By John V. Berry, www.berrylegal.com
We often have represented police officers in our legal practice in arbitration proceedings in regards to their disciplinary cases. While each police department and collective bargaining agreement (CBA) with each different police union varies, many of the processes are the same. This article discusses some of the unique aspects of the police grievance and arbitration process and how we get to this point.
Prior to Arbitration - The Investigation Process
Each serious disciplinary case involving a police officer will almost start with an investigation. There are varying types of internal investigations, so it is important to understand your own department or agency’s internal investigatory processes. Most departments have an internal affairs unit or office of professional responsibility for more serious disciplinary cases. For less serious cases, investigations may be taken on by direct supervisors. Generally, the officer is interviewed by investigators often with the assistance of a union representative. Once the investigative process in complete, a recommendation closing the case or referral for potential discipline is provided by investigators. If discipline is recommended it is reviewed by human resources personnel.
If a department’s human resources personnel and/or managers decide that disciplinary action against an officer or agent is appropriate, the next step for the department is to analyze the proposed discipline. Once the proposed disciplinary action is considered and issued, the officer or agent will generally have the opportunity to respond to the proposed discipline before a decision is issued. When the final disciplinary action is issued, depending on internal appeals procedures, the union CBA or applicable laws, the officer must decide where they can appeal the action. In most cases, that the officer will likely consider arbitration as an option, where applicable.
Depending on the CBA in place, an officer or agent affected by a disciplinary action might have to first file a grievance (written dispute) of the disciplinary action or, in some cases, seek permission to go to arbitration directly from a police union. Either way, if not resolved, the matter can potentially move to the arbitration process for a decision. Again, depending on the specific process involved there can be a number of options. Depending on the grievance procedure, an officer and police union can have between 2 and 5 steps to the grievance process before requesting arbitration.
Arbitration Hearing Process
The most typical situation where an officer takes their case to arbitration involves serious disciplinary actions such as termination cases or serious suspension cases. In such cases, the burden of proof is typically on the government agency to show that the action taken was for “just cause.” Just cause is a standard which essentially means that the government had a legitimate and provable reason for taking the action that it did and that when all factors, including mitigation are considered, that the action was just. In most cases, the police union has to approve the officer's request to go to arbitration. In many cases, we present the case that a matter should go to arbitration to the police union involved before it can even go to arbitration.
For police officer arbitrations, one arbitrator is usually selected jointly by the parties to hear the case. The arbitrator is not employed by the government and instead is compensated equally by both sides in most cases. As a result of this process, arbitrators tend to be fairer in hearing cases than administrative judges. They are paid by both parties. There is generally less of a desire to uphold a decision that is wrong than if the officer was before an administrative judge. Administrative judges generally tend to rule more often in favor of the government than an arbitrator.
Following the selection of an arbitrator, usually a senior lawyer or retired judge with a background in hearing law enforcement matters, the disciplinary case is then set for a hearing. In preparation for the hearing, each side will gather witnesses and documentation in order to present their side. In many police arbitration cases, management presents manager witnesses and the police union will present witnesses who are mostly officers. Exhibits often consist of investigative interviews, the personnel action taken, redacted similar personnel actions, general or department orders, witness statements and an officer’s personnel records. Sometimes, expert witness reports, prior arbitration decisions or other documents may be introduced by the parties.
The hearing generally begins with opening statements by both the officer’s union and the department’s representative or counsel. Typically, after opening statements, the department’s case goes first because they have the burden of proof to show why the officer should be disciplined. They will examine witnesses and present their case as to why a police officer should be disciplined. Each of the department's witnesses will be examined by the union counsel. Following the department's case, the union will present their case as to why the discipline was unfounded.
Following the hearing, the parties may present post-hearing briefs summarizing their arguments. The arbitrator will then issue a decision in the case. Depending on the jurisdiction, it is often the case that the decision is final within 30 days. However, it is important to examine each jurisdiction for specific rights of all of the parties.
Depending on the venue for the police arbitration, their are generally appeals rights for the police officer facing disciplinary action if he or she loses; the department can often appeal. The losing party can generally appeal the case. That being said, it is hard to overturn a case once an arbitrator has issued a decision. The key is to attempt to present the best case during the arbitration process for the police officer. The most successful type of appeal generally involves the allegations that the arbitrator did not properly interpret the law. Generally, arguments that an arbitrator did not decide a case fairly or evaluate credibility properly are likely to be dismissed.
For police officers, it is very important to understand the arbitration process should the need for legal defense over a disciplinary action arise. Our law firm advises and represents law enforcement officers in police arbitration matters. We can be contacted at Berrylegal.com or by telephone at (703) 668-0070. The Firm's Facebook page can be found here Berry & Berry Facebook Page.