Court Upholds Arbitrator’s Decision Reinstating Supervisors In Cleveland Pursuit Case

On November 29, 2012, Cleveland police made a traffic stop on a vehicle driven by Timothy Russell and occupied by Malissa Williams. When Officer John Jordan approached the vehicle, it fled west on Superior Avenue, prompting Jordan to pursue the vehicle. Jordan, however, ultimately stopped the chase after he lost sight of the vehicle. Jordan did not broadcast his traffic stop or his pursuit.

A few minutes later, the suspect vehicle drove past the City of Cleveland’s mobile services unit located next to the Cuyahoga County Justice Center, where Officer Vasile Nan was located, having the computer in his car serviced. When Nan heard what he thought was a gunshot, he took cover behind his vehicle. Once the vehicle passed, Nan gave chase and broadcasted that a vehicle with two occupants had “just popped a round” and was heading westbound on St. Clair Avenue. Sergeant Randolph Daley, Nan’s immediate supervisor in the Second District community services unit, began monitoring the pursuit. Shortly thereafter, Nan broadcasted that he had lost sight of the suspect car.

The pursuit continued for approximately 22 minutes, passed through four of the city’s five police districts, and involved 105 Cleveland police officers and at least 62 police cars, including ones from Cleveland, Bratenahl, East Cleveland, the Cuyahoga County Sheriff’s Department, the Ohio Highway Patrol, and the Regional Transit Authority. The pursuit ended at Heritage Elementary School in East Cleveland, where 13 officers fired 137 shots and killed the two occupants, who turned out to be unarmed.

Eventually, the City demoted a captain and a lieutenant and fired a sergeant, all for supervisory failures associated with the pursuit. An arbitrator ordered that the two demotions should only last 13 months, at which point the captain and lieutenant should be restored to their former ranks. The Arbitrator ruled that the sergeant’s termination should be reversed, but that he should be demoted for a 25-month period of time. In all three cases, the Arbitrator considered traditional “just cause” factors such as disparate treatment, the work records of the employees, and mitigating circumstances.

The City challenged the Arbitrator’s decision in court. The City had two arguments: that the Arbitrator’s decision was “incomplete and flawed,” and that it violated public policy. The Ohio Court of Appeals rejected both arguments, and upheld the arbitration decision.

On the issue of whether the Arbitrator’s decision was flawed, the Court held “our review of the record reflects that the Arbitrator’s award draws its essence from the CBA and is not arbitrary or capricious. At the outset of his decision, the Arbitrator set forth the relevant contract provision at issue. As recognized by the Arbitrator, the resolution of these issues required the Arbitrator to make two determinations: (1) whether a cause for discipline existed and (2) whether the amount of discipline was proper under the circumstances. In his detailed, 45-page opinion, the Arbitrator decided these issues, after setting forth the facts and evidence presented by the parties at arbitration, including all the policy and procedure violations relied on by the City in support of its discipline imposed.

“The City also argues that the Arbitrator’s decision regarding the Sergeant should be reversed on public policy grounds. The City contended that this aspect of the arbitration award was against public policy because it reinstates an officer who ‘effectively stopped being a police officer for five minutes during a dangerous, lengthy, ultimately deadly, high-speed pursuit.’”

The Court emphasized “that the issue is not whether the officer’s conduct violated some public policy, but whether the Arbitrator’s reinstatement order did so. The Arbitrator did not find that the sergeant was dishonest in this case. The Sergeant’s actions do not equate with an act of deliberate untruthfulness. Notably, while the City had charged the Sergeant with falsifying his duty report by ‘failing to note that you responded to a vehicle pursuit,’ the Arbitrator expressly rejected this claim and exonerated the Sergeant on the charge. And although the Arbitrator found that the Sergeant failed to fully meet his supervisory responsibilities and further ‘took himself out of action by parking along a street and remaining there for five minutes,’ the Arbitrator reasonably imposed a more severe penalty upon the Sergeant for his actions. We find no authority that justifies vacating the arbitration’s award on public policy grounds.”

Fraternal Order of Police, Lodge 8 v. City of Cleveland, 2015 WL 5867410 (Ohio App. 2015).