The Suburbanite
  • Once a cheaper alternative, arbitration becoming more costly

  • The 13 law enforcement firings in Stark County since 2003 that were heard by an arbitrator cost an average of $5,485.

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  • When a local government clashes with its police or fire union, the two sides turn to an arbitrator to settle the dispute rather than face off in a courtroom.
    Arbitration, where an impartial third party hears the arguments of the case, allows a faster resolution. For an embattled police officer, arbitration may make the difference in how quickly they return to work or move on to a new career. For local government, arbitration may mean less time spent preparing court briefs and sitting through hearings.
    In most cases, arbitration is faster because it has less discovery than litigation, and as a result, fewer disputes about evidence, according to the American Bar Association. It eliminates many of the motions and hearings that precede a trial. Evidence in arbitration is presented in a simpler format. And, in most cases, arbitration marks the final decision with little chance for appeal.
    Arbitrators are supposed to render a decision 60 days from the final hearing. It's also supposed to be cheaper.
    "If you didn’t have (arbitration), every courtroom in the United States would be filled up with labor cases," arbitrator Mitchell B. Goldberg said.
    "People get fired everyday. "It's less costly and it's faster," said Goldberg, a former courtroom litigator. "If it goes to common pleas, it may not be decided for a year or two years. When I get a case, then I will get the award 30 days after the hearing, so it’s a total of 60 to 90 days."
    Goldberg said an arbitrator's rates are set based on what the market will allow, and the arbitrators with low rates tend to be newer to the profession.
    But Canton Law Director Joseph Martuccio said that as more attorneys take up the profession, the gap has closed between the cost to arbitrate and the cost to litigate. The reason is they tend to charge for arbitration cases the same amount they charge clients for legal services, he said.
    “It’s more efficient in terms of timeliness,” he said, “but I don’t know if I would agree that it’s less expensive. That may have been true once upon a time. “Arbitrators now tend to be almost exclusively attorneys, although not always. ... And they charge professional fees. An arbitration probably runs several thousands of dollars for the time they spend listening to it, reviewing it, writing it and editing it.”
    In Ohio, the average cost of an arbitrator runs $1,006 a day, according to a study by the Federal Mediation & Conciliation Service. After fees for travel and other expenses, an arbitrator takes home $4,965 per case, based on an average case duration of about 4.5 days. That’s an 11 percent increase since 2009.
    The 13 police firings in Stark County since 2003 that were heard by an arbitrator cost an average of $5,485. Those figures do not include the use of a court reporter or any private legal counsel retained by either side.
    Page 2 of 3 - Who pays the arbitrator is determined in public employees’ collective bargaining agreements. Some pacts say it’s a shared cost. Others, including the Canton Police Patrolmen’s Association pact, require the loser to pay. The CPPA negotiated that clause about eight years ago, said Bill Adams, union president.
    Martuccio said the most costly part of going through the courts is paying court reporters to take, type and reproduce depositions. Those expenses, he argues, likely never reach the “$6,000, $8,000 or $10,000, like some arbitrations end up costing.” “I’m beginning to wonder if the cost benefit (of arbitration) is still there,” he said. “It may not be in some cases.”
    Massillon Law Director Perry Stergios agrees with Martuccio that there is little difference anymore. “You get hosed either way,” Stergios says.
    But he recognized that at least one termination case that went through the courts — and not an arbitrator — had the potential of being extremely costly to the city had it not been for its membership in the Public Entities Pool of Ohio, a local government self-insurance program that provides property and liability coverage.
    When two Massillon police officers were fired for insubordination and conduct unbecoming of an officer in 2005, they tried to win their jobs back by going through several channels, including federal court. In a court filing, attorneys estimated the case would cost $115,000 in attorneys’ fees and $6,500 in costs had it gone to trial.
    The city settled for an undisclosed amount. Its insurance carrier paid most of the bill, as well as attorneys’ fees and costs, Stergios said.
    The officers, Sgt. Richard Siskie and patrolman Robert Boyd, tried to take the case to arbitration, but the police union chose not to back them. Their federal lawsuit entailed more than a wrongful termination claim. Siskie and Boyd accused the city of discrimination, harassment and retaliation, claiming they were fired for threatening to expose pornography on the department’s computer system. The city denied the allegations. The Ohio Civil Rights Commission, which the officers also appealed to, found that their harassment allegations against the city lacked probable cause.
    Stergios said the dispute resulted in a large bill for the city’s insurance company.
    “It was all covered under our insurance, but the bills had to be huge,” he said about the case. “Not that we ever had to pay them, but they get reflected in your history and experience just like health insurance."
    Stergios said the city did prevail in the sense that the two officers did not return to work. Had it gone through arbitration, which he believes to favor workers, "There might have been a chance an arbitrator gave them their jobs back," he said.
    The following is a list of the 13 arbitrators used in police termination cases by Stark County police departments since 2003 and what they charged.
    Page 3 of 3 - Arbitrator Arbitration Case Year Fee Who paid?
    Charles Adamson Massillon patrolman James Baumgardner 2005 $8,190.00 Split between union, city
    Mitchell Goldberg Jackson patrolman Troy Ransom 2005 $5,819.74 Split between union, township
    David Stanton Jackson patrolman Eric B. Martzoff 2008 $4,927.58 Split between union, township
    Alan Ruben Jackson patrolman Todd Macaluso 2009 $5,379.00 Split between union, township
    William Heekin Jackson patrolman Todd Macaluso 2012 $7,373.76 Split between union, township
    Howard Silver Jackson patrolman Richard Leon 2012 $3,603.74 Split between union, township
    Calvin Sharpe Canton Gary Edmunds 2012 $11,988.00 Split between union, city
    Harry Graham Canton patrolman Daniel Harless 2012 $6,106.06 City has paid half*
    Virginia Wallace-Curry Alliance patrolman Mark Welsh 2003 $4,625.32 Split between union, city
    Lawrence Loeb Stark County Sheriff’s deputy Brian Pittman 2009 $2,900.00 Split between union, county
    Edward Grupp Canton patrolman Bobby Cutts 2003 $2,835.70 Split between union, city
    James Mancini Canton patrolman Steven Fowler 2005 $4,038.52 Split between union, city
    Marvin Feldman Canton patrolman Greg Gilmore 2005 $3,525.00 Split between union, city
    *Though Graham ruled that Harless be reinstated pending medical clearance, the city contends he issued a split ruling and has only paid half of his fee. Harless did not use the CPPA in his arbitration case. It is unclear if Graham has been paid the balance of what he charged to hear the case. Canton is asking a judge to overturn Graham’s decision.
    SOURCES: Cities of Massillon, Canton and Alliance, Jackson Township and the Stark County Sheriff’s Office.
    Reach Matthew at 330-580-8527 or matthew.rink@cantonrep.com.
    On Twitter: @mrinkREP

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