This article appears in the November 2020 issue of our monthly newsletter, Public Safety Labor News.
Corporal Brendon Johnson works as a corrections corporal in Cuyahoga County, Ohio. On May 8, 2016, Johnson responded to a call involving a female inmate with a known history of noncompliance. The inmate had flooded her cell by intentionally clogging her toilet and causing it to overflow. Johnson ordered the inmate to come down from her bunk and, after a period of defiance, she complied with Johnson’s directive. Johnson asked her why she flooded her cell, but she did not answer. Johnson repeated the question, and the inmate remained nonresponsive. When asked why she was not answering his questions, the inmate responded that she didn’t want to talk to Johnson. As a result of the inmate’s failure to comply, Johnson deployed pepper foam to her face, telling her, “I told you I would get you.” This was the fourth interaction during his shift that Johnson had with the inmate due to her disruptive behavior.
Two days later, Johnson responded to the mental health unit to assist a corrections officer with a female inmate who was refusing to disrobe. Johnson led the inmate into her cell and ordered her to remove her clothing. After repeated directives, the inmate complied while dancing, gyrating, and looking toward Johnson singing repeatedly, “wanting to see my titties and make pedophiles happy.” Removing her clothes from the waist up, the inmate turned her back to Johnson and bent over in a seductive manner to remove her pants. According to Johnson, the inmate brushed against him. Consequently, Johnson deployed a leg sweep, causing her to fall to the ground. Once on the ground, the inmate failed to comply with Johnson’s repeated commands to “stop resisting and to give up her hands.” Johnson then sprayed pepper foam into the inmate’s face and eyes while she was on the ground.
When the County terminated Johnson, his union, Local 70 of the United Autoworkers Region 2-B, challenged the termination in arbitration. An arbitrator found that termination was not an appropriate penalty and documented that Johnson was “a long-term employee with 16 years of service marked by consistently favorable evaluations since the year 2000. Progressive discipline requires that an employee should not be terminated until and unless it is clear that he will not or cannot respond favorably to lesser penalties imposed with progressive severity.” The Arbitrator ordered a 15-month time-served suspension, absent any back pay or benefits except for restoring all sick leave hours and 80 hours of vacation pay.
The County challenged the Arbitrator’s decision in the Ohio Court of Appeals. The Court rejected the challenge and upheld the opinion.
The County’s primary argument was that the Arbitrator’s opinion violated the “explicit public policy” that corrections officers not use unnecessary force, and that the resulting award was unenforceable. The Court, though, observed that the public policy question had to be framed differently. The Court ruled that the question was not whether unnecessary force violated public policy – all parties agreed that it did – but whether reinstatement of a corrections officer who used unnecessary force violated public policy.
As put by the Court, “There is nothing in the law prohibiting reinstatement of employees found to have used excessive force. The inquiry is not whether Johnson’s conduct itself violates public policy, but whether the Arbitrator’s decision will have the effect of violating public policy. Although the use of excessive force violates Ohio’s policy requiring the sheriff to keep inmates safe, an arbitrator’s decision to reinstate an employee who has used excessive force does not necessarily violate public policy if the arbitrator’s decision is otherwise reasonable in its terms for reinstatement.
“Here, the Arbitrator found that Johnson was a long-time employee with 16 years of service marked by consistently favorable evaluations since the year 2000. The Arbitrator also noted that in his last three performance evaluations, which were conducted by more than one evaluator, it was recommended that Johnson ‘would make a good sergeant and/or should take the sergeant’s exam.’ Thus, although Johnson demonstrated a lapse in judgment on a couple of occasions, these instances were rare in an otherwise exemplary record.
“The Arbitrator also found nothing in the record suggesting that Johnson acted with malicious intent or that his decision to use force was premeditated. The Arbitrator did not ignore the seriousness of Johnson’s conduct. The Arbitrator’s award punished Johnson by imposing a lengthy suspension without back pay. Moreover, the Arbitrator’s award promotes the public policy requiring the sheriff to keep inmates safe by requiring Johnson to undergo retraining on the use of force and on the management of mentally ill inmates. Therefore, the Arbitrator’s award is not contrary to public policy.”
Cuyahoga County v. UAW, Local 70, 2020 WL 4804962 (Ohio Ct. App. 2020).
Also in the November 2020 issue:
- Firefighter Intentionally Hit By Fire Truck Has No Federal Lawsuit
- Contracts And Memoranda Of Understanding
- Officer’s Injuries While Commuting Covered By Workers’ Comp
- Employer Cannot Alter Finalized Discipline Given Firefighters
- When Does An Employer Have To Disclose Disciplinary Files?
- ‘Mere Technical’ Violations Of Bill Of Rights Not Basis To Reverse Termination
- Firefighter Receives Jail Time For Pension Fraud
- Florida PERC Allows PBA To Use Electronic Balloting For Ratification
- City Stuck With Police Director’s Grievance Resolution
- Court Upholds Arbitrator’s Opinion Awarding ‘Cancellation Fees’
- Seminar And Webinar Update
- Deputy Has No Claim Against Sheriff When DA Places Him On Brady List