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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. 3
rd
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

23

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