that was not already known to the (C)hief It is fair to share, at the Hearing, the arbitrator was rather precise and was dedicated in trying to ascertain information from the Chief; she asked questions about the difference between and from the knowledge at ARB # 1 and ARB # 2; yet the answers and replies then-received from him were not particularly different as to “what did they know”, and “when did they know it”. The arbitrator has often read, re-read, etc. from the City’s Brief about its allegedly not knowing, it was “an intentional act” on the part of Grievants. (For example, please see the City’s Brief, p.36, last para.) Grievant Burkhart maintains, he was retaliated against for exercising lawful statutory rights, by contending a LEOBR violation; as noted previously, that contention was, sustained by the CRB, and the arbitrator ratified and reaffirmed such.

Concerning supervision, Grievant Burkhart communicated to the Commander – his supervisor at the time of the incident; said Commander ostensibly agreed with taking no (0) further action that night due to the situation-at-hand, including a suspect on the roof, allegedly intoxicated, and so forth. In re-affirmation of that matter, the very next day, Grievant Burkhart authored a memo to his Commander, re-outlining matters; included therein was the decision to have the day-shift apprehend the suspect on the roof (vs. trying to apprehend him at night, with their shift ending at 4AM). (Joint Exhibits 7 and 9). That Commander opined, no (0) meaningful concerns nor issues with either Grievant Burkhart’s or Grievant Smith’s handling of the incident until later, when the Chief wanted them to each face an ARB for violating City policy(ies ).

In addition to that Commander’s timely approval of not attempting to arrest the suspect on the roof, both Grievants had previously been to that home on other calls for services; they were most aware of that suspect’s usual uncooperative behavior, drinking, and also aggressive conduct. Both Grievants testified, their prior knowledge and interactions indicated to them, this was a “case of first impression” – that very specific and direct knowledge indicated to them, to allow the suspect to climb off the roof on his own volition, and allegedly sober-up some while on the roof. In such regard, Grievant Smith’s decades of prior experience with those drinking/drunk and so forth was alluded-to by him, as providing him deep knowledge of “what to do, when” concerning those drinking/drunk. All these various facts contributed to the decision not to arrest the suspect, until later, when he had come off the roof and was sober/more sober. (Hearing Transcript, 123-24 and 212-13).

Gratefully, the criminal case prosecuted involving the suspect was in no (0) way adversely affected by the actions/inactions of either or both Grievant(s). The charge of misdemeanor battery was dismissed by the State’s Attorney’s Office; in such regard, the victim’s brother requested the case not go forward/that his suspect-brother not be criminally charged for battery and so forth. Of his own volition, the suspect-brother, however, pied-in to one (1) count of resisting arrest. (P’s:9 and JO).

Quiet Moments. 

In the Hearing, there were several interesting “quiet moments”, and those were poignant in certain regards. Grievant Burkhart spoke of the agony and suffering this matter and his resulting discipline, particularly the loss of his hard-earned rank as sergeant, had caused; at that moment, the Hearing-room grew and remained virtually devoid of sound – no (0) shuffling papers, no (s) whispering, no (0) this or that – except for his voice, testifying. He described sometimes receiving scorn and (mis )treatment usually reserved for “notable-quotables”, such as the Kardashians, or some such persons.

Importantly, and under our Constitution and also under Florida laws, news media often provides “sunshine” to this or that event; but one has to reasonably wonder if such media-involvement herein hasn’t caused so much “sunshine” to the point of a “very bad sunburn”, so to speak – whether the need for something to report and print maybe created, and furthered, this or that, and also whether such was proportional/disproportional.

Another quiet moment was the Chiefs sitting next to the arbitrator, when he was testifying, and he and she entered into some very brief “question and answer”. Hopefully, the Chief could then ascertain the arbitrator’s sincere efforts to try to understand how enhanced discipline arose from this ARB to the next, or from this administrative-step to another. The Chief “chalked up” the CRB’s decision on the LEOBR-issues due to union-involvement and union-loyalties in essence; that’s understandable and often happens, much akin to blaming the referees for this or that team’s loss. But, as a note, the City’s policies incorporate applicable Florida state laws, LEOBR, by reference as much as such laws and the City’s very own written policies do domestic-dispute law and policies. They both must be adhered-to and upheld. 

Disappointing to the Arbitrator. 

Let there be no (0 mistake about it – domestic-violence can happen to men, as well as to women. The fact domestic-violence may be chronic and intermittent does not equate to its being meaningless, nor that it should be overlooked/not be addressed, and the like.

The arbitrator was candidly disappointed to discern that the investigation into the alleged violations of laws and policies by the Grievants were equally poor as to the investigation the Grievants conducted of the underlying domestic-dispute. While not containing as many grammatical errors and the like. – well, the investigations into such alleged violation by Grievant were about as unsatisfactory, if not more so, than those conducted by the Grievants, themselves, at-issue herein which they investigated concerning the domestic-dispute. 

Deliberate, Thoughtful, Etc. 

The arbitrator is hopefully known for being deliberate and thoughtful. She does not rush to judgement, nor make hasty decisions without seriously considering all the facts and circumstances, as well as thinking of intended and also possibly unintended consequences of decision-making, here via this Final Award. Someone once asked her, “Why did this or that take so long?”, to which the arbitrator quickly responded, “How long would you want me to take if it were you, your grievance, your arbitration and your career?” The questioner then-hesitated and paused, giving it thought – and finally responded to the effect, “I’d want you to take as long as you needed to be sure and to do me right”. Contrary to “do me right”, the arbitrator’s goal is to “do right” (confer justice, according to the CBA and also the laws, rules, policies, and so forth), and to “do everyone right”. The CBA and its terms, conditions, and provisions are what the parties bargained-for, and each party must receive the “benefit of the bargain” he/she/it/the struck; thus. the CBA’ s providing a Hearing-mechanism, and the resulting Final Award therefrom, are items the parties agreed-to and must be governed by.

Covid has been claimed as a defense, an excuse, for all manner of this’s or that’s. It is fair to share, regrettably, the arbitrator did not escape Covid, unscathed, nor escape related medical, especially longer-term, physical-concerns, unscathed, either, nor did the dementia-patient for whom she serves as sole POA. There were frequently FMLA-concems and -needs arising.

No (0) Billing. 

No (0) billing will be made by the arbitrator, for fear one or both parties might think she was persuaded by the money-paid to rule for this or that party. It is far better to have no (0) money than to have either/both parties’ thinking this Final Award was a product of money-paid, or that the arbitrator in this Final Award ruled this or that way, due to the money involved, be it to either/both Grievants, “saved” by the City, and/or due and paid to the arbitrator.

Likewise, Grievants and the City have incurred legal expenses and costs, as well as they have fairly or unfairly endured scrutiny for their respective actions/inactions. And so forth, and so on.

Significantly, this arbitrator verily believes, all parties have suffered and already ”paid-for” this or that aspect of the incident in-question.

Further, “History will repeat itself’, if you let it. As this was a “case of first impression”, it is important for related lessons to be learned and planned-for in the future. And, as the late Benjamin Franklin, and likewise the late Winston Churchill, reportedly opined, “Failing to plan is planning to fail”.

Expressions of Appreciation. 

The arbitrator would be remiss if she did not re-share her expressed-at-Hearing kudos for Counsel involved herein. They have truly devoted the proverbial. “Blood, sweat, and tears” to their respective case herein. Their diligence, preparation. understanding of the legal issues, and their zeal and ardor were all just exemplary. They provided very thoughtful and detailed arguments, were cooperating and professional loyal opposition to each other, and tried a multi-day arbitration in “only” one (I) very long day and night. Similarly, Court-reporter Fox did a very fine job in preparing our Hearing Transcript; typing that much, for an entire, very long day and night was no (0) easy task, to be sure.

WHEREFORE, all premises considered, the arbitrator issues this document to be her full and FINAL AWARD

1. The arbitrator has jurisdiction and authority under the CBA to entertain and decide these matters. The arbitrator concurs with the parties’ agreeing, they each received a full and fair hearing;
2. As this is a discipline-matter, the City has and bears the related burdens, including but not limited to, at the Hearing- and, in such regard, in fact, the City met and carried some of its burdens, but not as to all discipline- imposed; thus, the arbitrator SUSTAINS and GRANTS the Grievants’ respective grievances in part, but denies such likewise in part, all as detailed later herein;
3. The CBA was indeed violated by the City concerning both Grievants. Similarly, the LEOBR was intentionally violated concerning Grievant Burkhart, which finding of the CRB to such effect shall be, and the same hereby is, ratified and reaffirmed;
4. A, noted directly-above, Grievant Burkhart’s LEOBR rights at ARB# 1 were violated; but, somehow, inexplicably but it happened, that entity devised the “correct” discipline result; this arbitrator deems such to be appropriate per the CBA’s ‘just cause” and “reasonableness” standards required of discipline. There was no (0) ”just cause” for Grievant Burkhart’s demotion, nor for the doubling of his suspension-time. Likewise, there was no (0) “just cause” nor “reasonableness” in the enhancement of Grievant Smith’s discipline, but there was for his ARB-recommended discipline;
5. Likewise, the Grievants violated certain City policies and procedures, all as outlined in each Grievant’s ARB, and concerning Grievant Burkhart in his ARB# 1, which resulted in discipline to both Grievants. Grievant Burkhart’s discipline shall be reduced to a forty-eight (48) hour suspension, with there being no (0) demotion. Grievant Smith’s discipline shall be reduced to a twenty-four (24) hour suspension;
6. Grievant Burkhart shall be, and the same hereby is, ORDERED restored back to his rank of “Sergeant” effective to the date of such rank’s removal. Grievant Burkhart may not wish to resume that position and retains the option and right to elect to assume such position. Otherwise, at his discretion, he may remain as an officer. Grievant Burkhart shall be, and the same hereby is, allowed fifteen (15) days after this Final Award becomes final as a matter of law, to notify the City in writing of his election and option decision. The arbitrator realizes and understands Grievant Burkhart may not wish to return to the rank, position, and duties of sergeant, and thus, she allows such option and election to him. Provided, however, regardless of his option and election conferred under this paragraph, Grievant Burkhart shall be, and the same hereby is, restored to the rank, benefits, back-pay, and the like, effective starting at the date such were removed from him, i.e., the effective date of his demotion. If he should elect to remain an officer (vs. resume being a “Sergeant”), then, in such event, he would not have the rank, benefits, pay and the like going forward;
7. The arbitrator further awards reasonable and lawfully-compliant interest on the monies decreed herein to be owed and payable by the City to the Grievants. The arbitrator ORDERS the parties to meet and confer as to the amount of such interest, with the Grievants (via their joint Counsel’s) initiating such contact; hopefully the parties can and will agree in writing as to the rate of interest and corresponding amount of additional interest-monies owed to both Grievants. In the event there is no (0) agreement concerning all that, then the parties are further

ORDERED

to notify the arbitrator in writing of that fact within fifteen (15) days hereafter. In the event of such parties’ disagreement, the arbitrator shall permit the parties a full and fair opportunity to be heard on the disputed amount of interest; after hearing from the parties, the arbitrator shall thereafter rule on the applicable rate of interest and corresponding amounts due each of the Grievants; and

8. The arbitrator shall, and hereby does, retain original jurisdiction and authority and also such other, further, and/or additional jurisdiction and authority as necessary or helpful, to oversee the implementation of this Final A ward and its awarded relief; such shall include, but not be limited to, the amount of interest conferred and the corresponding amount of monies awarded to each Grievant, the prompt and timely payment of the monies owned to each such Grievant, the restoration of Grievant Burkhart’s benefits, and the restoration of some of both Grievants’ respective suspension-hours, and similar and related matters.

Dated this 16th of Sept., 2022

Kitty Grubb, arbitrator

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