ARBITRATION AND MEDIATION SERVICE

IN THE MATTER OF ARBITRATION :

BETWEEN: :
:
OPINION AND AWARD
OHIO PATROLMEN’S BENVOLENT :
ASSOCIATION :
AMS No. 02/20
:
RE: James Myers Termination
AND :
:
Sherrie J. Passmore, Arbitrator
CITY OF CENTERVILLE :

INTRODUCTION

This arbitration arises pursuant to the collective bargaining agreement

(“Agreement”) between the Parties, the City of Centerville (“Employer” Or “City”) and

the Ohio Patrolmen’s Benevolent Association (“Union”). Sherrie Passmore was

appointed as the Arbitrator under the authority of the Agreement. The Parties

stipulated that the grievance is properly before her.

A hearing was held on August 19, 2020. Both Parties were represented by

advocates who had a full opportunity to introduce oral testimony and documentary

evidence, cross-examine witnesses, and make arguments. Post-hearing briefs were

timely filed on or before October 21, 2020.

Appearances:

Joseph M. Hegedus, Attorney for the Union

W. Joseph Scholler, Attorney for the Employer

 ISSUE

Was the Grievant removed for just cause? If not, what is the appropriate
penalty?

RELEVANT PROVISION OF THE AGREEMENT

Article 9 - Discipline

A. The tenure of every Employee, subject to the terms and conditions of

this Agreement, shall be during good behavior and efficient service.
The Employer may take disciplinary action against any Employee in
the bargaining unit for just cause. The level of discipline will be
determined based upon the severity of the conduct, the Employee’s
work record, and other relevant factors. The Employer may take
disciplinary action for conduct occurring (a) while the Employee is on
duty, working under the colors of the Employer, or is representing
himself as an Employee of the City; (b) in instances where the
Employee’s conduct violates his/her oath of office; or (c) off-duty
where such conduct has a negative impact on the reputation of the
City or Police Department.

Forms of disciplinary action are:

1. Oral reprimand (written record)

2. Written reprimand
3. Suspension
4. Demotion
5. Discharge from employment

B. Among other things, incompetency, inefficiency, dishonesty,

drunkenness, immoral conduct, insubordination, discourteous
treatment of the public, co-workers or supervisor, neglect of duty,
absence without leave, or any conduct unbecoming an Employee or
any other acts of misfeasance, malfeasance, or nonfeasance shall be
cause for disciplinary action.

***

2
 BACKGROUND

The Grievant, Detective Sergeant James Myers, worked for the Centerville

Police Department (“CPD” or “Department”) for over twenty-five years. Myers’

employment was terminated on March 16, 2020.

On January 24, 2018, Sergeant Myers met with City Manager Wayne Davis

and Human Resources Director Jennifer Wilder to discuss several sensitive

personnel-related issues. Among the issues discussed was potential criminal

conduct by then-Chief of Police Bruce Robertson and Lieutenant Joseph Lavigne.

Lavigne was one of Grievant’s direct supervisors. The parties agreed to keep the

discussion confidential. Two days later, January 26, 2018, Grievant submitted a

memo to the City seeking whistleblower protection for the information he provided.

Following this meeting, the City hired an outside investigator to review the

conduct of Chief Robertson and Lieutenant Lavigne. Almost immediately thereafter,

Chief Robertson resigned in February 2018 and Lieutenant Matt Brown was made

Interim Police Chief. No criminal charges were ever brought against Brown or

Lavigne.

During July of 2018, Myers competed in a promotional examination for the

open Police Chief’s position. The position was awarded to Interim Police Chief Matt

Brown.

On August 1, 2018, Grievant had a meeting with City Manager Davis and

Police Chief Brown. At this meeting a number of topics were discussed, including

the chief selection process, the discipline of another police officer, and Grievant’s

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failure to respect positions of authority. Grievant surreptitiously recorded the

meeting.

In December 2018, the CPD opened an internal investigation regarding

Grievant based on the City’s discovery that Grievant had written a letter disparaging

the City Administration for terminating a former employee, Brad Kavalunas.

Kavalunas was terminated for repeatedly making racist and homophobic remarks.

Lieutenant Lavigne, Grievant’s immediate supervisor, was assigned to conduct the

investigation.

Lavigne met with Grievant twice. At the first meeting on December 28, 2018,

Lavigne read and provided Grievant with a copy of the Administrative Proceeding

Rights Form OC-12. He also read Grievant the Notification of Rights Form OC-21.

After Grievant was advised of his rights, he requested to have a representative

present at the meeting. To accommodate that request, the meeting was rescheduled

to January 4, 2019.

On December 30, 2018, Grievant met with his attorney, Jeff Silverstein. He

told his attorney about the charges and that he had an audio recording that might

have some impact on the allegations. Grievant claimed the attorney told him he had

no obligation to disclose the recording unless asked a direct question about it.

Lavigne and Grievant met again on January 4, 2019. Grievant elected not to

have a representative present. He was not read his rights again. During this meeting,

Grievant was advised of the allegations against him. One of the charges was that he

improperly intervened in the investigation of former employee Brad Kavalunas by

writing a letter regarding Kavanaugh’s termination. He was also told that he was

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under investigation for insubordination. The allegation was that he had ignored

directives given at the August 1, 2018 meeting with Chief Brown and City Manager

Davis not to get involved in internal investigations he was not part of. Because of the

insubordination charge, Lavigne asked him about that meeting. Grievant stated he

could not recall specifics. He did not tell Lavigne he had a recording of the meeting.

On June 7, 2019 Grievant was issued a five-day suspension for the letter he

wrote concerning Kavanaugh's termination. Grievant appealed the suspension to

the Personnel Appeals Board. The hearing on his appeal was not held until January

28, 2020. The Board upheld his suspension.

During the appeal discovery process in November 2019, Grievant’s attorney

gave the City Attorney a copy of the August 1, 2018 meeting recording. This was the

first time the City became aware of the recording. Grievant’s attorney also provided

the City incident files of three police officers. His attorney had made a public records

request for those incident files on November 6, 2019. But the files provided to the

City in discovery were less up to date than those files. This caused the City to

question whether Grievant had previously obtained the files and given them to his

attorney without following appropriate public records procedures.

As a result of the information that came to the City’s attention during the

discovery process, the City began an investigation of Grievant on December 2, 2019.

Lieutenant Yoder was assigned to conduct the investigation.

Yoder interviewed Grievant on December 6, 2019. Grievant admitted he

knew he had a recording of the August 1, 2018 meeting. When asked where the

incident files provided during discovery came from, Grievant stated he assumed his

5
attorney provided them and that he did not.

Yoder conducted a second interview of Grievant on December 20, 2019. At

this interview, Yoder presented Grievant with two sets of documents: the incident

files Grievant’s attorney had provided to the City during discovery and the incident

files the City had provided to Grievant’s attorney pursuant to his November 26,

2019 public records request. Noting that one set had been printed in June and the

other in November, Yoder asked why Grievant’s attorney had the older set. Grievant

responded “like I explained before I offered them to my attorney. “

Yoder submitted his investigation report on January 15, 2020 to the Chief.

The Chief recommended charges for the violations identified in Yoder's report.

Notice of a pre-disciplinary hearing on February 10, 2020 was sent to Grievant. At

Grievant’s request, the conference was rescheduled for February 18, 2020. In lieu of

the conference, Grievant elected to provide a written statement on February 14,

2020. The hearing officer sustained the charges. Upon review, City Manager Davis

terminated Grievant on March 16, 2020.

POSITIONS OF THE PARTIES

Position of the Employer

The City maintains that it had just cause to discipline Grievant. It argues that

determining the proper penalty in disciplinary cases is primarily the function of

management. The City further argues that this arbitrator should not disturb the

penalty if the Employer acted in good faith, conducted a fair investigation and the

penalty was not disparate.

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 The Employer claims it had just cause to terminate Grievant because it

proved he violated departmental rules and policies of the City by engaging in

dishonest conduct. He was dishonest in not disclosing during his January 4, 2019

investigation interview that he had a surreptitious recording of the August 1, 2018

meeting. He also lied to Yoder during his December 6, 2019 interview by stating he

did not provide incident files of three other officers to his attorney.

The City points out that Grievant had knowledge of the Department Rules

and City Personnel Manual sections he was found to have violated. Further, he was

aware of the consequences of being untruthful as a police officer and of withholding

evidence during an investigation.

The City also takes the position that the level of disciplined issued to Grievant

is commensurate with his actions. His dishonesty on each occasion, standing alone,

warrants termination. As a result of the Brady doctrine, dishonesty substantially

limits the ability of an officer to perform the essential functions of the position. The

City argues no mitigating factors exist to support the issuance of lesser discipline.

Position of the Union

The Union’s position is that the City has the burden of proof and failed to

prove the most serious charges in this case. It suggests that the City stacked charges

against Grievant because it didn't have a strong case for serious discipline.

Regardless of how many policies were allegedly violated, the City has to prove the

underlying conduct, which it did not do.

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 Specifically, the Union argues the City did not prove Grievant intentionally

withheld a recording that was directly connected to an investigation. Grievant was

not under investigation when he made the August 1, 2018 recording. He never

reviewed it until after his January 4, 2019 interview and was uncertain at that time

whether it was even relevant.

The Union contends that Grievant had a duty to not disclose the recording.

One of the topics discussed at his January 24, 2018 meeting with then current Police

Chief Bruce Robertson and City Manager Davis was possible improper conduct by

Lavigne. Davis instructed him to keep sensitive information discussed at that

meeting confidential.

Lavigne’s possible improper conduct was also discussed at the August 1,

2018 meeting. In not disclosing the recording, Grievant was following the Davis’

directive to keep the information confidential. Grievant was also reluctant to

provide the recording to Lavigne because it would have revealed that Grievant had

reported him for possible misconduct and Grievant feared retaliation.

The Union notes that Grievant also chose not to disclose the recording

after consultation with counsel. His attorney advised him the recording was lawful

and that he had no obligation to disclose it absent a specific request by the City. He

was following his attorney's advice, not being dishonest or trying to gain advantage

for himself.

The Union asserts the City cannot expressly identify a dishonest statement by

Grievant. Instead, the City claims he lied by allegedly not properly answering the

question, “is there anything else that you think I need to know?” Grievant cannot be

8
labeled as untruthful because he answered no to such a vague, overbroad, and

ambiguous question. Additionally, Grievant was not properly informed that

dishonesty, withholding, or untruthfulness might result in discipline up to

termination.

With respect to the charges relating to Grievant accessing incident files, the

Union maintains that he did not use his position to access, copy, and provide those

files to his attorney for his personal benefit without following established policy and

procedures. It points out that in his position as a supervisor Grievant was permitted

to access, review, and print the files. The files are public records and many

employees are authorized to release public records without the Chief’s permission.

Grievant did not make false statement regarding those incident files during

the investigation conducted by Yoder. He answered all questions truthfully based

upon how each question was phrased, the context of the conversation and his

understanding of the question. During his December 6, 2019 interview, Grievant

believed the questions being asked were about the entire discovery packet based on

representations made by Yoder. Since he had not seen the discovery packet, he

could not answer some of the questions. A review of the second interview of

Grievant on December 20, 2019 demonstrates there was confusion by both parties

over what documents were being discussed. Once Grievant understood the

questions that being asked and it was clarified what documents were being referred

to, he was never dishonest about the fact that he had accessed incident files and

provided them to his attorney.

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 The Union maintains the Grievant was disparately treated as compared to

other employees accused of similar misconduct. It points to Police Officer Colby

Keller who was involved in an OMVI stop where he failed to include exculpatory

information in his report but only received a written reprimand. Another example

the Union gave of disparate treatment was Dispatcher Nicole Reed who admitted

during an investigation to being dishonest on more than one occasion.

Further, the Union argues that Grievant was retaliated against after acting as

a whistleblower under the protection of R.C. Section 4113.52 by identifying

potential criminal conduct by other City employees. Grievant reported the conduct

to City Manager Davis and Human Resources Manager Jennifer Wilder on January

24, 2018. Thereafter, he was denied two promotions and disciplined twice,

eventually resulting in his termination.

The Union challenges the City’s suggestion that Grievant would be hampered

in his ability to testify during criminal trials under Brady versus Maryland because of

his purported dishonesty. It argues that the burden of disclosure of evidence

contained in personnel files, for impeachment purposes, under Brady, is not nearly

as far-reaching as the City suggests.

DISCUSSION

This case involves the termination of the Grievant’s employment for

misconduct. As such, the City has the burden of proving just cause, consisting of

whether:

1. The Grievant did what he is accused of doing; and

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 2. Under all the circumstances, removal was appropriate.

The Grievant’s Alleged Misconduct

The City found that Grievant violated the following Department Rules of

Conduct:

• Rule 12-305 - Unbecoming Conduct

• Rule 12-329 – Abuse of Position

• Rule 12-342 – Processing Property and Evidence

• Rule 12-388D – False Official Reports

• Rule 12-3102A – Informing Superiors

• Rule 12-3117 – False Reports or Entries

• Rule 12-3118 – Truthfulness

• Rule 12-3119 – Departmental Investigations – Testifying

In addition, the City found that Grievant violated the following Sections of the City

Personnel Manual:

• Section 5.00 A (Ethics of Public Employment)

• Section 5.01 A (Employee Conduct)

• Section 6.03 F Group I Offenses (#17 Failure to observe office and/or

department/division rules)

• Section 6.03 G Group II Offenses (#15 willful disregard of office and/or

department/division rules)

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 • Section 6.03 H Group III Offenses (#12 misusing or removing City records
or information without prior authorization and #14 dishonesty or any
dishonest action)

Almost all of these violations were based upon finding Grievant had been

dishonest during internal investigations. The City found that Grievant had been

dishonest in two ways: 1) he failed to disclose a surreptitious recording he made of

an August 1, 2018 meeting with the City and 2) he lied to Lieutenant Yoder during

an investigatory interview about accessing CPD records without following proper

procedures.

The City proved Grievant was dishonest by not disclosing the recording.

The recording was of a meeting he had with the City Manager and Human Resources

Director. In an internal investigation interview on January 4, 2019, Grievant was

asked about that meeting. He was told that one of the allegations he was being

investigated for was insubordination. Specifically, he was asked if he had been

instructed at that meeting not to get involved in other internal investigations. In

response, Grievant said that he did not recall that statement. Although that may not

have been an outright lie, his failure to disclose that he had a recording of all

statements made during the meeting was dishonest. Lying is explicitly stating

something you know to be false, but dishonesty can also involve withholding or

misrepresenting information.

Grievant was given multiple opportunities to disclose the recording. Shortly

before the end of the interview, the investigator asked if there was anything else Grievant

12
thought he needed to know. Grievant responded no. At the end of the interview, the

investigator requested that Grievant advise him if he thought there was anything

else the investigator should know. Within days after the interview, he reviewed the

recording multiple times. Yet, at no point during the investigation did he disclose

the recording.

The claim that Grievant did not understand that the recording of the

August 1, 2018 meeting was relevant to the investigation is not credible. He knew he

was under investigation for insubordination and was asked about a specific

directive allegedly given at that meeting as well as other questions about what was

said during the meeting. Any reasonable person, and certainly a seasoned detective

like Grievant, would understand that a recording of the meeting would definitively

establish whether such a directive was given and everything else that was said.

It was not until the Personnel Appeals Board discovery phase that

Grievant disclosed the August 1 recording. The disclosure at that time is further

evidence that Grievant understood the recording was relevant to the investigation

that led to his five-day suspension. Grievant admitted that prior to that time he

intentionally did not disclose the recording.

The justifications Grievant gave for intentionally withholding relevant

evidence did not excuse that misconduct. The primary justification Grievant relied

on was that his attorney advised him not to disclose the recording unless asked a

specific question about it. It is not uncommon for an attorney to advise his client

when testifying to answer only the questions asked and to not volunteer

13
information. A witness testifying in legal proceedings is not under an obligation to

provide any information beyond what the witness is asked. That is not true in CPD

internal investigation interviews and Grievant knew that.

Grievant was under an affirmative duty to disclose information relevant

to his interviews. Department Rule 12-3119, Departmental Investigations –

Testifying, states:

Members or employees are required to answer questions by or render

material and relevant statements to a competent authority in a
departmental personnel investigation.

Rule 12-342, Processing Property and Evidence prohibits “withhold[ing] any

property or evidence in connection with an investigation”. Under Rule 12-3102A,

CPD officers have an express duty to report anything of interest to appropriate

supervisory personnel. The recording was directly relevant to Lavigne’s

investigation interview questions about what was said at the August 1, 2018

meeting and certainly would have been of interest to Lavigne. Withholding the

recording violated those provisions.

Grievant was well aware of his duty to disclose. He had received training

about departmental rules, including the ones above. As an investigator of many

years, he would have understood the importance of securing and reporting all

evidence. As a Sergeant, he had experience as a supervisor in advising subordinates

and even recommending discipline if there was pertinent information lacking or

omitted from a report or investigation.

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 Grievant was also well aware of the consequences of withholding

evidence and being untruthful. During his investigatory interview on December 28,

2018, Lieutenant Lavigne provided Grievant with several warnings concerning his

responses to questions. Specifically, Lieutenant Lavigne informed Grievant that

“dishonesty, withholding, or untruthfulness may result in discipline up to and

including termination.” Grievant indicated that he understood this. At Grievant’s

request, the interview was continued to January 4, 2019. Although Lieutenant

Lavigne did not repeat those warnings, it is not credible that Grievant did not

understand that he was still under a duty to disclose and to be truthful at his

January 4 interview and thereafter.

There was no evidence that Grievant told his attorney that he was under a

duty to disclose evidence. Grievant admitted he did not provide his attorney with

the Notification of Rights he had been given on December 28, 2018 which included a

warning that he could be terminated for withholding evidence. His attorney may

have been operating on incomplete information. Regardless, reliance on advice of

counsel is not a defense to discipline. The Grievant is responsible for the

consequences of ignoring the directives of his supervisors and following his

attorney’s advice, even if that advice was not good.

Another reason Grievant gave for not disclosing the recording during the

internal investigation was that he was following directions given to him by City

Manager Davis to keep sensitive information discussed at the January 24 meeting

confidential. He also claimed he feared retaliation if he disclosed the recording

15
because it would have revealed he acted as a whistleblower in January 2018

regarding alleged criminal behavior of Lieutenant Lavigne. Neither of these reasons

justified his actions.

If he was truly concerned about either of those things, Grievant could

have told Lavigne he had a recording of the August 1 meeting but was under a

directive from Davis to keep certain information discussed in the meeting

confidential. He also could have gone to the Chief or City Manager about his

concerns since both already knew about the allegations against Lavigne. He could

have turned the recording over to them. Regardless of his whistleblower concerns,

the Ohio Whistleblower Statute does not permit Grievant to commit rule violations

to keep his whistleblower status anonymous.

The second basis on which Grievant was found to be dishonest was that

he lied to Lieutenant Yoder during an investigatory interview about accessing

records without following proper procedures. The evidence supports this finding.

When Yoder interviewed Grievant on December 6, 2019, he presented him

with copies of incident files of three officers, noting that Grievant’s attorney had

filed the documents with the Personnel Appeals Board as exhibits. He invited

Grievant to look through the documents and then asked who provided the

documents to his attorney. Grievant responded “I’m assuming the City did. We

made a public records request for ‘em.” He then added, “I didn’t provide them.”

That was not true. He had provided copies of the three incident files to his attorney

prior to the public records request. Those were the copies that had been filed with

16
the Personnel Appeals Board and that were on the table in front of him.

Yoder next asked him about what he had provided to his attorney as part of

the discovery. Grievant’s responses to this line of inquiry were evasive and

misleading. Rather than answer the question asked, what he had provided to his

attorney, Grievant said he could not answer because he did not know what his

attorney had submitted in discovery. He acknowledged that there were documents

he had given to his attorney like his personnel file and own incident file but did not

mention he had also given his attorney three other incident files. Referring to the

incident files still in front of him and knowing his attorney had two sets of the files,

Grievant stated “I know these were obtained pursuant to my attorney's records

request.”

Grievant’s dishonest conduct was in violation of Rule 12-3118 – Truthfulness

which states “Members and employees are required to be truthful at all times

whether under oath or not.” It violated Personnel Manual Section 6.03(H)(14) which

lists dishonesty or any dishonest action as a Group III offense. Group III offenses are

classified as violations of a “very serious nature”.

The dishonest conduct also constituted a violation of Rule 12-305 -

Unbecoming Conduct. The rule states:

Members of the Department shall conduct themselves at all times,

both on and off duty, in such a manner as to reflect most favorably on
the Department. Unbecoming conduct shall include that which brings
the Department into disrepute or reflects discredit upon the
individual as a member of the Police Department, or that which
impairs the operation or efficiency of the Department or the
individual.

By not being forthcoming and honest, Grievant brought discredit upon himself as a

17
member of the CPD and impaired the operation of the Department. As a direct

result of his conduct, Lt. Lavigne and Lt. Yoder were hindered in their efforts to

conduct their investigations.

A violation of Rule 12-3117 – False Reports or Entries was also proven. Rule

12-3117 states:

No member of the Department shall make false official reports or

knowingly enter or cause to enter in any Department book, record or
reports, any inaccurate, false, or improper police information or other
material matter.

Grievant made false statements during his internal investigation interviews. He was

aware those statements would be considered to be an official report. The

Administrative Proceeding Rights given to him include this warning:

You are being advised of the following:

***
4. You have no right to remain silent. You have an obligation to truthfully
answer questions put to you. You are advised that your statements or
responses constitute an official report.

Grievant’s false statements were also a violation of Rule 12-388D – False

Official Reports which states:

No officer or member shall make a false official report or make a false

statement or gossip about any officer or member of the Department,
or the business of the Department, to the discredit or to the detriment
of any such officer or member of the Department, or the Department
as a whole.

By making false statements, Grievant brought discredit upon himself and the CPD.

In addition to the Department Rule and Personnel Manual violations based

on Grievant’s dishonesty, the evidence supports a finding that the manner in which

he accessed the three incident files of other officers was in violation of Rule 12-329

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– Abuse of Position. This rule states, in pertinent part, as follows:

Use of official position or identification. Members of the Police

Department shall not use their official position, official identification
cards or badges for:

1. personal or financial gain;

2. obtaining privileges not otherwise available to them except in the
performance of duty . . .

In violation of Rule 12-329, Grievant used his supervisory authority to access

incident files for his own personal benefit that he would not have otherwise had

access to without going through the public records process. Grievant admits he

obtained the three files by using his supervisory authority which he explained at

arbitration as follows:

So these are informal documents, if you will, that a supervisor keeps

in regard to each employee they supervise as a supervisor, you're
allowed to go in and you have unlimited and unfettered access to
these documents. I was able to go in and add things, I could delete
things, I could modify things. I could do all of this without seeking
permission from anyone if that person reported to me.

As his testimony makes clear, he understood that such access was intended to be

used for supervisory tasks. Grievant admits that he obtained the files for building his

defense before the Personnel Appeals Board. That was not part of his official duties

as a supervisor. He was not even the supervisor of two of the employees which is

evident from the entry initials on those files. Getting permission from the three

officers to use their files did not justify his actions. Subordinate officers could not

give him permission to violate the rule.

The manner in which Grievant accessed the three incident files was also a

violation of Personnel Manual Section 6.03(H)(12) which lists “misusing or

19
removing City records or information without prior authorization” as a Group III

offense. Group III offenses are classified as violations of a “very serious nature”. To

obtain the files for his personal use, Grievant needed to follow the appropriate

procedure. Disciplinary records of Department personnel are to be released

pursuant to the City Public Records Policy. Under the policy, the Chief is designated

as the custodian of records for CPD and only the custodian or other authorized

individual is permitted to copy public records. A requester of public records is

explicitly prohibited from copying the records for themselves. Grievant admits that

he did not follow the public records procedure.

Grievant’s dishonest conduct and his inappropriate use of his position to

access the incident files also constitutes unethical conduct in violation of Personnel

Manual Section 5.0(A) (Ethics of Public Employment). That section states the

following:

All City employees are expected to maintain the highest possible

ethical and moral standards and to perform within the laws of the
State of Ohio, and other rules and regulations the City may set forth.
Conduct that interferes with normal City operations, brings discredit
to the City, is illegal, or is offensive to the public or fellow employees
will not be tolerated.

His conduct also violated Personnel Manual Section 5.01(A) (Employee

Conduct) and Section 6.03(F)(17) (Failure to Observe Rules). Those sections require

employees to perform their duties in conformity with all rules, policies and

directives. As noted above, Grievant violated multiple rules A willful disregard of

rules, as was proven herein, constitutes a violation of Personnel Manual Section 6.03

(G)(15).

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The Penalty

Under all of the circumstances of this case, removal is appropriate. Grievant

made an intentional decision to not turn over relevant information in an internal

investigation of his own conduct. He then lied during a subsequent internal

investigation about how he obtained CPD records for his appeal of a five-day

suspension he had been given. His dishonesty on each occasion, standing alone,

warrants his termination.1 He also misused his supervisory authority to get the

records and failed to follow public records procedures. These are very serious

offenses for a law enforcement officer.

Grievant’s years of service and record do not override the seriousness of his

misconduct. Honesty and integrity are non-negotiable traits for members of law

enforcement. Law enforcement personnel are legitimately held to an extremely high

standard. They have enormous responsibilities and among these is to tell the truth. If

a police officer is not truthful in his dealings, the integrity and honesty of the officer

will forever be called into question.

For a police officer, untruthfulness is so egregious that it is destructive to a

continuing employment relationship. It compromises the ability of an officer to

perform essential law enforcement functions, especially to testify in criminal

matters. A record of dishonesty could make it difficult for his testimony to withstand

cross examination. An April 24, 2019 letter from the Montgomery County

1The multitude of charges brought against Grievant for the same underlying
dishonest conduct was not a factor in evaluating the penalty in this case.

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Prosecuting Attorney’s Office to all law enforcement officers in the County, including

CPD, underscores this problem. It reminded law enforcement officers that the State is

under a legal duty to turn over to the defense any evidence affecting the credibility of

a government witness and then gave the following directive:

Therefore, information pertaining to the credibility of a government

witness must be disclosed to the prosecutor, including:

1. information concerning any situation in which an officer has been

disciplined internally by any department for lying and or theft.

***
Grievant’s misconduct not only substantially impaired his ability to perform an

essential law enforcement function but also eroded the trust of his supervisors. If

his misconduct became known to the public, it also no doubt would erode their trust

and confidence in the CPD.

The Union argued a lesser penalty should be imposed because Grievant was

disparately treated as compared to two other employees, Dispatcher Nicole Reed

and Police Officer Colby Keller. Establishing disparate treatment requires a showing

that those employees were similarly situated to the Grievant This was not proven.

Dispatcher Nicole Reed was recently investigated for untruthfulness but as of

the hearing had not received discipline. Reed is not similarly situated to the

Grievant. She was accused of sick leave abuse whereas Grievant was untruthful in

an unofficial investigation. As a dispatcher, she is not a sworn law enforcement

officer like Grievant. Unlike police officers, Dispatchers rarely testify in court and

are not authorized to carry firearms and enforce laws. Grievant is a supervisor and

Reed is not. A charge of untruthfulness would not prevent her from performing the

22
 essential functions of her position. In addition, Reed did not have any significant

discipline in her file and Grievant had recently received a five-day suspension.

Officer Colby Keller was not similarly situated to Grievant. His conduct was

not comparable. Officer Keller failed to document some exculpatory evidence

discovered during an OMVI arrest. This failure was a matter of mistake made by an

officer who had only been with the Department for a few years. In comparison,

Grievant was a veteran detective sergeant whose conduct was intentionally

deceitful. Further, there is no evidence that Officer Keller received any prior

discipline.

AWARD

For the reasons stated above, the grievance is denied. The Employer carried

its burden of proving it had just cause to remove the Grievant.

Sherrie J. Passmore
Arbitrator

November 20, 2020

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