Court Overturns Arbitrator’s Decision In Termination Case

Kankakee County, Illinois and the Fraternal Order of Police (FOP) Labor Council are parties to a collective bargaining agreement covering the County’s corrections officers. When the County terminated Corrections Officer Nicholas Brais, the FOP challenged the termination in arbitration.

The case stemmed from an incident on September 22, 2010, when members of the County’s Major Crimes Task Force learned that David Caban, a long-time career criminal with multiple felony convictions and an affiliation with the Latin Kings gang, had engaged in a text message exchange the previous day. The conversation was extracted from Caban’s cell phone, and included the following:

BRAIS: Fuck man so it’s the front page wit Conrad. God dam man I tried to tell yall man. That sucks dude!

CABAN: Weeble too

BRAIS: Dude u better be clean or stay clean as of now dude u don’t need to go to man

CABAN: I haven’t done nother for bout Two years so I’m cool been there done that aint tryin to go back

BRAIS: Good to hear man. We aint been to close but we got history dude and I don’t wanna see u go down to Bro

CABAN: U been hearin my name in there

BRAIS: No but for real man I haven’t been to work in like three weeks and don’t go back till the end of the month. But when I heard it was Conrads [referring to recently arrested Conrad Bell] name mentioned

CABAN: Cool lmk u hear omethin

BRAIS: If I hear ur name ever mentioned I’ll keep you posted man. U know ur in the click thow so I’m sure they gota be lookin at ya, Just stay straight nigga

CABAN: For sho

BRAIS: Piece out man

The Arbitrator concluded that Brais “clearly engaged in unbecoming conduct that brought substantial discredit upon himself, and by implication the Department. He did this by promising a convicted felon (Caban) that he would keep him informed if he heard anything about Caban inside the Department.” However, the Arbitrator also held that “there is no evidence Brais ever followed through on this promise, so he never transmitted any compromising, confidential, or sensitive information. However, Brais’ statement to Caban indicates that Brais needs to be disciplined in an attention-getting manner that sharpens his awareness that his inappropriate conduct cannot be repeated.

“This conclusion is reinforced by Brais’ poor disciplinary history. Brais’ disciplinary record is not good, in that he experienced five disciplinary episodes during the period August 2007 – August 2010: [1] in August 2007 (a three-day suspension for insubordination); [2] March 2009 (a 20-day suspension for unsatisfactory performance – bringing a personal cell phone into the secure area of the jail); [3] January 2010 (a written reprimand for not properly assisting with an inmate transfer); [4] July 2010 (a written reprimand for tardiness); and [5] August 2010 (a 25-day suspension for insubordination). Brais’s disciplinary history indicates that a 25-day and a 20-day suspension did not ‘sink in’ with Brais. I find, therefore, that more substantial discipline is warranted.”

The Arbitrator eventually held that the appropriate punishment for Brais was a 90-day unpaid suspension. This conclusion, the Court of Appeals held, violated principles of public policy and required the reversal of the Arbitrator’s decision.

The Court commented that “the promise to provide information (confidential or public) concerning law enforcement investigations to known felons or gang members compromises the safety of law enforcement personnel and hinders their ability to carry out their prescribed duties. Simply stated, it directly conflicts with the entire purpose of law enforcement. Law enforcement is charged with the duty of exposing crime, not concealing it. Moreover, in a time where the gulf of mistrust between law enforcement and the public is widening, it is imperative that law enforcement enforce the criminal laws of this State without prejudice or favoritism. Anything short of this standard will destroy any remaining public trust and result in the complete collapse of the entire purpose and policy behind law enforcement. The Arbitrator’s decision endangers both law enforcement and the public.

“In coming to this conclusion, we find it significant this is Brais’ sixth documented act of misconduct. He was suspended previously on multiple occasions. These suspensions obviously did not have their intended effect. Another suspension, as the Arbitrator ordered, cannot be said to in any way promote safety of employees in the workplace, effective law enforcement or exposure of crime. Furthermore, had the Sheriff taken the Arbitrator’s route and simply suspended Brais such an act would arguably have exposed the Sheriff to a cause of action for negligent retention of an employee.”

Kankakee v. Illinois FOP Labor Council, 2014 IL App (3d) 130662 (Ill. App. 2014).