Arbitrator’s Reinstatement Of Officer In Excessive Force Case Does Not Violate Public Policy

Officer Scott Oglesby worked for the Bloomington, Illinois Police Department and was a member of the Policemen’s Benevolent and Protective Association. In May 2011, the Department terminated Oglesby after sustaining an excessive force charge against him.

The underlying incident occurred in December 2010, when Oglesby responded to an incident at a local school. When Oglesby arrived at the school, he reported to the principal’s office and was directed to the “time-out room.” Oglesby was not given any information about the situation or the fact it involved children in a behavior-disorders classroom.

While at the school, Oglesby dealt with two children. In both cases, he encountered disruptive children and participated in removing the children from their classrooms and eventually calming them down. The more difficult of the two was the second child, who was being physically restrained by the school psychologist after causing a fair amount of damage to the classroom. Oglesby had difficulty with the child, and for a moment picked the child up by the front of his jacket.

The child’s parents later complained that Oglesby had, in fact, picked up their child by the neck. An internal affairs investigation elicited a variety of opinions from school officials, parents, and other officers as to whether Oglesby had acted appropriately in dealing with the second child.

The City terminated Oglesby for the involvement with the second child, and the Association challenged the termination in arbitration. An arbitrator, applying the standards in the Supreme Court’s decision in Graham v. Connor, 490 U.S. 386 (1989), concluded that Oglesby’s conduct was objectively reasonable given the fact he was not given any specific information about why police had been called to the school in the first place or the child’s needs or behavioral issues. According to the Arbitrator, it would have made sense, in retrospect, for Oglesby to ask questions and obtain more information before entering the room; however, the Arbitrator found Oglesby followed his training and acted quickly and instinctively in taking control of the child.

The Arbitrator overturned Oglesby’s termination and ordered that he be made whole for all lost wages and benefits with the exception of a one-day suspension for Oglesby’s failure to complete a use of force report about the incident. The City then challenged the Arbitrator’s opinion in court, alleging that the decision violated “public policy.”

The Illinois Court of Appeals upheld the Arbitrator’s decision. The Court noted that “the public-policy exception is narrow and is to be invoked only when a party clearly shows enforcement of the contract, as interpreted by the Arbitrator, contravenes some explicit public policy. To ascertain whether a public policy exists, the Court may not rely on general considerations. Rather, we look first to our constitution and statutes and, when those are silent, to judicial decisions. Second, the Court determines whether the arbitral award, resulting from the Arbitrator’s interpretation of the agreement, violates public policy.”

The Court acknowledged that “the welfare and protection of minors has always been considered one of the State’s most fundamental interests. In this case, the Arbitrator interpreted the collective bargaining agreement to hold the use of force on a juvenile, described by some witnesses as excessive or overly aggressive, does not warrant termination where no misconduct or violation of police department policies occurred and no injury to the juvenile results. The City contends the Arbitrator’s award reinstating grievant violates the public policy in favor of protecting school-aged children because the Arbitrator’s interpretation of the contract essentially condones Oglesby’s risky behavior and indirectly encourages similar behavior in the future.

“In other words, the City argues that the Arbitrator’s award reinstating grievant without any discipline for his actions will encourage Oglesby and other Bloomington Police Officers to aggressively lay hands on apparently normal seven-year-old children in order to stop them from screaming. We disagree.

“As the Arbitrator found, no violation of Department policies occurred. Additionally, the award does not condone risky behavior in handling juveniles, because the Arbitrator made no finding that grievant’s conduct was risky or inherently dangerous. In fact, the Arbitrator noted the City did not identify what danger of injury the child faced from Oglesby’s technique.

“The City also argues the reinstatement of Oglesby violates the public policy in favor of protecting children because the Arbitrator failed to make any findings regarding the likelihood Oglesby would repeat his actions or offer any reassurance that grievant posed no risk to the welfare and protection of minors. The Union responds this argument is illogical given the fact the Arbitrator found no misconduct occurred. The City’s argument fails to persuade. Here, no finding regarding Oglesby’s remorse or likelihood to reoffend could be made because no misconduct was found in the first place.”

City of Bloomington v. Policemen’s Benevolent and Protective Association, 2015 IL App (4th) 140192-U (Ill. App. 2015).