A CANTONREP.COM INVESTIGATION: When a police officer is fired, sometimes it’s just a matter of how long until he or she is reinstated
It’s not easy to fire a police officer in Stark County. Consider this:
• A twice-fired Jackson Township patrolman was twice reinstated by a third-party arbitrator. He wound up resigning March 28 in exchange for $5,500 as part of a settlement after he showed up drunk to testify in court.
• Jackson Township trustees fired a different officer in 2007 after he pushed, threatened and struck his wife in front of her co-workers. He was brought back under a last-chance agreement.
• Canton Police Officer Daniel Harless lost his job last year after a highly publicized police cruiser video captured him threatening to execute a carry concealed permit owner during a 2011 traffic stop. He won his job back through an arbitrator.
Harless’ reinstatement and Canton’s subsequent appeal to overturn the arbitrator’s decision prompted The Repository to examine the role of arbitrators — billed as nonpartisan, impartial referees — in cases where a police officer has been fired.
The Repository’s analysis found that 34 law-enforcement officers (including a sheriff deputy) have been fired in Stark County since 2003. Nineteen of those officers appealed and more than half of them returned to their jobs — largely due to arbitrators.
Of the 13 appeals that went to arbitration, 10 of the firings were reversed. About half of the reinstated officers also received back pay for the time they missed from the job.
The lopsided outcome frustrates elected officials and the attorneys who represent the public employers. They say the arbitration process is inconsistent, unfair and leaves them with few options to overturn the arbitrator’s award.
“I think the arbitration system is seriously broke,” said Jackson Township Trustee James Walters, who cast a symbolic protest vote last year against reinstating an officer who had won his job back through arbitration. “To shove this down the community’s throat is indefensible.”
Walters believes employment decisions should be made by elected officials who are accountable to the public, not by an out-of-area arbitrator who answers to no one.
He cited one arbitrator’s decision to uphold the firing of a township officer accused of receiving oral sex in a church parking lot while on duty, yet another arbitrator ruled that the township officer who hit his wife at her Jackson Township workplace should be reinstated.
“So what the arbitration system tells us is it’s not OK to engage in a sex act but it’s OK to physically assault your wife,” Walters said. “There is something wrong with this system that has those outcomes.”
Stark County police officers and their union representatives say the arbitration system is necessary to protect employees from overzealous politicians or unsubstantiated witch hunts. Multiple officers said they were fired for retaliatory or political reasons and that arbitration was their only recourse to win their jobs back.
Page 2 of 5 - Attorney Mary Lou Sekula, who represents the Canton Police Patrolmen’s Association and the Massillon Police Fraternal Order of Police, said an arbitrator is free of the political baggage that can come with an elected official.
“(The) arbitration process is the fairest process,” she said. “It is a person who does not know either side ... as opposed to having someone local who has political ties.”
She believes a decade’s worth of statistics that show most arbitration decisions favor unions may be skewed because the cases the union feels it may not win could have been settled before they reached arbitration.
BEHIND THE DECISIONS
Arbitration for unionized public employees, such as most police officers, is rooted in state statutes and court case law. It has been used in the private sector as an alternative to the court system for resolving disputes for more than 80 years. Proponents say it’s cheaper and faster than a court trial, and arbitrators — while not all attorneys — typically are experts in labor law, whereas, most judges are not.
Mitchell B. Goldberg, a former Cincinnati trial attorney who has served as an arbitrator since 1984, said arbitrators do not have as much latitude as some officials believe. He said an arbitrator’s decision must be based on the terms of the collective bargaining contract negotiated between the employer and the union.
“The contract is the bible,” Goldberg said. “ ... Even if I don’t like what the contract says, I have to follow it.”
Goldberg said too often the public hears that an arbitrator has reinstated an employee and becomes angry without fully knowing the facts of the case. He avoids second-guessing another arbitrator’s decision.
“You have to be there,” he said. “I don’t know what all the evidence was.”
In the 13 arbitration decisions reviewed by The Repository, the reasons for overturning 10 of the officer’s firings ranged from finding witnesses not credible to finding the police department at fault for not providing proper training to finding insufficient evidence to justify the punishment.
In the first case of the twice-fired Jackson Township Police Officer Todd Macaluso, an arbitrator said the township failed to prove he cheated on a state alcohol-detection device certification exam in 2008 or that he had a made a false statement to the Ohio Highway Patrol trooper administering the exam.
Macaluso, an officer since 1994, was given his job back a second time in 2011. An arbitrator said that while Macaluso’s alcohol use was “ill advised,” he did not violate the terms of the last-chance agreement he had signed with the township after testing positive for alcohol while on duty in 2010. The last-chance agreement did not contain a “zero-tolerance” policy.
Eric Martzolf, a Jackson Township police officer since 1994, returned to his job in 2008 under a last-chance agreement as ordered by an arbitrator who said he was exercising the same level of compassion as the municipal court judge who reduced the initial domestic violence charge to disorderly conduct. Martzolf had been sentenced to 30 days in jail with 28 days suspended on the condition of no related offenses for two years.
Page 3 of 5 - REPEATED LOSSES FOR CANTON
Of all 13 arbitration cases, perhaps the decision with the most public outcry was the reinstatement of Officer Harless to the Canton Police Department. Harless’ firing garnered national attention after Ohioans for Concealed Carry posted online the video of the 2011 traffic stop where Harless is seen berating a Brewster man upon learning the man had a pistol, which he was licensed to carry.
“I tell you what I should’ve done,” Harless told the driver. “As soon as I felt your gun I should’ve took two steps back, pulled my Glock 40 and just put 10 bullets in your ass and let you drop. And I wouldn’t of lost any sleep.”
Arbitrator Harry Graham found the 15-year veteran’s conduct defensible because Harless had been patrolling a high-crime area and had been mentally distressed due to a fight he had with an arrestee eight years earlier.
Graham also found the city had given less severe discipline to other officers who verbally abused or physically mistreated prisoners. Harless has said that the most severe punishment he believes he should have received was a written reprimand for cursing at the driver.
The decision was the fifth time in the past 10 years that an arbitrator had sided against the city and reinstated an officer. Canton officials say they don’t know if the city has ever won an arbitration case involving a fired police officer seeking to return to the force. They blame the string of losses on flaws in how arbitrators are selected to hear the disputes.
Sekula believes the city should quit blaming the arbitration process for its own mistakes.
“If the city is losing five to six of the arbitrations they take, they should reassess what they’re doing,” she said.
In most cases, the process to select an arbitrator follows this tract:
The employer and union representatives get a list of up to seven potential arbitrators from an arbitration service, such as the Federal Mediation & Conciliation Service, a governmental agency, or the American Arbitration Association, a nonprofit organization. The agencies decide which names to provide based on the geographic and expertise preferences of the two sides. Nearly 300 Ohio arbitrators are registered with the FMCS and AAA, although some names appear on both rosters.
Once they get the list, the employer and the union take turns eliminating names. The last arbitrator standing is hired and the two sides agree to consider the arbitrator’s decision final and binding.
Kristen Bates Aylward, deputy chief counsel for the Canton City Law Department, said the alternate striking of the names off the list still doesn’t eliminate the need for arbitrators to keep their more frequent customers happy.
She said arbitrators whose incomes rely on getting picked to hear a case often don’t want to rule against the unions because they don’t want to give the unions a reason not to pick them again in the future.
Page 4 of 5 - “The most powerful lobbies are the police and fire unions,” she said. “If (arbitrators) do anything to make them mad, they blackball them.”
She said in most cases an arbitrator may hear a case involving Canton once, but they’ll likely face the police unions, such as Fraternal Order of Police and the Ohio Patrolmen’s Benevolent Association, multiple times.
“The city of Canton is one little city and the FOP represents hundreds of unions across the state of Ohio and across the country, so who is an arbitrator going to upset?” she said.
She has also found that some arbitrators will try to please both sides by issuing a decision that falls somewhere in the middle, such as reinstating an officer but not ordering the city to give him back pay.
“They seem to always find a way to give somebody something,” said Bates Aylward, who favors randomly assigning arbitrators to cases. “They are trying to continue on in their profession.”
Goldberg, one of the few arbitrators to uphold a Stark County police officer’s firing, says the city’s complaint rings hollow.
“If we didn’t have arbitration, they would have the same complaint in front of a judge,” Goldberg said. “ ... Then (we’d hear that) the unions have all this political power because they campaigned for that judge and that’s why the judge helped them out.”
Goldberg said many arbitrators hear cases involving many different types of labor law in both the public and private sectors so they don’t need to cater to the police unions for a paycheck. He said police discharge cases represent a small portion of his overall caseload.
“It’s like any other profession, you have ethics,” said Goldberg, a member of the prestigious National Association of Distinguished Neutrals. “You can’t think about what parties think of you, you do the right thing. I don’t decide anything or write anything based upon some expectation of future work or based on whether someone hates me or likes me.”
Daniel J. Leffler, an attorney for the Ohio Patrolmen’s Benevolent Association, said the problem isn’t with the arbitration process, it’s with the employers who too often seek a more severe punishment than what the alleged infraction warrants.
“If it’s a serious and proven allegation (against the officer), I think the arbitrators will look to uphold those,” he said. “It just appears that most employers take the harshest possible route first, which then will lead to potentially overturning or reducing the discharge or discipline.”
Attorney Leslie Kuntz of Krugliak, Wilkins, Griffiths & Dougherty believes an arbitrator’s inclination to side with the union has less to do with the selection process — “I know as many of these arbitrators as they do” — but more to do with an arbitrator’s reluctance to take a gun out of an officer’s hand.
Page 5 of 5 - “They call (firing an officer) the death penalty of employment law ... because once they’re fired, they will probably never get another job (in law enforcement),” said Kuntz, a labor attorney since 1986 who represents Jackson Township trustees as well as most county government offices and school districts. “It’s very difficult to get a termination case to stick on an employee with more than 10 years of seniority.”
In the three Stark County cases where an arbitrator upheld a police officer’s firing, the officer with the longest tenure had been at the department for five years.
Goldberg said that the firing of any employee — not just law-enforcement officers — is a serious concern because the decision affects their livelihood and their family. But he said it’s not the only concern to be weighed. The public’s trust in the people sworn to protect them is another consideration, he said.
In 2006, Goldberg upheld the firing of Jackson Township Police Officer Troy Ransom, who had been accused of receiving oral sex in a church parking while he was on duty. He determined that Ransom’s denial of the event was bogus based on the testimony of the woman, a Jackson Township police clerk, who said she was with him that night. The clerk, who had been off duty, also was fired.
“Incidents of this type, when they become public, severely compromise the reputation of the department, the trust and confidence of citizens, and the morale of the forces,” Goldberg wrote in his ruling.
Goldberg said in a recent interview that while the officer’s conduct was “interesting,” he likely would have upheld the firing even if he had been sleeping.
“He should have been out patrolling,” Goldberg said. “ ... It was bad on many levels.”
Repository Staff writer Matthew Rink contributed to this report.
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