Court Upholds Arbitration Decision Overturning ‘Sexting’ Detective’s Termination

Detective Vincent Lucarelli works for the Cleveland, Ohio Police Department. In May 2012, the Department’s Internal Affairs Unit commenced an investigation into Lucarelli’s conduct. Cell phone records, which had been subpoenaed for a criminal case involving private investigator Brenda Bickerstaff, revealed that during his shifts, Lucarelli had been inappropriately texting or “sexting” women, including the victims in several criminal cases on which he had worked or was currently working.

The Department took statements from seven women Lucarelli had texted or sexted while on duty and with whom he either had or sought to have a romantic relationship. Two of the women, referred to as H.S. and B.N.W., were the victims in criminal investigations Lucarelli had handled two to three years earlier. The investigation revealed that, after their cases had been resolved, Lucarelli came into contact with H.S. and B.N.W. while working as a security guard at a neighborhood liquor store. Lucarelli admitted using an unmarked police car to transport H.S. and B.N.W. within his district and to pick up groceries and other items for them. He also admitted stopping at B.N.W.’s home while on duty and staying there for periods of time, collecting pay for time he had not worked, and to touching women in an “affectionate manner” while they were in his police car.

Lucarelli also engaged in on-duty “flirtatious texting” with a neighbor with whom he had a sexual relationship. Lucarelli admitted to once leaving the city and using a city vehicle to pick the neighbor up in a snowstorm. Another woman Lucarelli texted was a felonious assault victim; Lucarelli sent her text messages she regarded as “harmless flirting.” Lucarelli also texted a suspect in a criminal investigation, attempting to flirt with her. She did not respond to his advances and no relationship ensued.

The two most serious cases involved victims in two active criminal investigations to which Lucarelli was assigned. In one case, Lucarelli texted the victim stating that her baby’s father was a loser and that she needed someone like Lucarelli to protect her. In the other case, Lucarelli sent texts about the status of the victim’s case and his desire to come over to her house and perform sex acts with her.

The investigation led to the discovery of other transgressions by Lucarelli. For example, he failed to appear for a Garrity interview, claiming to have inadvertently missed the interview because he had worked a graveyard shift and fell asleep. In addition, Lucarelli had failed to obtain the necessary authorization prior to working a second job as a security guard at a local liquor store.

When the City terminated Lucarelli, his union challenged the termination in arbitration. An arbitrator found that the City “had established its case with respect to all seven of the specifications against Lucarelli” and that “when all these offenses are taken into account, they certainly create a mountain of misconduct demanding harsh discipline.” He also found, however, that “numerous mitigating factors” exist, which the City failed to properly consider when determining what level of discipline was appropriate, that “erode this mountain and lead to a conclusion that significant discipline less than discharge is warranted.” The Arbitrator reduced the disciplinary sanction imposed against Lucarelli from discharge to a suspension without any back pay. The City then challenged the Arbitrator’s decision in court.

The Ohio Court of Appeals upheld the Arbitrator’s decision. The Court ruled: “Because the parties have contracted to have disputes settled by an arbitrator chosen by them rather than by a judge, it is the arbitrator’s view of the facts and the meaning of the contract that they have agreed to accept. Courts thus do not sit to hear claims of factual or legal error by an arbitrator as an appellate court does in reviewing decisions of lower courts. To resolve disputes about the application of a collective bargaining agreement, an arbitrator must find facts and a court may not reject those findings simply because it disagrees with them. The same is true of the arbitrator’s interpretation of the contract.

“Whether the City had just cause to discharge Lucarelli was a factual determination to be made by the Arbitrator in accordance with the terms of the CBA. In this case, the Arbitrator interpreted the CBA’s just cause provision as requiring consideration of not only the nature and frequency of Lucarelli’s misconduct but also various potential mitigating circumstances, including the opinions of his supervisors, the fact that none of the women had complained about his conduct, and the fact that his inappropriate conduct was not shown to have any ‘demonstrable’ or ‘concrete’ impact on any criminal investigation or prosecution. This is not a case in which the Arbitrator created a contract of his own by imposing additional or different requirements not expressly provided for in the CBA. The City’s argument that the Arbitrator added to, subtracted from or otherwise modified the provisions of the CBA by considering Lucarelli’s service history and other factors in determining that the City lacked just cause to discharge him amounts to nothing more than a claim that the Arbitrator misinterpreted or misapplied that provision which does not constitute grounds for vacating the award.”

City of Cleveland v. Cleveland Police Patrolmen’s Association, 2016 WL 762702 (Ohio App. 2016).