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IN THE MATTER OF ARBITRATION BETWEEN

FRATERNAL ORDER OF POLICE |

and its Affiliated Local 8 |

Union | OPINION AND AWARD

|

And | Discharge Grievance

| Reinaldo Casas, Grievant

CITY OF MIAMI BEACH, FLORIDA | FMCS Case No. 13-54638-3

Employer/City |

| Award Dated: July 29, 2014

Date and Place of Hearing: March 6, 2014 Continuing on April 15, 2014

Offices of the City

Miami Beach, Florida

Date of Receipt of Post Hearing Briefs: July 9, 2014

APPEARANCES

For the Union: Eugene G. Gibbons, Esq.

BG Law Offices

100 S.E. Third Avenue, Suite 1300

Fort Lauderdale, Florida 33394

For the Employer: Michael L. Elkins, Esq.

Bryant Miller Olive Law Offices

1 S.E. 3rd

Avenue, Suite 2200

Miami, Florida 33131

ISSUE

Whether or not the City had sufficient just cause to discharge Grievant Reinaldo Casas?

If not, what shall the remedy be?

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WITNESSES TESTIFYING

Called by the City Called by the Union

Sgt. George Garcia, Alberto Penalver, MD

Internal Affairs Investigator Psychiatrist

Miami Beach Police Department

John W. Buhrmaster, Felix Ortega

Deputy Chief Lieutenant [Ret.]

Miami Beach Police Department Miami Beach Police Department

Ray Martinez, Sgt. Ibrahim Garcia,

Chief of Police Criminal Investigations Unit

Miami Beach Police Department Miami Beach Police Department

Sylvia Crespo-Tabek, Det. Orlando Sosa

Human Resources Director Criminal Investigations Unit

City of Miami Beach Miami Beach Police Department

Det. Mario Pena

Criminal Investigations Unit

Miami Beach Police Department

Idilio Lorenzo Godinez

Friend of Grievant

H. Chip Walls,

Forensic Toxicologist

Reinaldo Casas, Grievant

Criminal Investigations Unit [Discharged]

Miami Beach Police Department

JURISDICTION

The issue in dispute was submitted to James L. Reynolds acting as a sole Arbitrator for a

final and binding resolution under the terms set forth in Article 3 of the Collective

Bargaining Agreement between the parties (Joint Exhibit 1) and under the rules of the

Federal Mediation and Conciliation Service. The Arbitrator was selected by the parties

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from a list of names of arbitrators submitted to them by the Federal Mediation and

Conciliation Service. The parties stipulated at the hearing that he had been properly

called and that the grievance was properly before him for a decision.

At the hearing the parties were given full and complete opportunity to examine and cross-

examine witnesses and present their proofs. Final argument was provided through post

hearing briefs which were received by the agreed upon deadline. With the receipt of the

briefs of the parties by the Arbitrator, the record in this matter was closed. The issue is

now ready for determination.

STATEMENT OF THE ISSUE

The issue in this case is:

Whether or not the City had sufficient just cause to discharge Grievant

Reinaldo Casas? If not, what shall the remedy be?

The grievance [Joint Exhibit 16] is dated March 13, 2013 and reads in substantive part as

follows:

Statement/Nature of Grievance:

On February 27, 2013, I was terminated without sufficient just cause for alleged

violation of the Random Drug Screening MOU. I was selected and willfully reported and provided a urine sample on January 11, 2013. Subsequently, my

urine sample tested positive for a controlled substance (cocaine). I had the second or split sample retested at a laboratory of my choosing and it confirmed

the original result. Having never knowingly used cocaine, I was baffled,

perplexed and confused as to how these results could be possible. However,

over time, heavy deliberation and the insight of others, I was able to pin point the

cause of the positive test result to a sexual aid cream/gel by having it tested at a

lab. The gel/cream was provided to me by a friend to assist my sexual

performance and he never told me it contained cocaine. My girlfriend had

used/applied the gel substance to enhance our sexual intercourse in the days just

prior to my drug screening. The substance was never ingested, inhaled, injected,

or insufflated; it was absorbed through the skin. I provided this information as

well as other supporting documentation during my Pre-determination Hearing in

an embarrassing hearing in front of the Chief of Police and others.

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Subsequently, Internal Affairs opened an investigation into the matter and

confirmed what I had told them. The City did not consider any mitigation

whatsoever nor did they follow their own principles of progressive discipline. I

sum, I never deliberately, knowingly or willfully used or ingested cocaine.

Contract Article(s) Alleged Violated:

Article 5 Management Rights, (Just Cause).

SOP #10 Internal Affairs and Discipline Random Drug Testing Policy

And All Other Provisions Which May Apply

Suggested Adjustment

Reinstatement to my position as a Homicide Detective to include all back pay

including overtime lost, benefits and seniority.

The City denied the grievance at the first step on October 10, 2013, stating that there was

sufficient cause for the termination of the Grievant. Intermediate steps in the grievance

procedure failed to resolve the dispute or were waived and the grievance was moved to

arbitration.

The Section of the Collective Bargaining Agreement that provides for a just cause

standard to be applied in discipline cases is found in ARTICLE 5 MANAGEMENT

RIGHTS. It reads as follows:

Article 5 Management Rights

It is recognized that except as stated herein, the City shall retain all rights

and authority necessary for it to operate and direct the affairs of the City

and the Police Department in all of its various aspects, including, but not

limited to, the right to direct the work force, to plan, direct, and control all

the operations and services of the Police Department, to determine the

methods, means, organization, and personnel by which such operations

and services are to be conducted; to assign and transfer employees; to

schedule the working hours; to hire and promote; to demote, suspend,

discipline or discharge for just cause, or relieve employees due to lack of

work or for other legitimate reasons; to make and enforce reasonable rules

and regulations; to change or eliminate existing methods, equipment, or

facilities; provided, however, that the exercise of any of the above rights

shall not conflict with any of the expressed written provisions of this

Agreement and that a grievance may be filed alleging such a conflict.

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The Collective Bargaining Agreement also provides at Article 11 for random drug

screening, and it is not disputed that the City had contractual authority to order the

Grievant to submit to such screening.

A 1991 Memorandum of Understanding [Exhibit 2 in Joint Exhibit 6] incorporated by

reference into the Collective Bargaining Agreement provides for substance abuse testing

procedures. At Section V of that Memorandum of Understanding the analysis procedures

of the testing process are specified. They provide for an initial positive test level of 50

ng/ml for metabolites of cocaine. The Procedures also require a confirming test using gas

liquid chromatography/mass spectrometry (GC/MS) methods. At Section VI

DISCIPLINARY ACTION of the Memorandum of Understanding discipline is provided

for as follows:

All employees whose confirmatory test results in a positive finding for

controlled substances, will be subject to the full range of discipline as

provided in the Miami Beach Police Department Work Rules and City of

Miami Beach Personnel Rules up to and including termination.

In addition to the above cited contract language the City has promulgated certain policies

that bear on this case. They are contained in S.O.P. #135 Drug Testing [Joint Exhibit

2] and City of Miami Beach Employee Policy Handbook Drug Free Awareness

Program [Exhibit 1 in Joint Exhibit 6]. The Grievant certified on February 17, 1999 that

he read the policies contained in the Employee Handbook, and was given a copy to keep

in his possession. The Drug and Alcohol Misuse Prevention Policy contained in Exhibit

1 of Joint Exhibit 6 provides, inter alia, as follows:

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DRUG AND ALCOHOL MISUSE PREVENTION

* * * *

PROCEDURES

* * * *

6. Safety sensitive employees will be subject to random drug and

alcohol evaluation in accordance with Title 49 Code of Federal

Regulations (CFR), part 40.

7. All employees who test positive to a drug or alcohol test must be

evaluated and released to duty by the Substance Abuse Professional (SAP)

before returning to work. Safety sensitive employees with positive test

results will also be subject to a minimum of 6 unannounced tests over a 12

month period, and for up to 5 years. All other employees may be similarly

evaluated as deemed appropriate by the SAP.

* * * *

PROCEDURES

I. TESTING

* * * *

E. Return to Duty and Follow up

* A Return to Duty evaluation is conducted when an individual who

has violated the prohibited alcohol/drug prohibitions outlined above

returns to work... Employees who test positive to any of the above

evaluations must test negative and be evaluated and released to duty

by the Substance Abuse Professional (SAP) before returning to work.

* Safety sensitive employees with positive test results will be subject

to a minimum of 6 unannounced tests over a 12 month period and

may be tested for up to 5 years.

* * * *

IV. DISCIPLINARY ACTION

* Violation of this policy will result in disciplinary action up to and

including termination.

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* Employees not able to perform safety-sensitive duties or other

functions of their position due to testing positive to a drug or alcohol

evaluation, may receive a reduction in pay in accordance with

Personnel Rule IX, Section 5a and b.

FACTUAL BACKGROUND

Involved herein is a grievance which arose when the Grievant was discharged on

February 26, 2013. The Employer is a municipal corporation chartered under the laws of

the State of Florida. As such it provides a variety of municipal services to the community

of Miami Beach including that of law enforcement. The Union is the exclusive

bargaining representative for the police officers covered under the parties Collective

Bargaining Agreement. The parties have maintained a collective bargaining relationship

for many years.

On January 11, 2013 the Grievant was selected for a random drug test pursuant to the

June 10, 1991 Memorandum of Understanding incorporated into the Collective

Bargaining Agreement. The Grievant provided a urine sample at the designated testing

laboratory on January 11, 2013. On January 15, 2013 the Citys Certified Medical

Review Officer, Dr. Droblas, reported to the Grievant and the City that the Grievants

urine tested positive for metabolites of cocaine. The Grievant was immediately placed on

paid administrative leave pending the outcome of testing from a split portion of the

Grievants urine sample. The split sample was tested by a separate testing facility

selected by the Grievant. On January 25, 2013 the split sample was found to be positive

for metabolites of cocaine, and those results were forwarded to the Grievant and the City.

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After the City was advised by Dr. Droblas of the positive initial test results on January 15,

2013 the Grievant met with Internal Affairs Deputy Commander Buhrmaster and Captain

Shimminger. The Grievant was accompanied by Union President Bello. The positive test

results were described to the Grievant, and he opined that those results could have been

caused by medications he received while recently hospitalized for a urinary tract

infection. The Grievant was accompanied to the hospital by Sergeants Garcia and Ozaeta

where he obtained the medical records from his recent hospitalization. The Grievant and

Sergeants Garcia and Ozaeta then went to the office of Medical Review Officer, Dr.

Droblas. After speaking privately with Dr. Droblas the Grievant advised the Sergeants

that Dr. Droblas was not willing to consider the possibility that the positive test results for

cocaine were due to the medications he received while hospitalized.

Believing that he did not knowingly take cocaine the Grievant also opined that his urine

sample may have been tampered with by a person at the testing site with whom he had a

brief relationship that did not end amicably. That possibility was eliminated when the

split sample was also found to be positive for metabolites of cocaine.

On February 6, 2015 the City issued an Intent to Discipline notice to the Grievant. The

notice provided that the City was intending to remove [terminate the employment] of the

Grievant based on the following charged violations:

1. Memorandum of Understanding of June 10, 1991. Substance Abuse

Testing, Section VI - Disciplinary Action.

2. Miami Beach Police Department (M.B.P.D.) Manual, Department

Rules and Regulations (DRR) #6.28.3.1 Conduct Unbecoming.

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3. Personnel Rule X, Section 2, Removals, (b)5 Using an Illegal Drug

Whether on or Off Duty.

4. Violation of Drug and Alcohol Misuse Prevention Policy - Prohibited

Conduct Relative to Alcohol and Controlled Substances.

5. Personnel Rule X, Section 2(b)18 Disgraceful Conduct.

In the Intent to Discipline Notice served on the Grievant the City noted the following

prior discipline the Grievant had received while employed by the City.

01/26/07 Written warning for SOP #097, Court Attendance and Documentation

01/12/07 Documented Verbal Conference for SOP #057 VII, I(10)

Attendance/Payroll/Classification/Duties/Responsibilities

12/01/06 10-hour suspension for SOP #133, Impound Tow Procedures and

Personnel Rule X, Section 2(b)2, Willful Violation of Work Rules

06/20/06 Documented Verbal Conference for SOP #097, Court Attendance

And Documentation

01/18/06 20-hour suspension for SOP #6.7.2 Courtesy and Respect and

Personnel Rule X, Section 2(b)2, Willful Violation of Work Rules and

DRR 6.7.2, Courtesy and Respect

03/20/03 Written Warning for SOP #011 Off Duty/Secondary Employment.

A Pre-Determination hearing was held on February 11, 2013 where the Grievant was

provided the opportunity to present additional evidence on his behalf. At the Pre-

determination hearing the Grievant opined that the positive test results were caused by his

use of a sexual enhancement cream provided earlier to him by a close friend, Idilio

Godinez. The Grievant claims that he had suffered from erectile dysfunction and had

confided that to Mr. Godinez. The Grievant and Mr. Godinez testified that on January 6,

2013 Mr. Godinez provided some cream resembling Vaseline to the Grievant with the

advice that it would help him in his sexual liaisons. The Grievant testified at the Pre-

Determination Hearing and at the Arbitration Hearing that he and his girlfriend Ms. Lissie

Martinez had used the cream during sexual intercourse on January 6, 8, 9 and 10, 2013,

and that it had helped the Grievants performance. The Grievant was tested and found

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positive for metabolites of cocaine in the course of a random drug test on January 11,

2013.

The Grievant avers that he had never knowingly used controlled narcotics, and was

baffled by the results when they came back positive for metabolites of cocaine.

Following discussion with his Union attorney, he became focused on the cream as a

possible source of his testing positive. The remaining cream was tested on January 25,

2013 and found to contain cocaine. The Grievant asserted at the Pre-Determination

Hearing that the cream was the likely source of his positive test results, and that he had no

idea that the cream contained cocaine at the time he used it.

Sworn affidavits from Mr. Godinez and Ms. Martinez dated February 2, and February 1,

2013 respectively were offered at the Pre-Determination Hearing. The City, through the

Internal Affairs Unit of the Police Department continued its investigation. On February

19, 2013 it interviewed Ms. Martinez and Mr. Godinez. Ms. Martinez was interviewed

again on February 20, 2013. On February 22, 2013 it interviewed the Grievant.

In the course of his interview Mr. Godinez testified that he obtained several small

packages of the cream from an old Cuban guy who gave it to him in gratitude for being

supplied some political campaign signs which Mr. Godinez had in his possession

pursuant to his role as a lead campaign worker. The cream was contained in small plastic

purple containers, resembling pill boxes approximately one inch by one inch by one-half

inch. They had no markings on them to indicate who had made the cream or what it

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contained. The old Cuban guy was reported by Mr. Godinez to have said that the

cream would help him. Mr. Godinez elaborated during the interview that he had tried the

cream himself and it did help him in his sexual encounter.

Mr. Godinez testified at the Arbitration Hearing that he knew from prior conversations

with the Grievant that he was having trouble maintaining an erection during sexual

intercourse. On his way to a fishing outing, Mr. Godinez briefly stopped by the

Grievants home on January 6, 2013 and left a container of the cream. At the Arbitration

Hearing he testified that he did not go into any detail about the cream, only stating that it

would help him with his problem. The Grievant and Ms. Martinez used the cream during

sexual intercourse later that day and again on January 8, 9, and 10, 2013.

After receiving the sworn statements of Mr. Godinez, Ms. Martinez and the Grievant, the

City terminated his employment effective February 26, 2013 based on the original

charges in the February 2, 2013 Notice of Intent to Discipline. On April 16, 2013 Internal

Affairs Investigator Sergeant Jorge Garcia published his Internal Affairs report in this

case [Joint Exhibit 17]. On April 20 - 23, 2013 a Disposition Review Panel sustained all

the charges against the Grievant and recommended to the Chief of Police that his

employment be terminated. The termination of the Grievant was timely grieved in March

2013 following his termination effective February 26, 2013.

The record of this hearing shows at Joint Exhibit 19 that the Florida Department of Law

Enforcement Criminal Justice Standards and Training Commission scheduled a Probable

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Cause Determination proceeding to consider filing an administrative complaint or to issue

a letter of guidance to the Grievant. There is nothing in the record to show if such a

proceeding was actually held or what disposition the CJSTC made in the matter.

POSITION OF THE PARTIES

Position of the City

The City argues that the preponderance of the evidence shows that it had sufficient just

cause to discharge the Grievant; the grievance should be denied, and the discipline should

remain undisturbed. It contends that it has met the familiar seven tests for just cause, and

that when an employer has met its burden of proving that an employee is guilty of

misconduct, an arbitrator has no authority to second guess the employers decision

regarding the appropriate penalty.

The City further argues that the evidence is overwhelming that the Grievant committed

the misconduct for which he was discharged and that all the other aspects of cause were

satisfied; therefore the grievance should be denied. The City notes that there is no dispute

that the Grievant tested positive for cocaine, and his explanation for how he came to

ingest cocaine via the cream is unbelievable. In any event, as a Police Officer the

Grievant should have been aware of what he was putting into his body. The City argues

that the Grievant can no longer be an effective witness in a criminal trial with a positive

cocaine test on his record.

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The City contends that the Grievants Toxicologist and Psychiatrist witnesses do not

establish mitigation. Dr. Penalver could not provide any conclusions or opinions that

were supported by any actual evidence. He could not state whether the Grievant used

cocaine, which is the sole issue in this case. Mr. Walls testified that the Grievant could

have ingested cocaine in the manner claimed by the Grievant, but that is not disputed.

His testimony should be given no weight.

The Grievants claim that Jorge Mercado engaged in a similar violation but did not

receive as severe discipline is off target, and overlooks a huge distinction. Officer

Mercado did not commit the same violation. In order to establish an unequal treatment

defense, the employee must show not only that he/she was treated differently, but must

show that the circumstances of his conduct was substantially the same as that of those

who were treated more advantageously. The Grievants comparator did not ingest

cocaine.

The remaining tests for just cause are not or cannot reasonably be disputed. The

reasonableness of the rule violated, whether there was an investigation, and proportionate

penalty either are not or cannot reasonably be in dispute.

Position of the Union

It is the position of the Union that the City did not have just cause to terminate the

Grievant, and he should be reinstated to his former position and made whole. In support

of this position, the Union argues that the City operated in a vacuum and refused to give

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proper, fair and just consideration for the factual circumstances surrounding, influencing

and causing the Grievants positive drug test. The City completely disposes of the fact

that he did not knowingly, purposefully or intentionally ever use or possess cocaine.

Such a static position defies logic, common sense and more importantly the fundamental

legal principles associated with just cause.

The City admitted that it does not have a zero tolerance policy relating to drug testing.

Its policies clearly indicate a safety-sensitive employee who tested positive for intentional

misuse can/may still return to work after evaluation and rehabilitation. Its policies clearly

contradict the zero tolerance approach applied to the Grievant. In the present case the

City violated its own policy and never afforded the Grievant an opportunity for an

evaluation with a Substance Abuse Professional (SAP).

The City unilaterally discarded the principle of utilizing progressive disciple when

deciding the Grievants case. For this abuse of discretion alone, the Grievant should be

reinstated.

The credible evidence contained in the record proves that the Grievant had no knowledge

or reason to believe that the ointment given to him by his friend of over thirty years

contained cocaine. Nowhere in the IA reports or in any other document/memorandum

does anyone from the City ever state that they didnt believe the Grievant or his

witnesses. The first the City revealed this as their excuse for terminating the Grievant

was at the arbitration hearing.

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Chief Martinez directly testified that he terminated the Grievant because he willingly

and knowingly ingested cocaine and this is not acceptable. Chief Martinez did not offer

any proof of the Grievants willfulness or knowledge that the ointment contained cocaine

other than he ingested it and then tested positive.

Renowned Toxicologist Chip Walls testified unequivocally that the application of the

ointment during sex was in fact a logical and more importantly a toxicologically sound

reason for the Grievants positive test result of 373 ng/ml. Furthermore, Dr. Penalver

testified that he found no physical or mental indicators that the Grievant had used cocaine

in its typical fashion.

Human Resources Director Crespo refused to hear and decide the grievance at the third

step because she was personally biased and had already made up her mind about his guilt.

Chief Martinez admitted that he did not have any evidence whatsoever to refute Ms.

Martinezs or Mr. Godinezs statements to Internal Affairs. Yet he totally discredited

their version of the events, and finds the Grievants explanation unbelievable. Ms.

Martinez and Mr. Godinez agreed to submit to polygraph evaluation, but the Department

never requested them to do so.

The City clearly violated the Grievants procedural due process rights when they totally

discarded the normal procedure for internal affairs investigations/disciplinary cases.

Internal Affairs didnt finalize their investigative summary report until April 16, 2013 and

the Disciplinary Review Panel had not yet substantiated the claims against the Grievant

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and recommend termination until April 18, 2013. Yet the Grievant was quickly

terminated on February 26, 2013, long before all these steps were concluded. It is

patently unfair to suggest a subordinate is going to contradict a decision already made by

the Chief of Police, especially after final action has already been taken.

Finally, the Grievant deserves the benefit of doubt, and his service record should be given

proper consideration. His employment history in law enforcement has been long and

positive and he has been subject to numerous random drug screening and pre-employment

screen drug tests over the preceding years. He never tested positive before this case. He

is not the intentional cocaine user/abuser the City wants the Arbitrator to believe. The

evidence presented in this case proves his absorption of the substance was unintentional.

His long and stellar service record and the complete lack of any behavioral and/or

physical signs are direct evidence in this regard.

The fair and equitable result in this case should be that the Grievant be allowed to

continue his law enforcement career and resume his dedicated service on behalf of the

citizens of Miami Beach.

ANALYSIS OF THE EVIDENCE

The matter in dispute in this case is whether or not the discharge of the Grievant is

supported by sufficient evidence to show just cause for his termination. The issue as

stipulated to by the parties and the controlling contract language clearly burdens the City

to show that it had just cause to terminate the employment of the Grievant. The

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controlling contract language found in Article 5 reserves to management the right to

discipline and discharge employees subject to a just cause limitation. The contract is

silent, however, in defining what the parties intended in regard to the obligations of the

City in meeting that just cause requirement. In particular the contract does not specify the

quantum of proof the City must produce to meet that standard. It is well settled that

employers are not required to meet an unreasonable standard in showing that they had just

cause to impose discipline.

Most arbitrators will apply the standard of a preponderance of the evidence in both

disciplinary and contract interpretation cases. That standard requires that more evidence

is presented in the record to show that the disciplined employee committed the acts he/she

is accused of than evidence showing that he/she did not. In cases involving criminal

activity or moral turpitude some arbitrators will apply a higher standard of clear and

convincing evidence based on the belief that termination for such charges would

substantially limit the ability of the employee to find future employment. The highest

standard of beyond a reasonable doubt is rarely applied in arbitration cases. Moreover,

some arbitrators will render their awards without stating what standard of proof they have

applied. In any event, it is reasonable to expect that all arbitrators will require that the

record shows sufficient evidence to convince a reasonable person that the standards of

just cause have been met.

It is also important to note that in the 1991 Memorandum of Understanding incorporated

into the Collective Bargaining Agreement shows that the parties have agreed that police

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officers are subject to random drug testing. The MOU also provides for testing

procedures, standards for a positive test, and a range of disciplinary options to be applied

when an employee tests positive above the prescribed standards. It is apparent from a

careful reading of that MOU that the parties have not agreed to a zero tolerance

approach to discipline when an employee is found to test positive above the prescribed

standards. In other words, termination of employment is not the automatic consequence

of a positive drug test under the terms of the MOU. While termination of employment is

provided for, it is not an automatic or mandated level of discipline.

Both parties to this dispute cited the familiar seven tests for just cause first articulated by

the distinguished arbitrator Carroll R. Daugherty in Enterprise Wire Co. (46LA 363,

1966). The tests Arbitrator Daugherty posited are 1) reasonable rules and orders, 2)

notice, 3) investigation, 4) fairness of the investigation, 5) proof, 6) equal treatment, and

7) fairness of the penalty. The parties positions with regard to each of these tests was

carefully analyzed and given due consideration. Careful attention was also given to all

the contract language, evidence, and arguments of the parties in arriving at the award in

this case.

The reasonableness of a rule requiring a police officer employed by the City to avoid

using narcotics is obvious and unchallenged. It is also unchallenged that the Grievant had

notice of the rules and policies he is accused of violating. Accordingly, the

reasonableness and notice tests for just cause are shown to have been met.

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The record shows that the City initiated an Internal Affairs investigation immediately

upon learning that the Grievant had a positive test result. In the course of that

investigation Ms. Martinez, Mr. Godinez and the Grievant were interviewed. The IA

investigation is deemed to be sufficiently thorough. An Internal Affairs investigation is,

however, only one element of ensuring that the due process rights of an employee are

observed and a just determination is arrived at. Just cause for discipline requires more

than simply initiating an Internal Affairs investigation. There must be independent

review of the findings of that investigation before disciplinary action is taken. Indeed the

duty of the Internal Affairs investigator is to determine the facts of a case, and not to

recommend disciplinary actions.

The process for ensuring the due process rights of an employee is to have the findings of

the Internal Affairs investigation independently reviewed by a Disposition Review Panel

of Command Officers. Upon completion of their review of the IA findings they issue a

recommendation to the Chief of Police as to the discipline to be imposed. The record

shows that process was not followed in the instant case.

The Grievant was terminated on February 27, 2013 before the IA report was issued on

April 16, 2013 and before the Disposition Review Panel issued a recommendation on

April 23, 2013 to the Chief of Police that the Grievant be terminated. The fairness

standard for just cause cannot be considered to have been met when the Grievant was

terminated nearly two months before the IA report was published and the findings

reviewed by the Panel. These due process requirements are not mere niceties, and they

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are not optional. The City has averred in this case that the IA report was substantially

complete at the time the Grievant was terminated. There is no reason to believe that was

not so, but it does not relieve the City of its requirement to follow fundamental due

process. Whether the outcome in this case would have been any different had the

Grievant not been terminated until after the appropriate completion of the IA report and

the review had been completed will never be known. That is not the point, however.

What must be observed is the notion of due process. Clearly the review panel would

likely be biased in its review of the IA findings by knowing that the Grievant had already

been terminated by the Chief of Police. The likelihood of that bias, whether intentional

or not, is sufficient to find that the fairness standard of just cause was not met in this case.

As to the matter of proof, the record shows that the Grievant tested positive for

metabolites of cocaine. That is not disputed. What is disputed is how the Grievant

happened to have cocaine in his system. The City argues that is not relevant. What is

relevant is whether the Grievant knowingly introduced cocaine into his body.

The record shows that the Grievant was suffering from erectile dysfunction and had

confided his condition to a friend, Idilio Godinez. Mr. Godinez and the Grievant both

testified without serious challenge that Mr. Godinez provided the cream to the Grievant,

without describing what was in it or how he happened to obtain it. Mr. Godinezs

testimony at the arbitration hearing that he obtained it from an old Cuban guy who he

did not know in gratitude for being supplied campaign signs borders on the laughable.

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Such testimony, while not challenged by other evidence, would require a reasonable

person to stretch believability beyond credible limits. In determining the credibility of the

individuals involved in this case it is important to separate how the Grievant obtained the

cream from how Mr. Godinez states that he came to possess it. The record compels a

finding that the Grievant obtained the cream from Mr. Godinez, who left a container of it

at the Grievants home with only the advice that it would help him with his sexual

performance. While Mr. Godinezs testimony as to how he obtained the cream is highly

suspect, there was no evidence presented to challenge his explanation. More

fundamentally, it matters only that the Grievant obtained the cream from Mr. Godinez, a

friend who was aware of the Grievants condition and who worked in medical research

according to his testimony. Importantly, there is no evidence in the record to show that

the Grievant was aware the cream contained a controlled substance at the time he and Ms.

Martinez used it.

The Grievants and Ms. Martinezs statement to Internal Affairs establishes that they used

the cream, which ultimately tested positive for cocaine, during sexual intercourse for

several days just before the Grievant was tested. Forensic Toxicologist Walls testified

that using the cream in the manner described by the Grievant could have been the

pathway for cocaine to be present in the Grievants system. For all of these reasons, the

record compels a finding that the Grievant had cocaine metabolites in his system due to

using a cream which he did not know contained cocaine.

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It is important to distinguish between knowingly using a controlled narcotic for illegal

purposes and unknowingly doing so. Here the testimony of Dr. Penalver shows that the

Grievant had no signs of cocaine abuse. That adds further support to the conclusion that

the Grievant unknowingly applied the substance. The record does not contain sufficient

proof that the Grievant knowingly used cocaine.

The Union argues that the Grievant was afforded disparate treatment from that afforded to

Jorge Mercado. While the instant case and that of Mercado are clearly different,

Mercados case shows that the City has not followed a zero tolerance policy and

terminated employees who were found to have controlled substance in their systems

regardless of the circumstances. The City avers that the evidence in the Mercado case

believably showed that that his mother had given him prescription medication to alleviate

a headache, whereas the Grievants explanation is simply unbelievable. Moreover, the

City argues that a different Chief of Police made the decision in the Mercado case. That

is not convincing proof that the Grievant was afforded equal treatment. What can be

discerned from the comparison of the instant case to the Mercado case is that that the City

has not consistently followed a zero tolerance policy is such cases.

As to the fairness of the penalty, the question is whether the penalty is proportional to the

proven offence and the work record of the Grievant. Here the guilt of the Grievant is not

established by the record evidence. Accordingly, proportionality of the penalty does not

apply. Had there been a preponderance of evidence showing that the Grievant had

knowingly used cocaine the penalty of termination could be considered reasonable given

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the nature of law enforcement duties. Absent such a showing, discipline of the Grievant

is not warranted. Moreover, the record shows that the Grievant had not received any

prior discipline for six years prior to the instant event. The discipline he received from

2003 through 2007 was unrelated to the charge of using a controlled substance. The

record in this case also shows that the Grievant was a respected and productive Detective

in the Homicide Unit. That serves also to mitigate in his favor.

For all the above cited reasons the discharge of the Grievant is found to not be for

sufficient just cause. Arbitrators do not lightly overturn the decisions of management in

disciplinary cases. They will not hesitate to do so, however, if the record of the hearing

shows that the evidence does not support the actions taken by an employer. A reasonable

person, having reviewed the entire record of this proceeding would conclude that the City

did not have sufficient just cause to discharge the Grievant. For all of the above cited

reasons the grievance must be sustained.

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IN THE MATTER OF ARBITRATION BETWEEN

FRATERNAL ORDER OF POLICE |

and its Affiliated Local 8 |

Union | OPINION AND AWARD

|

And | Discharge Grievance

| Reinaldo Casas, Grievant

CITY OF MIAMI BEACH, FLORIDA | FMCS Case No. 13-54638-3

Employer/City |

| Award Dated: July 29, 2014

AWARD

Based on the evidence and testimony adduced at the hearing the grievance is sustained.

The City did not have sufficient just cause to discharge Grievant Reinaldo Casas.

The Grievant is to be returned to his position as a Detective in the Homicide Unit of the

Miami Beach Police Department with unbroken seniority. The Grievant is awarded back

pay at his regular rate of compensation for all regular hours he was denied by reason of

his discharge. No award of overtime pay is made. To be deducted from the back pay

award herein are any sums the Grievant received from Unemployment Compensation

which he is not obligated to repay, and any compensation he received through

employment he undertook as a result of being discharged by the City.

The Grievants return to work is conditioned on his being evaluated and released to duty

by the Substance Abuse Professional (SAP) pursuant to the Citys Drug and Alcohol

Prevention Policy entered into evidence in this proceeding as Exhibit 1 of Joint Exhibit 6:

Procedures - Paragraph 7. As such he will be subject to a minimum of 6 unannounced

tests over a 12 month period, and for up to 5 years as provided for in the above referenced

policy.

Jurisdiction of this arbitrator is retained for a period of sixty (60) days from the date of

this award to assist the parties, if requested, with its implementation.

July 29, 2014 James L. Reynolds _________________________________ ______________________________

Dated James L. Reynolds,

Arbitrator

Awd 16.14