AMERICAN ARBITRATION ASSOCIATION

 

IN THE MATTER OF THE ARBITRATION 

between 

CLEVELAND POLICE 
ASSOCIATION 


and 

CITY OF CLEVELAND 

i

APPEARANCES
FOR CPPA:
Henry J. Hilow
Marisa Serrat
McGinty Hiiow and Sellacy Co. LPA
BACKGROUND 

BEFORE ARBITRATOR:
JAMES E. RIMMEL

#01 -1 7?0003?7910

HEARD: 10, 11 January and
16, 17 July 2018, Cleveland, Ohio

POST HEARING BRIEFS 
12 NOVEMBER 2018

Issued: 1 DECEMBER 2018

FOR THE CITY:

George S. Crisci
Zashin and Rich

This grievance comes from a police of?cer who, at ?ling, was working out of the Financial

Crimes? UnitI of the City of Cleveland, Ohio, Department of Public Safety, Division of Police,

who contends his discharge effective 30 May 2017 was for other than just cause. A violation is

alleged of Article IV of the Collective Bargaining Agreement (CBA or Agreement) between the
City of Cleveland (City) and Cleveland Police Patrolmen?s Association (CPPA). As ?led on 30

May 2018, the grievance reads as follows:

On or about May 30, 2007 the Grievant [was] discharged without just cause in
violation of Article IV of the collective bargaining [agreement] between the City

and the CPPA.

Reinstate the Grievant, pay him full back pay and bene?ts, remove all reference to
this discipline from his record, and otherwise make him whole for all losses he has

 

Grievant had been assigned to the Financial Crimes Unit during the pendency of external and internal investigations
of the shooting death ofa twelve (12) year old male in a Cleveland area park on 22 November 2014.

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suffered.

Now, the genesis of this grievance dates to July of 2012 when grievant received a
probationary appointment as a police of?cer with the City of Independence, Ohio. During his
initial month at Independence, grievant started his certi?cation training at the Cleveland Heights
Police Academy, reportedly receiving his OPOTA Certi?cation on 4 December 2012. The next
day,2 and while still in his probationary period, grievant tendered a Letter of Resignation to
Independence Deputy Chief James Polak (Polak). Grievant?s Letter of Resignation reads as
follows:

Please accept this letter as my of?cial resignation as a patrolman for the City of

Independence. I am resigning my commission for personal reasons at this time.

Thank you for the Opportunity and training I have received.

At the bottom of this letter, the words accept. Polak? appear on the document of record.
Grievant was employed by the City of Independence for a little less than ?ve (5) months before he
is claimed to have resigned during which there was no noted discipline on his personnel record.

It was in mid?April 2013 that grievant completed a ?Personal History Statement? (PHS)
with the City of Cleveland, Ohio whereon, among other things, he recorded he had worked for the
City of Independence, Ohio, as a patrolman from 07/10/2012 to 12/05/2012 and had resigned for
?personal reasons.? He also listed a total of four (4) police agencies for whom he had taken civil
service entrance examinations between August 2009 and February 2013. In any event, with receipt
of grievant?s PHS, various of?cers from Cleveland?s Police Personnel Unit were charged with
investigating his background, including his claimed work history. It was nearly seven (7) months
after grievant had completed the City?s PHS that Lt. Gail Bindel (Bindel) wrote the following
communique" to her commanding of?cer, JoEllen O?Neill (O?Neill), concerning her
recommendation on grievant?s application for employment:

I have reviewed the investigative ?le summary of applicant #241 Timothy
Loehmann. The applicant was the subject of a complete investigation given all
police applicants of the Division of Police. This formal summarizes ?ndings of
note.

SPECIAL ITEMS OF NOTE: Applicant reports that he is not delinquent
?nancially. Employment reviews: his current employer is good view, but he has

3 Grievant tendered his letter of resignation on 3 December 2012 with Deputy Chief Polak entering the date of 5
December 2012 as the effective date.

 

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only been employed there since September 2013. Applicant was employed as a
police of?cer in Independence but resigned prior to end of probationary period.
Record check: no violations, 1 accident 2006.

RECOMMENDATION: Continue to process.3
Appended to the Summation Report concerning grievant was a ?Leads? Report concerning
his employment at Independence reading, in part, as follows:

Mr. Lubin states the applicant was employed by their department as a Patrol Of?cer.

He states the applicant made it to almost the end of his probationary period and they

decided to have a ?mutual parting of the ways.1 Lubin believes the applicant was a

?good kid? but may have been experiencing some personal problems during this time

of his employment that may have prevented him from reaching his full potential. He

states the applicant just didn?t seem to have his head in the game and often talked

about working for a larger department.

It was on 4 December 2013 that a six (6) person screening committee recommended grievant
be moved forward in the employment process with a 6-0 vote. Grievant was deemed eligible for
appointment with the City that same day, being scheduled to attend training at the City of
Cleveland?s Police Academy. No notable event is of record concerning grievant?s Academy and
?eld of?cer training that followed.4

Now, on 22 November 2014, patrol of?cers Loehmann (grievant) and Frank Garmback
(Garmback) reportedly responded to Cleveland?s Cudell Park area where they came upon an
individual standing near a gazebo. As to what occurred after the of?cers arrived, there is
considerable debate. However, there is no dispute that shots were ?red by grievant resulting in the
death of a 12?year-old male. This shooting reportedly sparked community outrage, natidnal media
attention, visits to the City of Cleveland by the .S. Attorney General and a criminal investigation
by the Cuyahoga County Sheriff?s Office, the Cuyahoga County Prosecutor?s Of?ce and the Ohio
Bureau of Criminal Identi?cation and Investigation. As part of the latter, the prosecutor presented
evidence of possible wrongdoing by the of?cers to a Grand Jury where the afore-i?eferenced of?cers

testi?ed. The Grand Jury issued a no bill in the matters involving the of?cers that were before it.

Now, it was 14 February 2016, after the Grand Jury had issued a no bill on the of?cers?

 

3 While this recommendation to O?Neill did not mean grievant was to be hired, it was an important step in the
Department? consideration of his application for employment as a Police Of?cer.
?1 The parties dispute grievant's level ofperformance in the City?s ?eld training program during his initial months with
the Department.

3

conduct, that County Prosecutor Timothy McGinty (McGinty) announced that he was not going
forward with any criminal charges against grievant and Of?cer Garmback. At that point, City
Police Chief Calvin Williams (Williams) established a Critical Incident Review Committee (CIRC)
to investigate the entire matter from an administrative standpoint. investigation was quite
extensive involving many different agencies, including a prior investigation initiated by the
Department?s Internal Affairs Unit. It apparently took CIRC roughly eleven (1 1) months before it
concluded its work and prepared a written report for the Chief. In addition, while Williams
reportedly sought certain changes to the draft, an effort reportedly strongly resisted, the changes
requested by Williams concerned only officer Garmback.S In any event, certain excerpts from the
CIRC Report appear relevant here.

First, the following statement concerning ?Responsibilities? of the CIRC reads as follows:

CIRC was charged with conducting the administrative review and reviewing the
actions of all members involved in the incident for compliance to rules 
regulations, General Police Orders, rules of the Civil Service Commission, training,
tactics and standards of the Division of Police. Moreover, CIRC was also charged
with providing recommendations to the Chief of Police relative to training,
potential rule and or policy violations, equipment needs and an overall assessment
of the incident.

Additionally, on page 2, the CIRC Report continued:

In the interim, it was determined by the Cleveland Division of Police chain of
command, to suspend any administrative action based on the report submitted by
the until the criminal portion of the investigation was completed by the
Cuyahoga County Sheriff?s, and subsequently reviewed by the Cuyahoga County
Prosecutor. On December 28, 2015, a Cuyahoga County Grand Jury, after
reviewing the substantive facts associated with the death of Tamir Rice, issued a no
bill as it relates to any criminal indictment of the individuals actions involved in the
use of deadly force, Then the Cuyahoga County Prosecutor released its ?ndings.

Based on this revelation, and to provide due diligence of this critically important
administrative investigation, in February 2016, Calvin Williams, Chief of the
Cleveland Division of Police suspends inde?nitely the report issued by the IAU,
which heretofore was advised an incomplete investigatory ?le. Instead, he
transferred responsibility from the administrative review of the member?s action of
the Division of Police on November 22, 2014, to any had-hoe investigatory
body, led by Deputy Chief Doormat Drummond. Any prior administrative

 

5 Since Williams request of CIRC to revise the ?nal report only concerned Garrnback, I need not decide the
approbation of such in this case.
4

investigation therefore yields authority to the ?ndings of the 6

The reality here is that no action, or lack thereof, by grievant on 22 November 2014 relative
to the deadly force incident served as a basis for the termination issue presently before me. This
incident, however, served as a basis for various agencies to look more closely into his background.

During these inquiries, some question was raised concerning why he had resigned from his
police of?cer position with the City of Independence. It was suggested, primarily by media
sources, that grievant had resigned after being told he would be terminated for various
unacceptable incidents while serving at Independence. It was these disclosures which caused City
Of?cials to look again at the various documents grievant had ?lled out when applying for a police
officer position with Cleveland.

This examination led City Of?cials to conclude that grievant had misled/been other than
forthcoming in completing the PHS. The City contends that had it been made fully aware of
grievant?s prior conduct and employment history at Independence, etc, he would never have been
hired. As such, following contractually prescribed due process requirements, grievant was issued
the aggrieved?of termination under letter date 30 May 2017, said letter reading:

This letter is to advise you of the result of the administrative pre-disciplinary
hearing that you attended on March 2, 2017, in the of?ce of the Chief of Police.
The hearing was held to address the results of an internal investigation wherein you
were alleged to have engaged in improper procedures. You were charged with a
series of rule violations which follow:

STATEMENT OF POLICY
In part:

The Manual of Rules and Regulations sets forth the conduct and behavior to be
followed by of?cers and employees. Any violation of these rules and regulations
shall be a basis for disciplinary action. Disciplinary action includes, but is not
limited to. verbal and written reprimands and the preferring of divisional charges
which can result in suspension, loss of pay, demotion or termination. The rules,
regulations, and standards contained in this manual shall apply whether the of?cer
or employee is on or off duty. Where a conflict exists between a Rule and
Regulation and a General Police Order, the Rule or Regulation provision shall be
adhered to.

General Police Order 1.1.01: City of Cleveland Mission Statement and Ethics

 

6 At hearing, Williams testi?ed that he had never approved this second paragraph excerpt. Sec Tr. at 606-607.
5

Policy
General Police Order 1.1.02: Values Mission Statement
Cleveland Division of Police Personal History Statement
Manual of Rules for the Conduct and Discipline of Employees of the Cleveland
Division of Police: Oath of Office, Law Enforcement Code of Ethics, Rules 1.07,
201, 2.02, 2.03, 2.04, 2.10, 2.14 and 3.12, 4.03, 4.12 and 5.01
Civil Service Commission Rule and (18).

Speci?cation In the November 18, 2016, Investigative Report, the Division
learned that on May 13, 2013 you (Patrol Of?cer Timothy Loehrnann #1231)
veri?ed under oath and provided false information on the Division of Police
Personal History Statement (PHS) of your application for employment. Speci?cally,
Section 10, 12, Did you intentionally omit any facts that you feel might disqualify
you for the position of Patrol Of?cer with the City of Cleveland? You omitted the
fact that you would have been terminated by the Independence Police Department,
but they allowed you to resign instead. Among other things, while working for the
Independence Police Department, you failed to secure your ?rearm, were
insubordinate and untruthful to a superior of?cer. In addition, the Independence
Police Department concluded that you were ?emotional [sic] immature? and
possessed an ?inability to emotionally function.? Also, during a state quali?cation
course, you could not follow simple directions and had an emotional breakdown.
Subsequently, you were sent home for the day.

Speci?cation In the November 18, 2016, Investigative Report, the Division
learned that on May 13, 2013 you (Patrol Of?cer Timothy Loehmann #1231)
veri?ed under oath and provided false information on the Division of Police
Personal History Statement (JPHS), speci?cally Section 5, entitled ?Employment
History.? When asked about your employment with the Independence Police
Department, you indicated without quali?cation or clari?cation that your reason for
leaving was that you ?resigned for personal reasons? and when asked if you received
any disciplinary actions, you answered without mentioning that you faced
discharge proceedings when your employment ended and that the resignation was
permitted to avoid discharge.

Speci?cation In the November 18, 2016, Investigative Report, the Division
learned that on May 13, 2013 you (Patrol Of?cer Timothy Loehmann #1231)
veri?ed under oath and provided false information on the Division of Police
Personal History Statement (PHS), of your application for employment, speci?cally,
Section 1 l, entitled ?Explanations and Clari?cations,? when you were provided with
the opportunity to include any additional explanatory information, you never
mentioned the circumstances surrounding your resignation from Independence
Police Department, you responded 

Speci?cation In the November 18, 2016, Investigative Report, the Division
learned that on May 13, 2013 you (Patrol Of?cer Timothy Loehmann #1231)
veri?ed under oath and provided false information on the Division of Police
Personal History Statement (PHS), of your application for employment.
Speci?cally, Section 10, 9, To your knowledge, has any other department agency
or private company disquali?ed you for employment? You failed a Written exam in
the fall of 2009 for Maple Heights Police Department, according to your Personal
History Questionnaire for Independence. The Independence Police Department also
disquali?ed you when they declined to rehire you because you were allowed to
resign to avoid a discharge.

Speci?cation In November 18, 2016, Investigative Report, the Division learned
that on May 13, 2013, you (Patrol Of?cer Timothy Loehmann #1231) veri?ed under
oath and provided false information on the Division of Police Personal History
Statement (PHS), of your application for employment. Speci?cally, Section 5, 
Within the past seven (7) years, have you taken a Civil Service Examination for the
position of Patrol Of?cer with any law enforcement or other governmental agency
(including the Cleveland Police Department)? You listed four (4) police departments
(Cleveland, New York City, Akron and Independence). You listed eight agencies on
your Personal History Questionnaire for Independence (New York, Cleveland,
Mentor, Euclid, Berea, Maple Heights, Rocky River, US Marshal?s Service). You
failed to correct your false statements when provided with the opportunity to do so
in a follow?up interview.

Speci?cation In the November 18, 2016, Investigative Report, the Division
learned that on May 13, 2013 you (Patrol Of?cer Timothy Loehmann #1231)
violated the instructions contained on page one (1) ofthe Division of Police Personal
History Statement and of your application for employment, for answering
questions, speci?cally: failure to provide complete and truthful information will
result in rejection for appointment pursuant to the City of Cleveland Civil Service
Rules, and/or discharge after appointment; applicants are cautioned to answer
every question truthfully and without evasion; the Ohio Revised Code provides
penalties for making a false statement of a material fact, or perpetrating any fraud or
deception in obtaining, or attempting to obtain municipal employment; and 
penalties include rejection for appointment, discharge after appointment, and/or
prosecution under Ohio Revised Code Section 2921.13,

All the speci?cations are in violation of the rules, regulations and procedures of
the Division of Police, Department of Public Safety.

In attendance at the pre?disciplinary conference, that presided over, were you,
President Stephen Loomis, Second Vice President Thomas Lascko, Attorney Henry

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Hilow and Attorney Brian Moriarty of the Cleveland Police Patrolmen's
Association, George Crisci of the Law Firm Zashin Rich CO., L.P.A, Jim
Votypka of Quality Control, Consent Decree Coordinator Greg White, Shawn
Mallamad and Janeane Cappara of the Law Department, Michael Evanovic of the
US. Attorney?s Of?ce, Nicole Porter of the Department of Justice and Lieutenant
Brian Carrey of the Case Preparation Of?ce.

During the administrative hearing you acknowledged receipt of the charging letter;
you and your representatives waived the reading of your charge letter and were then
afforded the opportunity to be heard. You entered a plea of ?Not Guilty? to the
charges set forth in the charging letter,

Upon carefully reviewing the evidence presented by the Division, the memorialized
record as well as the arguments of you and your representatives, I ?nd there is just
cause to impose discipline. As such, I ?nd you ?Guilty? of the charges.

Therefore, you are hereby terminated from employment with the City of
Cleveland, Department of Public Safety, Division of Police effective May 30,
2017.

The subject grievance ensued and is properly before me for adjudication.
POST HEARING BRIEFS

Both parties have submitted thorough and quite extensive Post Hearing Briefs articulating
their respective positions. The City submitted a one-hundred and two (102) page brief while the
CPPA submitted a sixty?nine (69) page brief. Both briefs were well written, articulate, and set
forth, in detail, the respective parties? positions. Due to the length and broad breadth of the briefs
submitted, however, I will not endeavor to recite herein all the arguments made by each party, but
rather, seek only to set forth the parties? salient positions in a concise manner. That said, I would
emphasize that all proffered arguments were considered by me in depth in arriving at the decision
herein.

CITY POSITION

Simply, the City argues that just cause existed for the meted?out termination because
grievant lied on his sworn PHS. Specifically, the City alleges that grievant?s responses on his PHS
were untruthful and incomplete: he stated he ?resigned for personal reasons? from the
Independence Police Department but neither quali?ed nor clari?ed the circumstances surrounding

8

his departure from Independence.

The City initially argues that the administrative disciplinary charges against grievant were
filed timely under the Bill of Rights. The City stresses that the express language of the
CBA indicates that any administrative investigations are contemplated to occur after the
completion of any criminal proceedings. The City believes that the criminal investigation
conducted by the Cuyahoga County Sheriff?s Of?ce might have addressed grievant?s alleged false
statement under oath in his employment application because the Sheriff?s Of?ce had subpoenaed
the City?s personnel records regarding grievant?s application, training and employment. The full
scope of the County?s investigation was not known, however, until 28 December 2015, when the
grand jury returned a ?no bill? and the Sheriff" investigative records became publicly available.
At that point, the City learned that the Sherriff?s Of?ce had subpoenaed similar personnel records
from other jurisdictions. .

The City argues that it was certainly within the County Prosecutor?s discretion to pursue
criminal charges against grievant for falsifying his under oath, a violation of Ohio law. The
City surmises that it was reasonable for it to hold in abeyance its investigations regarding
grievant?s use of force and his truthfulness in answering his PHS until after the County had
concluded its criminal investigation. It was well within the County?s authority to levy criminal
charges against grievant for perjury if elected to do so.

In the alternative, assuming Article Section 1 applies, the City claims it then had one
(1) year after the release of the County?s investigative ?le, or until 28 December 2016, in which
to initiate disciplinary charges against grievant. The City further argues that due to the complex
nature of some situations, the Bill of Rights contains a self?effectuating ninety (90) day
extension period for the filing of disciplinary charges. According to the City, Union consent is not
required, and the extension operates as an automatically?available extension as long as the City
articulates good cause for the extension. In support of this argument, the City references Arbitrator
Zeiser?s ?ndings in the grievance of Of?cer Garmback. Arbitrator Zeiser, in
examining the same contractual language and timeliness argument, found that the CBA provides
the City with an additional ninety (90) day extension, upon a showing of good cause, absent CPPA
agreement or permission.

To establish good cause, the City argues that the CIRC needed additional time to discharge

its duty due to the scope, complexity, and breadth of materials considered in conducting the
9

investigation. Discipline from the CIRC. investigation remained a possibility until its review was
complete and an addendum to the report issued in January 2017. The City again refers me to
Arbitrator Zeiser?s opinion that the City has established good cause under the circumstances
present.

The City further contends that its? decision to delay charges against grievant until after the
conclusion of the review was based on the historical objection to the ?stacking"
of charges. In fact, the City claims that it has been by mutual agreement of the parties to avoid
?stacking? charges by holding all disciplinary charges, so they can be brought at the same time.
Overall, the City argues it has shown good cause, thus invoking the self-effectuating ninety (90)
day extension. Factoring in the extension, grievant was provided notice of discipline within ninety
(90) days of completion of the investigation.

The City next argues that it had just cause to discipline grievant for each of the six (6)
enumerated offenses. I will not restate, verbatim, the accusations set forth, but suf?ce it to say, all
stem from grievant?s alleged failure to provide truthful and complete information when completing
his PHS. In summary form, the City highlights the following:

In response to charging Specifications Nos. 1 and 2, grievant was silent on his PHS
about the circrunstances surrounding his departure from the City of Independence
in that he failed to disclose that his resignation was in lieu of disciplinary discharge;

0 As to Speci?cation No. 3, grievant failed to provide any quali?cation or
clari?cation regarding his departure from Independence despite given space and
direction to elaborate on any prior information warranting further detail;

0 Regarding Speci?cation No. 4, grievant failed to disclose that both the Maple
Heights and Independence police departments had ?disqualified? him from
employment;

0 As to Speci?cation No. 5, grievant failed to fully disclose update his PHS to
include all jurisdictions to which he had applied to for employment;

0 As to Specification No. 6, grievant admitted that he read and understood the
instructions on the PHS, and yet, made material misrepresentations and omissions
throughout.

Plainly, the City argues that grievant omitted material, disqualifying information from his

10

PHS which, had same been disclosed, would have precluded him from gaining employment with
the City. In other words, the City surmises that grievant obtained employment with the City
through means of evasion and dishonesty.

The City further argues that termination is a just penalty consistent with comparable cases
and proportional to the gravity of the offense. Initially, discharge is appropriate under the City?s
disciplinary matrix- Under the matrix, ?Reports False? and ?Statements False? are Level Three
offenses subject to discipline up to and including discharge. Dishonesty, according to the City, is
a serious infraction warranting discharge on the ?rst instance. Dishonesty calls into question the
future credibility of a witness in future legal proceedings; in the context of a law enforcement
of?cer, the Sight) decision requires prosecutors to disclose to the defense any evidence of an
officer?s untruthfulness during his employment. The City alleges that the dishonesty exhibited by
grievant is the very type of untrustworthiness which is required to be disclosed under Giglz'o, thus
calling into question grievant?s ability to effectively testify and prosecute future criminal
proceedings. Moreover, grievant?s dishonesty occurred in the context of a sworn statement under
oath.

While I will not go into extensive detail herein regarding the case of Brandon Smith, I have
read in detail the City?s argument and understand the City?s position that the case is directly on
point factually and strongly suggests that discharge is the appropriate remedy here. I further
acknowledge the City?s argument that the case is the leading case in the Division of Police
following the implementation of the disciplinary matrix in which an of?cer has been charged with
making dishonest statements on a PI-IS.

The City further preemptively argues against the CPPA that: grievant?s outright denial
at his pre?disciplinary proceeding lacks credibility; (2) the internal documents from Independence
relied upon by the CPPA to establish that grievant resigned his position do not, in fact, support
such an argument; (3) the conduct of Independence post-dating grievant?s resignation letter and
permitting him to receive his OPOTA certi?cation is not an indication that Independence was not
going to discharge grievant; (4) grievant read, reviewed and understood all of the instructions on
the PHS form, therefore putting the onus on him to provide all relevant information smrounding
his departure from Independence; and (5) that any shortcomings and/or failures of the Personnel
Unit do not excuse grievant?s dishonesty.

The City additionally argues that the CPPA has failed to set forth any cases establishing
11

diSparate treatment. The City posits that the examples proffered by the CPPA are signi?cantly
dissimilar because it is inequitable to compare police of?cers, who are held to a higher standard
of duty, to other City employees. Further, other employees not under the appointing authority of
Public Safety Director Michael McGrath (McGrath) are improper comparators. Likewise, police
of?cers disciplined before McGrath became Safety Director are not similarly situated since
McGrath has established his own standards of conduct and/or such cases occurred before the
disciplinary matrix was established. The City speci?cally distinguishes several cases proffered by
the CPPA. This arbitrator has reviewed the facts, circumstances and discipline imposed in detail
for each of the referenced cases.

The City argues that grievant?s termination was not the result of public or political pressure.
The City stresses this is a case about grievant?s dishonesty, and not his lawful use of deadly force.
In further support of its position, the City highlights various arbitrations where it was held that
political pressure, while conceivably present, was not enough to ?nd impropriety in the decision?
making process about the of?cer?s discipline. Lastly, the City argues that grievant?s performance
in the Financial Crimes Unit and the various letters of commendation do not ameliorate his past
conduct

In the end, the City requests that I deny the grievance in its entirety.
CPPA POSITON

The CPPA argues the City exercised its authority in violation of thejust cause provision of
the CBA. Initially, the CPPA contends that the discipline meted-out to grievant was untimely
under the parameters of the Bill of Rights, which sets forth at Paragraph 12(1), ?Bargaining
Unit Members shall be entitled to the following rights: In such cases where the administrative
investigation is initiated without a citizens' complaint, and the investigation could not lead to
criminal charges, the City shall not bring administrative charges later than one year after the date
within which the Chief had knowledge of the alleged violation.? The CPPA argues that because
the scope of the Cuyahoga County Sheriff?s Of?ce was limited to the 22 November 2014 use of
force incident, there was no criminal investigation into the administrative disciplinary charges that
resulted in grievant?s termination. Moreover, the investigation was not broad enough to
include investigating grievant?s responses on his PHS. Williams testi?ed that he was aware of the
allegations regarding grievant?s employment application as early as 3 December 2014. At the



least, Williams was aware when Commander Daniel Fay (Fay) issued his report into the conduct
of the Personnel Unit on 1 1 February 2015. The City did not order an investigation into the hiring
process of grievant until 25 October 2016, over 692 days (1 year, 10 months, 22 days) after
Williams had knowledge of the alleged administrative violations.

The CPPA highlights that the ?rst disciplinary letter setting forth the administrative
charges was issued on 13 January 2017, over 772 days (2 years, 1 month, 10 days) from the date
Williams had knowledge of the alleged administrative violation. The CPPA characterizes the
City?s failure to timely bring administrative charges against grievant within the one (1) year time
limit imposed by the Bill of Rights as a due process violation. According to the CPA, the
City was required to initiate administrative proceedings against grievant by 4 December 2015, or
within one (1) year after Williams ?rst learned of the alleged administrative violation. Further,
the CPPA did not waive the time limitation or agree to any extension. The CPPA interprets the
Bill of Rights, as well as past practice, as requiring both parties to agree to any extension in writing.
That was not done in this case. Consequently, the CPPA argues that grievant?s due process rights
were violated, and that the relief stated in the Bill or Rights must be enforced, namely, that the
?accused member may be ordered to respond to the complaint and the investigation but shall not
be subject to disciplinary action.? Plainly, the City was required to bring any administrative
charges against grievant by 4 December 2015 or request an extension of time to do so. Having
failed to timely bring administrative charges against grievant, the CPPA argues that the City
unequivocally violated the parties? CBA.

Regarding charging Speci?cations Nos. 1 and 2, the CPPA vociferously argues that
grievant did not provide any false information on his PHS, but rather, properly disclosed that he
resigned from the Independence Police Department for ?personal reasons.? The CPPA further
alleges that grievant was not subject to any disciplinary proceedings while at Independence and
was not subject to discharge.

When completing the PHS, grievant indicated that the reason he left the Independence
Police Department was that he ?resigned for personal reasons.? The CPPA argues that this
statement is entirely true. There is no evidence that grievant was subject to discharge and the CPPA
cites arbitral law holding that when an employee has shown clear evidence of an intent to resign
and sever the employment relationship, arbitrators have refused to view the matter as a discharge.

In support of this position, the CPPA relies upon several internal documents from the City of
13

Independence that characterize grievant?s departure as a voluntary resignation. When viewing the
totality of the circumstances, the CPPA contends that it is clear grievant resigned his position with
the City of Independence for personal reasons and departed on good terms.

If the City of Independence thought grievant was somehow ?un?t" to be a police of?cer,
the CPPA argues Independence would have simply ?red him, which would necessarily have
prevented him from obtaining his OPOTA certi?cate. Instead, Independence permitted grievant
to receive his OPOTA certi?cation, be sworn in as an Independence Police Of?cer, resign, and
continue to pay him until his resignation came into effect. The CPPA stresses that gn'evant was
never subject to any formal disciplinary action from the City of Independence, and City of
Independence Human Relations Director Joe Lubin (Lubin) con?rmed this fact when he advised
Cleveland Personnel Unit Detective David Hamilton (Hamilton) that grievant was never subject
to discipline during his tenure at Independence. Accordingly, when grievant answered ?no? on
the PHS in response to whether he had any prior disciplinary action, he was being truthful. In
addition, grievant signed a release with the City of Cleveland permitting the City to obtain all his
prior employment records. The CPPA argues that grievant had nothing to hide and was completely
forthcoming in all his responses on the PHS. He did not intentionally omit or falsify his previous
employment information on his application with the City of Cleveland.

The CPPA further argues that McGrath violated the parties? CBA when he spoke to Polak
from Independence after the close of the pre?disciplinary hearing and before McGrath rendered
his decision. Accordingly, the CPPA alleges that McGrath relied, at least in part, on his own.
independent investigation without affording the CPPA the Opportunity to confront and/or cross
examine Polak. In essence, the CPPA posits that McGrath violated the CBA when he conducted
his own independent investigation and did not permit the CPPA to be a party to his investigation
and interview or permit the CPPA to cross examine a crucial witness prior to making a disciplinary
determination. Overall, regarding charging Speci?cations Nos. 1 and 2, the CPPA concludes that
grievant was truthful and hid nothing from the City regarding his experience in Independence
because he had nothing to hide from the City.

As to Speci?cation N0. 3, the CPPA argues that the PHS did not clearly direct grievant to
use Section II to further explain the reasons for his departure from the City of independence.
Nowhere does Section 5 Employment History, instruct an applicant to use Section 11 to further

explain any prior employment responses. The CPPA contends that the City's de?ciencies in the
14

application itself should not be used to discipline grievant. Grievant never intentionally lied or
concealed his prior employment history and aptly put the City on notice of his prior employment
with the City of Independence and the reason for his separation therefrom.

Regarding Speci?cation No. 4, the CPPA argues that grievant has never been disquali?ed
for employment as at Cleveland Police Of?cer. Simply, the CPPA argues that neither the City?s
past nor current PHS put applicants on notice that failing a prior civil service examination with
another agency or resigning from a prior employer is a disqualifying event precluding employment
with the City. When responding to the question of whether he had ever been disquali?ed from
employment by any other agency, etc., grievant answered ?no? under penalty of perjury. In other
words, the CPPA surmises that this question is one of opinion, to which grievant truthfully and
honestly responded. The same is true regarding the inquiry of whether the applicant intentionally
omitted any facts that might disqualify the candidate for the position. According the CPPA,
grievant answered honestly and truthfully. As such, grievant is still quali?ed to be a police of?cer
in the State of Ohio and for the City.

As to charging speci?cation No. 5, the CPPA contends that grievant followed the
instructions provided and used the space available to disclose prior civil service examinations he
had taken. In his PHS, grievant identi?ed four (4) prior civil service examinations he had taken
with other agencies. His application for employment for the City of Independence identi?ed'eight
(8) prior exams. Regardless, the CPPA argues that grievant did, in fact, take the civil service
examinations for all four (4) of the agencies identi?ed and therefore his response' was factually
true. Moreover, he used the space that was given to him. The question did not provide instruction
to use additional space if needed, nor did it instruct the applicant to list every agency that he or she
has taken a civil service entrance examination. Therefore, the CPPA argues that grievant did not
violate Speci?cation No. 5 by failing to identify all agencies with whom he took entrance
examinations.

Relative to Speci?cation No. 6, the CPPA alleges that grievant followed the instructions
given and completed his PHS truthfully according to those directions. Since
2013, the PI-IS has been signi?cantly altered to address many of the perceived de?ciencies in the
prior application. The CPPA believes the City is now attempting to terminate grievant for questions
that were never asked of him on the former employment application and for not following

instructions that were never given to him in 2013. The CPPA concludes that grievant ?lled out
15

his employment application truthfully and did not intentionally omit any facts or answers that were
asked of him.

The CPPA next argues the discipline imposed was excessive because the City treated
grievant more severely than similarly situated City employees. The CPPA posits that several
comparators received lesser degrees of discipline for similar, or even more egregious, conduct. I
will not endeavor to recite the speci?c facts surrounding each matter delineated by the CPPA. but
this arbitrator thoroughly examined and analyzed each instance under the just cause analysis.7

The CPPA believes that grievant?s termination was a politically expedient solution to the
public outcry and intense political pressure the City received after the fatal shooting on 22
November 2014. Even though grievant was legally and administratively cleared of any
wrongdoing relative to the 22 November 2014 use of force incident, the CPPA argues that the City
manufactured the charging speci?cations to appease public demands for grievant?s dismissal.
Consequently, the City did not have just cause to terminate grievant.

Brady and Giglio require the Cuyahoga County Prosecutor?s Of?ce to disclose any past
events of untruthfulness by an officer to the defense in a criminal proceeding. Citing Arbitrator
Zeiser, the CPPA contends that possible Giglio impairment should not affect an arbitrator?s
decision. he CPPA additionally alleges that there will be no Brady or Giglz'o impact on grievant
because he was truthful on his PHS and during the hiring process with the City.

The CPPA additionally argues that the disciplinary matrix is not incorporated into the
parties? CBA and was independently created by the City. The matrix has only been upheld as a
guideline and the just cause provision of the CBA to impose discipline must still be followed. The
CPPA argues that Group offenses are the most severe infractions under the matrix, and include
egregious behavior such as criminal acts, having sex while on duty, drug related offenses, gross
immorality, etc; it is clear that grievant?s conduct does not fall into this category. Grievant did
not make a false statement to the City. Compared to others who made intentionally false
statements, but received no discipline or minor suspensions from duty, it is apparent that grievant?s
termination was disparate.

Regarding the level of proof required, the CPPA argues that, under such circumstances, the

 

7 The CPPA detailed past instances of discipline involving Kevin Jones, Aaron Reese, Lynda Kimble, Ornayre
Feliciano, Nicole Carlton, Shani Hannah, Daniel Flannery, Of?cer Lucearelli. In his Opinion dealing with a grievance
submitted by Of?cer Hannah, Arbitrator Gerhart reviewed criminal conduct of other Cleveland Police Of?cers. A
detailed chart is set forth on 53?55 ofthe Post Hearing Brief.

16

City must satisfy thejust cause standard by clear and convincing evidence. Stressing that discharge
is the ultimate punishment amounting to ?economic capital punishment,? the CPPA contends that
it is the City?s burden to prove, by clear and convincing evidence, that grievant knowingly engaged
in the alleged misconduct and that his discharge was justi?ed under the circumstances. The CPPA
argues that the City has failed to meet this burden.

Overall, the CPPA requests that I sustain the grievance, reinstate grievant, order full back
pay, restitution of all lost bene?ts and rights, and award any further relief deemed appropriate in
this case.

RELEVANT CONRACTUAL PROVISIONS

ARTICLE IV
MANAGEMENT RIGHTS

 

Except as expressly limited by the terms of this Contract, any and all rights
concerned with the management of the Division of Police are the exclusive and sole
responsibility of the employer. It is further recognized that the City has the right to:



Maintain and improve the ef?ciency and effectiveness of governmental
operations;

Determine the overall methods, process, means, or personnel by which
governmental operations are to be conducted;

(6) Suspend, discipline, demote or discharge for jiist cause, layoff, transfer,
assign, schedule, promote, or retain employees;


Effectively and ef?ciently manage the work force; and,

(It) Take actions to carry out and implement the mission of the City as a unit of
government. The City reserves the right to implement new or revised existing
policies which do not con?ict with the express terms of this Contract.

(5) Notwithstanding ?4117.08 of the Ohio Revised Code, the Employer is not
required to bargain on any subjects - including, but not limited to, those enumerated
above.

ARTICLE SECTION L)
BILL OF RIGHTS

17

 

(I) In such cases where the administrative investigation is initiated without a citizens?
complaint, and the investigation could not lead to criminal charges, the City shall
not bring administrative charges later than one 1) year after the date within which
the Chief had knowledge of the alleged violation. If the administrative charges are
not brought within one (1) year, the accused member may be ordered to respond to
the complaint and to the investigation but shall not be subject to disciplinary action.
The City may be granted an additional 90 days for good cause shown-

ARTICLE 
EMPLOYEE RIGHTS ANDREGLATIONS

The City recognizes the right of patrol of?cers to be free to join the CPP A,
to ?le gn'evances, to give testimony in grievance proceedings, and to hold of?ce in
the organization. Therefore, the City agrees that there shall be no discrimination,
interference, restraints, coercion, or reprisal by the City, or any agent thereof,
against any patrol of?cer because of CPPA membership or because of any lawful
activity in an of?cial activity in an of?cial capacity on behalf of CPPA.

The City and the CPPA hereby reaf?rm their commitments, legal and moral,
not to discriminate in any manner relating to employment on the basis of race, color,
creed, national origin, age, sex, or disability

The City recognizes the right of the CPPA to select. local officers and alternates
to represent the employees on grievances arising under the Contract. A local of?cer
or alternate, shall be permitted to investigate and process a grievance within his
own location as provided in the Grievance Procedure during his working hours
without loss of regular (straight time) pay, such activity taking into consideration
and with proper regard for the departments operational needs and requirements.
Within the time limits set forth in the Grievance Procedure, meetings shall be
scheduled at times mutually convenient and acceptable to the City and the CPPA.

RELEVANT POLICE DEPARTMENT RULES REGULATIONS

Police General Order No. 1.1.01 City of Clevelagd Mission Statement and
Ethics Policy:

Purpose: To establish a Mission Statement that provides vision, purpose and
direction for the Division of Police and to establish and ethics policy to guide the
actions of all its members.

Policy: Members of the Division of Police shall carry out their mission in
accordance with the strictest ethical guidelines. Division members shall conduct
themselves in a manner that fosters public con?dence in the integrity of Cleveland?s
government, its processes, and its accomplishments. Members of the Division of
Police shall be guided by the values expressed in the City of Cleveland mission
Statement, the City of Cleveland Ethics Policy, and the Division of Police Manual
of Rules and Regulations.

City of Cleveland Mission Statement

We are committed to improving the quality of life in the City of Cleveland by
strengthening our neighborhoods, delivering superior services, embracing the
diversity of our citizens and making Cleveland a desirable, safe city in which to
live, work, raise a family, shop, study, play and grow old.

Police General Order No. 1.1.02 Values Mission Statement:

Purpose: To establish a Values Mission Statement for the Division of Police that
provides vision, purpose, and direction for members of the Division.

Policy: Members of the Division of Police shall not only be guided by the City
Mission Statement, but by the values that the members of the Division shall live
by.

Values Mission Statement of the Cleveland Division of Police

The Mission of the members of the Cleveland Division of Police is to enhance the
quality of life, strengthen our neighborhoods and deliver superior services with
professionalism, respect, integrity, dedication and excellence by working in
partnership with our neighborhoods and community.

Professionalism We take pride in ourselves, our profession, and our
community. We will be role models for our community by
enthusiastically excelling in quality performance.

Respect We will treat all people with dignity, compassion, courtesy
l9

and without prejudice. We will protect the constitutional and
civil rights of everyone through impartial enforcement of the
law.

Integrity We hold ourselves accountable to the highest standards of
moral and ethical conduct, we maintain public trust by being
honest, competent and consistent with our values and
actions.

Dedication We dedicate ourselves to improving the quality of life by
developing a partnership with the community and being
committed to protecting life and property, thus reducing fear
which leads to a safer community for all.

Excellence We hold ourselves to the highest standards of law
enforcement. We will continuously improve the quality of
service to the community through education, training and
development.

We the members of the Cleveland Division of Police take P.R.I.D.E. in the
community that we serve.

MANUAL OF RULES FOR THE CONDUCT AND DISCIPLINE OF EMPLOYEES

Statement of Policy:

The Manual of Rules and Regulations sets forth the conduct and behavior to be
followed by of?cers and employees. Any violation of these rules and regulations
shall be a basis for disciplinary action. Disciplinary action includes, but is not
limited to, verbal and written reprimands and the preferring of divisional charges
which can result in suspension, loss of pay, demotion or termination. The rules,
regulations, and standards contained in this manual shall apply whether the of?cer
of employee is on or off duty. Where a con?ict exists between a Rule and
Regulation and General Police Order, the Rule or Regulation provision shall be
adhered to. . .

Rule 1.07 Patrol Of?cer

Patrol Officers shall be held responsible for the good order of their assignment and
shall be prepared at all times to inform their superior of?cer of the conditions of

20

their post, beat, or zone.

They shall be under the immediate supervision of the head of the administrative
unit to which assigned. They shall perform such duties and work such hours as
designated by their superior of?cer. They shall cooperate with all other personnel
in the performance of police duties.

They shall acquire a thorough knowledge of the criminal laws and the rules of
evidence so that they may carry out their duties in an ef?cient manner.

Rule 2.01

Personnel shall not violate any law of the United States, the State of Ohio, Charter
provision or ordinance of the City of Cleveland, or neglect to perform any duty
required by law, nor shall they engage in any conduct that would constitute a crime
under the laws of the United States, the State of Ohio, or the Charter provisions or
ordinances of the City of Cleveland.

Rule 2.02

Personnel shall not willfully disobey any rules, General Police Orders or directives
of the Division of Police, or any lawful orders, written or oral, issued to them by a
superior officer of the Division of Police.

Rule 2.03
Personnel shall perform all duties required by rules, regulations, general police
orders, directives, or orders of the Division of Police

Rule 2.04

Personnel shall study all rules, regulations, general police orders and directives
pertaining to their duties, and shall be held accountable for any action contrary to
these instructions.

Rule 2.10

Personnel shall familiarize themselves with all directives issued by the Chief of
Police. Personnel absent from duty for any reason shall familiarize themselves with
all orders and notices issued during their absence.

Rule 2.14

The following are additional grounds for disciplining personnel, including removal,
in addition to the grounds stated in Civil Service Commission rule 9.10:

21

a. Incompetence
b. Gross neglect of duty

e. Failure to obey orders given by proper authority
f. Any other reasonable and just cause

Rule 3.12

Personnel shall be truthful and unbiased in all written reports, verbal reports, court
testimony and conversations affecting the Division of Police, its of?cers and
employees or persons under its jurisdiction.

Rule 4.03

Personnel shall give full attention to the performance of their duties.

11219152

Personnel shall be considered to be on duty at all times for purposes of discipline.
Rule 5.01

Personnel shall not engage in any conduct, speech, or acts while on duty, or off
duty, which would reasonably tend to diminish the esteem of the Division of Police

or its personnel in the eyes of the public.

CIVIL SERVICE COMMISSION RULES

 

Civil Service Comr?ssion Rule 9.10 Tenure

Tenure of every of?cer or employee in the classi?ed service shall be during good
behavior and efficient service. No such of?cer or employee shall be discharged,
suspended or demoted for political, racial or religious reasons, or for refusing to
contribute to any political fund, or refusal to render political service.

But any of?cer or employee in the classi?ed service may be discharged, suspended
or reduced in rank for any one or more of the following causes:

1. Neglect of Duty.

3. Incompetence or inef?cient performance of duties.

4. Fraudulent conduct or false statements in any application or examination for a
position in the Civil Service of the City.

5. Conduct unbecoming an employee in the public service.
22

7. Disorderly, immoral, or unethical conduct while on duty.

10. Willful violation of any of the provisions of law governing the Civil Service
of the City or of the rules or regulations of the Commission.

18. For other failure of good behavior which is detrimental to the service, or for
any other act of misfeasance, malfeasance or nonfeasance in of?ce.

PERSONAL HISTORY STATEMENT (PHS) INSTRUCTIONS

CLEVELAND DIVISION OF POLICE, PERSONAL HISTORY
STATEMENT

. . . Failure to provide complete and truthful information will result in rejection for
appointment pursuant to City of Cleveland Civil Service Commission rules, and/or
discharge after appointment.

. . . Additional space for explanation or clari?cation regarding your responses can
be found in Section l1, page 14.

Applicants are cautioned to answer every question truthfully and without evasion.
The Ohio Revised Code provides penalties for making a false statement of material
fact, or perpetrating a fraud or deception in obtaining, or attempting to obtain
municipal employment. Penalties include rejection for appointment, discharge after
appointment, and/or prosecution under Ohio Revised Code Section 2921.13.

Failure to fully complete the Personal History Statement or to submit the required
documents will delay the investigation of your suitability for employment and may
jeopardize your appointment to the Cleveland Police Department.

Statement of Hiring Standards

. . . The Cleveland Division of Police is committed to hiring a diverse workforce,
speci?cally targeting ethical, honest, and moral employees who will treat all
citizens with respect, dignity and understanding. The occupation of Police Of?cer
carries with it an expectation of a ?higher standard? when viewed by the public in
general. Speci?cally, the public expects its Police Of?cers to obey the laws they
enforce; they expect of?cers to serve as role models in their moral character and
social behavior; they expect of?cers to refrain from acts such as abusive use of
alcohol and drugs. In short, the public expect its law enforcement of?cers to stand

23

behind their oath of of?ce and execute their duties in a truthful and conscientious
manner.

Although these standards are as thorough as possible, other facts may be discovered
about an applicant through the background investigation which are not contained
in any of the described categories. These facts may make the applicant an unsuitable
choice for employment with the Cleveland Division of Police. . . .

STANDARDS FOR 
CONSIDERATION

(C) JOB HISTORY

A poor employment history will result in disquali?cation of the applicant for the
position of Police Officer. This includes a record of insubordination, absenteeism
or tardiness, dishonesty. incompetence, or consumption of alcohol in violation of
company policy while employed. As a general rule, any conduct on the job which
would result in discipline if the applicant were a member of the Cleveland Division
of Police shall be grounds for disquali?cation.

(F) TO COOPERATE WITH APPLICATION
PROCESS

Any applicant who fails to cooperate with the Cleveland Division of Police and the
City of Cleveland in the processing of his/her application for the position of Police
Of?cer shall be eliminated from consideration. This includes failure to provide
necessary information, making untrue or misleading statements in connection with
the personal history statement or any part of the processing procedure, or the failure
to include any information or documents requested by the City or the Division of
Police. . .

CONCLUSION

Failure by the applicant to enumerate or disclose any offense or information does
not exclude such offense or information for being the basis of disquali?cation. Any

. material discovered through the background investigation, under the proper
circumstances, can result in disquali?cation from employment as a Cleveland
Police Of?cer if it is demonstrated that the acts or omissions of the applicant were
such as to make it inappropriate for him/her to serve as a Police Of?cer.

The Cleveland Division of Police, through careful and thorough applicant
processing procedures, can insure that the highest quality candidates are
employment and retained. When used properly, these standards for hiring will
ensure only those applicants meeting and exceeding the ?higher standard?

24

expectations of the public are met. The citizens of Cleveland deserve nothing less
ISSUE

Was the aggrieved-of termination meted-out to grievant on 30 May 2017 for just cause? If
not, what shall be the remedy?
mm

Despite the national (international) attention the deadly force incident of 22 November
2014 has garnered over time, this arbitrator would like to be very clear that this opinion and award
is neither in?uenced by nor impacted by public opinion, perceived ?political correctness? from
either side of the spectrum, the media?s interpretation of past events, or the opinions, thoughts, or
beliefs of any individual, their representatives, or any other third party. It is undisputed that the
Cuyahoga County Sheriff?s Of?ce, the Cuyahoga County Prosecutor?s O?ice, the Ohio Bureau of
Criminal Identi?cation and Investigation, an empaneled Grand Jury, the Cleveland Division of
Police Internal Affairs Unit, and the adnhoc Critical Incident Review Committee all concluded that
grievant did not act criminally or violate any Division administrative rule or regulation on 22
November 2014. Hence, this case is not about the legal or administrative conclusions surrounding
the events of 22 November 2014. While this incident precipitated the investigation that led to the
meted?out discipline, in my current role, I am tasked solely to adjudicate whether the City had just
cause to terminate grievant for his alleged omission and/or failure to provide full and complete
information on his PHS when applying for employment with the City. That is my focus here!

As a threshold matter, the CPPA argues that the City is time?barred from bringing
administrative discipline under Article Section 1, of the parties Agreement. Entitled the ?Bill
of Rights,? the provision reads:

(1) In such cases where the administrative investigation is initiated without a citizens?
complaint, and the investigation could not lead to criminal charges, the City shall
not bring administrative charges later than one (1) year after the date within which
the Chief had knowledge of the alleged violation. If the administrative charges are
not brought within one (1) year, the accused member may be ordered to respond to
the complaint and to the investigation but shall not be subject to disciplinary action.
The City may be granted an additional 90 days for good cause shown.

The CPPA argues that the City is time?barred under the clear language of the CBA and

25

should have initiated disciplinary charges against grievant by no later than 4 December 2015, or
one (1) year after Williams ?rst learned of the potential issues with grievant?s PHS. Having failed
to request an extension of time, the CPPA contends the City should be restricted to the remedy set
forth in the contract, namely, that the ?accused member may be ordered to respond to the complaint
and the investigation but shall not be subject to disciplinary action.?

The salient language at issue limits the one (1) year time limitation to cases where ?the
investigation could not lead to criminal charges. . From grievant?s initial interactions with the
City, he was put on notice that any false or omitted facts that may affect his employment were
subject to criminal charges, perjury. In fact, the PHS explicitly states:

Applicants are cautioned to answer every question truthfully and without evasion.

The Ohio Revised Code provides penalties for making a false statement of material

fact, or perpetrating a fraud or deception in obtaining, or attempting to obtain

municipal employment. Penalties include rejection for appointment, discharge after

appointment, and/or prosecution under Ohio Revised Code Section 2921.13.

Grievant was placed on notice that any false or evasive answers could subject him to
discipline and/or criminal prosecution, even after appointment as a Patrol Of?cer. Given the
complexity, breadth, and detailed scope of the investigations of the Cuyahoga County Sherrift?s
Of?ce and the County Prosecutor, it was reasonable for the City to hold in abeyance any intemai
administrative review during the pendency of those investigations. It was not until the conclusion
of those investigations, on or about 28 December 2016, that the City learned that Prosecutor
McGinty would not be pursuing criminal charges against grievant for alleged perjury or otherwise.
From that point. pursuant to the CBA, the City had one (1) year, or until 28 December 2017, in
which to initiate disciplinary charges against grievant. However, the contract provides the City
with a ninety (90) day extension for good cause shown. While the CPPA argues that the extension
can only be effectuated upon consent of both parties in writing, the contract contains no such
limiting language. Nowhere in the Bill of Rights did the parties articulate any consent requirement.
Thus, the ninety (90) day extension of time is self-effectuating upon a showing of good cause.
Here, the City argues that the CIRC investigation was complex, detailed and voluminous in that
the information the committee reviewed ?lled a 66-gigabyte hard~drive. It cannot be disputed that
the deadly force incident at issue was unique and contained multiple moving parts. There is no
evidence that the CIRC was dilatory or did not pursue its task with diligence and expediency.

Under these circumstances, the City has shown good cause for the ninety (90) day extension. There
26

is no question that the charging letter of 13 January 2017 was issued within that period. Plainly.
the meted~out discipline cannot be rescinded under the one (1) year time limit set forth in
Article Section 1, of the parties? CBA.

The CCPA argues that the City is required. by clear and convincing evidence, to establish
just cause. While various arbitrators view just cause differently, the majority have held that the
employer need only prove, by a greater weight of the evidence. that alleged infractions occurred.
A preponderance of the evidence standard, and not the heightened burden of clear and convincing
evidence. is appropriate here. Thus, I will determine whether the City has established, by the
greater weight of the evidence, that the aggrieved?of discharge was pursuant to just cause.

Sgt. Greg Tinnirello (Tinnirello) and Deputy Chief Polak of the Independence Police
Department both testi?ed that grievant experienced a series of incidents during his initial field
training that led his supervisors to conclude that grievant lacked the maturity and emotional
stability to be a police of?cer.8 The individual incidents need not be Specified herein, as they are
well documented in the record. Suf?ce it to say, however, the incidents led management Within
the City of Independence to conclude that grievant was not suitable for employment as a police
of?cer and provided grievant the opportunity to resign in lieu of formal discharge. These claims
are largely undisputed. Grievant elected the former and authored a resignation letter dated 5
December 2012 stating that he was resigning for ?personal reasons.?

The CPPA argued that grievant was not subject to discipline while at Independence as
re?ected in certain internal administrative e?mails and other correspondence/memoranda. The
internal communications indicate a degree of discretion on the part of Independence. From the
evidence provided, it appears that grievant left the City of Independence under good terms, and
there would have been no reason for the City leadership to provide detailed information regarding
grievant?s departure to those not needing to know such information.

Grievant applied for police officer positions with various other agencies, including the
City. In his employment applications, grievant consistently listed ?personal reasons? as the basis
for his departure from Independence. The crux of the present issue is whether grievant?s
representation that he resigned from the Independence Police Department for ?personal reasons?

comports with the instructions and directions of the City?s PHS, or whether grievant was obligated

 

8 Since grievant cpted not testify at hearing the testimonies ofTinnierello and Polak considering grievant?s work
history at Independence are unrebutted.
27

to provide further clari?cation or explanation as to the underlying incidents leading to his departure
from Independence.

The analysis of whether grievant made untrue statements or failed to provide clarifying
information on his PHS requires a poignant examination of the PI-IS utilized by the City in 2013.
Immediately following the cover page, the PHS sets forth the directions and instructions to be used
by the applicant in completing the PHS. Pertinent to the current issue, the PHS explains, in part:

. . . Failure to provide complete and truthful information will result in rejection for
appointment pursuant to City of Cleveland Civil Service Commission rules, and/or
discharge after appointment.

. . . Additional space for explanation or clari?cation regarding your responses can
be found in Section 1 1, page 14.

Applicants are cautioned to answer every question truthfully and Without evasion.
The Ohio Revised Code provides penalties for making a false statement of material
fact, or perpetrating a fraud or deception in obtaining, or attempting to obtain
municipal employment. Penalties include rejection for appointment, discharge a?er
appointment, and/or prosecution under Ohio Revised Code Section 2921.13.



Failure to fully complete the Personal History Statement or to submit the required
documents will delay the investigation of your suitability for employment and may
jeopardize your appointment to the Cleveland Police Department

The document must be notarized with the attestation clause providing further understand
that the answers contained herein are complete and correct in every respect." The clause reiterates
the consequences of providing misleading information and states that also understand that any
material misrepresentation of fact may be cause for rejection before appointment or
disqualification and prosecution after appointment.?

With this background in mind. we now turn to the individual charging speci?cations
resulting in the aggrieved ofdiscipline. Specification Nos. 1 through 3 read as follows:

Speci?cation In the November 18, 2016, Investigative Report, the Division
learned that on May 13, 2013 you (Patrol Of?cer Timothy Loehmann #1231)
veri?ed under oath and provided false information on the Division of Police
Personal History Statement (PHS) of your application for employment. Speci?cally,
Section 10, 12, Did you intentionally omit any facts that you feel might disqualify
you for the position of Patrol Of?cer with the City of Cleveland? You omitted the
fact that you would have been terminated by the Independence Police Department,

28

but they allowed you to resign instead. Among other things, while working for the
Independence Police Department, you failed to secure your ?rearm, were
insubordinate and untruth?il to a superior of?cer. In addition, the Independence
Police Department concluded that you were ?emotional [sic] immature? and
possessed an cinability to emotionally function.? Also, during a state quali?cation
course, you could not follow simple directions and had an emotional breakdown.
Subsequently, you were sent home for the day.

Speci?cation In the November 18, 2016, Investigative Report, the Division
learned that on May 13, 2013 you (Patrol Of?cer Timothy Loehmann #1231)
veri?ed under oath and provided false information on the Division of Police
Personal History Statement (PHS), speci?cally Section 5, entitled ?Employment
History.? When asked about your employment with the Independence Police
Department, you indicated without quali?cation or clari?cation that your reason for
leaving was that you ?resigned for personal reasons? and when asked if you received
any disciplinary actions, you answered without mentioning that you faced
discharge proceedings when your employment ended and that the resignation was
permitted to avoid discharge.

Speci?cation In the November 18, 2016, Investigative Report, the Division
learned that on May 13, 2013 you (Patrol Of?cer Timothy Loehmann #1231)
veri?ed under oath and provided false information on the Division of Police
Personal History Statement (PI-IS), of your application for employment, speci?cally,
Section 11, entitled Explanations and Clari?cations,? when you were provided with
the opportunity to include any additional explanatory information, you never
mentioned the circumstances surrounding your resignation from Independence
Police Department, you responded 

All three Speci?cations center around the information grievant provided regarding his

departure from the Independence Police Department. In Section 5 - Employment History,
responding as to why he left his prior employment, grievant wrote ?Personal re," crossed out same,
and continued ?Resigned for personal reasons." Further, Section 10, Question 12 asked: ?Did you
intentionally omit any facts that you feel might disqualify you for the position of Patrol Of?cer
with the City of Cleveland?? Grievant responded In response to Section ll, entitled
?Explanations and Clari?cations,? grievant did not provide any explanatory information or clarify
the reasons for his departure from Independence, but instead, responded In any event,
when grievant, under oath, signed off on his PHS on 13 May 2013, he af?rmed that ?the answers
contained herein are complete and correct in every respect.? He also acknowledged he understood

?that any material misrepresentation of fact may be cause for. . .disquali?cation and prosecution

2.9

after appointment.?

Given these application af?rmations by grievant, it is appropriate to consider the insertion
of the terms ?personal reasons? on his PSH when addressing the question why he had resigned his
position at Independence. Put simply, was his use of the terms personal reasons ?complete and
correct.? I think not, for those terms in no way provided any insight as to what the
circumstances/objectives were surrounding his resignation. He could have emily done so under
Section 1 I of this PHS.9 These terms were clearly ambiguous at best and far from ?complete.?

Viewing all the evidence, while grievant?s responses were technically correct in that he did
not overtly lie or provide false information, it is apparent that grievant omitted certain facts that he
knew, or least suspected, would jeopardize his future employment as a police of?cer. Salient to
this determination was the con?icting nature of grievant?s testimony relative to his ?personal
reasons? for leaving the Independence Police Department.

When applying for a position with the Euclid Police Department, grievant told Sgt. Barron
?Ijust knew I wasn?t going to be happy there.? Pressed further, he indicated he wanted to work in
a larger department. Baron testified that he was convinced that grievant was not being
forthright with him. Similarly, while proceeding through the hiring process with the Greater
Cleveland Regional Transit Authority (GCRTA). grievant told Detective Joseph Kemmett that ?he
was looking for more action.? Lastly, during his tare?disciplinary hearing, grievant offered yet a
third explanation and testi?ed that his resignation was unconditional. More troubling, after ftuther
inquiry, he then backtracked and testi?ed that he could not recall the substance of the conversation
between himself and his superiors at independence. A questionable lapse of memory.

It is evident that grievant was confronted with a moral dilemma: provide detailed
information explaining the reasons for his departure from the Independence Police Department
and jeopardize future employment opportunities, or provide as little information as possible
regarding the reason for his departure with the hope that it would go unnoticed or he would at least
get his ?foot in the door" and be afforded the opportunity to provide further information. Grievant
chose the latter. What strikes me as disconcerting is that even when afforded the opportunity to

explain the reasons for his departure, he remained evasive and not forthcoming. Sgt. Barron and

 

9 At 1 of grievant's PSI-I the following is stated ?Additional Space for explanation or clari?cation regarding your
reaponses can be found in Section 1 1, page 14.? This was clear notice to grievant that his responses to specific
questions were not to be limited to the space provided in/following a question.

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Detective Kemmett were impartial witnesses and both believed grievant was not being truthful
during his interviews. Grievant elected not to testify at the arbitration, so there is no evidence
contradicting or mitigating either Sgt. Barron or Detective Kemmett?s testimony. Again, as
impartial witnesses with no perceived advantage to testify one way or the other, their testimony
deserves considerable deference. Further, grievant?s testimony during his tare-disciplinary hearing
did not help his cause. Outright denial of proven facts, or in the alternative, resorting to lack of
memory. does not provide color or explanation as to grievant?s side of the story. Considering all
the evidence, I am persuaded that the City has proven, by a greater weight of the evidence, that it
had just cause to discipline grievant under Speci?cations Nos. 1 through 3 of the charging letter.
Speci?cation No. 4 read as follows:

Speci?cation In the November 18, 2016, Investigative Report, the Division
learned that on May 13, 2013 you (Patrol Of?cer Timothy Loehmann #1231)
veri?ed under oath and provided false information on the Division of Police
Personal History Statement (PHS), of your application for employment.
Speci?cally, Section 10, 9, To your knowledge, has any other department agency
or private company disquali?ed you for employment? You failed a written exam in
the fall of 2009 for Maple Heights Police Department, according to your Personal
History Questionnaire for Independence. The Independence Police Department also
disquali?ed you when they declined to rehire you because you were allowed to
resign to avoid a discharge.

Here, the City requires too much of grievant. The term ?disqualified? is ambiguous,
unclear and subject to multiple interpretations. For example, the mere fact that grievant failed the
civil service examination for the Maple Heights Police Department does not mean he was forever
?disquali?ed? from becoming a Maple Heights Police Of?cer. It simply meant that grievant was
not eligible to be placed on the then current civil service list. Most jurisdictions give civil service
examinations every two (2) years, and grievant was fully entitled to retake the examination for
inclusion on a subsequent hiring list. Similarly, it is not entirely clear that grievant was
?disquali?ed? from ever returning to the Independence Police Department. Sgt. Tinnirello and
Deputy Chief Polak attributed grievant?s de?ciencies primarily to a lack of maturity. Given more
time, experience and personal growth, it is unknown whether the Independence Police
Department would have entertained the idea of employing him at some future point in time.
Accordingly, the City has not established just cause for the issuance of Speci?cation No. 4.

Charging Speci?cation No. 5 alleges that grievant did not identify all the agencies he had
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applied to in response to Section 5, 'lhat section asks: ?Within the past seven (7) years, have
you taken a Civil Service Examination for the position of Patrol Of?cer with any law enforcement
or other governmental agency (including the Cleveland Police Department)?? Grievant listed four
(4) police departments (Cleveland, New York City, Akron and Independence), in contrast to the
eight (8) agencies he identi?ed on his Personal History Questionnaire for Independence (New
York, Cleveland, Mentor, Euclid, Berea, Maple Heights, Rocky River, US Marshal?s Service).
While grievant?s failure to identify all applicable agencies may have been a violation of the
instructions provided, no evidence has been presented that would leave me to believe the omission
was intentional or with any nefarious intent. As such, the City has not established just cause
relative to Speci?cation No. 5. ?0

The CPPA argues there are multiple parties at fault and grievant should not be held
accountable for the failures of others. It is most certainly true that, in this instance, blame can be
distributed among others. The City of Independence was not entirely forthcoming with
information when contacted by the City?s Personnel Unit regarding grievant?s employment. It
can further be argued that the Personnel Unit missed obvious ?red ?ags? and did not investigate
grievant?s background with requisite diligence or degree of thoroughness. Regardless, I must
agree with the City that the shortcomings of others cannot be used to exonerate or alleviate
grievant?s misconduct. As I have indicated in another setting, police of?cers are held to a higher
standard of duty than the general public. With their position comes an enhanced expectation of
truthfulness and honestly. Ultimately, the onus was on grievant to be completely truthful and
provide complete and accurate information on his PHS. The conduct of others does not relieve
grievant of this obligation.

The CPPA further argues that grievant?s discipline was the result of political pressure and
was nothing more than a politically expedient solution to public discontent. It is undisputed that
several third parties, including Tamir Rice?s mother, her attorney(s), various activist
organizations, all sought to interject themselves into the investigations regarding grievant and
Of?cer Gannback. The CPPA highlights the continued pressure Ms. Rice and/or her attorneys
placed on the City?s administration calling for the termination of both gn'evant and Of?cer

Garmback. While such pressure was certainly present, i ?nd no evidence that it improperly

 

1? The City acknowledged that Speci?cation No. 6 does not constitute a separate act of misconduct, but rather,
re?ects non~compliance with the Pl-iS instructions which were, in part, not followed by grievant.
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in?uenced the investigation into grievant?s PHS. In fact, had the City succumbed to political
pressure, then an immediate response would have been more likely. It took over two (2) years
for the Cuyahoga County Sherriff's Of?ce and the CIRC to complete their respective
investigations. The investigation regarding g?evant?s responses on his PHS did not occur until
both afore?referenced investigations were concluded.

Having found just cause for the issuance of Speci?cations Nos. 1 through 3 it is paramount
that the discipline imposed be commensurate with the infraction. It is well settled that discipline
cannot be administered in a capricious or arbitrary manner and must be commensurate with the
seriousness of the alleged misconduct. Generally, arbitrators are reluctant to disturb
Management?s chosen level of discipline when just cause is established by the Employer; thus,
the burden is upon the Union to prove the af?rmative defense that the level of discipline was, in
fact, excessive, discriminatory, arbitrary and/or capricious.ll In determining whether the meted-
out discipline was excessive, discriminatory, arbitrary and/or capricious, due consideration must
be given to the seriousness of the alleged misconduct; the employee?s past record; past practice
of the Employer in similarly situated situations; and whether the misconduct at issue was of such
a nature to preclude the Employer?s ability to function effectively.

Here, both parties have highlighted prior instances of discipline involving other City
employees and other Division of Police members, constituting a myriad of offenses over a span
of time. As mentioned above, I will not restate the facts of each incident, though I have thoroughly
examined and studied same and given much thought as to the effect, if any, that each incident
may have on the current di3pute. Such an analysis cannot be limited to the level of
discipline issued for a speci?c offense but must include the factual circumstances each action.
More on this point below.

Turning to the disciplinary matrix, the CPPA observes that it was installed unilaterally by
the City and not the product of negotiations. It, however, has cited no contractual provision
requiring the City to negotiate employee conduct rules with the CPPA. The reality here is that
under the provisions of Article IV of the CBA the City may establish reasonable employee rules
of conduct if they do not contravene the parties? CBA. In other words, Arbitrators typically agree

that an employer has the right to establish and enforce work rules so long as such are reasonable

 

See Rural Metro Ambulance Ca, 123 LA 604 (Sargent, 2007).
33

and serve a legitimate business reason.12

While the Matrix is of little import in determining the initial issue under a just cause
analysis, was there reasonable basis to issue discipline, it does provide a basis/guideline to
measure employer consistency in the meting out of discipline (penalties) for similar offenses. In
other words, the matrix provides a reasonable basis for determining if a selected penalty is
consistent with other penalties imposed by the Police Department for similar offenses, under
similar circumstances. The City?s use of its disciplinary matrix does not con?ict with the 
just cause provision. It is not to be viewed as supplanting the contractual just cause requirement
but simply as a tool to assess consistency in the meting out of discipline. This does not require
that all discipline for a speci?c offense must be the same, especially where materially different
circumstances are present. Rote consistency in the meting out of discipline clearly would be the
crutch of a small-minded person and contrary to the discretion provided for under the matrix.

Viewing the disciplinary matrix, it is evident that providing false statements or reports is a
Level violation, for which it prescribes discipline up to and including discharge. When
examining the fairness and equal imposition of discipline, it is incumbent to compare ?apples to
apples? and not ?apples to oranges." In other words, proper comparators must be those receiving
discipline from the same appointing authority and under the same disciplinary framework. Here,
it is only prOper to examine prior instances of misconduct arising from other police of?cers,
disciplined by the same appointing authority, and utilizing the same disciplinary framework. In
this regard, the City highlights the case of Brandon Smith. The City characterizes this as the
leading case in the Division of Police following the implementation of the disciplinary matrix and
under the tenure of Public Safety Director McGrath in which an of?cer had been charged with
dishonesty on his PHS. The CPPA distinguishes this case because Mr. Smith was a cadet in the
police academy and not a sworn of?cer. Further, the CPPA argues that it produced compelling
mitigating factors regarding grievant?s employment evaluations, testimony of other of?cers, and
letters of commendation from outside sources. All these data have been reviewed and considered
by me.

As for the claim of disparate treatment by the City in terminating grievant for not

providing more detail to in his completion of his PHS, such is without merit. Disparate treatment

 

'3 See Nupicx Resigns, LLC. 133 LA 996 (Wilson, 2014).
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is generally de?ned as treating an individual employee less favorably than his peers in the meting
out of a disciplinary penalty. In other words, the grievant claims s/he has been disadvantaged
because other employees in the past were treated in a more favorable manner. CPPA attempts to
prove disparate treatment in this case citing 23 prior disciplines ranging from two to IlO-day
suspensions for alleged acts of dishonesty/falsi?cation. Three (3) interrelated circumstances
undermine this CPPA argument.

First, most of the cited disciplines predate the Police Department?s promulgation of its
disciplinary matrix, a fact acknowledged by CPPA President Follmer at hearing. '3 In any event,
the matrix was intended, in part, to address alleged inconsistency within the Police Division in
the meting out of disciplinary penalties for similar offenses. Second, it is McGarth, as the deciding
authority. whose actions under the matrix that must be considered and not his predecessors or
other City of?cials. This record shows no inconsistency in his back in cases involving charges of
falsi?cation of records by an applicant/employee who was under oath at the time. Third, there has
been no compelling showing that cited disciplinary actions involved similar offenses under
similar circumstances. That proffered by the CPPA simply fails to establish disparate treatment
of grievant in the meting out of the aggrieved?of discipline.

After reviewing both sides, the similarities between the Brandon Smith case and grievant?s
current situation cutweigh any distinguishing factors. The simple fact remains that had grievant
been forthright on his PHS and provided clari?cation relative to his departure, he, most likely,
would not have been hired as a Cleveland Police Of?cer. It was reasonable, under the
circumstances, that Public Safety Director McGrath made the decision that grievant could no
longer function as a competent member of the police force after having determined that he lacked
trustworthiness and honesty, two 2) core characteristics of a professional police of?cer. In the
end. I ?nd that the CPPA has failed to provide evidence that grievant was treated differently or

disparately from any other similarly situated comparator.

 

'3 At Tr. 901-902? the following exchange appears If I recall correctly, every one of those cases that you
mentioned were all cases that were decided ?the discipline was assessed, and the case was decided before the police
Division established its disciplinary matrix, is that correct? A: Correct." Several of the cited prior
disciplines/incidents of alleged falsi?cation involved individually working in other City Departments not in the
Police Division chain of command and are thus irrelevant.

35

AWARD
The grievance is denied, the City having demonstrated just cause in its meting-out the
aggrieved-of discharge related to Speci?cations Nos. 1 through 3 in the charging letter dated 13
January 2017. Speci?cations Nos. 4 through 6 are dismissed for the reasons set forth above under

the Opinion herein. 2 
ES E. RIMNIEL
ITRATOR

nan/MK

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