FEDERAL MEDIATION AND CONCILIATION SERVICE
UNITED STATES GOVERNMENT
WASHINGTON, D.C. 20427
CASE NO. 160421-54618-3
FRATERNAL ORDER OF POLICE
LODGE #38
RUSSELL AYERS,
Grievant,
v.

Arbitrator: Kenneth R. Starr

CITYOF NAPLES,
Employer.
________________________/
GRIEVANT RUSSELL AYERS’ REPLY ON MOTION FOR CLARIFICATION
Grievant, Russell Ayers, through counsel, files this reply motion seeking clarification of
the arbitrator’s award issued on May 9, 2017 as permitted by the Arbitrator on June 12, 2017.
The City of Naples makes several arguments against the arbitrator clarifying that Officer
Ayers should return to work as a police officer in his previous position as a road patrol officer on
the day shift. This brief should serve as Officer Ayers’ reply.
1. Clarification is permissible under the FMCS Code.
The City claims the Arbitrator has no jurisdiction to clarify the arbitration award. It cited
to Code 6(D)(2) of the FMCS rules to support its position. The City's analysis of the FMCS
Code is incomplete and much like the arbitrator’s award, it ignored the plain language of the
FMCS Code in order to justify its position. Reading all of Code 6, will clarify the Arbitrator
retains remedial jurisdiction in the award to "resolve any questions that may arise over
application or interpretation of a remedy." Code 6(E)(1), FMCS. The City claims it can create a

 new sworn position in "fingerprint services" for one officer, immediately after Ayers was
reinstated and that is considered reinstatement "to his previous position with all benefits and no
loss of seniority.” (Award, at 19). The City claims it is following the award but only by means
of interpreting the word "position" to mean a newly created sworn job previously held for many
years by only a civilian employee. The fingerprint services position is not a law enforcement
officer position. Florida State Section 112.53 defines a law enforcement officer1 as:
any person, other than a chief of police, who is employed full time
by any municipality or the state or any political subdivision thereof
and whose primary responsibility is the prevention and detection of
crime or the enforcement of the penal, traffic, or highway laws of
this state; and includes any person who is appointed by the sheriff
as a deputy sheriff pursuant to s. 30.07.
(emphasis added).
In short, Officer Ayers rolling people's fingerprints on cards all day does not meet this
definition. Ayers is not analyzing or collecting fingerprints for the prevention and detection of
crime, nor will he be allowed to enforce penal, traffic, or highways laws of this state. The City is
applying its own meaning to the plain language issued by the Arbitrator. Officer Ayers rightfully
seeks clarification of the remedy portion of the award, so the City will stop misinterpreting and
simply apply the award as intended by the Arbitrator to Officer Ayers.
2. The City is misinterpreting the term "previous position."
The City then speculated that the Arbitrator might not faithfully adhere to the Code of
Responsibility as interpreted by the City, and if that happens, the City should have an
opportunity to be heard. (City's response at 2). Unclear why the City would have the unfounded
fear that arbitrator would not follow the code of responsibility; the City's response itself is the
"opportunity to be heard."
1

The terms police officer and law enforcement officer contained herein are synonymous.

2

 The City failed to explain how when the arbitrator awarded the following: “The grievant
shall be reinstated to his previous position with all benefits and no loss of seniority,” (Award, at
19), it meant the City can create a completely new sworn position and force Officer Ayers to take
it.
Rolling fingerprints in fingerprint services was always filled by a civilian. It is not police
work. Concurrently, the City also installed video cameras in the fingerprint services office
around May, 15, 2017, just after receiving the arbitrator’s award. Now, Ayers is the only sworn
police officer assigned in the police departments’ fingerprint services office. Indeed, the only
person assigned to that unit.
3. Officer Ayers was not reinstated to his previous position.
The City is equivocating on the meaning of the term "previous position." The City may
be correct if the award stated that Officer Ayers should return to any position in the police
department. However, the award said he should return to his "previous position." Previous is
the key and qualifying word of the sentence. Previous defined as: "going before in time or order:
Prior."2 Since Officer Ayers never worked in fingerprint services, Officer Ayers' previous
position would be as a road patrol law enforcement officer. That is the position he should have
been reinstated to -- his previous one.
Being a police officer is not about the title and pay as a police officer. It is about the
function of the job. A doctor who sits in the records room who is paid as a doctor is not
practicing medicine. He would be a record keeper. The City's belief it can reclassify Ayers is
part of the managerial function, would authorize the City to punish any officer who exercises his
rights under the collective bargaining agreement. Under the City's logic it can start a car washing
unit and the next officer who gets to man it is the one that successfully grieves a City action.
2

Miriam Webster Dictionary found at: https://www.merriam-webster.com/dictionary/previous

3

 4. Officer Ayers was not a "chronic offender."
Next, the City argues that Officer Ayers was a "chronic offender" and this classification
should support the City's decision to assign him to fingerprint services. First, regardless of
reason, Officer Ayers grievance was sustained. He cannot be punished. Indeed, Florida Statute
Section 112.532(6), adopted by the collective bargaining agreement, makes that clear. Secondly,
to be a chronic offender, a police officer must have sustained discipline four times, on four
different occasions, and with a letter of reprimand or higher. (City Exh. 5-2). Officer Ayers was
not disciplined four times. To the extent the Arbitrator considered Ayers to be a chronic
offender, respectfully, the Arbitrator is mistaken.
Discipline of an employee that has been reversed, cannot be used to support "chronic
offender" status. Lt. Finman for the City when asked that question, answered: "I would say no."
(Vol. 3, 170). Lt. Finman is correct. All of the reprimands lodged against Officer Ayers were
not sustained. (Ayers, Exh. 4; Vol. 4, 22-24). Indeed, the City Manager on one occasion reduced
the discipline a written reprimand to a verbal counseling. (Vol. 4, 23). This cannot count.
Furthermore, the March 15, 2004 discipline was rescinded. (Vol. 4, 25). This one cannot count.3
There are only two sustained disciplines against Officer Ayers. Even if the Arbitrator counts the
one count he would have sustained if he were allowed to, but was precluded by the 180 day rule,
that is only one other occasion for discipline, which totals to three separate occasions -- not four.
Again, Sergeant Goldblatt testified that Officer Ayers was a great officer and would be
welcomed back to the day shift road patrol.
5. The Assistant City Manager conceded that Ayers previous position was on road
patrol.

3

Officer Ayers explained this in detail when he testified on March 21, 2017 pps 22-25).

4

 The City then claims the Assistant City manager was not quoted in the Naples Daily
News and even if the spirit of his comments were that Officer Ayers would return to road patrol,
it does not establish any fact. (City response at 6). If Assistant City Manager Reinke said Officer
Ayers would return to road patrol, it proves that the City's decision to create a new sworn police
officer position in the police department and fill it with Officer Ayers is a pretext and
punishment for Ayers exercising his rights under the collective bargaining agreement. The City's
misinterpretation of the Arbitrator’s obvious use of the term "previous position" is therefore
deliberate, wrong and retaliatory.
6. City has not restored all benefits to Ayers.
Additionally, the City has denied certain leave-time, holiday pay, longevity pay, Ayers
would have accrued had he continued to be employed and not wrongfully fired. The City claims
it is not denying Ayers any benefit besides back pay. The Arbitrator ruled Ayers should be
reinstated with entitlements with seniority, minus any back pay. Since March 1, 2016 through
May 15, 2017 Officer Ayers should have been compensated for the following:

May 2016 Longevity Pay $2,500.00
Dec 2016 Holiday Pay
84 hours
Dec 2016 Christmas Bonus $100.00
Jan 2017 Uniform allowance $300.00
Mar 2016 - May 2017 Personal Leave 330 hours
If the City agrees that it is meant to provide all benefits to Ayers, then it should review
and indicate to Officer Ayers the above benefits are in place.
We respectfully request the arbitrator clarify the remedial portion of the award, and order
the City to reinstate Ayers to his previous sworn uniformed police officer position as a road
patrol officer, commensurate with his seniority. Furthermore, we additionally request consistent
with the language of the award that all of Ayers’ benefits, with the exception of back pay, be
5

 retroactively reinstated as if he was employed during the entire period he was wrongfully
terminated from his employment.
Respectfully submitted,
Robert C. Buschel, Esq.
BUSCHEL GIBBONS, P.A.
One Financial Plaza
100 S.E. Third Avenue, Suite 1300
Fort Lauderdale, Florida 33394
Tele: (954) 530-5301
Email: Buschel@BGlaw-pa.com
By: __/s/ Robert C. Buschel________
ROBERT C. BUSCHEL
Florida Bar No. 0063436

CERTIFICATE OF SERVICE
I hereby certify that on June 15, 2017, I electronically filed the foregoing with the
Arbitrator and I also certify that the foregoing document is being served this day on all counsel
of record identified on the attached service list by email.

BUSCHEL GIBBONS, P.A.
BY:_/s/ Robert Buschel_______
ROBERT C. BUSCHEL
Copies furnished to:
Wayne Helsby, Esq.
City of Naples
Allen, Norton & Blue
6

 1477 W. Fairbanks Ave., Suite 100
Winter Park, FL 32789?7108