VOLUNTARY LABOR ARBITRATION

In the Matter of:

KALAMAZOO SHERIFF & COUNTY,

Employer,
Arbitrator: Doyle O'Connor
MERC Case # 19G-497-GA
-and- KCDSA Case # 19-0710
Grievant: Shaun Lehmkuhl
Issue: Termination
KALAMAZOO COUNTY
SHERIFF’S DEPUTIES ASSOCIATION,
Union.
_______________________________/

Appearances:

EMPLOYER:
Bonnie Toskey

UNION:
Douglas Gutscher

Witnesses:
Captain William Timmerman
Undersheriff Jams VanDyken
Sheriff Richard Fuller, III
Deputy Rodney Rought, Union President
Deputy Shaun Lehmkuhl, Grievant
____________________________________________/

DECISION AND AWARD

I. SUBMISSION

This matter came before the Arbitrator pursuant to the terms of the
collective bargaining agreement between the parties and upon the inability of
the parties to voluntarily resolve the dispute. The question before me is
whether the Employer has violated the contract by terminating the employment
of Deputy Shaun Lehmkuhl. The parties agreed that the matter was properly
before the Arbitrator for resolution on the merits and that there were no
timeliness or other procedural impediments. The hearing in this matter was
held as scheduled on June 23 & July 27, 2020, at Kalamazoo, Michigan. The
parties each had ample opportunity to present evidence through witnesses and
through extensive documentary and video evidence. Both parties filed timely
post-hearing briefs by September 14 at which time the record was closed.
There was no assertion in the closing briefs that there had been any defect in
the proceedings. The evidence introduced, any legal or arbitral authorities
relied upon, and the arguments of advocates have all been fully considered in
the issuance of this Decision and Award regardless of whether or not
specifically mentioned.

II. SUMMARY OF FACTS AND DISPUTES

The grievance in this matter challenges the termination on July 19, 2019
of Deputy Lehmkuhl, as not meeting the traditional standards for ‘just cause’
for discipline. The termination arose from allegations of neglect related to the
death in custody of jail inmate Ryan David Byrd some four years earlier, on
June 4, 2015. There is no assertion that the Grievant, or any other staff
member, actively abused, injured, or caused Byrd’s death, rather the issue is
whether Lehmkuhl’s conduct constituted culpable neglect of his duties.1

1
Lehmkuhl’s partner on the cellblock on the day in question, Deputy GR, was also terminated, essentially on the
same basis as Lehmkuhl. The facts regarding Deputy GR are not directly before me for resolution, and he did not
testify in this matter, and for those reasons will be referred to only by his initials, although the parties of course
know his identity.

2
 While this case is of unusual and timely interest as a man died while in
the custody of the Sheriff’s Department, in other respects, the case addresses a
fairly typical question of whether or not the Employer has established that the
employee at issue so badly neglected his recognized duties as to be terminated
from employment.
On June 4, 2015, Deputy Lehmkuhl started his shift working in the jail
as a Corrections Deputy at 4:30 PM. At that point, Deputy Lehmkuhl had
about three months in as a full-fledged Corrections Deputy, after about three
months as a trainee, and having previously been a civilian employee in the jail
control center for a year and a half, where staff monitor things such as door
openings and intercom calls, but do not have direct inmate contact obligations.
Several hours earlier, inmate Ryan Byrd had been admitted to the jail.
Byrd’s intake and initial assessment were conducted by four separate
Deputies, none of whom were disciplined regarding their roles and whose
conduct is not a subject of this grievance. Pursuant to the then-in-place jail
policy, inmate Byrd was not subjected to either a strip search or the more
intrusive body-cavity search used at many facilities. As a consequence of the
failure to search, inmate Byrd smuggled narcotics into the jail, to later
disastrous results, concealed either in his ‘butt crack’ or inserted in his anus.
Byrd was in an agitated but not combative or disruptive state. Byrd, who had
been held in the jail previously and was known to and liked by the staff,
acknowledged that he had been using, and was coming off of, the
benzodiazepine Xanax, but denied that he was on heroin, asserting that he had
‘quit that stuff’. Byrd was placed in one of eight one-person administrative
holding or segregation cells, with a large observation window near the booking
desk where a closer watch could be maintained on him.
When Deputy Lehmkuhl and Deputy GR came on shift several hours
later, they were informed by the day shift of inmate Byrd’s status and his
assertion that he was coming off of Xanax. As they were concerned about
whether or not Xanax withdrawal might pose a significant medical risk, one of
the three staff nurses was consulted. It is undisputed that the staff nurse

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advised that withdrawal off of Xanax would leave inmate Byrd “feeling
uncomfortable” but that it was unlikely to result in any significant distress or
need for medical intervention.2
Because inmate Byrd was agitated upon intake, he was placed in an
administrative or isolation cell, which was one of several such cells which have
glass observation windows on the hallway to facilitate closer observation of
inmates who might be at risk, combative, or who for whatever reason
warranted closer monitoring. Deputies Lehmkuhl and GR were responsible for
supervising about 36 inmates during that shift.
As will be more fully discussed below, during the ensuing four hours of
his shift, Deputy Lehmkuhl made his appointed rounds, approximately every
half-hour as required by policy, touring the two levels of the cell block to which
he was assigned. The start and stop times of each round made is electronically
recorded. His primary function was to monitor inmates for fighting, notable
medical issues, and such. Deputy Lehmkuhl was also responsible for delivering
lunch and dinner meals to the cells. During much of the shift, inmate Byrd
paced in his cell, and engaged in such conduct as standing at the hallway-
facing window or adjacent door to gestured to or speak with passing Deputies,
as well as standing near the door or window apparently ‘rapping’, and in
zipping and unzipping his one piece jail uniform and partially disrobing.
Inmate Byrd had access in his cell to an intercom button with which he could,
and did, call and communicate with the control center staff who were housed
in another part of the jail.
About four hours into the shift, inmate Byrd assumed a squatting or
kneeling position with his face and upper body prone on his cell bunk, which
was near the floor. After inmate Byrd had been in that position for about 10-15
minutes, Deputy Lehmkuhl on his next rounds, observed Byrd’s position,
attempted to speak to him through the food slot in the door, and failing at that
Deputy Lehmkuhl radioed the control center to gain access to the cell. On

2
The staff nurse was not disciplined and her role in events is not otherwise at issue in this proceeding.

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entry, Deputy Byrd attempted to rouse inmate Byrd, and failing at that, radioed
for assistance. Several Deputies and a nurse responded and resuscitation
efforts were attempted but were unsuccessful. Inmate Byrd was transported
from the cell and was declared deceased.
A subsequent autopsy determined that inmate Byrd had died from an
overdose, seemingly, at least in part, through inadvertent absorption of the
illegal drugs he had smuggled into the jail.
Following the death, an internal investigation was conducted, written
statements were to be submitted by all staff who interacted with the deceased,
some interviews were conducted, and command officers reviewed the video
recordings which a surveillance system had routinely made of all activities in
inmate Byrd’s cell. Deputy Lehmkuhl was cleared of any wrongdoing or
negligence at the conclusion of that 2015 investigation.
Deputy Lehmkuhl continued to serve as a Corrections Deputy in the jail
for the ensuing four years, without apparent incident or other blemish on his
record. In 2018, the family of the deceased inmate Byrd filed suit, alleging
negligence in his death. In 2019, during the civil litigation discovery process, it
was revealed that in addition to the video recordings, there was an audio record
of some of the events in Byrd’s cell on the day of his death. The Employer relied
on the discovery of the audio files to re-open its own internal investigation into
Byrd’s death in custody. At the conclusion of that re-investigation, Deputy
Lehmkuhl and Deputy GR were terminated. No other employees were
disciplined arising out of the events surrounding inmate Byrd’s death. The
discipline was grieved, and in the ordinary course of events, the grievance
made its way to arbitration, resulting in this proceeding.
Further factual findings will be addressed throughout this Decision.

III. RELEVANT CONTRACT LANGUAGE

This case is a discipline matter, and as such the Employer has the
burden of proof. The dispute is controlled by the language of the 2016-2018

5
collective bargaining agreement (as extended by the parties) (Joint Ex 1) to the
present facts. The directly relevant Contract articles include:

ARTICLE 6 – DISCHARGE AND DISCIPLINE

Section 1: In the event an employee under the jurisdiction of the

bargaining unit is suspended from work for disciplinary reasons or is
discharged from employment after the date hereof and he/she believes
he/she has been unjustly suspended or discharged, such suspension or
discharge shall constitute a case arising under the Grievance Procedure
provided a written grievance with respect thereto is presented to the
Employers’ Grievance Committee as provided in Step Two of Article 5 within
six (6) regularly scheduled working days after such discharge or after the
start of such suspension.
A. The Employers agree to promptly notify in writing the employee’s
Executive Committee person (or, in his/her absence, the chairperson of
the Association’s Executive Committee) of such suspension or
discharge.
B. A suspended or discharged employee, if he/she so desires, will be
allowed to discuss his/her suspension or discharge with his/her
Executive Committee person (or, if he/she is not readily available, with
the President of the Executive Committee) before being required to
leave the property of the Employers.
C. It is understood and agreed that when an employee files a grievance
with respect to his/her disciplinary action, suspension or discharge, the
act of filing such grievance shall constitute his/her authorization of the
Employers to reveal to the participants in the grievance procedure any
and all information available to the Employers concerning the alleged
offense, and such filing shall further constitute a release of the
Employers from any and all claimed liability by reason of such
disclosure.

The CBA contains, at ARTICLE 5, a traditional grievance procedure

culminating in final and binding arbitration, including in particular Section 4:
Section 4: The arbitrator shall have no authority to add to, subtract from,
change or modify any provisions of this Agreement but shall be limited
solely to the interpretation and application of the specific provisions
contained herein. However, nothing contained herein shall be construed to
limit the authority of an arbitrator in his/her own judgment, to sustain,
reverse or modify any alleged unjust discharge that may reach this stage of
the grievance procedure. The decision of the arbitrator shall be final and
binding upon the parties hereto. The expenses and fees of the arbitrator

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 and the American Arbitration Association or MERC, or FMCS shall be
shared equally by the County and the Association.

IV. DISCUSSION AND OPINION

A. Role of the Arbitrator in Deciding a Case

As the advocates are of course aware, although individuals whose

interests are affected by such decisions often are not aware, an Arbitrator is a
mere creature of the Contract and is bound to apply its terms as drafted. As
famously noted by Justice Douglas, an arbitrator “does not sit to dispense his
own brand of industrial justice”, or typically to assess the wisdom of actions that
were taken, rather the faithful arbitrator applies the rules created by the
Contract between the parties. See, Steelworkers v Enterprise Wheel, 363 US
593 (1960). The task in issuing a Decision is to examine the facts as actually
presented and determine if the disputed disciplinary action was proper under
the applicable contractual language.

B. The Merits of the Dispute.

Voluminous documentary evidence was introduced, in addition to the

testimony of several witnesses, and of course the introduction and viewing of
the video record of events in Byrd’s cell. There is little substantive factual
dispute as to what did occur; rather, the dispute is over whether or not Deputy
Lehmkuhl should have acted differently or earlier in response to what he
observed of inmate Byrd.

1. The death of Ryan Byrd was a tragedy largely of his own making.

It is important to reiterate that Mr. Byrd was not in any way injured by,
nor was his death the direct result of, the actions of jail staff. His death was the
result of an overdose of a cocktail of street drugs, including opiates. There is
some uncertainty as to the method of ingestion of the drugs, including whether
it was partly intentional or largely accidental. Byrd had hidden in his ‘butt
crack’, or inserted into his rectum, a plastic baggie containing several types of

7
unlawful drugs in order to smuggle them into the jail, presumably for later
recreational use by Byrd or others, which was not discovered until an autopsy
was conducted. Based on the autopsy, it is possible the drugs were
inadvertently absorbed through the thin plastic and directly into the tissues of
Byrd’s rectum. It is also possible that Byrd removed some of the drugs and
intentionally ingested them while in his cell, as he can be seen on the video
digging around in his clothing. Regardless of the several possible means of
ingestion, Byrd died solely because he ingested illegal street drugs, that he had
smuggled into the jail, in what the medical examiner opined was a sufficient
quantity to kill anyone.

2. The reopening of the disciplinary investigation was warranted

by the discovery of the existence of unanticipated computerized audio
files.

The Union challenges as untimely the 2019 reopening of the

investigation into Byrd’s previously investigated 2015 death. It is axiomatic
that the timely investigation and implementation of discipline are integral to
‘just cause’ and due process as well as to the use of discipline primarily for
corrective purposes rather than mere retribution. A delay of four years time in
investigating a matter about which the Employer was clearly aware could quite
reasonably be relied on to bar the imposition of belated discipline.
I credit Captain Timmerman’s testimony generally and specifically as to
the mechanism and timing of the discovery of the previously unknown
existence of audio recordings buried in the computer server. The jail had,
during an extensive renovation, added additional layers of video surveillance
capabilities. It was the understanding of Timmerman, and the others in
command, that the decision had been made to only retain video files and to not
go to the substantial additional expense of retaining an audio record. During
the defense of the civil lawsuit brought by Byrd’s family, Timmerman was
confronted with questions about whether an audio record actually existed. He
testified that there was none, but then became concerned that perhaps some

8
audio was retrievable and that his answers needed amending. Through the
security installation company, it was discovered that certain audio files could
be recovered, and they were recovered, and the Sheriff’s Department properly
disclosed in the civil litigation their existence.
It was determined that the computer servers retained, and could
produce, audio recordings of communications directly between the tower and
the inmates, in particular in the isolation cells, including the one containing
Byrd. Byrd was able to press an intercom button in his cell to directly
communicate with the tower control center. It is the function of the control
center staff to continually observe the video feed from the cells in order to
monitor the conduct and health and safety of inmates and to respond to
intercom calls from inmates in the cells. The staff on the floor, including
Deputies Lehmkuhl and GR, are not directly privy to those intercom
communications.
Based on the discovery of legitimately new and substantive information,
the reopening of the investigation, including the consideration of possible
employee discipline was, not improper, despite the long delay. Further, where a
death was involved, the question of corrective versus punitive discipline may be
irrelevant. The Union’s argument to the contrary, under this fact scenario, is
rejected.

3. The newly-discovered audio files added substantive

information supporting a concern that culpability existed among certain
jail staff.

The newly discovered audio files contained explosive new information,

which, it would appear, helped motivate the substantial financial settlement
reached by the County with the inmate’s family. Byrd had, in the later part of
the evening, used the intercom to call and actually reach the control tower. In
the call he insisted that he was ‘scared for his life’ and pled for the control
tower to send help. Deputy BJ who was answering calls in the tower at the
time, while filling in for the civilian Control Center Operator, promised to send

9
help.3 All evidence presented in this matter supports the conclusion that
Deputy BJ did nothing at all in response to Byrd’s desperate plea and that
Deputy BJ did not relay the information to any of the several nurses or to
command, nor did he relay the information to the Deputies on the floor
including Lehmkuhl and Deputy GR. Despite an obligation to do so, Deputy BJ
seemingly did not disclose his involvement, or the inmate’s plea, or Deputy BJ’s
promise, during the initial 2015 post-mortem investigation into Byrd’s death.
When questioned in 2019, after the discovery of the audio record, now-
Sergeant BJ denied having had any interaction with Byrd on the day of his
death. When then confronted with the audio tape, Sergeant BJ asserted that he
could not recall if he had notified any of the several on-duty nurses of Byrd’s
plea for help, as he was obliged to do, and even though he had promised Byrd
he would send help. None of the nurses or command officers reported any such
communication by then-Deputy BJ in their own response to the 2015 or 2019
investigations. Despite the discovery of then-Deputy BJ’s previously
undisclosed, and plainly not just relevant but critical, interactions with Byrd,
Sergeant BJ was not disciplined in any way after discovery of the audio record
during the reopened investigation in 2019. Sergeant BJ was not called to testify
in this proceeding

4. The Employer reached a correct decision in 2015 in finding no

culpability in the conduct of Deputy Lehmkuhl based on the video
evidence that established that Deputy Lehmkuhl regularly made his
rounds and specifically checked on the status of Byrd.

In 2015, the Employer conducted a full investigation of this unfortunate

death in custody. The involved officers filed written reports and were
interviewed. Command officers reviewed the video, which recorded all events in
the cell and all of Deputy Lehmkuhl’s interactions with inmate Byrd. Deputy
Lehmkuhl was cleared of any wrongdoing in 2015.

3
As with Deputy GR, the facts regarding Deputy BJ are not directly before me for resolution, and he did not testify
in this matter, and for those reasons will be referred to only by his initials, although the parties of course know his
identity.

10
 Captain Timmerman, who testified in this proceeding, has four decades
of experience in working for, and leading staff in, the Sherriff’s Department,
including in the jail. His training and experience exceeds that of most jail
Deputies, and certainly that of the Deputies working the floor at the time of
Byrd’s death. Timmerman’s forthright testimony was that based on his
observations of the video, he would not have responded differently, or earlier,
than Deputy Lehmkuhl. Timmerman saw nothing about Byrd’s actions, as
reflected in the video, that would have caused Timmerman to earlier summon
medical support, had he been working the floor. Timmerman frankly
acknowledged that he had little training or familiarity with identifying the
symptoms of opiate overdose, which was the mechanism of Byrd’s death.
Deputy Lehmkuhl, as determined in 2015 and again in 2019, and as
reflected on the video, did his rounds as scheduled, every half-hour. There is
no evidence to support a conclusion that Deputy Lehmkuhl did those rounds
in a perfunctory, pro forma, or negligent manner. Early in the shift, Deputy
Lehmkuhl merely looked into the cell through the observation window. During
those observations, inmate Byrd was generally standing or pacing in his cell.
There was no testimony that such behavior was unusual among jail inmates,
especially new arrivals. Deputies GR and Lehmkuhl had been advised by the
nursing staff that inmate Byrd’s assertion that he had ingested “two bars” of
Xanax was not a matter of great concern. The nurse advised that Byrd would
be uncomfortable coming down off of or withdrawing from Xanax use, but that
such withdrawal-related discomfort was not life threatening nor a matter for
medical concern.
Later in the shift, inmate Byrd had unzipped his one-piece jail coveralls,
and was apparently sweating, while standing near the door. Again, as
Timmerman acknowledged, there was nothing to suggest that such behavior
was unusual or unexpected with a new arrival, particularly given the nurse’s
advice that Byrd would be ‘uncomfortable’ in withdrawing from Xanax, but not
in any danger. The video additionally shows Byrd engaging in perfectly ordinary
conduct, like accepting delivery of his bag lunch and sitting on his bunk to eat

11
it and then lying on his bunk staring out the window. Deputy Lehmkuhl, on
his regular rounds, noted the change in Byrd’s conduct and stopped and spoke
to him. According to Deputy Lehmkuhl, Byrd assured him he was all right.
Byrd also accepted delivery of his dinner and calmly ate that as well.
Throughout the shift, multiple employees, besides Lehmkuhl, pass frequently
by the observation window that gave an unobstructed view of Byrd to the
nearby staff station, as well as to passersby in what Captain Timmerman
described in his deposition testimony as a ‘high-traffic’ area.
The video record establishes that Deputy Lehmkuhl checked in on Byrd
approximately every half hour. Several times through the evening, Lehmkuhl
conversed with Byrd. Throughout, Byrd was conscious and generally pacing in
his cell, when he wasn’t eating several meals. On his 7:30 PM rounds, Deputy
Lehmkuhl stopped to speak with inmate Byrd and they discussed the fact that
they were acquainted, as Byrd had previously been an inmate worker.
Lehmkuhl later reported that at that stage Byrd seemed in good sprits and was
obviously lucid. At around 7:45 PM, Deputy Lehmkuhl walked by the cell, and
Byrd was standing near the front window looking out, and in no apparent
distress. Shortly later, several unidentified Deputies walked nearby and Byrd
knocked on the window and apparently spoke to them. At 7:55 PM, Lehmkuhl
walked by and Byrd was again standing near the front window.
At 7:57, Byrd moved to his knees with his head and shoulders on the
bed. At 7:58:18 PM, another Deputy asks over the intercom, “Byrd you alive”.
At 7:58:29 PM, Lehmkuhl went to the cell and spoke to Byrd, who stood in
response. Deputy Lehmkuhl then turned to walk away at 7:59 PM, and Byrd
knocked on the window. Deputy Lehmkuhl returned and spoke to Byrd
through the food port in the door. According to Deputy Lehmkuhl’s
contemporaneous report, when he spoke to Byrd then Byrd was hunched over
and sweating, and Deputy Lehmkuhl suggested Byrd lie down and rest.
Lehmkuhl thought Byrd’s sweating unsurprising, given his constant pacing.
(As noted below, Byrd’s then observable state would be consistent with
withdrawal from Xanax, and not consistent with opiate overdose.)

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 After Deputy Lehmkuhl walked on, Byrd did slowly lower himself to the
bed at around 8:10 PM, but Byrd then abruptly got up. Byrd then again slowly
lowered himself to a position of squatting or kneeling by the bed with his head
and shoulders on the bed. During the ensuing 15 minutes or so multiple
unidentified Deputies can be seen walking by the cell window. Captain
Timmerman testified that this 10-15 minute period between Lehmkuhl’s
rounds was the critical period during which inmate Byrd’s observable condition
seemed to decline. During this time the tower staff that were tasked with
monitoring the video feed seemingly did not notice, or did not act on, this
change in Byrd’s position, even though, based on the Employer’s log of video
observations, Byrd ceased any movement from about 8:14 PM on. During that
critical 15-minute timeframe, there is no evidence that Deputy Lehmkuhl was
in a position to observe inmate Byrd’s change in circumstances, unlike the
control center staff monitoring the video feed, and the several unidentified
Deputies who walked by the cell.
Still later in his shift, at 8:26:16 PM, Deputy Lehmkuhl, on his regular
rounds, observed Byrd in the kneeling or squatting position with his head and
shoulders down on the bed. Deputy Lehmkuhl called through the food slot in
the door in an effort to rouse Byrd, and, failing at that immediately radioed the
control tower to let him into the locked cell. On entry, Deputy Lehmkuhl
observed Byrd, tapped his foot and then shook his shoulder, and essentially
simultaneously radioed for backup and for a nurse, who all arrived within
about three minutes. Resuscitation efforts were immediately implemented, but
were unsuccessful.

5. The audio files newly-discovered in 2019 added nothing to the

information available to the Employer in 2015 regarding the conduct of
Deputy Lehmkuhl.

As reviewed above, in 2015, Captain Timmerman, and the command

team, including the Sheriff, found no fault with Deputy Lehmkuhl’s handling of
his duties, despite inmate Byrd’s unfortunate death. Captain Timmerman’s

13
deposition testimony, from the civil litigation, is illustrative of the findings of
the 2015 investigation and of the Employer’s analysis of Deputy Lehmkuhl’s
conduct. Captain Timmerman acknowledged that deputies had no medical
training and no training regarding narcotic intoxication, overdose, or
withdrawal. Timmerman Deposition, pp. 59-62. He similarly noted that Byrd’s
cell, and its large observation window, was in a highly visible high-traffic area
of the jail, near the booking desk, and that it was covered by a video camera
monitored throughout by civilian employees in the tower. Based on his review
of the video, Captain Timmerman testified in his deposition, accurately, that
inmate Byrd’s medical decline was one of ‘rapid onset’ over the course of 10 to
15 minutes, between Deputy Lehmkuhl’s normal rounds. Again, based on his
review of the video, Captain Timmerman testified in his deposition that he
could see nothing indicating an immediate need for medical attention, until the
very end, and that nothing in the video indicated acute medical distress,
including inmate Byrd’s moving about the cell. Timmerman Deposition, pp.
109-114. Again in the deposition and based on a review of the video and all
reports filed by staff on duty, Captain Timmerman testified that Deputy
Lehmkuhl had not violated any policy or procedure. Timmerman Deposition, p.
116.
The investigation was reopened in 2019 as a result of the discovery of
the new evidence of events on the day of Byrd’s death, in the form of the
existence of audio recordings of some interactions between Byrd and certain
jail staff. The Union’s argument that the resulting reopening of the
investigation was improper has been rejected for the reasons discussed above.
While the audio recordings contained seemingly damning information
regarding failures of jail staff to appropriately, or timely, respond to express
claims of distress by inmate Byrd, those audio recordings reflect nothing
regarding Deputy Lehmkuhl’s conduct, as was admitted by Captain
Timmerman on cross examination. There is no audio recording of any
interchange between Deputy Lehmkuhl and the tower, or anyone else. Deputy
Lehmkuhl’s voice does not appear on the audio recordings.

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 The Employer argues that the audio recordings give greater context to
what was earlier viewed on the video recordings. While true, the assertion still
adds nothing to what it can be shown was known to or observed by Deputy
Lehmkuhl. Inmate Byrd lied to the jail staff on his initial intake, asserting he
had only taken Xanax and that he was no longer using heroin. According to
Deputy Lehmkuhl, inmate Byrd assured Deputy Lehmkuhl that he was feeling
all right. Inmate Byrd, via the closed intercom to the control tower, asserted to
then-Deputy BJ that he was in ‘bad shape’ and was ‘dying’. The audio
recordings provided no evidence that Deputy Lehmkuhl was in a position to
overhear the closed intercom conversations, nor did the audio recordings in
any way support a conclusion that inmate Byrd’s assertions to then-Deputy BJ
were passed along to Deputy Lehmkuhl or to Deputy GR.
It appears that the Employer after review of the audio recordings in
2019 concluded or suspected that that Deputy Lehmkuhl’s final cell check, in
which Deputy Lehmkuhl observed inmate Byrd in a kneeling position, was
somehow prompted by a relay of information from the tower to Deputy
Lehmkuhl or Deputy GR or from Deputy GR to Deputy Lehmkuhl. There is no
evidence in the record to support that suspicion.

6. The 2019 re-investigation uncovered no new evidence as to

the culpability of Deputy Lehmkuhl.

Even with the 2019 more thorough review of video, Captain Timmerman
candidly admitted he would have acted the same way, as did Deputy
Lehmkuhl, based on what he observed on the video alone. Captain Timmerman
could not identify any information from the video that should have caused
Deputy Lehmkuhl to intervene sooner than he actually did. Captain
Timmerman acknowledged the unavoidable, that is, that the newly discovered
audio recordings contained ‘no new evidence’ as to the information available in
2015 to Deputy Lehmkuhl in particular.
While the newly discovered audio recordings may support a conclusion
of a failure by jail staff to act, those audio recordings do not in any way

15
implicate Deputy Lehmkuhl, as his voice does not appear in those audio
recordings nor do the recordings reflect any messages or calls to, from, or
conversations with, Deputy Lehmkuhl.
Sparked by the discovery of the audio recordings, the Employer
appropriately re-interviewed multiple employees and re-reviewed the evidence
they had in hand in 2015. No new evidence was discovered that was directly
related to the conduct of Deputy Lehmkuhl. No staff contradicted Deputy
Lehmkuhl’s earlier assertions as to his observations and interactions on the
day of inmate Byrd’s death. The nursing staff did not recant their earlier advice
to Deputies Lehmkuhl and GR that Byrd was in no apparent jeopardy from the
asserted and presumed Xanax withdrawal. The tower staff did not assert that
any messages of Byrd’s distress were passed along to Deputies Lehmkuhl and
GR. No staff testified or asserted that Byrd’s conduct was either unusual or
inconsistent with symptoms to be expected in withdrawal from Xanax. No staff
on reflection, or review of the video, identified any specific culpable act or
omission by Deputy Lehmkuhl.
While the 2019 re-investigation did not reveal any new relevant
information about Deputy Lehmkuhl’s conduct in 2015, the record evidence
does support a conclusion that in 2019 the Employer felt under considerable
political pressure from the community to take action regarding inmate Byrd’s
death. The County and the Sheriff had been sued over the death. The issue of
deaths in police custody had become a hot-button public issue nationally. The
Union posits the theory that Deputy Lehmkuhl (and Deputy GR) were sacrificed
improperly based on community pressure. While the record evidence does not
compel that conclusion, it does establish that the Sheriff acknowledged being
under much pressure from the community to “do something”. To the extent
that such pressure had any impact on the Employer’s decision making in this
case, it would be inappropriate.
The one piece of new information seized on by the Employer in its
arguments was that, in his 2019 interview, Deputy Lehmkuhl expressed regret
that he had not earlier picked up on inmate Byrd’s distress. The Employer

16
argues this as an admission of culpability. It was not. The expression of
seemingly sincere regret that a man died on his watch does not reflect an
admission by Deputy Lehmkuhl that he did not do his job. Rather, it was
merely an expression of decency on his part.
While reopening the investigation in 2019 based on newly discovered
evidence was appropriate, the Union is correct in its argument that the
imposition of discipline after a delay of four years was improper, where the
Employer in fact had no new or additional evidence as to Deputy Lehmkuhl’s
conduct than it had when it earlier cleared him of culpability in 2015. The
termination of employment was improperly imposed in 2019 after a delay of
four years and in the absence of any new substantive evidence regarding
Deputy Lehmkuhl’s conduct in 2015.

7. The 2019 re-investigation failed to establish that Deputy

Lehmkuhl was willfully indifferent to the plight of the inmate Byrd.

The evidence shows that Deputy Lehmkuhl did his rounds as scheduled.
While making those rounds, Deputy Lehmkuhl stopped to speak with inmate
Byrd and to check on his status, and did not merely walk by the cell. Deputy
Lehmkuhl was aware that the medical advice given to the floor staff was that
inmate Byrd would be uncomfortable, but not in any danger, based on his
asserted withdrawal from Xanax. There is absolutely no evidence in the record
to support a conclusion that inmate Byrd’s conduct throughout the evening,
right up to his final moments, was inconsistent with withdrawal symptoms
from Xanax or that Deputy Lehmkuhl knew or should have known that inmate
Byrd was in life-threatening distress.
Captain Timmerman had essentially the same, indeed more extensive,
visual observations to review as were available to Deputy Lehmkuhl and even
he could not identify any point, other than the final moments, when inmate
Byrd’s conduct suggested he was in distress warranting medical attention.
There is nothing in the record that would support a conclusion that inmate
Byrd’s conduct or affect, prior to his final moments, was anything out of the

17
ordinary amongst the jail’s population. There is nothing in the record to
contradict Deputy Lehmkuhl’s description of his verbal exchanges with inmate
Byrd, which were of course not captured on the Employer’s audio system.
When inmate Byrd did go down on his knees, which was a significant
change in status, Deputy Lehmkuhl promptly and appropriately intervened and
summoned assistance without delay.
There was no suggestion of any antagonism directed by Deputy
Lehmkuhl towards Byrd. Deputy Lehmkuhl was at least nominally familiar
with inmate Byrd based on prior incarcerations and had frankly cordial
exchanges with him on his last day. Byrd was a known drug user, but not
considered a problematic inmate. As Captain Timmerman testified in his
deposition, inmate Byrd was both well known and well liked. There was no
record, or indication, of prior adverse interactions between Deputy Lehmkuhl
and Byrd.
There is no evidence that Deputy Lehmkuhl was deliberately indifferent
to the plight of inmate Byrd, and to the contrary, it was only Deputy Lehmkuhl
who intervened to attempt to assist inmate Byrd.

8. The 2019 re-investigation failed to establish that Deputy

Lehmkuhl was negligent in the performance of his duties as a corrections
officer and the Employer has failed to specifically identify at what earlier
point Deputy Lehmkuhl should have intervened.

While the finding is made above that Deputy Lehmkuhl was not
‘deliberately indifferent’ to the plight of a detainee, there remains the possibility
that his conduct was still so negligent, or incompetent, as to warrant discipline
or discharge. There is a complete and notable absence of record evidence
identifying the point at which Deputy Lehmkuhl should, according to the
Employer, have recognized that inmate Byrd was in life-threatening distress,
such that Deputy Lehmkuhl was obliged to intervene. Of particular note, the
Employer fails to even attempt to identify in argument that point at which,

18
based on observable conduct, Deputy Lehmkuhl should have recognized the
need to intervene.4
The Employer, in argument, asserts that Deputy Lehmkuhl is culpable
for “failing to prevent the death of inmate Ryan Byrd”, for “failing to recognize
and monitor the deterioration on an inmate’s health due to an opioid overdose”,
and further asserts that Deputy Lehmkuhl “failed to address Byrd’s apparent
medical distress”, with Sheriff Fuller describing the failure as not being aware
of the “overall apparent deterioration”. Of significance, Sheriff Fuller ties his
conclusions regarding Deputy Lehmkuhl’s supposed failures to the Sheriff’s
conclusion that Lehmkuhl’s answers did not comport with “what was heard on
the audio”, which impermissibly ignores the fact that Deputy Lehmkuhl was
not privy to Byrd’s communications with the tower staff, who did receive notice
of Byrd’s asserted distress. The Employer argues that the inmate’s “life
depended on Lehmkuhl’s conscious awareness of what descent into death due to
drug overdose looks like” and that Deputy Lehmkuhl ignored “obvious and
telling signs that the inmate . . . was experiencing dire medical distress”. The
Employer further argues that Deputy Lehmkuhl was “unaffected at any
conscious level to the continuous pacing, the agitation, the profuse perspiration
much less the incoherent undressing and pointless motions” of the inmate. The
Employer adds the assertion that Deputy Lehmkuhl was “callous and
indifferent toward inmate Byrd’s delirium”, despite the absence of any evidence
that inmate Byrd was suffering from delirium at any point. The Employer
further asserts that, “it was easily apparent from the combination of the audio
with the video that Byrd’s medical condition was rapidly deteriorating”, ignoring
the obvious fact that Deputy Lehmkuhl was not at the time privy to Byrd’s
audio communications with the tower. The above assertions are each based on
misleading descriptions of the evidence or are otherwise without evidentiary
support.

4
The July 15, 2019 notice of termination is notable in that it offers no factual description of what it was Deputy
Lehmkuhl did, or failed to do, that formed the basis of the decision to terminate, and cites only to essentially generic
Rules that Lehmkuhl was found to have violated in some factually unspecified way.

19
 It was not Deputy Lehmkuhl’s duty to “prevent the death of inmate Ryan
Byrd”, rather his duty was to monitor and report conditions within his level of
expertise. The assertion that Deputy Lehmkuhl failed to “recognize and monitor
the deterioration on an inmate’s health due to an opioid overdose”, ignores the
fact that the Employer has acknowledged, through sworn testimony, that
corrections staff were not at the time trained to recognize the symptoms of
opioid overdose. Further, there has been presented no evidence whatsoever to
compel a conclusion that an earlier intervention by Deputy Lehmkuhl would
have altered the course of events. There is no evidence in the record that would
support a conclusion as to when, with any precision, the ingestion of opioids
that led to inmate Byrd’s overdose actually occurred. The medical examiner
opined that Byrd likely absorbed the opioid thorugh the plastic bag concealed
in his rectum, but without offering any opinion as to how long before death
that absorption occurred. There is no record evidence that an earlier
intervention would have saved inmate Byrd’s life, particularly as we do not
know the amount or timing of ingestion. Even though there is no record
evidence of the symptoms of opioid overdose, the Arbitrator is prepared to take
‘judicial’ notice of the fact that the long-recognized hallmark of opioid use and
overdose is the individual becoming lethargic or ‘nodding out’. Inmate Byrd was
far from ‘nodding out’, and instead was actively pacing in his cell throughout
almost the entire time of his brief incarceration, right up to the point where he
knelt down and placed his upper body and head on his bunk. Deputy
Lehmkuhl observed that change in circumstance promptly and immediately
intervened.
The Employer further asserts that Deputy Lehmkuhl’s culpability is
premised on his failure “to address Byrd’s apparent medical distress”; however,
the Employer does not identify how Byrd’s level of distress was other than
should have been anticipated with Xanax withdrawal, up to the point where he
took a position on his knees.
Similarly, the Employer argues that the inmate’s “life depended on
Lehmkuhl’s conscious awareness of what descent into death due to drug

20
overdose looks like”, even though Captain Timmerman honestly acknowledged
that he wouldn’t recognize those symptoms either. There was no record
evidence instructing the Arbitrator what “descent into death due to a drug
overdose” looks like.
Most perplexing, the Employer further argues that Deputy Lehmkuhl was
“unaffected at any conscious level to the continuous pacing, the agitation, the
profuse perspiration much less the incoherent undressing and pointless motions”
of the inmate. The pacing, agitation, and profuse perspiration are symptomatic
of withdrawal from benzodiazepines like Xanax, indeed the perspiration is a
hallmark symptom of withdrawal from benzodiazepines, and those symptoms
are not characteristic of opioid overdose which is typified by lethargy rather
than pacing or agitation.5 Simply, the symptoms that the Employer insists
should have set off alarms were in fact the discomfort predicted by the nurse as
consistent with a non-life threatening withdrawal from Xanax and not
consistent with a life-threatening opioid overdose.
The Employer offered no evidence as to when Deputy Lehmkuhl should
have earlier intervened or why. There is no evidence of which particular
supposed symptom or conduct of Byrd’s should have sparked intervention.
There is no evidentiary basis to establish when or how Deputy Lehmkuhl
should have differentiated between the non-life threatening discomfort
predicted by the nurse and the symptoms of the opioid overdose, which
appears to have been the cause of death. There is no evidence of what
symptoms of opiate overdose were present or should have served as a signal of
urgent medical distress to Deputy Lehmkuhl.
As the Union notes, Deputy Lehmkuhl at the time of the death was a
recently trained Corrections Deputy. He had worked for several years as a
civilian in the command center, which of course gave him familiarity with the
workings of the jail and, to an extent, the conduct and actions to be expected of

5
The Arbitrator is not a blank slate, but has not gone outside the record, but has relied on his own baseline
knowledge of drug overdose and withdrawal symptoms, derived largely from serving as litigation counsel for more
than half a decade for the Alliance for the Mental Ill and the Michigan Association for Children with Emotional
Disorders.

21
inmates. He had only several months earlier completed his training course to
be working on the floor as a Deputy, with approximately three months in that
capacity. His lack of experience, and the lack of specialized training in opioid
overdoses, are factors diminishing any arguable culpability in failing to spot the
onset of opioid overdose.
There was no evidence that Deputy Lehmkuhl was generally inattentive
to his duties, either on the day of inmate Byrd’s death, or in the ensuing four
years of Deputy Lehmkuhl’s seemingly uneventful and productive employment
at the jail. Further, as noted above, even command officers such as Captain
Timmerman, with four decades of experience, were not trained in, or aware of,
symptoms suggesting opioid overdose. Indeed, the evidence supports a
conclusion that if Captain Timmerman had by happenstance filled in for
Deputy Lehmkuhl on the cellblock floor that day, Timmerman would have
responded no differently than did Lehmkuhl to the information that the
evidence establishes Deputy Lehmkuhl acted upon. Of course, it should be
noted that Sheriff Fuller testimony was contrary to Captain Timmerman’s, with
the Sheriff insisting that from the video he could observe supposed
deterioration in Byrd’s status sufficient to have justified calling in medical
assistance, although he did not describe exactly what change in conduct he
was relying upon. That seeming disagreement between well-experienced high-
ranking command officers does not support or compel a finding of culpability
on the part of the then-newly-minted Deputy Lehmkuhl.
There is no competent evidence on which a conclusion could be made
that Deputy Lehmkuhl’s conduct was negligent. It is apparent that Deputy
Lehmkuhl was not culpably negligent on the day of Byrd’s death.

9. The Employer has failed to offer a credible explanation of the

more favorable treatment of then-Deputy BJ who, while serving as control
operator in the tower, did receive specific information suggesting medical
distress and who promised, but failed, to send assistance.

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 As argued by the Union, an aspect of ‘just cause’ is that discipline is
meted out without unwarranted discrimination and in roughly comparable
fashion to individuals who committed comparable misdeeds or failings. This is
not a rule to be applied mechanically as there are necessarily variations in
employee background, training, status; culpability and offenses are rarely
identical; and even subjective Employer perceptions of the value or
rehabilitation prospects of individuals can be legitimate factors.6
Inmate Byrd was brought into the jail coming off of a high on Xanax, by
his own description. His affect and conduct for most of the afternoon and
evening were consistent with that status, as discussed above. There was no
evidence that at any point, prior to his getting down on his knees, inmate Byrd
made any claims to officers on the floor that he believed he was in serious
medical distress or exhibited any conduct that should have led those officers to
independently conclude that he was in serious distress.
The same cannot be said of officers in the tower. Inmate Byrd made
urgent pleas for assistance via the intercom directly to the staff in the tower.
Then-Deputy BJ listened to inmate Byrd’s plea for medical assistance, was in a
position to visually observe Byrd via video feed, and assured Byrd that Deputy
BJ would immediately send help. Deputy BJ, filling in for a control operator,
had access to both the video and audio feed that Deputy Lehmkuhl did not
have access to. The evidence in this record compels a conclusion that Deputy
BJ did not keep his promise to Byrd and did not notify the nurse, or anyone
else, of Byrd’s claim of immediate medical distress and of Byrd’s prescient
insistence that he was “scared for his life”.
It appears, based on the record evidence here (that was admittedly not
focused on the conduct of then-Deputy BJ) that in the 2015 post-mortem
investigation, Deputy BJ did not disclose his involvement with inmate Byrd,
despite his duty to do so, and instead concealed it. When the audio recordings

6
The Employer did offer as an example of comparable discipline, the discharge of another Corrections Deputy for
actually failing to properly make his rounds. Here, there is no claim or evidence that Deputy Lehmkuhl failed to
timely make his rounds throughout the shift at issue.

23
were discovered in 2019, then Sergeant BJ was interviewed. He initially denied
having had any contact with or conversation with Byrd on the day of his
dramatic death in custody. When confronted by the audio recording of himself
speaking with Byrd, Sergeant BJ asserted that hearing the recording didn’t
‘refresh his recollection’ of having ignored a dying man’s plea for help. Sergeant
BJ then asserted that he didn’t remember whether or not he had forwarded the
plea for help to the nurses, but that he ordinarily ‘would have’. During the
2015 post-mortem investigation no staff member reported having any
interaction with the Deputy BJ regarding inmate Byrd’s urgent plea for help.
The Union posits the theory that Sergeant BJ received favorable
treatment due to favoritism based on his familial ties to another Department
employee. That assertion has by no means been proven. Captain Timmerman
testified that, despite the audio recording of then-Deputy BJ’s unfulfilled
promise to send the nurse, no discipline could be imposed because the
evidence neither supported nor disproved whether then-Detective BJ acted on
an inmate’s urgent request for help, immediately preceding the inmate’s death.
Despite finding otherwise that Captain Timmerman’s testimony was generally
credible, that assertion was unpersuasive as it flies in the face of significant
contemporaneous evidence that Deputy BJ did not call the nurses, did not
notify command, did not make a written record of the request for help, did not
disclose in the post-mortem investigation that he had interacted with the dying
inmate, as well as the absence of any corroboration by any other jail staff that
then-Deputy BJ had acted on the request for help.
The Employer has a duty to impose comparable discipline for comparable
offenses or to persuasively explain deviations from that norm. Here, one
employee who, based on this record, expressly failed in a mandatory duty to
report an urgent plea for medical help by a dying inmate, and who seemingly
concealed that conduct for four years, received no discipline whatsoever.
Another employee has been terminated for the alleged failure to appropriately
recognize symptoms of distress, a task for which he was untrained, in the
absence of any proof of an actual plea for assistance made to the Deputy in

24
question. The Employer has established no credible basis for any legitimate
distinction explaining the differing treatment.

V. CONCLUSION

The death of Ryan Byrd was a tragedy largely of his own making. Deputy
Lehmkuhl was cleared of any responsibility for that death in the post-mortem
investigation in 2015. Notwithstanding the Union’s arguments, the 2019
reopening of the investigation into Byrd’s death was warranted by the
discovered of the existence of an audio record of relevant events; however, while
those audio recordings suggest culpability on the part of the jail or of certain
jail staff, no new evidence was derived from them regarding the conduct, or
contemporaneous knowledge, of Deputy Lehmkuhl. The evidence failed to
establish that Deputy Lehmkuhl failed to perform his duties in a minimally
competent fashion, failed to establish that he was willfully indifferent to the
plight of inmate Byrd, and failed to establish that Deputy Lehmkuhl was
negligent or otherwise culpable in the death of inmate Byrd.
The Employer has failed to offer a credible explanation of the more
favorable treatment of then-Deputy BJ who while serving as control operator in
the tower did receive specific information suggesting medical distress and who
promised, but failed, to send assistance, and who concealed that fact for four
years.
Based on the above findings, the Employer has not established just
cause for discipline, much less for the termination of Deputy Lehmkuhl’s
employment, and therefore, based on the above findings, the Employer’s action
was excessive, unreasonable and an abuse of discretion.

VI. AWARD

The grievance is granted. Deputy Lehmkuhl is to be immediately offered

reinstatement to a position and shift comparable to the one he had when he
last worked and consistent with his classification and seniority. Lehmkuhl is to

25
be made whole in all respects. Lehmkuhl is to receive full back pay, together
with interest, at the Michigan statutory judgment rate. Lehmkuhl is to be given
reasonable time to give notice to any current employer and to report for duty.
The Employer will treat Lehmkuhl for all purposes as if he had worked
throughout, including by the restoration of all service and seniority credits for
all purposes. The Employer will similarly restore all leave banks, including for
missed accruals. The Employer shall be entitled to a credit against backpay for
interim earnings, if any, and Lehmkuhl will cooperate by providing relevant
W2s, paystubs, or releases to allow for a proper calculation of any interim
earnings. The Employer will confer with Lehmkuhl and the Union regarding its
calculation of backpay and benefits prior to tendering payment or amending
records. Lehmkuhl is to be offered reinstatement without delay and despite
any possible dispute or uncertainty regarding the calculation of the make
whole relief. The termination letter and all related documents are to be removed
from all Employer, and supervisory, records and files to preclude any future
inappropriate reliance on the claims made therein.
Given the high public profile this case has already had, and the damage
unfortunately caused to Deputy Lehmkuhl’s otherwise good reputation where
in these especially fraught times he has been charged with culpability in the
death of an inmate in police custody, the Parties are encouraged to endeavor to
agree upon a joint public pronouncement regarding the outcome; failing at
that, the Parties regardless remain free to address the matter publicly as they
see fit.
Jurisdiction over this matter is retained for a period of one hundred and
20 (120) days from the date of the Award to allow either party an opportunity to
seek clarification of, or resolve any dispute over the implementation of, the
make whole portion of the relief ordered.

____________________________
Doyle O'Connor, Arbitrator
Dated: October 7, 2020

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