city Qf DeS Plaines and

~etrg:PQ;Li t.[iJiP,Jlia,x\e of Pql ie i chapt~r No. 4\\.0

1)at" of Award: ~y 3, 2013

For the City:

.'J. '"i, , opinion. i;1.r\q AWarq

ipy Arpit:tato:t

P(;lt(ltlfEiuill(l ;itl

FM

under oath. The hearing was stenographically recorded and a

transcript was produced. The parties waived oral closing

arguments and filed post-hearing briefs. with the Arbitrator's

final receipt of these briefs on February 14, 2013 the record in

this matter was closed. I am grateful for the parties' courtesy

regarding the amount of time needed to prepare and issue this

Award.

THE ISSUE

At the hearing the parties stipulated that the issue

presented for resolution is:

Did the City have just cause to terminate Officer John Bueno in March 2012? If not, what is the appropriate remedy? (Transcript, page 41 ("Tr. 41".

The parties also stipulated that this matter is properly at

arbitration (Tr. 41).

BACKGROUND

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The City's administrative structure includes the Des Plaines

Police Department ("Department"). The Union is the exclusive collective bargaining representative for a bargaining unit of all

sworn police officers in the Department (Joint Exhibit 1 ("JX 1". The Union and the City ("the parties") have a collective bargaining relationship, and they are parties to a collective

bargaining agreement (nCBAn) covering the period January 1, 2008 through December 31, 2011 (CX 1), which by extension includes the period when the instant grievance was filed (JX 2). Officer John Bueno ("Grievant") worked as a Police Officer for the City since

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April 1, 2002 (Union Bri!'>f, pag!'> 7 (JlUn.Br. 7");" City Brief, page 4 ("C.Br. 4", apd at all pertinent tim!'>s in this matter he has be.en a membe):' of tn!'> bargaining unit represented by the Union.

During part of nis !'>mployment with t.he City, t.he Gri.evant

twide was assignevant WaS assign!'>d to t.he Delta unit (CX 5, pp. 10-121 C.Br. 5).

In or about. JUne 2009 th!'> Grievant had an encounter wit.h gn

arrest.!'>!'> nant!'>d in _ c!'>ll at t.ne C!Lt.y polio!'>

stat.ion, which will b!'> d:lscuss!'>d below, On or about J"nuary 20,

2010 the Grievant nad an encounter attn!'> City police station with an arrestee named __ , which also will be

discussed ):)e10w:. Also in January 2010 th!'> Grievant, who was working wit~

arranged to set. up a drug buy from

a reputed drug d!'>aler. 1'his Gri!'>vant drbve to t.his

parking lot accompanied by _. _ drov!'> into the

parking lot and park!'>d his car n!'>xt to the Grievant. Oth!'>r De1t.a

Unit. officers present st.arted converging on __ car.

_ observed t.his and decided to depart., which he did by

driving away at high speed. In his haste,_ almost hit

Delta Officer Brian Hart. Soon after this failed drug I;>uy, the

City obtained an arrest warrant for _ on a charge of

aggravated battery (ex 2, p. 1; ex 5, pp. 65-67). On Angu/'it 12, 201'0, city of Elmhurst police officers etopped_:t;or i'\

traffic vio1i'\bi,on. The Elmhurst officers learned of' the pes

P1_aines arrest; warrant fo.1;' _ and theyarrest",U hifi),and placed hi)lt in cu"tody. Duritlg t118 eVening of l\,ugllst; 12 i 2010 i the Grievant and O:t;ficer 1\.p

5.

(CX Z;Tr. 56-57.). AtthecwnclusioIl 91'. her investi.gatibh, BJrttonpr.;;piirElti

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ag:J;'E;!E;!d to (a) a ;L20~day $ul3pension for Contreras, Ch) a three~ year "la.stchande pet;lod'! fOl:' 11im stal:'1::ing in March2()12, (0) t.)iatG.ontl:'i'ltIlS' col1duot du:dng the trC\n$pqrt 0:E _ pack to Des ~laiM .. s On Aug\lst 12, 20.1t) W

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Awards of the arbitrator shall be final and binding and shall determine the subject of the arbitration for the duration of this Agreement. Jurisdiction of the arbitrator shall be only in regard to the particular dispute before him, and he shall have not power or authority to add to, subtract from, modify or change in any way any of the terms of this Agreement, or to write any new clause, change an existing clause, or write a new Agreement, nor shall he establish wage gcales, change any wages or rates of pay. The arbitrator shall have no power to pass upon any subject not specifically provided for in this Agreement or any function that belongs to the City or its designated management as provided for in Article I, Section 1.3. If the grievance concerns matters not covered by this Agreement, it shall be returned by the arbitrator to the parties without decision.

Section 5.4 Board of Fire and Police Commissioners

If the grievance concerns discipline in excess of a five (5) day suspension or discharge for cause, the employee must elect with 21 days whether to proceed before the Board of Fire and Police Commissioners or to proceed through the grievance procedure.

In the event the employee elects to proceed under the grievance procedure, he shall indicate in writing his choice and specifically waive any right he might otherwise have to proceed before the Board of Fire and Police Commissioners or to proceed to court to review a decision of the Board of Fire and Police Commissioners.

APPLICABLE RULES AND REGULATIONS (eX 4) GENERAL ORDER 2.01 RULES OF CONDUCT

310.02 Unbecoming Conduct ~ An officer or employee shall conduct himself at all times, both on and off duty, in such a manner so as to reflect most favorably on the Department. Conduct unbecoming a member or employee shall include that which tends to bring the Department into disrepute or reflects discredit upon the individual member or employee as a member or employee of the Department.

310.34 Obedience to Law and Regulations - Officers and employees shall observe and obey all laws and ordinances, all rules and regulations of the Department, and all official written directives of the Department or Division thereof.

310.36 Reporting Violations of Laws, Ordinances, Rules or Orders - Officers and employees knowing of other officers or employees violating laws, ordinances, rules of the Department, or disobeying orders, shall report in writing to the Chief of Police via official channels. If the officer or employee believes the

information is of such gravity that it must be brought to the immediate personal attention of the Chief of Police, official channels may be bypassed.

380.60 Impartial Attitude - All officers, while charged with vigorous and unrelenting enforcement of the law, must remain completely impartial toward all persons coming to the attention of the Department. Violations of the law are against the people of the State and not against the individual officer. All citizens are guaranteed equal protection under the law. Exhibiting partiality for or against a person because of race, creed or influence is unprofessional conduct. Similarly, unwarranted interference in the private business of others when not in the interests of justice is unprofessional conduct. 390.50 Truthfulness - Officers and employees are required to be truthful at all times, whether under oath or not.

409.00 Who Is Subject to Disciplinary Action - Any officer or employee violating his/her oath and trust by committing an offense punishable under the laws or statutes of the United States, the State of Illinois or local ordinances, or who violates any provision of the Rules and Regulations of the Department, or who disobeys any lawful order, or who is incompetent to perform his/her duties is subject to appropriate disciplinary action.

418.00 Penalties The following penalties may be assessed

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against any officer or employee of the Department as disciplinary actions:

Oral Reprimand

written Reprimand

Suspension of up to five (5) days by the Chief of Police

Suspension of more than five (5) days, pursuant to the Board of Fire and Police Commissioners hearing (sworn personnel) or the optional grievance procedure (arbitration), which is outlined in the collective bargaining agreement.

Dismissal from the Department pursuant to a Board of Fire and Police Commissioners hearing (sworn personnel) or the optional grievance procedure (arbitration), which is outlined in the collective bargaining agreement.

446.00 Misconduct Observed by Police Personnel - Whenever any command or supervisory officer observes or is informed of the misconduct of another officer or employee that indicates the need for disciplinary action, he/she shall take authorized and

9

necessary action and render a complete report of the incident and his/her actions to their Commanding Officer.

GENERAL ORDER 13.14 TRANSPORTATION OF PRISONERS/CITIZENS

POLICY: Transporting any person in a police vehicle is a potentially dangerous function. Therefore, it is the policy of this law enforcement agency to take precautions necessary while transporting prisoners or private citizens to protect the lives and safety of officers, the public, and the person being transported.

POLICY:

GENERAL ORDER 10.01 USE/REPORTING OF FORCE

Officers should use force necessary to effect an arrest objective of the use of force is to by an offender.

only the reasonable amount of or control a person. The overcome resistance offered

10.01.1 AUTHORITY

. Officers should use only the reasonable amount of force necessary to effect an arrest or control a person. The objective of the use of force is to overcome resistance offered by an offender.

Police Officers of the Department will not unreasonably, or unnecessarily, endanger themselves or the public in applying this policy.

. Violations of the rules will only be the basis for administrative discipline, while violations of the law will be the basis for civil and criminal penalties in a court of law.

10.01.10 FOLLOW-UP TO OFFICER'S USE OF FORCE

All officers will make an immediate verbal report to their supervisor following any use of force and file an appropriate case report that documents the actions of the suspect that necessitated the use of force, the reasons why the officer used force, as well as any suspect complaints of injury, medical treatment received, or refusal of medical treatment.

GENERAL ORDER 6.0 POLICE HEADQUARTERS AND FACILITIES

6.01.8 GENERAL RULES AND RESPONSIBILITIES

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. Agenoy personnel will not enter an oooupied oell without at least one other offioer present, unless emergenoy oiroumstanoes exist.

In accordance with IDOC Jail Standards, force will be employed only as a last resort or when other means are unavailable or inadequate, and only to the degree reasonably necessary to achieve a permitted purpose.

POSITION OF THE CITY

The City says that it had just cause to discharge the Grievant.

Looking first at the appropriate standard of proof to be

applied in this proceeding, the City argues that the appropriate

standard or quantum of proof is the preponderance of the evidence

standard. This standard applies in cases where an employee has

been terminated for dishonesty. In particular, the City notes

that the Illinois Court of Appeals has rejected the proposition that allegations of dishonesty must be proven by clear and

convincing evidence. In Decatur PBPA v. The City of Decatur, 968 N.E.2d 949 (2012) the Fourth District Appellate Court, in a case involving a police officer terminated for domestic battery and

untruthfulness, said "it is a violation of public policy to

require the continued employment of a police officer who has been

found to be abusive and untruthful. We find that the standard of

proof is preponderance of the evidence" (Id. at 758). The City points out that the evidence establishes that the Grievant used

excessive force against three arrestees and then lied under oath

about his behavior during his investigative interrogation.

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the Qity potes t4at thf> Des P;Liiinel? P,>l,ice n",partmetft has many Rule.s apd Regu;La,1;;Lons, Rules of Qondu

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qCJ)l.trOl :i,nt.he padk9t' the dar, ll~ Wal3 pdt res:LsHng qxrestj and th,8 Grii3vapt g

:f'oliow;ing anY Us(lof fotqe and:f1l;eiih!i.pptoPtiate case report that dOoume.nts the acHou(3 of the Sl.1Spect that neceSs;ttat.eq th(l

i3

use of f.ot'p6, the r

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aggressive, grabbed the Grievantt and the Grievant responcieq l;Jy

punohing_ (.ox 5, 1'1'. 24-29). The Griev"mt putlOhed_ hard ehbugh to dra.W blo.od (from hbse) , :ll,fter tnis inoidentwith_ Wi;l$ oonaluqed, the Gr.ievant failed to file a use of force report, cohtri;lry tQ Dep"rtm"ht policy.

The City ElmPhasi>:e$ that the Grievant hi;ld.a duty to ;;>vQid Cohftol}tat;ioil with_an.d M i'll'io hi'ld a duty. to minimize the p6,$$ibilityof trs;thg force. MweV.eri the GriElVaht mqved

_ PY hifitself, from ". oell ipto the pipk :CDom whe.re h.e and

_were .ou.t of sight of othetPri$Oi)Eirs ci,M offioets (ex 5, pp .2(3-2(;). Th(l Grievant .. did hot inf9rm hi$sllpervi$o1Cs or other ilfficersw11l'.lthe W;;>l'Iqqihg (ex 2, p. 14). He did not call for assistance wh,m _ beo;;>meangry, ;;>nd ins.tead he hit_

with il\JffiGient forc(l t,ogive him" bloody hoS(l (CK 2, pp,. 6, 9). The Grievant's f"il1.lre tb avoidoonfrontatiohat1d his slibseg)ient use of force again:'lt_ ma)c",s ole.&1' th~t the GrieVant' suse of fo.rdewas not neceSsary or justified.

Moving on to th", Grievant's use of o1'.Oe against _

_ _ was in his cell, the Grievant enter.ed _ oell

by himself, and then pushed_ (CX 2, p.l.14). _earlier that day had made a vulgar comment abo.utthe Grievant's daughter I

but _ was not resisting the Grievant nor did he present a

thr.eat to the Grievant .or anyone else (eX 5, pp. 52~57(64). The

Grievant's use. of foroe on_ wasunnecessarY:r unjustified, in dir,ent violation of the dity's use of force polioy, and was not

intended to acoomplish anyp.olioe purpose. Additionally, the

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Grievantfail'8dto file a use of force report after the incident

with_was concluded (Tr. 113). The dity says that the Gri.evant's )1$" of force agaln$t tb.e$e

threeaJ;'re",tees was intentional and retaliatory, The Gri'ev;3.nt

p"ncp",Q _ in rataliation for _ allllO$t;t"unning oVer officer ,Hart during tb,ePelta Unit's ta,'i.:Lep drug buy in January

Itol

The Grievant is lure of ex;cellsi VI" fQrce against these threE> arrE)stees, standing qlllE) , oonstitutes jllst qaUse fO:4 his termin;;ttion. !M City cites othe1:' ;;tr1>itratiOh "w proposition thqt "anpfficer's u880f excessive foroe

prov1.

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Cohtreras' terminatiqn, Contreras and the llnionagreedto a four.,..

fi'lonthsuspenSion without pay, that any cqnd.uGt by Contre:r-asthat

v101",.testhe LeA wi11 result in his tet'mination, that the LeA is

Cohtr.era:,,' last ch@ce to m;:lihtairi his Cit~ E)(l\p1oymE)nt, '>hd.that the LeA is. to rem,Hn in effeict for th1;'ee yeari3 (ex 1:S). The City eniphai3i)':es that there is no eVidence that Gontreras ",ver struck any arrestees. lnstead, Gont:b,,,,i'ls' "la.ck of di.sCl.osure"

con.8ti t.uted "sufficient c411se" ;f'.Qr his termination. T1):at being thEi oi'lse, the City argUe" that, cClnddEiring t1):at Gont1;'exai3 i

Dishonesty. ,Moying gn, the City Says t1):$ct 'the [jrievant'8 dishonesty abotit his conduct with these :arres.te.es .oonstitutes an.

additional and ihdei?Emdent reai30n for his terminati.on. The .

. evidence shows that ,on November 16, 2011 the City interro.gated

the Grievant a$p&rt of the City's investigation ilit.o the Grievant's interaction with_ and at the start of this

interrogation the Grievant was intormed that his ufailureto

answer truthfully in this interrogation would be deemed

insuhordination and/or additional violations 01' the :Rules of

Conduct for the City of D.eB Plaines" (eX s, p. 7). During thisinterro~ation, the City asked the Grievant

several questions about his use of force against _ The

Grievant insisted he punched_ to gain a "tactio.al

advantage" over _ because the Grievant thou,!ht _ had

defeated his handcuffs (eX 5, pp. 83~85). The .Grievant also explained that he did not informContJ:'eras of this belief and his

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intention to obec1\: on __ bandcuffs becau.se he did not want

to !!tip off!'_ (CX 5, p. 83). The City salfs the Grievant's explanation:;; for his condu.ct

toward IIIIIIII defy common sense. D.C. Burton exvlained in her investigative rerort that there was no need for the Grievant to

gain a tactical advantage over an arrestee who was handcuffed and

confined in a single compartment cage in the badk seat of the

squad car (OX 2, p. 15). Burton said it also did not ma1\:e sense for the Grievant to not inform Contreras about his plan to stop

the vehicle and check _ handcuffs. The Grievant could

ha.ve signaled Contreras through his body language about his

suspicions and he could have radioed for assistance if he pulled

the squad car to the badk of the station (CX 2, p. 15). Burton testified tha.t if an officer had a prisoner in the back seat that

was suspected of defeating his handcU:Efs, sbe would tell her

pgrtner ot her belief and she woul.d bring the prisoner directly

to the Department back dOor and radio for assistanoe (Tr. 88). Elmhllrst O;Eficer Brandt Cappitelli confirmed Burton's testimony.

He testified that there would not be a need to gain a tactical

advanta.ge o\rer someone who was not resisting a.rrest (Tr. 309). Former actir),} City Jxlanager Jason Slowins1\:i also confirmed Burton's tE'l$ti.mony (Tt'. 331);

Chief .\

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contain him" (Tr. 475~47Q). The City 'lay it is telling thi'!t the Grievant never reported

hi ue of force against_ to any Pes Pli,ii.nes officers or

documented it in a cas", repott. If _ adtlli,iJ,J,y POI3",d i,i

threat and if th'" Grievant's USe of fovc.e Wa.s rlla[;;.onal>le .and neces.r;;ary, the City says the Grievant would have r.eported these

things to fellow officers and his supervisors.

Not only does the Grievant's story about _ defy common

sense, it conflicts with information provided by other City

officers. The most obvious confliot is the C5rievant's statement

that he did notofer_ medioal attention beoause "there

were no ndications of injury'! (cx5, p. 92). This statement .confliot$ with th", statements of five other offioers who stated (to Burton Whei) shEl intElrviElwed them during her investigation) that _ fll,(~El WaF' injllred on August 12,2010 (8gt. Holdman Elnd Qffiqers .Hart, Boniak, 8tancato., and Ruzicka; CX 2). Ei,iohof the.se officers notio$d _ phy.s;Lcal condition and reported that they offered him med.icill i,issi$tapee, wMtih he 'declipe\1 (OX ;2). Jl.dditiOhEllly i the Gri

20

Botp, tP,

21

Department procedure and prepared use of force reports, he would

not have had any problems recalling the events in question.

The City argues that the Grievant's dishonesty, standing

alone, constitutes sufficient just cause for his discharge. This can be readily ascertained by examination of arbitration awards

dealing with law enforcement officers who have been discharged

for dishonesty. For example, in City of Montclair and Montclair Police Officer's Association, 127 LA 32 (Gaba, Arb., 2009), in a case involving a police officer who ran a red light while off

duty and then lied about it to the court to escape a fine, the

arbitrator, citing another arbitration award, stated "Dishonesty

destroys the trust which is essential to the relationship between

an employer and an employee. It is so obvious that it

constitutes a dischargeable offense that no employee can claim

ignorance of the rule or the consequences, even absent a

published rule or policy. It is an essential job requirement that sworn officers tell the truth in court" (127 LA 32, at 41, citation in original omitted).

Closer to home, the City notes that the Illinois appellate

courts have held that it violates public policy to reinstate a

police officer who has been dishonest. In Decatur PBPA v. City

of Decatur, 968 N.E.2d 749 (2012), the Illinois courts reviewed an arbitration award in which the arbitrator reduced an officer's

discharge for domestic battery and untruthfulness to a

suspension, and the trial court vacated the award and the

appellate court affirmed the lower court. The appellate court

noted "the strong publid polic:y for law~enforcement officers to

be truthful during police investigations" (Id. at 754). Lack of mitigation. The City goes on to argue that the

Union has failed to present any mitigating circumstances that

would justify the .Grievant' s use of excessive force and subsequent dishonesty. The Union a):"guesthat the City violated the Grievant's due process rights, but this argument must fail.

The Union emphasizes that the City's investigation into the

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Grievant's conduct did not occur for more than a year after the

Grievant's abuse of_ in August 2010, and with even longer deli'lYs in the investigations of the incidents with _ and

_. However, the City says the evidence shows that the City

de.Gision maker in this matter, acting City Manager Jason

Slowinski, launphed tpe City's investigation into the Grievant's

misconduct when he received the August 9, 2011 letter from Keith

HUnt (Tr. 327). As soon as Slowinski received this letter, he o):"dered Deputy Ohief Burton to conduct an investigation into the allegations in the letter (eX 3). Burton thEm conducted a thorough investigation (OX 2).

Ad

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r.\3mois\3.:I"o;r his aotions. In light 9:1" tliB evid.epc\3 shc}\vi!1gthat the Grievant \ngagedin serious mis(::onduct,t.h\3 union's argument that the city violated tb,\3 Gri",Vant'sdueproo\3ss :r:ights nl\1st

fail.

Th\3 City says ther\3 is no.eV:idence tht rnernpers of thE;>

polic\3 c.oIOl1)and. staffkn\3W that the Gri.evaht' s Use of forO\3 against _ was exc\3ssiv\3. Th\3r\3 is no evidenc\3 that tb,e

police command staff mernberskn\3w that th\3 .Gri\3vaflt punched

_ while he was handcuffed in the back of th\3 squad car, or

that _ was cornpliant the entire tirne he was in custody and

did not resist in any manner.

contrary to the tJnion's argurnents, the City does not condone

abusingarrest\3es. The City did not give the Gd:\3vant positive

perfo);:rnanqe revi\3Ws b\3cauS\3 he used \3xcessive foroe against arr",stees. A.s noted above, th", Grievant hid his conduct by not

informing hiEi supervisors and RY not filing use of foro\3 reports (eX 5, pp. 89-90). Commiolnder William prim, the only witn

24

11,,0 My lr;jfotlUatiqu tl1"t tl1e Gdev"ntw,,'l using eXeSE>tire fc;:;rGe a

25

(Qhio Bberf.orl):ta,nceev;;l.lu.a,tionsa,n\'l COlnIJiengatiOrts ca,nnot jl\'ltify .cilCptl1erwiiJe irtitlgate h:Lfl Ufle pf e.x(j~l3sive tot:ce aga:Lnflt ." h"nQguffeq ."rre$t.$e. i'l,nd hil3 lYing 1,lhdero"th C\pciut his miiJ.cpnduct.

Turing to the l)'riipri's "rgumetJ,t "pout "ooNj>ar

did not do, the City says that by extension the City had just cause to terminate the Grievant.

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Additionally, this Union disparate treatment argument fails

because there was no disparate treatment. The discipline against

other City officers cited in UX 15A-L is distinguishable from the

instant matter for the following important reasons. None of

these other officers were charged with lying during an

interrogation, and none of them were charged with use of

excessive force.

Because of the severity of the Grievant's misconduct, and

because there is no evidence that would justify the mitigation of the discipline against the Grievant, the City argues that he

cannot be reinstated. The Grievant's abuse of his police power,

and his dishonesty while under oath, constitute a permanent stain

on his record, which in turn would make it difficult for the

Grievant to be an effective witness in criminal trials (Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.s. 150 (1972); ~yles v. Whitley, 514 U.S. 419 (1995); U.S. v. Cadet, 727 F.2d 1453 (9 ili Cir., 1984)}.

For these reasons, the City asks that the instant grievance

be denied in its entirety.

POSITION OF THE UNION

The Union says the City did not have just cause to discharge Grievant Bueno.

The Union points out that it is well established in labor

arbitration that employers bear the burden of proof in

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disciplinary cases. Further, in termination cases, the emplayer

has the burden .of praving by clear and canvincing evidence that

the decisian ta terminate an emplayee is warranted. Far the

reasans expressed belaw, the Unian argues that the City has nat

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

In particular, the Unian urges that I apply the "seven tests

.of just cause" .originally pramulgated by Arbitratar Carroll Daugherty in a much-cited arbitratian award he issued almost

fifty years ago (Enterprise Wire Co., 46 LA 359, 1966). In this award Daugherty presented seven questions about the disciplinary

process, and he suggested that a "no" answer to any of them might

indicate that the discipline was not far just cause. These questions are:

1. Did the campany give ta the employee forewarnings or foreknowledge of the pas sible .or prabable disciplinary consequences of the employee's canduct?

2. Was the company's rule or managerial .order reasonably related to (a) the orderly, efficient and safe operatian of the company's business and (b) the performance that the campany might properly expect of the employee?

3. Did the company, before administering discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management?

4. Was the company's investigation canducted fairly and objectively?

5. At the investigation did the company "judge" obtain substantial and compelling evidence or proof that the employee was guilty as charged?

6. Has the. company applied its rules, .orders, and penalties even-handedly .and without discrimination to all employees?

7. Was the degree of discipline administered by the company in a particular case reasonably related to (a) the seriousness of the employee's proven offense and (b) the record of the employee in his service with the company?

The Unian insists the recard is replete with evidence .of

"no" answers to several of the just-listed questions.

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tl1at Dpattl)\$l:rt;mi'll1p.geme);),t wei.S aWiiJ;e q;ftM Gri(N:a, Dep4ty cl1i$f Midhael :Ko?ak, p.h.d Chief Jim pr

(Goldstein, Ar~., 2009); City of Chicago and Chicago Fire Fighters Union Local #2, unpub., (Berlll, Arb., 2012.

29

The Union says the evidenoe about man~gement toleranoe of

the Grievant's behavior shows the following. Chief Kushner

testified that after the _ inoident the Grievant received a

positive performance evaluation, that after the _ incident

the Grievant received another positive per,formance evaluation,

and that after the_ incident the Grievant received still

another positive performance evaluation (Tr. 483~488). Kushner testified that these positive evaluations of the Grievant

indicate that the Grievant "was being told he was doing a good

job" (Tr. 486). In addition, the evidence shows that several inembers of the Department's supervisory ahd commahd staff knew of

the Grievant's conduct, especially with _ and did nothing

about it. 8gt,. Mike Boldinan, who in 2010 was the supervisor of

the Delta unit! told D.C. Burton during her investigation that he

observed _ swollen eye on August 12, 2010 (CX 2, p. 2). Holdman told Burton that he (Holdman) informed D.C. Rozkus;?;ka about _ swollen eye (CX 2, p. 2). H91dman also told Burton that, soine time later, Ro;?;kuszka tol

the :\.hvei;lti\Ji;ltiqp Cq"ctl1ct!"dpy .l>.ll:tton dV:t ing lcrt~2nl1 in respopse tp the l;l)lnt letter of :1\.t;t\Jpst, 9, 20liCCJ)).", 2, 3).

30

officer rom St)lrtoi:) that office;r:i;lBll!"lip 'a.nd GQ"trer!'l,S J:,;r:C)pgj-,t __ into the station pp1\)lg)lst 12, 2010 i anci the P.r;L$cmer'!'l eye wcis puf;E",d \;tJ? (ex 2, p. 7). .Stin\c.ato (l,l"q ipfq)::ll1ed B1JlCtQh t.hat D. e. Rp;oku.sbk.a asked StapGato fqr a ,l;looJdng PIroto of _ .apouta week

31

Gongl)1.sion Oviolate rules or policies. In the i.nstant rnattilr ,the evidence

shows that s.ergeants,. commanders, dePuty chiefs, and a police

ohief knew of and oondoned (either .explicitly or taoitly) the Grievant's 'oonduct. The Onion insists that the City r s

termination of the Grievant after a long period of oondoning his

on-the-job conduot is clearly unreasonable and indicates that the City did not haITe justcausB to teorminatB the Grievant.

Turning to the Citi's inIT.esbigationof the Grievant's

conduot, thetJnion says the evidence shows. that theo City did not

investigate thi-s matter in a timely, fair,thorough, and

objective manner. The investigation clearly was not performed in a bimely manner. the inoident with __ occurred in

August 2010, or 12 monthsp;r:ior to the start oithe. instant

inITestigation (OX 2). The incident with __ ooourred in January .2010, mOre than a year and one'-half prior to

the !Jtart .of the :\.hstant, invIo\St,ig&tipn. The inddent witl:t _

_ OCblp"red in or a,bojit JuM 2009, mor~ Ulan two yearsp:t'ior to the start o;J;t!J..e inst

33

'l:he Ur,tiOni'\J,.so in.sists th"t the City's investigation was

n

34

r

35

Next, the Union says that the City has not issued discipline

in an even-handed manner. The following example highlights this

phenomenon. In July 2004, Officers Robert Dvorak and Jason

Roszkowiak, while off duty, drove to an apartment in Glenview,

IL, broke into the apartment without a warrant, and threatened

the occupants over a stolen gun (UX 15C). When these officers discovered that the stolen gun was not in the apartment, they

instructed the occupants to retrieve it and threatened to plant

cocaine on them if they did not. The City did not seek to

terminate them for this severe misconduct, but instead issued an

IS-day suspension to Officer Dvorak and a 12-day suspension to

Officer Roszkowiak (UX 15C). The Union insists that the Grievant's conduct with the three arrestees mentioned in the

instant matter is not nearly as serious as the egregious conduct

by Officers Dvorak and Roszkowiak. However, the City terminated

the Grievant even though it issued suspensions of less than 20

days to Dvorak and Roszkowiak for their more serious misconduct.

The Union says that several factors present in this case

mitigate against termination. One is the Grievant's long work

history with the City. Another and more important factor is the

Grievant's highly commendable performance during his tenure as a

Des Plaines Police Officer (UXs 1-13, 16). He has consistently received positive performance evaluations, and he has tangibly

demonstrated his ability to eliminate unsatisfactory behaviors

when alerted to them. He is a bilingual officer with sharp

skills as a street cop. He has provided valuable services to the

City and he will do so again if he is reinstated.

36

The Union emphasizes the City's very lengthy delay in

investi.$ iI)dicated in the stipulqtEid iSSUE) eqrly in this ]>.ward, this is a dillch

37

Ar:{pi'lliati'l C(>11.ct 's:r.illipg in l)eqatur l'BPA v. C.ij;y Of.DflCfal;JjJ;',%8 /'f,E ,ad 9.49 (2012), the city mUlet prov~ hy apri'lpOti

Ri;lg1,11ati(jns; 3it1.36 Reporting Violations of !,aW$i O:r'dinahdi;lsQr orders; :3 Btl. 60 ImPartial. Att::\. tui:!,EJ; 390.50 T:t:J;lthful.nes/3; ('1e.net:al O;Li:!,eI: Hl,14, TramJP9;ttation of prisoners/eitf:,;ens; 'ang (jlene;L

39

seat c$.tlrj~t open the rElardoor fronj the irt1;ef:'.l.or 9f the cat' (Tr. P7) .

Sgid heqrov$ the sql\aq Gar fram pe;s Plaine!> to Elmhurs.t and th"n J:jii9l< to pe;s PIg:l.nes. j\s).J.e 'e.ntet'ed the Pes Plaines qi 1;y goyernfpent J:)'l\iI4ing'C6mpleil., !Hi pulle.ct into a. Gity parking gartplained that _ "was moving fram side to. side, histarso .and shoulders as .if he was trying to.

manipulate his arms and hands" (ex 5, Tr. 95). The Grievant said his blow to _,whioh struck _ in the ri.ght eye, was

designed to distract _ so. that the Grievant could check on

the condition of _ handcuf.fs (eX 5, pp.83-84). The Grievant explained that he pulled the squad car into the main

40

fiQ()rof t4eparJd1).g gqra.ge t() do this oheck peOp,ll$E) t118. pic\)Cking de.Ok wa!3 iJa oOhfihEid atea." (C 5, p. 83.). ~ftE)r t4e Grievant >"!tr].lqk _illE) qll~cltE)d the QotlaitiQh Gf_' hqndouff>"! ;and d"terttlihe.cjthat: _ MhdQuffs h;ad hot peeh a\lf\li;i.1:,ecj (ex 5,p .. !)4). Tb,.e GrlEiv;al:lt t.):t",n got pack :);n th\l squad qat i;lh(j troYEl tb,.6 yery $40rt di>"!t.ij.tioe frdj(l the p

41

_ " .. viqlated DePchebkthe cohdition. of _ handCl)ffS "was 11!!justified and unneoeSs!i;r'y"(Tr. 240-24.1). l'lutton also st_ "(tJn.Br. 24). In sum,there is no dispute among the parties that Grievant

Bueno struck __ in the tace :as he sat handcuffed in

the rear seat of the squad car that had temporarily stopped in

the Cityparkinq garage.

The Grievant 'sexplanation of how he used force against

_ in the squad car on August 12, 2010 is consistent with

other evidence (CKs:6, 12). At the same t-ime, there is every reaSon to doubt the Grievant's explanation of why he used force against _. 1'he" Gri"evant testified that he wasconcernBd

that _ may have defeated his handcuffs (ex 5, p. 80), I note that if the Grievant was genuinely worried about _

'1

Y gQiti

wMJ;'e he WElssittifig (OX 5, p. 84). If in tact _ hEld de:E.eiited his ha,tidd'ufr.s, the oPen(,fq~l1yrthe-Gri'Watlt right rear dooto.f thEj sq\'laQqar W(j111d hay",. o;efer",d _1J.h.9Pport1,1\lity to !;\$;;tpefr9rit custody, l\.S n6teq i'l110Y6i the tei'l:r:cl90:!;,$ qf the $qUEl9 Gilr

44

buil.dirtg,

M(l:r:eimj?drti;\nt, t.he .G:r:ii3vant'13cl!'lirl) that t];:lI~ j?!'lrk;lng gi;\Plge off",red !'l "Qo.o:UMdm;e.a," in wl1ic l1 tq cMqk On _ ):i"pdcPffs is ahs,J1\Jti3 rtqnSense. A.s we obl3ex-vecl ;In !'l i tevii t to thi& garage du:r:ing thi3Nbvi3mhfrc 4!1i 2Q12qa,y of the i1}st;'oli1t Maring (Tx-, 91~!i4), anclas13\Jrton test.ii",ci (Tl". 86-87), Jjoth "'nds of the gar!'lge!'lre compl",tely open, as s.hown in the ex 16

photogx-aphs. I note that a prisoner who ",soaped from a police

vehicle .On the first floor of this garage would have little

diffioulty fleeing out of the garage into the surrounding streets

of ))",sPlain",s. Acoordingly, I find that th", Grievant's "confined area" claim holds no water whatsoever.

Why, then, did ttl", Gri",vant strike _ on August 12,

201t>?The Oi.ty says the reason was theGrievant' s desire to

retaliate against _ for _ aoM.ons durlng the failed

Delta Uni.t d:cug buy in J'anuary 2010. As noted above, during

J.iJ.nuary 2Dl0 thE) Grievant Was a member of the Delta unit! a group of poli91a g:ffiOlars who I3plantttreir work time oomoatt.irrg narc.otics trai'figking in the 01;ty i3.IJ.d surrounding arla\.

-

As this

mEjEjtirtg prtfplgeci, deoided tOd:epa,rt tlJ:e soMe and he drovEj""way at high 13peed" In the process, _ na:t:rowly rni$secihitt,ing DE'llta Qff:Lc.ex- E:r:ian Hart. The Di3lta ofHt:ex-s wex-e verY qi13a,PPoinj:ec1 that their attempted drug buy went .south. Soon

45

thi'rea1Oter, they o):xtaihetlan l'irrestwMJ:'aI)t :Eor __ for aggravateg battery (OX 2, Eat"" OOOOO!} C;X:5, pp. 65-6'1). It wai'i t.hi~ arrElst Warran.t that a\.1se(i t)w Elmh)1rst poliM t6 plaG\3

_ in custo(iy (iuril:lg a rotitine traffic $t6p dn A,Ug.ust l,;l, 20;LQ, inform tne Des .PC\.aiMs Police I)epartme).1t tJ;l

46

Additionally, the eVidence shows th"t, during the Gr!ev"nt'$ interrog"tioJ) in November 2011, the Griev"nt denied having any conversation with_ in thesquitd qar during the drive from

Elmhurst back to Des Plaines on August 12, 2010 (CX 5, pp. 78-79). However, Officer Contrerits testified duri,ng his November 2011 interrogation that the Grievant and_ had a

conversation in the car about the January 2010 incident.

Contreras reported that _ said to the Grievant "I didn't

know you guys were cops" (CX 6, pp. 22~23). This testimony from Contreras and Cappitelli establishes

that _was very much on the Grievant's mind during the

Grievant's drive to Elmhurst to pick up _ while in the

Elmhurst police stabion taking custody of _ and during the

drive from Elmhurst back to Des Plaines.

In his interrogation, Contreras also reported that IIIIIIII was not resist"nt when they picked him up in Elmhurst (CX 6,p. 21), and that during the drive back to Des Plaines _did not complain about anything or say anything that would proVide a

reas.onto stop the car before arriving at the nePitrtment (CX 6, p. 37). In addition, Gontreras (lid not report any sort of non-compliitnt behavior by _ at any pointdu:i;'ing the trip bitck

to Des Plaines (CX 6). The City argues that the Griev"rit's actions toward_

On August 12, 2010 were in retaliation for_ itlmost running

over another Deltit unit o:l;f;i.cer during the ,JitnUitrY 2010 failed

drug buy. This City e~plitnation is highly piitusible in light of

Cappitelli's and Contre:r:'as i testimoilY about the Grievant's

47

corarnents to Contreras during the drive Drom Des Plaines to

Elmhurst on August 12, 2010, the Grievant's question to _

when the Des Plaines offlcers picked )IP _ ih Elmhurst, and the Grievant's conversation with _ while he and Contreras

were driving _ back to Des Plaine.s from Elmhurst on August

12, 2010.

Pulling this together, I find that Grievant Bileno's

explanl;ltion for why he pulled the squad car into the City garage,

exited the vehicle! went around the rel;lr of the car to the right

rear door, opl"ned it, a,nd struck_in the face is not

remotely cred:i,ble, and his account will not be credited.

I slso find t.hat the Grievi"nt' s tots 1 and complete failure

to report his use of force agsinst _ on August 12, 2010

I'einfQ:tceS thes", conclusions. The Grievant admitted that, after he and Contreras pulled up to the Department building and

escorted _ inside, he did not .tell any other officer that

the Grievahtbelieved _ was trying to defeat his handcuffs,

he did not remembeI' if h.e told a,ny other officeI' that he had

struck _ in the hea,d, he did not h.ave a conversation with

Officer Contreras about striking _ and he did not report

striking _ to any member of the command staff (CX 5, pp. 89-90). The Grievsnt also sdmitted that he did not fill out a use of force report about striking _ nor did he fill out

any sort of report about striking_ during transport (CX 5, p. 90).

I note the following about the Department's Rules and its

General Orders:

48

The "e;tsion of General 0;tde;t10.Q;I. ("GO 10.0;1.") that was i\1~Ue(!t on AU

49

sq:uad car, w.ith the handcuffed _ in the back seat, into the

parking garage during the evening of August 12, 2010 is not

remotely cren.:Lble. }\.s a result, I find that, during the Grievant's interrogation on November 16, 2011, the Grievant was

not truthful in his eXplanation of why he struck _on August 12, 2010 (ex 5).

This untruthfulness conclusion is reinforced by other

evidence. In particular, during the Grievant's November 2011

interrogation, he was asked if he ever offered _ medical

attention (ex 5, p. 92). The Grievant replied that he did not because "there were no indications of injur;y" (eX 5, p. 92). However, this aspect of the Grievant's testimony is directly

contradicted by five other Department officers - Sgt. Mike

Holdman and Officers Brian Hart, Tom Boni"k, Tom Stancato, and

Ben Ruzicka - all of whom reported to]3urton during her investigation that they noticed that_ had a facial in.jury and allot whom reported that they ottered_ medical

attention (Gx 2). In addition, Bueno's statement on this dim",n$io)l is dirf;jot1y contradicted by August 12, 2010 booking PhotOgr"Ph,which shows _ right eye area as

bruiseq and his right eY: up_ (ex 5, pp. 73-74). HOwever, during

50

Contre.ras' interJ;'agiltian, he testified that the Grievant told him

(Contreras) about the January 2010 incident with _ (eX 5, Pl'" 13-14). In addition, the Grievant testi:i'd,e"C during his intBrrogation that he did not converse with _ in the ",qt;tad

car during the drive back tobes Plaines (CX 5, l"p. 78-79). lIowever,Officer CantJ;'eras testi:i'ied duringh.is ))Jovember2p:Ll interragatian that the GrievClllt and _ !;tad a cOnVer$atioh in the oar about the JanuaJ;' Z010inGident.Qontrera:s rE!j:>qrted that _sa.icl to the Gri'evant "I didn't know you gliYS wer$ coP'>"

(ex 0, Pl". 42-23). TELken t0get!;ter, thisevidjOlhde indiGELtes \:;hat the Gr;i.ey1;\nt's

"defeatEid hrisoneJ;'s a.nd .officers (ex 5, pp. 23-26). Th.e Grievant did not tell ELnyother officer whELt he was ctaing (eX 2, p. 24). The only ELGooun:tin the record a.fwhat tri'tl1sl"ired in tlie. pink roam on thELt. dM:e :Ls :the. Grievaht ' s

eiplanELtian. In the GrieYELnt' sNovernb.$r ZOl1 interJ;'agatian, the Grievant testifieq th.at _became "angry arid aggressive"

toward the G'dev

51

'tOld_ to "tHoldman filled :out a "criminal offense report" for batt!3ry

listing _ as the Offender (tx 13, Bates 000317-31'9), In the narrative section of Holdman'S report, Holdman wrote

that _ swung his arm at the Grievant and, arm

struck the Grievant in the face and neck (eXU, Bates 00(319). This infQrmation was told to Holdman by the Grievant (tx 13,

/Bates (00319). :the Oity says that the Grievant's first duty during this

in'teraotiQn with _ was to avoidoonfrontaticm., The Union sayl' that the Gt'ievant h,adt/:le right tQ defend himself against

adva,nQe's, In light of the fi;lct that the only evidenoe we\l.ave i;lpout. What happened ))",tweei) the Grievant and _ in the pink room oorol'S f;tomthe Grievant, I find th",t thE).eyid",n

52

Turniug 1;q the c:;ri$vi'lnt' sinte.ril-.ctii;} wi t4 qr ab(jut June 20Q9, the evidenoe shciws tM~ l:ii'l.G :P\"!e.n arrested (me dliY i and lifter he had. beep taken to the C;i ty J>qlice. station. he made a c(iilintent to another pr:i.sonerthat J:1\"! _ waS goipgto"fUck"tl:ie Gy'ieVE(l1t's d

53

proceeding the City has focused on two dimensions of the

Grievant's actions, (1) the Grievant's use of force, including the Grievant's failure to report his use of force, in violation

of General Order 10.01; and (2) the Grievant's untruthfulness, in violation of Rule 390.50 (G.Br. 2-4). Accordingly, in the instant Award I have followed the City's lead and not sought to

determine if the Grievant also violated the other Department

Rules and Regulations, or General Orders, specified in ex 7.

pulling this evidence together, it shows the following.

First, the Grievant improperly used force aga:inst __

al1d __ , in violation of Department policy, and he used

force against _ -. for the reasons described more

specifically above. Second, the Grievant failed to report the

use of fO+,ce against _, _, and_. Third, during

his Noyember 2011 interrogation the Grievant was untruthful about

why he used ubjustified and excessive force against_, also in violqj:ion Of Department policy. As indicated in the analysis above, the evipenGe provides very stroIlg proof of the Grievant's

egregious misconduct.

Due process considerations. At the same time, there is more

to the concept of di!,wipline for just C,qUSe thi;m proof of wrongdoing. The city also mU;;Jt satisfy the due process

considerations inoorporated into the jllst cause concept in order to demonstrate that just oause existed for the Grievant's termination. }\s noted in the I3tandard arbitral reference work:

1/ The primary reason arbitr,ators have inCluded certain basic due process rights within the concept of just cause is to help the parties prevent the imposition of discipline where there is little 0:1; no evidence on which to

hase .. a . jv.$t~Ga'Use(lisq!)i;\:t:g$ ... l'h'Us( QQnsideri3.t;LQ!lS of .;lnQustri!ll411$. j?rpcess ClS ClcolllPonent pf just "'a11.8e is an itlte

55

get them in legal trouble if they did not (UX 15C). The City learned about their misconduct, but it did not seek to terminate

them. Instead, the City disciplined Dvorak with an 18-day

suspensi.on and Roszkowiak with a 12-day suspension (UX 15C). The Union argues that this highly severe misconduct is more serious

than any misconduct the Grievant may have committed, yet these

two officers received only moderate suspensions.

As another example, the Union also notes that the City

argues that the Grievant's alleged untruthfulness constitutes an

independent, stand-alone basis for terminating him. In

contrast, Officer Larry Schroeder responded to a domestic

disturbance call in August 2006 and did not take any action on

the call (UX 15K). When asked by two sergeants about his lack of action, Schroeder gave them a completely untruthful response.

Schroeder subsequently admitted to lying to the sergeants about

what he did on the call. For his admitted untruthfulness,

Schroeder received a three-day suspension (UX 15K) . I agree that some of the discipline levied against some of

the officers included in UX 15A-L appears to be rather lenient in

light of their misconduct. However, I note that the officers and

their misconduct contained in UX 15 do not involve anyone charged

with use of excessive force against arrestees or other prisoners.

I also note that the officers and their misconduct contained in

UX 15 do not involve anyone charged with untruthfulness during a

police interrogation. As a result, the officers and their

misconduct included in UX 15 are not comparable to the Grievant

and his misconduct.

56

Look;i.pg itl",tead ".t t.M cUI'!ci'pl;Ltle "greed to by tM City, the

VniOp,

57

2) .

Why de$th:L.il deli'\Y ijiatter?Qhe re;as!) ist)J.at thi/? Clela!! :rn(l!! have resu1teClihthe lOllS of pertinent video E'!vidence of t)J.eGe inci.dE'!nts. that; mg.y hitve PE'!E'!n rE'!cO;!,Cleg. py thE'! DepClrtml'nt' s video ci'\I1\erail, but w)J.ih wa$. llot p:tesE'!r\reddlle to thE'! PepartI1\E'!nt'G poHC:Y .of not savi!)g vide.Qs unless they are mark;ed for ila.vingwlthln: thirty Clays of bE'!,ipg recordE'!d (Yr. 87) .We do. hot know whatperYihl'ntact:L.tlJ'lilClnd PE'!haviorG, ifa!)y, involving thE'! Grievant and _, _,g.hd/or IWererE'!POrded on

the DepClrtment's video systl'I1\ and not saved.. Nevertheless, it. is

possiblE'! that s.ome of thesE'! intE'!ractipns )l\ay have bE'!en rE'!.cordE'!d and then lost, and somE'! of thE'! lost vidE'!O evidence might have

bE'!en helpful to thE'! tTnion's dE'!fE'!nsE'! of thE'! Grievant.

Similarly, a relatedrE'!ason is that witnE'!ss mE'!mories mClY

have faded during this lengthy delay. I note that most of the

information rBported in Burton's investigativB r.epurt was

obtained duringher interviBws with a Large number of individuals

(OX 2),arrd it is possible thati3urton might havB obtained better information if therB had been little or no delay in initiating

her investigation.

Ultimately we will never know what information was lost by

the lengthy delay in conducting the City's investigation. But

the possibility that this delay may have prejudice'd th",a):)ility Of the tfniontQ defend the Grievant in this matter cannot pe Qverlooked. Accordingly, 1: find thClt the Mng delClY in thl' (Jity's inve&tiga.t;LonOf tI.le Grievant' smiscOI)duct, and the

58

concomitant. delay in disciplining the Grievant! .means the City's

dis

59

S11Qrtly tifte:r tbe. (>;t'iev.i,itit' $ $Gb11nt;er w:i;t:h_ in t;h., pinJs, rOQIitin ,Ja:n\1a:ry 2pio, Whet'e the Grievapt 11ag obViously useg force .0\1 _, Sgt.. /lblch!lanwrot.e a rep.o:rtdOC\1mertt;i.ng t):).i,$ incident (ex la, J:\;;tte;;J 000317-0119Y. In the narrative sectionqf t;his rep.ott, 1I91dm;;t!lstated th.

60

Cl:li!';t l;Cll$l:lner 1:1a.s beell ChiJ;l;E of pollce :tn the city since September 4, .2012 (Tr, 49'B~.46~). li

61

]1Bl3 o.f fp:t;C$,;;tPct thi'!.t he n$ver g;'lve th",G:t;i$Va.nt a positive P13:t'~9;t;tnance $valu/'itiop ;;til a tn$Ss;;tge t9 conCiot"", tM use of unn13Qes$,,:(y forde iTt .5(j\Hl63). Fotnier Qity MaPa.ger Slpwili,i?k:i t"'stifi",

occurred pti6t to th

tM. disoipline applied to O:E:Eicer contreras fOr his part in, the

_ inpidentand thei;'Mfter (OX 15). ll.S t11,1':;; inqitiiites, thi:;; grievaniJe is s.Mtaitled iil J;>iii't no::!

qenieq inp.iii;'t. I t:Lnd tht thEi :l;oJ,iawing constitute:, the

approprite rewe

64

appropriate use of force, with such training to be at the City's

expense.

I will retain jurisdiction for the limited purpose of resolving any remedy implementation disputes, including any

disputes about the applicability of the above~specified last

chance requirement to the Grievant during the three~year period

it is in effect.

65

AWARD.

For the reasons expressed above, I find that the City did

not have just cause to terminate Grievant John Bueno in March 2012, but the City did have just cause to discipline him. In other words, this grievance is sustained in part and denied in

part. The appropriate remedy is for the City to reinstate the

Grievant to a police officer position in the Department no later

than June 3, 2013, according to the remedy provisions specified

in the immediately preceding pages.

I retain jurisdiction for the limited purpose of resolving any remedy implementation disputes.

Champaign, Illinois May 3, 2013

Respectfully submitted,

Peter Feuille Arbitrator