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FEDERAL MEDIATION & CONCILIATION SERVICE

I N THE M ATTER OF A RBITRATION BETWEEN :

FMCS CASE NO.: 16-56091-6


Grievant: Matt Rush
Discharge for inability to perform
essential functions of position

CITY OF CHAMPAIGN
Employer

-ANDILLINOIS FOP LABOR COUNCIL


Union

Micheal J. Falvo, Arbitrator

ARBITRATION OPINION AND AWARD


This arbitration took place under the July 1, 2012 June 30, 2015 (as extended) Agreement
between the Illinois FOP Labor Council, referred to herein as Employer or City, and the Illinois FOP
Labor Council, referred to herein as Union.
The hearing took place at the Champaign Police Department, 82 E. University, Champaign IL. on
September 19, 2016. The parties were afforded the opportunity to examine and cross-examine
witnesses, to introduce relevant exhibits, and for argument. A transcript of the proceedings consisting of
350 pages was received on October 4, 2016. Post-hearing briefs were received on November 21, 2016
and upon receipt the record was closed. The record consists of the arbitrators notes and exhibits
admitted into evidence at the hearing.

APPEARANCES
For the Employer

For the Union

Jennifer Bannon
City of Champaign Legal Dept.
102 N. Neil Street
Champaign IL 61820

Tamara Cummings
Illinois FOP Labor Council
5600 S. Wolf Road, Suite 120
Western Springs IL 60558

Benjamin E. Gehrt
CLARK BAIRD SMITH, L.L.P.
6133 N. River Road, Suite 1120
Rosemont IL 60015

Matt Rush, Grievant

Anthony Cobb, Chief of Police


Todd Myers, Lieutenant, Professional Standards
Jon Swenson, Deputy Chief

I SSUE 1
Was the Grievant discharged for just cause? If not, what is the remedy?

R ELEVANT C ONTRACTUAL P ROVISIONS


Agreement
ARTICLE 32 -- DISCIPLINARY ACTIONS (Excerpt)
32.1 IN GENERAL
Discipline shall be based on just cause, administered progressively and correctly based on the individual
circumstances of each case. Disciplinary action shall be limited to written reprimands, suspensions
without pay (maximum thirty (30) calendar days) and suspensions with a recommendation for discharge.
Demotion may be a disciplinary option for serious conduct unbecoming a sergeant which conduct impacts
the sergeant's ability to supervise officers.
ARTICLE 33 -- GRIEVANCE AND APPEAL PROCEDURES (Excerpt)
33.5 -- ARBITRATION/BOARD HEARING
The Board of Fire and Police Commissioners or the arbitrator shall conduct a fair and impartial hearing,
having the power to administer oaths, secure the attendance and testimony of witnesses and the
production of books, papers and records by subpoena. If the Board of Fire and Police Commissioners or
the arbitrator orders the City to produce information about the disciplinary records of other officers, such
information shall be produced in such a manner that no individual officer's name is on a record and
access will be limited to the Union. The Board of Fire and Police Commissioners or the arbitrator shall
make a decision only on the issue(s) presented in the grievance and shall have no right to amend,
modify, nullify, ignore, add to or subtract from the provisions of this Agreement. The Board of Fire and
Police Commissioners or arbitrator shall be without authority to make a decision which is contrary to or
inconsistent with law or rules and regulations having the force of law. The Board of Fire and Police
Commissioners' or arbitrator's decision shall be rendered in writing to the parties within thirty (30) days of
the close of hearing or the submission of post-hearing briefs, whichever is later.
The Board of Fire and Police Commissioners or the arbitrators shall either confirm, amend or reverse the
decision of the CITY. In reaching its decision in fashioning a remedy, if any, the Board or the arbitrator
shall take into account interim compensation and efforts to mitigate damages. No liability shall accrue
against the CITY for events prior to the event grieved or in the case of discipline, the date of discipline.
The decision of the Board of Fire and Police Commissioners or the arbitrator shall be final and binding on
all parties. This shall not prevent the filing of an Administrative Review action in Circuit Court by either the
CITY or the UNION.

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1!My customary practice is to not include the names of complainants or witnesses where to do so would
serve no purpose. In this case the names of several individuals have been publicly disclosed in a press
release. Excluding the names of those individuals would be pointless and create confusion. When
necessary I have identified such individuals whose names have not been publicly disclosed by initials.

2!

BACKGROUND
The City of Champaign has a population around 86,000 and is the home of the University of
Illinois at Champaign-Urbana. The Champaign Police Department has an authorized strength of 125
sworn members. For the most part patrol officers work alone but two person patrol units are deployed for
special details and in connection with training for new officers. Chief Anthony D. Cobb became Chief of
Police in September 2010 after a 20-year career with the Urbana Police Department where he achieved
the rank of Deputy Chief. Among his innumerable duties is the obligation to enforce the departments
rules, regulations, and policies and to make determinations concerning discipline when an investigation
determines that a member of the department has committed an act of misconduct.
The Grievant joined the Champaign Police Department on February 8, 2010. He successfully
completed a three-month police academy program followed by a 22-week field-training program. By any
measure his tenure with the Department has not been trouble free as demonstrated by a significant
history of disciplinary actions. The record also contains substantial evidence demonstrating diligence and
2

competence as a police officer.

Department policy requires supervisors to complete Performance Reviews for patrol personnel.

The first review was for the period February 11, 2011 to January 31, 2012. His shift supervisors wrote:
Matt is an energetic officer. He likes to get out and make things happen. He has been involved in
several foot chases due to the amount of citizen contacts and traffic stops he makes. Matt is the first in
the District for midnight shift for the amount of stops he has made. [UNION EXH. 8, p. 3]. The next
evaluation states, His verbal skills have helped to de-escalate many tense calls on the shift. That
evaluation continued:

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2!I concur with the assessment by Arbitrator Fredric R. Dichter: Thus, in addition to his deficiencies there
are many positive aspects to Grievants performance as a police officer. [CITY EXH. 5, p. 13].
3!Performance

reviews require supervisory personnel to rate officers in one of three categories: exceed
standards, met standards, or below standards. The Grievant was deemed to have met standards in
each performance review. It should be pointed out that the evaluations also contained suggestions for
improvement such as focusing on traffic enforcement, using the training simulator for controlling your
emotions, attending a training class to enhance investigative abilities, to conduct additional directed
patrols in the vicinity of an apartment complex, and to keep up-to-date in reading policy and procedures.

3!

Officer Rush sets the example for other officers when it comes to listening to the radio,
recognizing when there is a need for another officer for backup, assistance, a need for
paperwork, and to take a report for another officer from another beat that is buried in
paper. Officer Rush truly believes what his patch says Champaign Police. There are no
district boundaries in his mind, but he does respect the limit and takes care of his district at
the same time.
Officer Rush is an energetic officer who wants to be involved in everything and experience
new things. Officer Rush is well prepared for his duties, exceptionally dressed, and willing
to take on responsibilities when generally asked of officers. Officer Rush prepares his
reports, generally, in a timely manner, with very few errors or corrections. Officer Rush is
social with all his coworkers and recognized as a team player. [UNION EXH. 8, p. 10].
In the next evaluation his supervisor observed that his level of proactive enforcement was significant and
that in the second quarter of the rating period he responded to the most calls for service on his shift (370
calls compared to the shift average of 240 calls). The evaluation continued:
Officer Rush is always courteous and treats people in an equal and fair manner. During
this rating period Officer Rush received seven thank you letters: One for politeness,
respect and efficiency, one for proper handling of a volatile situation (use of force/pepper
spray arrest), one for a job well done, one for court preparedness and professional
testimony, one for professionalism, respect, and courtesy, and one letter of general
appreciation. Based on the level of unsolicited feedback, it is obvious that Officer Rush is
treating people fairly and making good judgments on the street. [UNION EXH. 8, pp. 1415].
In his next evaluation his supervisor wrote that he continues to have some of the highest number of
proactive contacts for the North District, leads his shift in criminal arrests, and works well with other
officers on the shift. [UNION EXH. 8, p. 22]. In the final evaluation for the period February 1, 2015 to
January 31, 2016 for not the first time his adeptness at deescalating situations was noted.

The

evaluating supervisor also described a family trouble incident he observed when reviewing in-car video
recordings.
The family was intoxicated and not happy with [another officer] on a family problem on
[redacted] Road. As soon as Officer Rush arrived one female immediately said, I want to
talk to him. Officer Rush had a calming presence and helped to mitigate the scene. Both
officers cleared without making an arrest. [UNION EXH. 8, p. 24].
That evaluation commended him for attempting to fix a homeless mans motorized wheelchair and
securing assistance when he could not repair it. [UNION EXH. 8, p. 25]. The evaluation noted that on two
occasions he received congratulatory emails from Deputy Chief Gallo. In the first email, dated October 2,

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4! His verbal skills have helped de-escalate many tense calls on the shift. [UNION EXH. 8, p. 35].

4!

2015, the Deputy Chief was present when a female arrestee thanked Officer Rush for his nice treatment.

In the second email, dated October 2, 2015, Deputy Chief Gallo complimented Officer Rush for
professionalism while assisting University police officers handling a disturbance at Presence Hospital
during which an officer was attacked. [UNION EXH. 7(m) & TR. p. 279]. The supervisor who prepared the
evaluation wrote:
On 11/13/2015, Officer Rush was first to arrive on the scene of a Domestic Battery in
progress. He was going to wait for other officers but heard screaming and saw someone
run inside. He ultimately had to wrestle a suspect and later spray him with OC. When I
arrived the brother of the suspect told me several times how much he appreciated our
efforts, particularly Officer Rush. The witness even pulled me in to hug me in thanks
before the Officers left the scene. [UNION EXH. 8, p. 25].
By stipulation, the record includes a synopsis of the testimony of 11 character witnesses who
testified before Arbitrator Fredric Dichter on February 6 and March 13, 2015 with the understanding that
they would offer the same testimony if called as witnesses in this proceeding.

Sergeant Tom Petrilli: The Grievant is a team player and the sergeant never had to correct him. He is
proactive and very eager. He works well with other officers and always strives to produce a quality work
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product.
Officer Tim Atteberry: The witness was the Grievants Field Training Officer as well as his instructor in the
police academy. He is very respectful, well liked, professional, and courageous.
Detective Andre Davis: The witness was the Grievants Field Training Officer for eight weeks. The
Grievant is the best recruit he ever trained. He has an uncanny ability to retain information. He strives to
learn more and grow. He admits when he makes mistakes and accepts criticism well. He is responsible
and goes above and beyond the call of duty.

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5!The e-mail from Deputy Chief Gallo stated:
Just shared an elevator ride with Officer Rush and a female that he transported to
investigations. The young lady, who was in handcuffs, thanked him for the way he was
treating her. I have already spoken to Officer Rush and expressed my appreciation. I
wanted to make sure you were aware of this positive interaction he had today with this
young lady. Great example of Unconditional Respect!! [UNION EXH. 7(p)].
6!The

parties also stipulated that except for officers who served as Field Training Officers the witnesses
did not have supervisory authority over the Grievant, were not privy to his personnel or discipline files,
were not involved in or familiar with the three disciplinary incidents at issue in the prior arbitration, and
were not involved in or familiar with the facts of the matter before this arbitrator. The City entered the
stipulation without waiving its objection that character is not relevant or at issue in the pending case.
7!Chief

Cobb explained at the hearing that officers are expected to be proactive: they should be out
there looking for potential problems. [TR. p. 180]. He shared Sergeant Petrillis assessment that the
Grievant is a proactive officer who chose to work in the Citys busy districts. [TR. p. 216].

5!

Detective Ed Sebestik: The Grievant epitomizes what one wants in a police officer. He is always
available to answer questions and if he does not have an answer he finds one. The witness observed
him handle very dangerous calls professionally and he was able to get chaotic situations under control.
He holds the Grievant in the highest regard. The Grievant has integrity and no one cares more about the
job than he does.
Officer Nick Krippel: The Grievant is the most reliable officer he ever worked with. He regularly
volunteers for calls. He is direct and to the point and professional. He has strong and dependable
character. The witness would trust the Grievant with his children and he has helped officers on and off
duty.
Detective Brad Kraul: The Grievant is a productive officer and always helpful on calls. He makes sure to
back up other officers.
Officer Art Miller: The Grievant is a hard worker and very passionate about the job. As a new officer he
was a quick learner who takes pride in his work. He is proactive, always responsible, and helps out other
officers. For the Grievant police work is not just a job: it is his calling.
Officer Greg Campbell: The Grievant is always the first officer to respond no matter where he is working.
As a new officer he was respectful and receptive to training tips. He exhibits very impressive tactical
thinking on hot call. He always stays in control of situations and acts professionally.
Officer Dave Butler: The witness worked as the Grievants partner and in 2011 and 2013 and they
responded to hundreds of calls together. He is a great officer who is knowledgeable, energetic, and
professional.
Officer Steve Vogel: The Grievant is always willing to help out. The Grievant would be the first officer he
would call if he needed assistance.
Officer Brian Rogers: The witness selected to work in the same districts as the Grievant. He is
dependable, conscientious, and watches your back. He is the first to respond when officers request
assistance. He is a standup person who is an open book with the highest integrity. The department
needs more officers like the Grievant.
8

The Grievants personnel records contain three Letters of Commendation (one in 2012 and two
in 2013) and four Letters of Appreciation from citizens (three in 2012 and one in 2015).

A letter dated

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8

On September 1, 2012, the Grievant and three other officers received a Letter of Commendation. It
states: [W]ith little regard for their personal safety they entered an apartment building, portions of which
were fully engulfed in fire and evacuated the entire building prior to the arrival of the fire department. It
concluded that the officers heroic efforts in evacuating this building undoubtedly prevented serious
injuries or deaths. [UNION EXH. 7(j)].
9 !Somewhat

astonishingly, at least in my experience, on February 28, 2012 a citizen to whom the


Grievant issued a traffic citation sent a compliment using the Citys website. He wrote that the officer
explained that residents in the area were concerned about speeding which I found helpful to know. He
said: Officer Matt Rush was very polite, respectful, and efficient [and] I appreciated Officer Rushs polite

6!

January 31, 2012 [UNION EXH. 7(b)] from a particularly articulate citizen to the City Manager is
noteworthy. The individual was working at a caf during a student run party when a fight broke out
between two patrons that quickly escalated when others joined the melee and one of the combatants
produced a handgun and threatened people. She wrote that the first officers on scene (one of whom the
Department identified as the Grievant) without fear or hesitation instructed people to break up the fight
and dispersed people using pepper spray being careful not to affect anyone who was positioned away
from the brawl. The officers then located and handcuffed the man who had produced the handgun.

10

She continued: Within minutes, the officers of the Champaign Police Department had deescalated the
situation and made all the necessary steps in preserving the peace and ensuring the safety of all the
patrons who were not involved in the incident. The citizen concluded:
I have always been very outspoken against police misconduct in general and the use of
excessive force both of which are legitimate issues in the American Justice system that
should be discussed and addressed but in my opinion, the police officers who
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responded to this call in the early hours of January 20 did everything right in regards to
force.
...
I send you this letter in hopes that these officers will receive my heartfelt thanks. These
officers should be commended for their actions and their ability to keep their cool in a
heated situation: they are a great asset to this town and our community.
(Emphasis in original).
The Grievants personnel records reflect that he has received six complaints filed by citizens (one
in 2011, three in 2012, one in 2013, and one in 2014).

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The finding in one complaint was sustained


12

and the findings in the other five complaints were designated either unfounded or not sustained.

The

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demeanor and efficiency and I will definitely pay more attention to how fast I am driving. [UNION EX.
7(e)].
10!The

officers recovered the firearm at the scene. [UNION EXH. 8, p. 4].

11!Although listed as Complaints in a document titled Officers Combined Administrative Records for
purposes of this summary I have excluded complaints where the complainant is listed as Department or
Chief Cobb. States Attorney Rietz is also listed as a complainant in connection with her February 23,
2016 letter and is also not included in the above summary.
12The

complaint was made by on July 31, 2013 [CITY EXH. 3, p. 33] and was deemed Sustained
after an investigation on September 9, 2013. [CITY EXH. 3, p. 96]. This disciplinary action will be
discussed in further detail. My understanding that the designation unfounded is used when the
investigation established that the officer acted properly and the designation not sustained is used when
the investigation disclosed insufficient evidence to substantiate the allegations.

7!

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personnel file indicates that the Grievant has been counseled on four occasions.

As will
be discussed in substantially greater detail, his personnel record reflects disciplinary suspensions on
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three dates:

16

; 9/10/2013 2 days ; and 8/8/2014 1 day,

3 days,

17

and 30 days.

The 30-day suspension resulted from an arbitration award that overturned a termination decision by the
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Chief of Police.

Under the terms of Arbitrator Dichters award the Grievant was reinstated with partial

back pay on April 8, 2015. The disciplinary action under review here, which terminated his employment a
second time, took effect on April 13, 2016.

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13

Three counseling entries were made

Officer was counseled in/re his use of


force with non-compliant subject. [CITY EXH. 3, p. 14]. Article 32.1 of the collective bargaining
agreement limits the definition of disciplinary actions to written reprimands, suspensions without pay for
a maximum of 30 days, and suspensions with a recommendation for discharge. The City asserts in its
post-hearing brief that counseling is not considered discipline but that it can be taken into account for
purposes of progressive discipline.

15!This suspension involved the sustained citizen complaint made by


detail. [CITY EXH. 3, p. 98].

and will be discussed in further

16!This

disciplinary offense concerned the circumstances surrounding the completion and submission of
an accident report and citation from a traffic crash investigation on March 3, 2014. [CITY EXH. 3, p. 106].
It will be discussed in further detail.
17

This suspension arose from an investigation concerning the Grievants actions during the arrest of
Kissica Seets on April 11, 2014. [CITY EXH. 3, p. 122]. It will be discussed in further detail.
18!The

disciplinary offense that resulted in the Grievants first termination involved the arrest of Precious
Jackson on May 26, 2014. [CITY EXH. 3, p. 194]. Arbitrator Fredric R. Dichter rescinded the termination
and imposed a 30-day suspension. The award was issued on April 3, 2015. [CITY EXH. 3, p. 429].!

8!

Because the disciplinary action arising from the arrest of Precious Jackson included a charge of
untruthfulness, Chief Cobb sent the following letter dated October 9, 2014 to States Attorney Rietz. [CITY
EXH. 1].
Ms. Rietz,
As required by law, I write to inform you of a recent disciplinary matter involving an officer
of the Champaign Police Department. On August 8, 2014, Officer Matt Rush was
charged with a violation of department policy wherein the offending behavior involved
untruthful or deceptive representations. As you are aware, under Brady v. Maryland, 373
U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972) and its progeny, the
Champaign Police Department is required to disclose such information regarding the
untruthfulness of law enforcement officers to prosecutors.
Please feel free to contact my office in the event that you have any questions regarding
this matter.
When Chief Cobb received Arbitrator Dichters Opinion & Award he sent a second letter and a
copy of the decision to States Attorney Reitz and United States Attorney Ronda Holliman-Coleman. [TR.
pp. 230-231]. The Grievants personnel record as it stands today does not reflect any disciplinary action
for untruthfulness because the single prior disciplinary action involving that offense was deleted in
accordance with the arbitration decision. [CITY EXH. 3, p. 6 & TR. pp. 231-232].
The Grievant was reinstated on April 8, 2015. Chief Cobb told him that he was being given a
fresh start and the Chief disposed of a pending matter to give him a clean slate. [TR. p. 203]. The
Grievant asked to be assigned to the day shift in Southwest District because it was not as fast paced as
the districts he previously worked. [TR. p. 257].

Chief Cobb arranged for the Grievant to receive

additional training and procedures were implemented for additional supervision. [TR. p. 203]. Chief Cobb
testified that after being reinstated the Grievant did not receive any citizen complaints. He did not receive
any discipline. [TR. p. 219].

The few use of force incidents he has been involved in [after his

reinstatement] have all been reviewed and approved. UNION EXH. 8, p. 32]. Chief Cobb acknowledged:
19

I think we were moving forward. He was moving forward in a positive manner. [TR. p. 220].

The Chief

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19!The record amply supports the Chiefs characterization of the Grievants work performance after his
reinstatement on April 8, 2015. The two laudatory emails from Deputy Chief Gallo have been discussed.
The record also contains the following.

On September 17, 2015 Sergeant Maloney wrote in an email: Nice job by Rush. He also
went out of his way to take a report from the guy at [address redacted]. He didnt want
one but Rush asked him if he could process the car. He agreed, and got a print and then

9!

said that after being reinstated he has done what we have asked him to do; he has handled the calls that
came before him and I am not aware of any call that has come up that he did not handle in the manner
we expected him to handle it. [TR. p. 226-227].
The situation changed in December 2015. The News Gazette published a series of articles about
several lawsuits filed against the Champaign Police Department that had recently been settled. The
articles and documents pertaining to the settlement are not in the record but have been characterized as
disparaging.

Although he was not the only officer named as a defendant in the lawsuits, the Grievant

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also got that info about [store name redacted] for [Detective Christian]. [UNION EXH.
7(n)]. The information concerned the possibility of obtaining video that could identify
perpetrators of a recent crime.

On September 30, 2015 Detective Christian wrote in an email:


Matt: Thanks for your hard work and tenacity processing the numerous
BMV [Burglary Motor Vehicle] that you have been assigned. I notice that
you processed all the scenes for prints and went as far as to track down
other victims from evidence you found during your investigation. The
information you gathered made my job that much easier and resulted in
the arrest of [name redacted]. He confessed to 5 BMV in the same area
but I was only able to put the 2 cases you processed on him. [He] lives at
[address redacted] which is in general area for most of the BMV reports
that I have been assigned. Fine work, thanks! Jere. [UNION EXH. 7(o).

On November 3, 2015 Day Shift Commander Lieutenant Tod Myers sent an email to the Grievant
and Officer Talbot.
I spoke to [name redacted] this morning. You both responded to a
garage alarm at her house on 10/30 at [address redacted]. She just
wanted to call and thank you for remaining at the location until her
daughter arrived. In this particular case she was transporting her
husband to the ER and thought she had shut it. Her husband is a retired
LT from ISP and she was very grateful for what you both did. [UNION
EXH. 7(q).

On November 13, 2015 Sergeant Bruce Ramseyer sent an email to the Day Shift Commander.
(I have revised punctuation in the original email).
Domestic at [address redacted]. Rush arrived and was waiting outside
for his backup when he heard screaming and saw someone run back
inside, more screaming. The female came running out screaming that
she had been thrown to the ground. The male balled up his fists and
asked Rush if he wanted to fight. Rush ultimately sprayed him with
[Officer] McLearin. Family members on scene were cooperative and
supportive of police. Rush had scrapes on his knees. Ambulance
responded and decontaminated him, he then complained about seizures,
etc. He was taken to ER for medical release. [UNION EXH. 7(r)].
th

As already noted, the use of force investigation into the November 13 incident (and all others
after his reinstatement) concluded that the Grievants actions were within policy.

10!

testified [m]y face and name was across every newspaper in Central Illinois with the caption Breaking
News in boldface across the front page. [TR. pp. 257-258]. In order to let the smoke settle down some
he decided, with the Departments concurrence, to take an extended leave that continued for several
months until he was cleared for full duty on March 1, 2016. [TR. pp. 266-269]. When he returned to duty
he was placed on paid investigative leave until April 13, 2016 at which time he was fired. [UNION EXH. 3
& 4].
The media coverage did not go unnoticed. States Attorney Rietz testified that members of the
clergy and other citizens contacted her and she convened a meeting that was attended by about a dozen
persons including pastors, a state representative, the president of the local NAACP, graduate students,
and other citizens. [TR. p. 49 & pp. 129-131]. The individuals in attendance were demanding that I
charge him and she told them, without making anybody any promises, that she would review the matter.
[TR. p. 49]. On December 11, 2015, the Clerk of Court of the Circuit Court of Champaign County,
pursuant to a criminal investigation being conducted by the Champaign County States Attorneys Office
issued a Subpoena Duces Tecum [CITY EXH. 2] requiring the production of:
Any and all records in whatever form including but not limited to: case reports; internal
investigative reports; crime scene processing reports; inventory slips; photographs;
audio recordings; video recordings; investigative notes; litigation and case summaries;
arbitrators decision; citizen complaints relating to: any citizen complaints or lawsuits
regarding Champaign Police Officer Matthew Rush; and unredacted copies of any
documents previously released to the media on December 10, 2015 regarding the
settlement of a lawsuit.
On February 23, 2016 she sent a letter to Chief Cobb concerning her findings. [JOINT EXH. 1].
Dear Chief Cobb,
As you are aware, I was asked by community members to review Officer Matt Rush's
conduct with regards to the use of force. The Champaign Police Department provided
my office with internal documents detailing Officer Rush's disciplinary history, and I and
my staff have thoroughly reviewed those materials as well as additional materials related
to those events. We have now completed that review process, and I am sending this
letter as confirmation of the conclusions of the State's Attorney's Office.
I am declining to file criminal charges against Officer Rush with regard to his use of force
in making arrests that have been the subject of public concern and civil legal action as I
and my staff do not find sufficient legal basis to proceed in criminal court. However, my
review of Officer Rush's disciplinary history has led me to conclude that the State's
Attorney's Office is unable to call Officer Rush as a witness on behalf of the state in
criminal proceedings in light of his repeated failure to adequately document use of force
in multiple discipline actions for untruthfulness. These incidents create a substantial issue
with regards to his credibility as a witness, subject him to cross-examination on these
issues, and require the States Attorney's Office to work around him in order to bring

11!

criminal cases to trial. Moreover, our review of these incidents causes us great concern
about his judgement and decision-making in crisis situations, particularly with regard to
his response to the mentally ill. In light of these concerns, having given this matter
serious consideration and taking into account his full disciplinary history, we have
concluded that if Officer Rush were to return to active duty, we will not call Officer Rush
as a witness for the prosecution in criminal proceedings.
I appreciate and support your efforts to resolve these matters internally and will
continue to be available to work with you as we move forward.
Sincerely,
/s/
Julia Rietz
Champaign County States Attorney
Simultaneously she issued a press release. [JOINT EXH. 2].

Office of State's Attorney


Champaign County, Illinois
February 23, 2016
Officer Matt Rush Review
At the request of community members, following the City of Champaign's entry into
settlement agreements in civil lawsuits filed on behalf of William Brown, Benjamin Mann
and Kissica Seets and an arbitrator's decision to overturn the Champaign Police
Department's termination of Officer Matt Rush, the State's Attorney's Office has
conducted a review of the reports and investigations surrounding these settlements to
determine the appropriateness of criminal charges. In response to a subpoena,
Champaign Police Department provided my office with documentation of Officer Rush's
personnel file, including all complaints filed with the department involving him, all
disciplinary actions, and accompanying police reports and videos, and we have carefully
reviewed all those materials.
We have also reviewed relevant Illinois statutes and case law. 720ILCS 5/7-5, provides
that a peace officer is justified in the use of any force which he reasonably believes to be
necessary to effect an arrest and of any force which he reasonably believes to be
necessary to defend himself or another from bodily harm while making the arrest. The
courts have reviewed allegations of excessive use of force in criminal and civil
proceedings. Generally, excessive force complaints have been sustained when an officer
uses force on an individual who is in custody and not resisting, when an officer uses
unreasonable force with a tool or weapon such as a bludgeon or a firearm, or when the
injuries to the individual are severe. Excessive force complaints have not been sustained
in cases involving individuals who were actively resisting the officer's efforts during the
course of an arrest, and when the officer did not use a weapon and the individual did not
sustain serious bodily injury.
Based on our review, we are declining to file criminal charges against Matt Rush with
regard to his use of force and the arrest of William Brown, Benjamin Mann, Kissica Seets,
and Precious Jackson. These matters were or are appropriately handled in internal
discipline and in civil court proceedings. The evidence as outlined below does not provide
a reasonable likelihood that we would be able to meet the standard of proof beyond a

12!

reasonable doubt as is required for the filing of criminal charges. Furthermore, particularly
with regards the Seets and Jackson incidents, although Officer Rush failed to deescalate
the situation through his aggressive and unprofessional behavior, his actions in using
force to subdue resistive subjects are defensible under Illinois law.
While we are declining to file criminal charges, the State's Attorney's Office affirmatively
states that we will not rely on Officer Rush as a witness for the prosecution in criminal
cases. Officer Rush's substantial history of internal discipline for untruthfulness and
failure to document use of force call his credibility as a witness into question and will
subject him to cross examination by defense counsel in every case. Moreover, our
concerns about his judgement and decision-making with regards to his approach and
contact with citizens in crisis, particularly those with mental health concerns, makes us
unable to vouch for his credibility and reliability as a witness in our cases, regardless of
his role.
The following is an outline of the four relevant incidents:
William Brown: On June 2, 2013, Officer Rush was involved in the arrest of William
Brown following a hit-and-run traffic crash. Brown fled from Officer Rush and Officer
Coleman. Brown was resistive and Officer Rush punched Brown in the face in the course
of taking him into custody. Brown admitted that he was intoxicated and that he ran from
officers because he was driving under the influence of alcohol. There is no squad car
video of the arrest. Brown did not make a formal complaint however he obtained a
settlement from the City of Champaign after filing a civil suit. The settlement is not
evidence of admission of liability and cannot be considered for criminal review purposes.
No information other than the original police reports is available with regard to this
incident. Officer Rush was not subject to internal discipline with regard to this case.
There is no evidence to support criminal charges alleging excessive use of force under
Illinois law.
Benjamin Mann: On March 16, 2014, Officer Rush and other officers were involved in
the arrest of Benjamin Mann. Rush and Officer Marshall Henry responded to
at the request of Mann's former girlfriend,
, who had
called 911 requesting officer assistance because Mann was outside her residence, he
had been drinking and was wanting his property. During the course of the incident Mann
refused to remove his hand from his pocket and refused to comply with the officers'
directives. The officers attempted to take Mann into custody, and he resisted their efforts.
Officer Rush requested additional assistance, and 3 other officers arrived. The event
lasted 4 minutes, the first three which involved Rush and Henry alone, the final minute
involving all 5 officers attempting to get Mann in custody. Mann sustained injuries. Rush
sustained injuries as well. Due to the lack of lighting and the distance, squad car video
provided no visual documentation of the incident. Mann and
filed formal
complaints against the officers. A formal review by the CPD command staff resulted in a
finding that Mann's arrest was lawful. Additionally, certain allegations of excessive force
were determined to be unfounded. Other allegations could [sic] [not] be sustained based
upon the available evidence. No officers, including Rush, were subject to internal
discipline. Mann later initiated civil proceedings and the City entered into a settlement of
his claims. The settlement cannot be considered for criminal review purposes. Criminal
charges are not appropriate against Officer Rush or the other officers involved in this
incident because the use of force in subduing a resistive subject was appropriate under
Illinois law. We agree with the internal review findings and conclusions. Those findings
create a legal defense for Officer Rush with regard to potential criminal liability.
Kissica Seets: On April 11, 2014, Officer Rush and other officers were involved in the
arrest of Kissica Seets. Officers were dispatched to
regarding a fight in
progress. Thirteen officers responded to the call.
Kissica and

13!

, reported that the two were fighting. Officers Schweska and Henry were the
first to arrive. The scene was chaotic. In the presence of officers, Kissica struck
in
the face with her fist and the two engaged in an active fist fight, resulting in the two of
them being sprayed by Officer Schweska with OC spray.
also picked up a chair and
threw it at Kissica, hitting her in the side. Other officers, including Officer Rush, arrived
and detained the two. Officer Rush and Officer Haugen attempted to escort Kissica to a
nearby squad car. Audio recording captured exchanges between Rush and Kissica which
were later determined by command personnel to be inappropriate and unprofessional
and demonstrated a failure by Officer Rush to deescalate the situation. In response to the
exchanges Kissica spat directly in Officer Rush's face. Rush maintained control of her
and took her to the squad car. In his report, Rush wrote "I escorted Kissica to Officer
Canales squad car without further incident." However, review of squad car video and
audio shows that Officer Rush uses his right leg to push Kissica into the vehicle, and then
delivers a knee strike to Kissica. Officer Haugen then steps in and takes over. Officer
Haugen reported during internal review of the matter that Kissica was kicking at the
officers while they attempted to put her in the squad car. Kissica did not suffer injuries as
result of the knee strikes.
Kissica was charged with Aggravated Battery to a Peace Officer for spitting in Rush's
face. She pleaded guilty to that offense and was sentenced to 12 months of probation.
The issue of excessive use of force was not raised by defense counsel in resolving her
case.
Following internal review of the event, Officer Rush was suspended for 3 days due to his
failure to document the use of force, his violation of rules with regards to unprofessional
behavior, and his use of force with regards the second knee strike. The suspension was
reviewed in arbitration pursuant to the FOP contract. The Arbitrator sustained the 3 day
suspension, agreeing with the Department's findings with regard to Officer's Rush's use
of profanity and lack of professionalism and his failure to document the use of force.
However, the Arbitrator disagreed with the department's conclusion that the second kick
was inappropriate. The arbitrator wrote, "looking at the video of the incident it is hard to
determine where the woman's legs were when the second kick occurred. The testimony
was that she still was not completely in the car. The video is not clear enough to
contradict that testimony." The Arbitrator recommended that Officer Rush receive
additional training to show him how he might better handle confrontational situations, as
skills in deescalating a situation are critical to prevent force from having to be used.
Kissica Seets filed a civil suit and entered into a settlement agreement with the City. The
settlement of this claim cannot be considered as evidence with regard to potential
criminal charges. Criminal charges cannot be filed against Officer Rush with regards to
the two knee strikes in that, although Officer Rush failed to deescalate the situation and
failed to document the use of force, Kissica was actively resistant, spit in his face, and
physically resisted being placed in the squad car, thus providing a legal defense that his
use of force with regards to the knee strikes was reasonable and appropriate to
effectuate the rest of a resistive subject.
Precious Jackson: On May 26, 2014, Officer Rush arrested Precious Jackson for
Aggravated Battery to a Peace Officer. Earlier in the day Champaign Fire Department
and Champaign police responded to a fire at Jackson's residence. Jackson was not
present, but concern arose as to her condition in light of her history of mental health
issues and reports that she had been drinking alcohol. As that was going on, officers
were dispatched to Thornton's, 101 S. Mattis, regarding a criminal damage to property
and disorderly subject. The clerk advised that a woman matching Jackson's description
damaged merchandise and was screaming at customers. In response to that call Officer
Rush located Jackson on University Avenue.

14!

As documented by Officer Rush's squad car video, Officer Rush pulled up next to
Jackson and yelled at her "come here!" In his written report he said he "instructed her to
stop and come to me." Jackson yelled back at him and continued walking, then began
running. Officer Rush ran after her and she stopped and turned back towards him. Officer
Rush reported that Jackson raised her left hand and grabbed him by the throat. He had
scratch marks consistent with his account of the situation. In response to her grabbing
him by the throat, Officer Rush took Jackson to the ground. In his report Rush described
the struggle with Jackson, saying that he used a knee strike and OC spray to get her
under control. Review of the video shows he also made a motion consistent with
punching or striking Jackson. Rush was able to get Jackson under control and placed her
under arrest. She was transported to the Champaign County Correctional Center.
Jackson was charged formally with Aggravated Battery to a Police Officer. The Public
Defender's Office was appointed and a preliminary hearing was held on June 13, 2014.
Judge Kennedy found probable cause for the arrest. The Public Defender's Office filed a
motion [sic] requested that Jackson be evaluated by a psychiatrist for fitness to stand
trial. Dr. Larry Jeckel conducted the evaluation and concluded that she was unfit to stand
trial based on her mental health status and alcohol use.
She remained in the Champaign County Correctional Center
until July 27, 2014, following a review of fitness by the Department of Human Services.
, her condition was stabilized and she had regained fitness. The
charges were dismissed in light of Officer Rush's termination on July 23, 2014. Although
not part of the CPD review, it's important to note that Jackson was arrested again in April,
2015, which led to a second finding of unfitness and hospitalization. As a result of that
situation, Jackson is currently on probation.
Jackson did not file a formal complaint against Officer Rush. CPD conducted a standard
internal use of force review of the event, which raised concerns about Rush's
confrontational and discourteous initial approach with Jackson and his failure to
document the action that could have been a strike or a punch in his formal report. During
further investigation, CPD located a witness who was in a nearby parked car. That
individual, who lives in Colorado, reported by phone that he had just gotten in his car
when he heard yelling. He saw Jackson walking eastbound. He heard the officer tell her
to stop. He heard Jackson yell back using profanity. He saw her turn and run and saw
Rush chase her. He said Jackson "turned on him and became aggressive towards him."
He said she was "not being compliant." He described the knee strike and said he left after
she went down to the ground. He said he did not see the officer strike Jackson with his
hand or fist. As a result of the review, Champaign command staff recommended
termination of Officer Rush's employment. Lt. Swenson noted numerous attempts at
training opportunities to guide and counsel Rush in his continuous failure to conduct
himself in a professional matter, control his temper, display sound judgement and bring
his job performance in line with city values. He recommended termination. Lt. Shaffer
agreed. Deputy Chief Gallo reviewed the reviews, and noted that the camera angle does
not show if the strike impacted Jackson, that she did not confirm or deny that she was
struck, and that her booking photo does not show any visible signs of injury. He
concluded that Rush did make "a striking motion" and did not adequately document it. He
agreed with termination based on this pattern of failure to document use of force and
disciplinary issues.
Lt. Paulus also reviewed the investigation and reviews. Lt. Paulus said the video is not
clear as to the strike, it may have hit her or it may have missed her. Lt. Paulus said the
conclusion that the strike was not necessary or reasonable does not take into account
what Jackson was doing in her confrontation with Rush. He said "in the tense and
uncertain time of an active struggle with a suspect who is allegedly attacked and
scratched an officer, I find it concerning that such conclusions are made without the
totality of the situation being articulated." Lt. Paulus concurred with termination, noting

15!

that the strike was not documented in his report, a violation of policy. But, he said that
fact "does not negate the fact that the strike may have been in response to what Jackson
was doing at the time."
Officer Rush's termination was reviewed in arbitration pursuant to the FOP contract. The
Arbitrator disagreed with the Department's decision to terminate Rush's employment,
granted Rush's grievance and set aside the termination in favor of a 30 day suspension.
Specifically with regard to the punch or strike, the Arbitrator wrote "there is no evidence
anything was done, even if it was a punch, out of malice or loss of temper, but was
instead done to subdue an uncooperative person. It must be viewed in that context."
A lawsuit has been filed on Jacksons behalf on February 20, 2016, in federal court. The
suit contains allegations that Jackson suffered a miscarriage as result of Rush's actions.
These allegations are inconsistent with information provided in Jackson's booking
records at the time of her arrest.
The States Attorney's Office is declining to file criminal charges against Officer Rush with
regard to his use of force in this incident. While we agree with the conclusions of the
internal review, and while we believe that Officer Rush escalated the situation by his
aggressive approach, his actions with regard to that initial approach are not a violation of
criminal law. Officer Rush appropriately followed Jackson when she ran from him, and
was not in violation of law or policy in taking Jackson to the ground after she grabbed him
by the throat. Finally, with regards to the punch or strike, we decline to file criminal
charges due to issues of proof. It is unclear in the video if Rush actually struck Jackson,
and neither Jackson nor the independent witness report a punch or strike. Moreover, the
action, if it was a punch or a strike, was determined by the Arbitrator to be reasonable
under the circumstances in order to subdue a resistive subject.
Although the States Attorneys Office is declining to file criminal charges against Officer
Matt Rush, in light of our review of Officer Rush's actions and behavior during these
incidents and in the light of the entirety of Officer Rush's history of internal discipline for
failure to adequately document use of force and untruthfulness, we are unable to use
Officer Matt Rush as a witness for the prosecution in criminal cases. Officer Rush's
repeated discipline for failure to adequately document use of force and untruthfulness as
outlined here and in other disciplinary actions reviewed in the course of this examination
create a substantial issue with regards to his credibility as a state witness, subject him to
cross-examination on these issues, and require the States Attorney's Office to work
around him in order to bring criminal cases to trial. Moreover, a review of these incidents
cause us great concern about his judgement and decision making in crisis situations,
particularly with regard to his response the mentally ill. In light of these concerns, having
given this matter serious consideration and taking into account his full disciplinary history,
we have concluded that if Officer Rush were to return to active duty, we will not call
Officer Rush as a witness for the prosecution in criminal proceedings.
Julia Rietz
Champaign County State's Attorney
Upon receiving States Attorney Rietzs letter Chief Cobb contacted the City Attorney and Human
Resources Director for guidance. He also initiated an internal investigation to determine the effect of her
position on the Grievants employment. Fact-finding hearings occurred on March 16, 2016 [JOINT EXH.
5] and April 6, 2016 [JOINT EXH. 6] at which the Grievant and his counsel were provided the opportunity

16!

to comment upon each of the contentions made by the States Attorney. The Union discussed the cases
relied upon in its brief and made essentially the same arguments. The City was not persuaded and
terminated the Grievants employment on April 13, 2016. The letter of termination letter [JOINT EXH. 3]
stated:
This letter is in reference to internal investigation 16-II-02.
Internal investigation 16-II-02 was initiated after Champaign County States Attorney Julia
Rietz issued a letter and press release on February 23, 2016 stating that her office would
be unable and unwilling to utilize you as a witness for the State in criminal proceedings,
regardless of your role, due to your repeated failure to adequately document your use of
force, your disciplinary history, and her concerns regarding your judgment and decisionmaking in crisis situations, particularly with respect to the mentally ill. Internal
investigation 16-II-02 concludes that you are no longer able to meet the essential
functions of your position as a Champaign Police Officer. Namely, the investigation
concluded that you are unable to cooperate in the prosecution of criminal offenses, and
you are unable to develop and maintain positive working relationships with other
employees, government officials, and the public.
The City does not have any positions available in which you would not be required to
exercise your powers as a sworn police officer and would not be called upon to testify in
criminal matters. As the conclusion of this investigation is that you are unable to perform
the essential functions of your position, I have recommended to the City Manager
termination from your position as a police officer. The City Manager has accepted and
approved my recommendation and your termination shall take effect immediately.
If you have any questions about your employee benefits, please contact Steve Harms in
the Human Resources Office at 217-403-8770.
You have the right to appeal this decision under Article 33 of the terms of the Illinois FOP
Labor Council contract with the City of Champaign.
Sincerely,
/s/
Anthony D. Cobb
Chief of Police
The parties were unable to resolve the matter at the earlier steps of the grievance procedure. On
July 14, 2016 the Federal Mediation and Conciliation Service notified me of my appointment as the
arbitrator in this matter.
States Attorney Julia Rietz testified.

Her testimony covers 142 pages of the transcript of

proceedings and in large part is cumulative of the information in her letter to Chief Cobb and the press
release. The post-hearing briefs extensively discuss aspects of her testimony that the parties consider
relevant to their arguments. I have not attempted to recount her testimony in its entirety but testimony

17!

relied upon in my assessment of the record evidence requires discussion.

20

During her testimony she

referred to five incidents that constituted the factual basis for her decision that the Grievant would not be
called as a witness by the States Attorneys Office in any criminal case.

21

An appropriate starting point is Arbitrator Dichters award issued on April 3, 2015. He considered
22

three separate disciplinary matters involving: (1) a one-day suspension for violating Rule 1(A)(3);

(2) a

3-day suspension arising from the arrest of Kissica Seets; and (3) termination arising out of the arrest of
Precious Jackson.
1. Accident Investigation.

23

On March 3, 2014 the Grievant was dispatched to a hit and run accident.

In such circumstances department policy requires the completion of an Illinois Traffic Crash Report. In
addition, it is undisputed that the Grievant issued the at-fault driver a citation for Failure to Reduce Speed
in Order to Avoid an Accident. Nine days later the not-at-fault driver contacted the police department
and spoke with Lieutenant Tod Myers to request a copy of the Traffic Crash Report. Lieutenant Myers
located a dispatch ticket indicating that the Grievant and Officer Butler were dispatched and that a file
number (C14-1781) had been assigned but he was unable to locate the report. He sent an email to both
officers advising them that the citizen had not yet received the accident report and said that the officer
responsible for completing the report needed to do so as soon as possible. Later that morning the
Grievant, who was off duty, stopped by his office and informed Lieutenant Myers that he would complete
the report and contact the citizen.
completed the accident report.

A short time later the Grievant told the lieutenant that he had

However, when the citizen made another inquiry on March 31

st

the

computerized accident report was not listed in the records management database. Another query was
th

made on April 11 and the report was still not listed. At that time Lieutenant Shaffer also attempted to

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
20

States Attorney Rietz did not find any issue with the arrests of William Brown and Benjamin Mann.
Consequently, those cases do not require discussion.
21!In

addition, States Attorney Rietz spoke to a member of the Citys legal staff, Fred Stavins, about one
of the civil lawsuits and I was told that Officer Rush was not a great witness for himself, which caused me
concern if I was to put him on the stand in a criminal case because obviously how an officer testifies is
significant for their credibility in front of a jury, but I didnt see anything in the Mann case that I had
received that would lead me to file criminal charges in that case. [TR. p. 69 & p. 147].
22!Rule

1(A)(3) provides: Employees shall perform their duties in a productive, effective, and efficient
manner.
23

The record evidence concerning this investigation is contained in CITY EXHIBIT 3, pp. 99 120.

18!

locate the report and spoke with Sergeant Ramseyer who said that he had spoken with the Grievant who
told him that he had completed the accident report and that a citation had been issued to the at-fault
driver. Lieutenant Shaffer located the citation in Grievants ticket tin in the mens locker room. The
investigation by Lieutenant Jon Swenson, dated May 19, 2014, submitted to the Chief of Police disclosed:
There are two plausible explanations as to why the report(s) that Officer Rush claims to
have previously competed are not reflected in the IyeTek history or properly submitted.
1. On or about March 27, 2014, Lt. Myers learned that the rollback software that
had been installed on the report writing computers was deleting crash reports
from the Iye Tek system. This leaves open the possibility that the report(s) that
Officer Rush claims to have completed prior to that date were in fact completed
but deleted from the system through no fault of his own.
2. In early 2014, Lt. Myers discovered an issue with IyeTek after finding that other
crash reports submitted by other officers had not properly made their way into the
IyeTek system. Upon inquiry, Lt. Myers discovered that in order to properly
validate and submit a report the submitting officer must wait until all data is
transmitted before closing the IyeTek program. Lt. Myers was not aware of that
requirement, and nor were the officers who had been trained to use the system.
This could likewise account for the absence of Officer Rushs report(s) from the
IyeTek system and/or its history.
Based on these facts, in a report dated May 19, 2014, Lieutenant Swenson concluded that an allegation
24

that the Grievant failed to promptly complete the accident report could not be sustained.

However, the

report concluded that the failure to process the ticket and the failure to give the citizen driver information
exchange forms merited a suspension for failing to perform duties in a productive, effective, and efficient
25

manner. [CITY EXH. 3, pp. 101-102].

The Department imposed a one-day suspension for a violation of

Rule 1(A)(3). Arbitrator Dichters opinion contains two paragraphs concerning this matter.
The first incident occurred on March 13 2014. Grievant had made a traffic stop. He
issued a citation. A ticket is supposed to be turned in immediately so that it can be
processed. The Officer must also record the information on the computer. Grievant was
charged with not turning in the ticket and for failing to file the report. It was later
determined there was a problem with the software and reports were sometimes deleted

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
24!During a Garrity interview on May 15, 2014 the Grievant explained to Lieutenant Myers that he hit
validate and submit and I just X out of the program. [CITY EXH. 3, p. 175].
25!It

should be noted that several weeks earlier Lieutenant Dave Shaffer completed another investigative
report addressed to Chief Cobb and Deputy Chief Gallo. In addition to recommending that the Grievant
be disciplined for a violation of Rule 1(A)(3), he recommended that he be disciplined for violating Rule
2(C)(1) (Failure to make a prompt official report). [CITY EXH. 3, p. 114]. Chief Gallo approved Lieutenant
Swensons findings and recommendations not Lieutenant Shaffers findings and recommendations on
May 28, 2014. Importantly, in my view, neither Lieutenant Shaffer nor Lieutenant Swenson (or
anyone else) ever made (and Chief Cobb did not approve) any finding or recommendation that the
Grievant had at any time been untruthful.

19!

by the computer. The allegation was then dropped. Grievant acknowledged that he
forgot to turn in the ticket into the Department. He put it in a folder and forgot about it.
He was interviewed regarding this incident on May 14 and again on June 18. He
acknowledged on both occasions he was wrong. He also admitted that during the
hearing. It was recommended that the Grievant receive a one-day suspension for this
failure. Grievant does not challenge the conclusion and agrees that this level of discipline
was appropriate for this offense.
The Arbitrator does not disagree. He did forget to turn in the citation. There are
consequences to that failure for the parties concerned. It can effect insurance claims
and have other ramifications. Grievant acknowledged this. Thus, the Arbitrator can find
no fault with the Departments conclusions regarding this incident. Grievant did what he
was charged with doing and was appropriately disciplined. [CITY EXH. 3, pp. 416-417].
26
[Emphasis added].
2. Arrest of Kissica Seets.
The general picture of what occurred on April 11, 2014 is described in States Attorney Rietzs
press release. From what can be pieced together from police reports filed by seven officers,
occurred during a birthday party for
individual named

punched Kissica Seets and this prompted

jumped

reportedly

to begin fighting with Kissica Seets in defense of

, who told Officer Voges that he is the

An individual named

the melee

when her sister Kissica Seets got in the face of an

about him sleeping with someone other than

Seets why she called

27

asked Kissica

a bitch and Kissica Seets reportedly answered, because he is a bitch.


, who is Kissica Seets boyfriend, along with

knocking his glasses off and causing him to drop his phone.

, reportedly
of Kissica and

called the police. Officers were informed that prior to their arrival on scene
threatened Kissica with a knife prior to the police
arriving.

When the first officers (Officers Henry and Schweska) arrived the sisters were yelling and

fighting.

emerged from the house, said, fuck the police and I hate the police, and began

walking in the direction of the officers who were standing in the street. As Officer Schweska was directing

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
26! Although I am unaware of the testimony at the hearing, on the basis of a careful reading of the record,
I believe that Arbitrator Dichters statement that the allegation was dropped is mistaken because there
never was such an allegation so it could be dropped.
27!Incident reports were filed by the following officers: Sergeant Jaceson Yandell [CITY EXH. 3, pp. 127130]; Officer Kristine Haugen [CITY EXH. 3, pp. 122-126]; Officer Cully Schweska [CITY EXH. 3, pp. 131133]; Officer Jeffrey Creel [CITY EXH. 3, pp. 136-139]; Officer Jeremy Canales [CITY EXH. 3, pp. 138139]; Officer Mason Voges [CITY EXH. 3, pp. 140-142]; and Officer Matt Rush [CITY EXH. 3, pp. 143144].

20!

to go back into the house Kissica Seets struck

in the face with a closed fist. The

sisters reportedly continued to engage in physical combat and ignore orders to stop and break it up,
Officer Schweska administered one burst of OC spray at both sisters and, for a short time, they stopped
fighting.

A large number of people emerged from the house and Officer Schweska requested that

additional units respond. Moments later

threw a folding chair striking Kissica Seets.

later told officers that Arthur retreated into the house when he saw the lights of squad cars
approaching and that she tried to hold him when he came out because she wanted him arrested on an
outstanding warrant but he ran away on foot. Joseph stated that he suspected either
taken his missing phone. Both Kissica Seets and

had

were arrested. Kissica Seets later pleaded

guilty to Aggravated Battery of a Police Officer.


The Grievant was one of 11 police units at the scene. He filed this incident report. [CITY EXH. 3,
pp. 143-144].
On 4/11/2014, at approximately 2225 hrs, I was wearing a Champaign Police Department
Class B uniform and operating a fully marked squad car. Officers were dispatched to
[address redacted] in regards to a fight call. Officer Schweska requested additional units
upon his arrival.
When I arrived at scene, I observed two black females, later identified as
and
Kissica, fighting in the front yard. I observed
strike Kissica with a folding chair.
Officers separated the parties and during the course of the investigation it was
determined that Kissica and
would be arrested for domestic battery.
Officer Haugen and myself then secured Kissica into handcuffs which I double locked and
checked for proper fit. It should be noted that Kissica was resistive in my initial efforts to
secure her. Officer Haugen and myself attempted to escort her to a squad car, however,
Kissica was pulling away in an attempt to speak to her family members.
As I pulled her left arm, Kissica turned her face turned me and took a deep breath.
Kissica then spit directly into my face. The spit hit me directly on my right temple and
cheek. At this time I wrapped my right arm around Kissicas head. Her jaw was cradled
in my elbow with the intent of controlling her head so that she could not spit at Officers. It
should be noted that there was never pressure against Kissicas throat or neck. The arm
around her head cradled her jaw in the V of my arm simply to keep her from turning her
head. I escorted Kissica to Officer Canales squad car without further incident. It was at
this time other Officers secured Kissica into the squad car so that I could clean the spit of
[sic] my face.
I have no further information regarding this investigation.
As noted in the Grievants report, Officer Kristina Haugen was the other officer who escorted Kissica
Seets to Officer Canaless squad car. Her report [CITY EXH. 3, pp. 124-125] is consistent with the
Grievants report except in one respect. In pertinent part Officer Haugens report states:

21!

After speaking with Sgt. Yandell it was determined to arrest Kissica for domestic violence.
Ofc. Rush took Kissica into custody and told her to walk towards the squad car. Kissica
was refusing to walk. As Ofc. Rush was escorting Kissica to a marked squad car she spit
in his face. Kissica was told to sit in a marked squad car and she resisted by pushing her
legs out of the vehicle. Ofc. Rush was trying to get her inside the vehicle and she
refused. I took over for Ofc. Rush and told Kissica to get into the back seat. Kissica
would not put her legs inside the squad and kept telling me she was trying. I told the
officers on the other side to pull her inside and they did. Kissica was able to sit in the
back seat but she was still yelling and screaming. Kissica turned her head and spit on
my vest cover. If I hadnt moved my head she would have gotten me in the face. I was
handed a spit hood and placed it over Kissicas head. When I pulled the spit hood down
Kissica was still trying to fight to get it off. I went to pull down her spit hood and she was
moving her head a lot. Kissica pushed forward as I put the hood on and I thought she
was going to bite me so I pushed her face back with my palm. I again adjusted her spit
hood to ensure it was on properly. Kissica wanted me to take the spit hood off because
she had asthma. Kissica was talking and breathing normal at this time.
Kissica was turned over to Ofc. Canales #715 for transport to CSCO. Kissica was
complaining of asthma so she was transported to Presence Hospital for treatment. Javon
was released without charges because it could not be confirmed if he actually did have a
knife and threaten Kissica during the altercation. [Emphasis added].
The record includes two photographs showing what appears to be a large glob of saliva on the upper right
quadrant of Officer Haugens vest cover. [CITY EXH. 3, pp. 134-135].

According to Officer Canaless

report, during conveyance to the hospital Kissica said she never battered anyone, but she did mean to
spit on Officer Rush. Kissica said she did not mean to spit on Officer Haugen and wanted to apologize to
her, she only intended to spit on the bald officer. [CITY EXH. 3, p. 139].
During the use of force investigation Lieutenant Myers reviewed audio recordings that picked up
the Grievants conversation with Kissica Seets. He noted that at first the Grievant handled himself very
professionally but during a four minute period he acted unprofessionally and used profanity. Among the
banter recorded shortly before Kissica Seets was arrested are the following:

In response to the statement You better stop looking at me (unintelligible), the Grievant
said, If youre going to tell me what to do, take the booze out of the front seat and put it
somewhere. How about that?
The Grievant said, Im going to tell you right now you are not going to throw shit at me.
You understand that? You are not going to throw shit at me. You understand that?
In response to the statement, My leg is really hurting the Grievant said, I dont care
about your leg, youre not going to throw anything at me, do you understand?
In response to the statement, Would you please get off my arm? the Grievant said,
Dont pull away. You will go to jail tonight. Ill tell you right now, you put your ass in that
car seat and you will go to jail for DUI. Keep that in mind.
In response to the statements Bitch ass newbie and fuck you the Grievant said, Keep
talking. Why dont you just walk away?

22!

In response to the question What are you waiting for? the Grievant said, Waiting for a
reason to take you to jail and in response to the next question Whats your reason? he
said, Ill find one.

Lieutenant Myers concluded that although there is no question that Kissica was not overly cooperative
during this incident the Grievants comments were inappropriate and violated Rule 3(B) requiring officers,
among other things, to be tactful and not use profane language. Based on his review of the video,
Lieutenant Myers also concluded that the Grievant delivered a knee strike while the arrestee was in the
backseat of the police vehicle. Because the video did not show what Kissica Seets was doing in the
backseat, Lieutenant Myers asked Officer Haugen for clarification. She explained that the arrestee was in
a seated position with her legs partially outside the car and was kicking at the officers and not attempting
to get inside the car. She said that although she did not see the Grievant deliver a knee strike, she is
positive that Kissica Seets was kicking because she herself got kicked and had a small bruise on her leg.
[CITY EXH. 3, pp. 151-156].
28

During an investigative interview on May 14, 2014, that was preceded by Garrity warnings,

the

Grievant explained that after watching the video he did not consider what he saw a knee strike because
in my mind a knee strike is when you take a step and drag your knee through someone. [CITY EXHIBIT
3, p. 168]. The Grievant said he considered it a jab right at the thigh and said that he did not remember
doing it. Lieutenant Myers and Lieutenant Swenson told him they observed two movements: first, when
he nudged or wedged her into the car with his knee and second, when he took a step back and
delivered what they considered a knee strike. [CITY EXHIBIT 3, pp. 167-169].

The Grievant stated that

he believed he acted appropriately in using force: I told her to get in the car, she wouldnt, and she got

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
28! Garrity v. New Jersey, 385 U.S. 493 (1967). Garrity prohibits the use in a criminal trial any statement
an officer is compelled to make under threat of discharge for refusal. An officer can be required to
answer questions related to the performance of official duties and the answers can be used for internal
discipline purposes. Prior to being questioned in each of the internal investigations Champaign police
officers are given the following admonition.
Refusal to Answer. You have an obligation to truthfully answer all questions. Your
answers or responses constitute an official report. If you persist in a refusal to answer
questions after an order of a superior officer to answer, you are advised that such refusal
constitutes a violation of Department Rules and may serve as a basis for suspension,
removal or discharge or other disciplinary actions. You are further advised that by law,
any admission made by you during the course of this interrogation cannot be used against
you in any subsequent criminal proceeding.

23!

rigid and stiff at the door. She started to kick back at me a little bit. And it looked like she was, you know,
actively fighting me, but she would not get in the car. [CITY EXHIBIT 3, p. 167]. When asked whether the
knee strike was reasonable and necessary under the circumstances, he responded: I would say yes and
no. Yes in the fact that she was resisting my efforts to place her inside the car. I have a lawful reason to
do so. I would [say] no because there was so many officers there I could have just removed myself from
the scene and had somebody else do it. Shes, but shes already so pissed off at me. [CITY EXHIBIT 3,
p. 171]. The Grievant agreed that he didnt necessarily do a great job of articulating her resistance at the
door of the squad car. [CITY EXH. 3, p. 169]. After taking a recess during which he looked at the video
he acknowledged that there was a knee strike. [CITY EXH. 3, p. 176].
The Grievant received a three day suspension for violating four rules: Rule 3(B)(1) Courtesy;
Rule 5(A)(2) General Operations (Each employee shall provide aid or furnish information consistent
with police duty and in accordance with law and departmental directive); Rule 5(C)(1) Mistreatment of
persons in custody; and Rule 5(D)(1) Use of physical force.
Arbitrator Dichter agreed that the three day suspension was proper and noted: Grievant does not
challenge this conclusion.

He admitted he used profanity and did not act professionally during the

encounter. He also acknowledged he did not include in his report the kicks or that he had grabbed her
arm when escorting her to the car.

However, Arbitrator Dichter disagreed with the Departments

conclusion that the second kick was inappropriate. He wrote: Looking at the video of the incident it is
hard to determine where the womans legs were when the second kick occurred. Testimony was that she
still was not in the car. The video is not clear enough to contradict that testimony. [CITY EXH. 5, p. 535].
3. Arrest of Precious Jackson
States Attorney Rietzs press release provides a thorough description and it is unnecessary to
restate that information. The Grievant prepared this incident report after the arrest. [CITY EXH. 3, pp.
272-279].
On 5/26/2014, at approximately 0652 hrs, I was wearing a Champaign Police Department
Class B uniform and operating a fully marked squad car. Officers were dispatched to
[address redacted] for an assist fire call. Witnesses reported hearing an explosion,
followed by yelling at which time a black female exited as smoke was coming from the
house. It should be noted, Officers had been sent to this residence on four other
occasions throughout the Memorial Day weekend. The resident identified as Precious
continued to drink and become disorderly with guest and Officers were dispatched to the
scene.

24!

Sgt. Crane and myself responded to the residence in an attempt to locate Precious. We
searched the area for approximately 15 minutes however we were unable to locate
Precious anywhere in the area. Sgt. Crane allowed me to clear the call and return to
Post in order to complete previous reports. As I was driving towards Post C, a criminal
damage in progress was dispatched by METCAD. The clerk at Thorntons advised a
black female wearing a purple dress had entered the store, damaged merchandise and
was screaming at customers. The clerk advised the female, later identified as Precious,
then left eastbound on University Avenue. It should be noted when the call was
dispatched I was driving past Thorntons in the 100 block of South Mattis.
I turned east onto University and observed a black female matching the aforementioned
description near the intersection of University and Victor. I exited my squad car and
instructed Precious to stop and come to me. Precious yelled Fuck you! and continued
walking east bound on University. I gave Precious several more commands to stop
walking and come to me. Precious ignored my commands and began screaming at me
pounding her fist into her hand.
As I approached Precious, she turned and began running east down the sidewalk. I was
able to close the distance and catch up to her. As I came to within approximately 4 feet
of Precious, she came to a complete stop and turned towards me. As she did this, I
began to reach for her arm in an attempt to secure her into handcuffs. Precious raised
her left hand and grabbed me by the throat. I felt her finger nails sink into my neck as
she was squeezing my wind pipe.
In order to stop this attack, I delivered a knee strike to Preciouss right thigh. This use of
force was effective in that it knocked her off balance and she released her grip. I threw
Precious onto the ground in order to have an advantage in securing her into handcuffs.
Precious continued to pull away from me and was attempting to roll away from me. At
this time, Precious began taking deep breaths and pursed her lips together. I believed
Precious was about to spit on me. I used my department issued OC spray and delivered
a short burst that hit Precious directly in the eyes.
This force was also effective in that Precious stopped pulling away and lay on the ground.
She still had her body tense and rigid, however I was able to pin both of her arms on the
ground. I knew at this point Precious would not be able to pull away as I had both of her
arms pinned to the ground using all of my body weight.
I asked Precious if she was done fighting and was ready to roll onto her stomach.
Precious said yes and I was able to roll her over on her stomach. Precious was still
tense and rigid however I was able to secure her in handcuffs without further incident.
The handcuffs were double locked and checked for proper fit. After she was secured into
handcuffs, I kept her on the ground until additional officers arrived at scene and could
take custody of Precious.
Officer Petkunas then arrived on scene and secured Precious into the rear of the squad
car. She then transported Precious to the Champaign County Jail where she was
booked for Aggravated Battery, Resisting a Peace Officer, and Criminal Damage to
Property. It should be noted, after Officers arrived on scene, I was informed that my neck
was bleeding. The injury to my neck was later photographed and the digital memory card
was entered into evidence at the Champaign Police Department.
Use of Force Reporting 1) Officers dispatched for numerous calls regarding the same
offender. Offender damaged property, ran from Officers and battered arresting Officer.
2) A knee strike and OC Spray were in order to effect the arrest. 3) The knee strike and
OC Spray were effective in that the offender was knocked off balance and taken to the

25!

ground. The OC Spray was effective in that it stopped the offenders efforts to pull away.
4) The offender had a small scratch to her right arm. 5) It is not know if the offender had
any pre-existing injuries. 6) The offender has obvious mental deficiencies and the
statements made did not make sense and were impossible to understand. 7) Offender
had small scratch of her right arm. Officer had a cut on his neck from offenders attack.
8) The offender was intoxicated at the time of the incident. The offender had an odor of
alcoholic beverage on her person and her eyes were glossy. 9) A witness observed the
initial altercation however, drove away prior to speaking with Officers. Incident captured
by in car camera and the footage was entered into evidence.
I have no further information on this investigation. [CITY EXH. 3, pp. 272 279].
As indicated in States Attorney Rietzs press release all of the supervisory personnel who
reviewed the matter agreed that after Precious Jackson was taken to the ground (at the 7:22:09 mark) the
video depicts what Lieutenant Shaffer described as the Grievants hand being drawn back and upwards
29

with an accelerating downward strike which is consistent with a punch. [CITY EXH. 3, p. 195].

The

press release did not include the Grievants explanations in two interviews that were preceded by Garrity
warnings. During the first interview on June 5, 2014 he was asked whether he denied punching her.
Yes, I am. What I was trying to do was separate myself from her lower body. She had a
sundress on that was all the way up to her breasts, she had no underwear on. Her legs
were spread wide open. I was trying to get as far away from that end of her body as I
could. I stayed right by her right shoulder, pinned her arms to the ground, and radioed for
assistance. Said that she wasnt actively fighting me but I didnt have her in handcuffs
and she was on the ground. So at that time I just held her there and waited for other
units or her to calm down, whichever came first. And then she did eventually calm down.
[CITY EXH. 3, p. 210].
He claimed that when the video depicted his arm reaching up and then going down he was attempting to
pin both of her arms to the ground. [CITY EXH. 3, p. 213]. In the second interview on June 18, 2014 the
Grievant insisted the thing that looks like a punch is when I was pinning her on the ground. [CITY EXH.
3, p. 219]. According to the transcript of the interview he physically demonstrated what he did and while
doing so explained:
Shes laying. Her right arm is pinned down with me on the side. Shes got her left hand
up towards my face so I reach back, grab her hand and slam it in the ground and then
just me sitting, holding her on the ground. But I waited and waited and tried to do
everything I could not to use force on her because I realized uh, that I pinned her on the,
pinned her arm on the ground. I realized it wasnt a criminal act and it was more mental
deficiencies causing her behavior so I didnt want to use force, thats why I just held her

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
29!The press release does not mention the conclusion reached by Sergeant Crane, who serves as the
departments certified defensive tactics instructor, that the Grievants actions were consistent with how a
punch is thrown but he was unwilling to definitively classify Officer Rushs actions as a punch because
it was not entirely clear whether or not he made contact. [CITY EXH. 3, p. 242].

26!

as long as I did before I put handcuffs on. Because I knew I had her pinned to the
ground like that. She wasnt gonna get away and she didnt pose a threat to me
anymore. So, if I would have punched her, I always put it in my report. Ive punched
people. Theres no reason for me not to do so in this case. I can understand the way
your video, the video looks but thats just not what happened and this, the thing that
bothers me about this most is my integrity is coming into play and without integrity I might
as well not be a police officer.
And Ive never lied to you guys about anything Ive done. Ive always owned up to my
mistakes and Im stating emphatically that I did not punch Precious at all. That was just
me turning, pinning her to the ground, holding her there so she couldnt continue to
scratch my face and she couldnt get away. [CITY EXH. 3, p. 219].
At the conclusion of the investigation the Grievant was charged with seven rule violations:

Rule 1(A)(3) Employees shall perform duties in a productive, effective, and efficient manner.

Rule 1(B)(1) Employees shall be familiar with and obey written orders and directives issued or
authorized by the Chief of Police.

Rule 2(A)(1) Employees shall, in departmental work product or departmental communication,


transmit truthful, complete, and accurate information.

Rule 3(B)(1) Employees shall be courteous in their conduct and communication to citizens and
other employees. Employees shall be tactful in the performance of their duties, control their
tempers, and exercise reasonable patience and discretion. In the performance of their duties,
employees shall not use harsh, rude, overbearing, abusive, violent, profane, or indecent
language or conduct and shall not express any prejudice or insulting language concerning race,
sex, religion, politics, national origin, lifestyle, or similar personal characteristics.

Rule 5(A)(2) Each employee shall provide aid or furnish information consistent with police duty
and in accordance with law and Department directive.

Rule 5(C)(1) Officers shall not mistreat persons who are in their custody by violating a
provision of law or Departmental directive.

Rule 5(D)(1) The use of physical force to accomplish a police task is restricted by law and
Departmental directive to that force which is reasonable and necessary under the circumstances.

[CITY EXH. 3, p. 215]. Chief Cobb determined that dismissal was the appropriate penalty for these
violations. As noted in States Attorney Rietzs press release Arbitrator Dichter reduced the penalty to a
30-day suspension. He agreed that by ordering her to come here when he first made contact the
Grievant heightened the tension and stated that if he had been less directive and tried to quietly meet
with him the whole confrontation might not have taken place. He agreed that his failure to take steps to
prevent the situation from escalating is a symptom of a continuing problem. [CITY EXH. 5, p. 539].
Consequently, his Award required the Department to provide additional training in light his need to work

27!

on his ability to find those alternative ways and to deescalate an encounter so that force might be
necessary. [CITY EXH. 5, p. 544].
Arbitrator Dichter agreed with the conclusion approved by Chief Cobb concerning what the video
of the incident showed:
Grievant said during his interview the woman got her left hand up and reached up
towards my face so I reach back, grab her hand and slam it to the ground. He testified
when asked by the Arbitrator if this interview statement was accurate. He said it was.
The Arbitrator has reviewed the tape countless times and even stopped it as the arm was
coming up and going down. The picture is anything but clear. However, there are two
troubling aspects as to what is seen. Grievant said he was simply trying to pin her arms
down. His arm comes up to his shoulder before it comes down. That seems to be more
than simply trying to pin her down. It need not go that high to accomplish that purpose.
Grievant said her left arm was at his face while he had the right pinned. The video does
not show the womans arm moving. It seems to be moving twice. The alleged punch
occurs between 1 minute and one minute and one second into the tape. It does look like
but one cannot be certain from the tape that her arm was moving at the 56-second mark.
It does come right down again. The second movement is after his arm movement. There
is no arm movement from her observed at the instant of his arm movement. If her arm
could be seen moving right after the alleged punch and possible before it, it should have
been seen moving right when it was occurring.
On the other hand, the fact that her arm moved only seconds before the punch and then
right after would indicate that her arm was not contained at this juncture and that would
add some credibility to Grievants contention he did what he did because he was
concerned what she might do next. The woman had scratched Grievant and his face
was bleeding. She was not under control even after the pepper spray and after she was
taken to the ground. She was even still moving her arms after the alleged strike, and not
lying quietly. Her actions up to that point, especially since she was not in handcuffs and
was unstable would legitimately be cause for concern for any officer in that situation,
especially one there by himself.
Grievant tried to get control of the situation. He cannot be faulted for that. His intent
might honestly have been to control her and her arms, but it nevertheless does appear
that towards that end he wound up throwing a punch. His arm, as noted, came up too
high for it to have simply been an attempt to pin her arm. This Arbitrator and the
supervisors who viewed the tape have the advantage of seeing it over and over and
breaking it down segment by segment. In reality, it all happened fast. It must be judged
in that context. If she was fighting him as she appears to be doing, then taking action to
subdue her cannot be faulted, especially given his prior injury. He said his goal was, and
there is no reason to discount that given her arm movements, to gain control and toward
that end he engaged in a physical act. There is no evidence anything was done, even if it
was a punch, out of malice or loss of temper, but was instead done to subdue an
uncooperative person. It must be viewed in that context. That is a significant factor.
[CITY EXH. 5, pp. 540-541].
Arbitrator Dichter disagreed with the departments conclusion that the Grievant had violated Rule
2(A)(1) by being untruthful and exonerated him on that charge. He explained the reasoning leading to
that conclusion.

28!

This brings the Arbitrator to the other serious charge, dishonesty. The Department
argues Grievants testimony should not be credited. It argues he only admitted to his
wrongdoings regarding the first two incidents because he knew he was being
investigated for the last serious incident. The problem with that argument is that it does
not conform to the evidence. This last incident took place on May 26, 2014. Grievant
was interviewed regarding the first two incidents on May 15. He admitted during that
interview that he failed to turn in the citation and was wrong. During the same interview,
he also admitted he was wrong in several respects during the second incident. All of
these admissions occurred 11 days before the last incident. These admissions could not
have been made to save him from discharge for this last incident.
The Department then argues Grievant denied throwing a punch because of these two ongoing investigations knowing he was in trouble. While there is merit to that argument, it
does seem out of character for him to now change course from his truthfulness in the
past. The Union has pointed out that Grievant has always admitted when he has made
errors in the past, and there is no reason to believe he is lying now given that fact. His
admissions regarding the first two incidents it argues proves that point. The Arbitrator
after observing Grievant and listening to the testimony of others finds the Grievant to be
an honest person. Would he lie about this last incident fearing his job was on the line as
the Department argues? The Arbitrator finds that argument just does not ring true. It
would be too large a deviation from his character. Furthermore he might not have known
this incident could mean discharge. He would not automatically know this incident could
be a last straw, if he told the truth. A major reason discharge is on the table is because
of the allegation he lied. He, as is true with all those in the police profession knows how
serious lying is and he knew there was a camera capturing the event. Why then would
he compound his dilemma by lying?
How then does his story comport to what the video shows? The Arbitrator finds the most
plausible explanation is that in Grievants mind the video does comport to his recollection
and his recounting of events. Others observing it, including this Arbitrator see it one way
and he may very honestly be seeing it another. Lying requires intent. Grievant is
apparently wrong in his perception of what he did, but the Arbitrator finds it is based on
his errant perception of events and not an intent to deceive. That is not an uncommon
occurrence. No doubt the action was taken for the purpose he has stated, he just did not
do it the way he thinks he did. There is a difference between being simply mistaken and
knowing what one says is wrong and saying it anyway. One requires intent and the other
does not. Finding such intent to deceive for this Grievant is a bridge too far for this
Arbitrator given all that preceded the event. [CITY EXH. 5, pp. 541-543] [Emphasis
added].
Arbitrator Dichter concluded: The Arbitrator also finds it difficult to sustain a discharge when the only
evidence is a blurry video taken from some distance away that shows an act that took all of second and
specifically addressed the effect of his decision on the Grievants ability to testify:
More importantly, the Arbitrator has disagreed with the Department that Grievant
exhibited dishonesty during this event. The Arbitrator fully agrees with the Department
that the honesty of an officer is paramount. How can one testify in a criminal case if that
officer has no credibility? A finding of dishonesty is fatal to the employment of one
holding a position like that of Grievant. The absence of such a finding here, however, is
fatal to the case of the Department. This fact and the other facts noted have been

29!

weighed by the Arbitrator in deciding to overturn the discharge, but Grievant does
30
deserve to receive another suspension for this last event. [CITY EXH. 5, pp. 543-544].
4. Complaint concerning response to domestic violence incident.
Although not addressed in the press release, States Attorney Rietz discussed this incident in an
internal memorandum that summarized her offices review. [CITY EXH. 4, pp. 519-520]. Because the
memorandum is not a public document I have replaced names with initials.
On July 28, 2013, at 10:00 p.m., Officer Rush was on duty assigned as a Northwest
District Patrol Officer. At 10:15 p.m., Rush received a call on his personal cell phone
from , a personal friend. told Rush that he was at his residence at [address
redacted], that he was arguing with his girlfriend, and that his girlfriend was tearing up the
house. He asked Rush to come over to the house to assist him. Rush reported to
METCAD that he was going [to that address] for Code 27 meaning a follow up
investigation. Rush met outside the house.
told him that his girlfriend, and
he were arguing, that had grabbed him by the arm and put her hands on his face,
and that she had fallen backwards onto the floor. Rush went inside and found . She
was crying, her speech was slurred, and in Rushs opinion she was highly intoxicated.
told Rush she wanted to go home. Rush drove her to her residence at [address
redacted]. He did not report to METCAD that he was transporting . He did not create
a file or report of the event. The next morning called METCAD and reported that she
wanted to file a domestic violence report. She reported that Rush had responded to
[ s] address the previous night, and said she believed she had a broken wrist. Further
investigation revealed that she did have a broken wrist. reported that she had told
Officer Rush that had pushed her down and twisted her wrist. reported that
was in the room with her when she was talking to Rush. reported that Rush offered
to give her a ride home, and that during the drive she complained to him about her wrist
hurting. reported that Rush gave her a bag of ice when they arrived at her home
and told her to go to sleep, and that he would return in the morning to bring her back to
s to get her vehicle. Investigation revealed that s residence is in County
jurisdiction. was arrested and charged with felony Domestic Violence. had
three prior convictions for Aggravated Battery and one prior conviction for Aggravated
DUI. He ultimately pleaded guilty to the charge arising out of this incident and was
sentenced to one year in the Illinois Department of Corrections.
Lt. Jon Swenson conducted an investigation into
complaint. Lt. Swenson
interviewed , and officers involved in the subsequent investigation,

medical records, squad car videos and METCAD recordings, and interviewed Officer
Rush. Rush was interviewed as a requirement of his employment, so his statement
cannot be used against him for criminal investigation purposes and will not be considered
for purposes of this review.
With regard to Allegation 1, that Officer Rush failed to assist in receiving medical
care after learning of the injury to her arm/wrist, Lt. Swenson sustained that allegation,
writing that Officer Rushs role at the scene was that of a caretaker, but he made no

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
30!Arbitrator Dichter did not indicate how he allocated the 30-day suspension to the individual offenses.
What matters is his interpretation of Rule 2(A)(1) not mine but as I interpret the rule a disciplinary
penalty could be assessed even if the arbitrator exonerates the employee from the accusation he was
untruthful because the phrase truthful, complete, and accurate information does not require the
employee to violate all three terms.

30!

attempt to determine the extent of her injury nor did he request medical personnel to
respond to the scene. Lt. Swenson went on to state that Officer Rush had violated other
CPD Rules and Policies. Specifically, Officer Rush was obligated to conduct a thorough
on scene investigation, write an offense report, and provide assistance to the involved
parties because he had reason to believe that a violation of the Domestic Violence laws
had been committed. Lt. Swenson outlined 6 CPD Rules Officer Rush violated, including
failure to make a prompt official written police report of offenses investigated, observed or
known, failure to provide aid, failure to take action on the occasion of a criminal offense
requiring police attention while on duty, and engaging in personal activities which might
conflict, compromise, or interfere with his performance of police duties.
Lt. Swensons investigation was reviewed by Lt. Shaffer, Deputy Chief Gallo, and Chief
Cobb, who all concurred with his findings. Officer Rush was suspended for 2 days due to
multiple rule violations. On September 9, 2013, Chief Cobb wrote a letter to advising
her that her complaint was sustained.
Concern here is untruthfulness.
In the interest of completeness, and to place the untruthfulness concern in a proper context,
discussion of the chronology of events is necessary. The Citizens Complaint, signed by

, was made

three days after the incident on July 31, 2013. The portion of the complaint that describes, What you
believe the officer/employee did properly or improperly, [CITY EXH. 3, p. 34] states:

got back to s house at 9:30


went to bed
got into verbal argument
head back to bedroom to get away from situation
on the way down the hallway he tackled me to the ground, while pinning me down he
twisted by wrists; heard snap
he immediately called Officer Rush outside
Officer Rush arrived had a conversation with outside
Rush came inside. I told him of the incident
told him I was in a lot of pain in my wrist
he said okay & he would take me home, on the way home I expressed my severe pain
got home; he got me ice & said he would be back in 4 hours to take me to my car and to
leave the door unlocked.

Not included in the summary prepared by the States Attorneys Office is a memorandum prepared by
Sergeant Aaron Lack detailing

account given several hours after the event. [CITY EXH. 3, p. 32].

MEMORANDUM
TO: DC Gallo & Lt. Myers
DATE: July 30, 2013
SUBJECT: Interview with

. regarding file #C13-6904

31!

The intent of this memorandum is to document part of a conversation I had with


on
July 29, 2013 at approximately 0700 hours at her residence located at [address
redacted]. I responded to the address when I was notified that she was reporting that her
arm was injured during an incident on July 28, 2013 at approximately 2200 hours. During
the incident she had been in an argument, with her boyfriend, , while they were at his
address [address redacted]. called Officer Rush, who was on duty at the time, to
come to the residence to help them prevent the situation from getting worse. Officer
Rush arrived on scene and eventually transported from [
address] to her
address at [address redacted] in order [sic] prevent any further problems at the
residence.
When I spoke with she explained that she believed her arm was broken due to
swelling that had occurred overnight. I asked her if she believed her arm was broken
when Officer Rush drove her home from [
address]. She said although it was sore,
she did not think it was broken at that time. She said she told Officer Rush at the time
her arm was sore. I asked her if she reported to Officer Rush at that time that a physical
fight occurred between her and at [his address]. She said she did not report it to
Officer Rush at that time because she believed that nothing would be done and so she
did not want to get into it. She said she did not want the situation investigated so she
did not tell Officer Rush about the domestic dispute becoming physical.
At the conclusion of my conversation, Officer Rush finished his interview with and
transported her back to [
address] where she wanted to pick up her vehicle. Also,
Champaign County Deputies were going to meet us there and conduct an investigation
regarding the allegations of domestic battery since it was discovered that [

address] is not within the city limits of Champaign. [Emphasis added].


The Grievant did not complete a report after he went to
th

home and drove

to her home on July

th

28 around 10:00 p.m. He did complete a report on July 29 after he was dispatched to her address at
6:44 a.m. [CITY EXH. 3, pp. 38- 42].
On 7/28/2013, at approximately 2215 hrs, I was wearing a Champaign Police Department
Class B uniform and operating a fully marked squad car. I received a phone call from
[word obliterated by punch hole] he was arguing with his girlfriend and wanted to
make sure the argument did not get any worse. I proceeded to
address located at
[address redacted]. At this time, I believe the aforementioned address was the
jurisdiction of the Champaign Police Department.
Upon arrival, I observed standing in the front yard talking on a cell phone.
walked up to me and stated that his girlfriend, identified as , has [sic] extremely
intoxicated and out of control. explained that he had been with throughout the
day in Peoria. stated he took on a date and it was actually a very good day for
the two of them. advised that upon returning home they began arguing.
stated that he was in the front yard of his residence talking on the phone with his
landlord. stated that she believed he was talking to another woman at this time.
stated that had consumed numerous mixed drinks with vodka. While was
outside, entered a spare bedroom and began tearing up property, gifts for

children. stated she was throwing the neatly stack [sic] pile of gifts around the room.
I did not actually observe the bedroom as I only entered the living room of the house.
advised that was more intoxicated than he has seen her in a very long time.
stated that they began yelling at each other in the hallway of the residence.
advised that continued throwing items around the residence. informed me he

32!

was stepping outside to call when grabbed onto his arm.


arguing while his arm was in her grasp.

stated he continued

stated that as they were yelling, put her hand on his face, in a manner described
as getting his attention. I did observe two small red marks on
face that had the
appearance of pimples. stated that he turned to walk away at which time fell
back wards onto the floor. stated he then walked outside at which time he called me.
advised he waited outside until I arrived. It should be noted, that did not appear
to be intoxicated. His speech was not slurred and he did not have any issues walking or
holding a conversation.
I instructed to wait outside while I talked with inside the residence. I entered the
residence and observed sitting on the couch. was crying and swaying side to
side.
was highly intoxicated as her speech was heavily slurred, her eyes were blood
shot and she could not maintain her balance.
I asked if she was okay to which she stated, I just want to go home. I just want to
go home.
continued to cry and was not able to maintain a conversation. In [sic]
conitued [sic] attempting to speak with however, her intoxication was too high for a
successful interview. would say that is mean to her and that she was scared of
him. I informed
that I could not allow her to drive in her condition. said she was
fine and just wanted to drive home. I told approximately 3 times I could not allow her
to drive, however, I would provide her with a ride home. reluctantly agreed and I
began assisting her with locating her belongings. was not able to find her phone,
keys, purse or coat due to the intoxication. was eventually able to locate her keys
and provided them too [sic] me. I then transported
home [to her residence]. While
en route, continued saying how she was tired of being mean to her and brought
up possibly being with other women. I then dropped off at her residence where
she stated she just wanted to pass out for the evening.
It should be noted, that there were no independent witnesses to the event and conflicting
stories. appeared to be very believable while struggled to maintain the
conversation. At approximately 0630 hrs on 7/29/2013, called METCAD and stated
she believed her arm was broken and wanted to know why no report was taken.
At this time, Sgt. Lack and myself proceeded to her residence in order to photograph any
possible injuries and interview . As I approached the residence I observed
standing in the living room. She was crying and holding her arm. I asked if she
needed an ambulance to which she replied, No, I will be fine. I asked if she could
relay what had occurred prior to my arrival on 7/28/2013.
stated that she been with throughout the day in Peoria on a date. said
everything was great throughout the day and they enjoyed themselves. advised that
upon arrival at the residence an argument immediately began to escalate. stated
that started yelling at her after she questioned what he was doing in the front yard.
advised they continued to yell at each other and as she was walking in the hallway,
approached and placed her in a bear hug. At this time, stated she attempted
to pull away and they fell onto the ground. stated that stood up and grabbed
her arms and twisted them. stated that her arm began to hurt. It should be noted,
that while at [
] address, I did not observe any redness or scratches on the arm she
stated was injured.
stated that then left the residence and used his cell phone.
It was shortly after this, that I arrived on scene.
did have a small amount of swelling on her right forearm at the time of the second
interview. I used a digital shift camera and photographed the injury. The digital memory

33!

card was later entered into evidence. Sgt. Lack informed me that the Champaign County
Sheriffs Department would also investigate the incident so an impartial decision could be
made regarding any possible enforcement action. In addition, I later learned that [

address] is actually the jurisdiction of the Sheriffs Department.


I then transported back to [ .s address] in order for the to speak with the Sheriffs
Department. While en route, stated I didnt want to make a big deal about this and
did not want a report. Upon arrival, I released to Deputy Maxey for the interview.
I have no further information regarding this information [sic].
A fact-finding hearing preceded by Garrity warnings was conducted on August 14, 2013. [CITY EXH. 3,
pp. 63-80]. In addition to the information in the incident report, the Grievant stated that he did not follow
the protocol for handling domestic violence incidents because at that time he considered it a remove
intoxicated subject situation involving a drunken woman who needed to go home.
advising the dispatcher that he was responding to the address where
up investigation) was inaccurate. He stated that at that time both
that he provided

He agreed that

resided on a Code 27 (follow-

and

said that she fell. He said

a bag of ice when they arrived at her house because she had complained about her

arm hurting but said that she did not want medical attention and he thought it would help. He said that
when he and Sergeant Lack went to her home the following morning she again refused medical attention.
He stated that he did not record the transport because it is not required by policy. The Grievant agreed
that he exercised poor judgment and that his handling of the situation gives the appearance that he was
trying to conceal a criminal act committed by an acquaintance.
The Grievant was disciplined for violating six rules and received a 2-day suspension. [CITY EXH.
3, p. 98].

Rule 1(A)(2) Employees shall perform police duties and make discretionary decisions in a
manner consistent with the law.

Rule 1(B)(1) Employees shall be familiar with and obey written orders and directives issued or
authorized by the Chief of Police.

Rule 2(C)(1) Employees shall make a prompt official written police report of offenses
investigate, observed, or known.

Rule 5(A)(2) Each employee shall provide aid or furnish information consistent with police duty
and in accordance with departmental directive.

Rule 5(A)(3) Each officer shall take appropriate action on the occasion of a criminal offense,
disorder, or other act or condition requiring police attention on or off duty.

34!

Rule 7(B)(1) Employees shall not engage in personal activities which might conflict,
compromise, or interfere with his or her performance of police duties.

5. Unfounded complaint filed by

States Attorney Rietz testified that in reaching her decision that the Grievant would not be called
as a witness by her office I really didnt consider the ones that were unfounded because they were
unfounded. [TR. p. 79].

However, she also testified that this complaint, although determined to be

unfounded, caused me concern [TR. p. 55] about how the Grievant handled situations involving
individuals with mental health problems. [TR. p. 66]. The discussion in her internal memorandum outlines
the necessary information. [CITY EXH. 4, pp. 518-519].
10/28/12
complaint. On October 28, 2012, CPD officers were dispatched to
[address redacted] for a juvenile problem.
called 911 requesting assistance with
her 17 year old son, who was tearing up the house. Officers Rush, McAllister and
Rogers responded. The call was concluded with no report, parenting advice given.

filed a complaint on the citys website alleging that Officer Rush used inappropriate
language and threats towards her son. Sgt. Nate Rath conducted the investigation. Sgt.
Rath interviewed Officer Rush, who reported that his goal was to be forceful with [her son
], to take a firm stance with him, and to be [sic] authoritative male figure for [him].
Officer Rush believed
desired a firm, intimidating effort to persuade her son to stop
and this conduct was what
had originally requested. He denied threatening but
said it will be your ass, if he could not control himself and the officers had to return,
believing that was of an age that the word ass would not be considered offensive.
Lt. [sic] Rath interviewed reported that Officer Rush said, if I have to come back
Ill beat your ass. During the interview
asked if he might have been mistaken,
and if Officer Rush might have said it will be your ass rather than Ill beat your ass.
said it was possible. Officer McAllister and Officer Rogers were interviewed and
denied hearing Officer Rush make threats. Sgt. Rath concluded that the complaint
regarding the use of profane language was unfounded as the word ass can be heard on
the radio, television, and PG-13 movies, and is rarely considered a profane word. Sgt.
Rath concluded that the complaint that Officer Rush made threats was unfounded
because it is possible that misheard Officer Rush, and the statement made by Rush
conveys a general requirement of responsibility on
part. Sgt. Raths review was
reviewed by Lt. Mike Paulus, who, on November 29, 2012, wrote a memorandum
confirming Sgt. Raths review, but expressing concern that Officer Rush allowed himself
to be asked to give the talk to a developmentally slow person. Lt. Paulus went on to
say this can be a problem if the message is not given or received in the right manner.
On January 4, 2013, Chief Cobb sent a letter to
advising her that the complaint was
not sustained because while the officer spoke very firmly and directly to he did not
use any harsh, rude or overbearing language in doing so.

TESTIMONY OF STATES ATTORNEY JULIA RIETZ


A prominent issue in the States Attorneys testimony concerned the basis for the assertion in the
letter to Chief Cobb that the Grievant has multiple discipline actions for untruthfulness. [JOINT EXH. 1,

35!

p.1].

In its opening statement and during questioning the Union insisted that the disciplinary record

showed that he had been charged with violating Rule 2(A)(1) (Employees shall, in departmental work
product or departmental communication, transmit truthful, complete, and accurate information) only once
and that Arbitrator Dichter exonerated him on that charge. The confusion was to some degree cleared up
by the States Attorneys explanation that when she used the word discipline she was using that term
loosely and referring to the entire file and not only to instances where the Department accused or
charged him with being untruthful. [TR. p. 152]. During her testimony she pointed to a number of
instances that she thought constituted untruthfulness, notwithstanding that the Department did not make
a finding, or prefer a disciplinary charge, of untruthfulness.
The witness pointed out that in his report concerning the arrest of Kissica Seets arrest the
Grievant inaccurately stated that he took her to the squad car without further incident. In addition to the
verbal exchanges with Ms. Seets, she said that the Grievant did not document the two leg strikes used to
get her into the squad car. [TR. p. 70].
With regard to the arrest of Precious Jackson, the witness found that the report

31

was very

inconsistent with what occurred at the beginning of the interaction because when he pulls up next to her
and starts screaming at her, thats crystal clear. [TR. p. 121]. A follow-up question was asked:
Q: So, I am just I am confused. What do you so, is it your position that how he
approached Ms. Jackson was inconsistent with what was in his report?
A: Yes, thats one of my positions on that situation. [TR. p. 121-122].
She stated that she did not know whether the Grievant was aware of her history of mental health issues
but believed that based on his experience and training he should have realized that he was approaching
an individual who might have mental health issues. [TR. pp. 123-124]. She stated that she disagreed with
Arbitrator Dichters finding that the Grievant had been truthful in his account of the force used in that
incident. [TR. p. 124]. She explained the reason why his finding did not affect her decision that the
Grievant could not testify on behalf of the state:

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
31!The referenced verbiage from the report states:
I exited my squad car and instructed Precious to stop and come to me. Precious yelled, Fuck
you! and continued walking east bound on University. I gave Precious several more commands
to stop walking and come to me. Precious ignored my commands and began screaming at me
pounding her fist into her hand. [CITY EXH. 3, p. 273].

36!

Because the arbitrator is one individual making a decision about credibility and an
officers credibility is on the line in every single case in which he or she testifies and a jury
has an independent ability to make a decision about credibility. [TR. p. 85].
States Attorney Rietz discussed the circumstances surrounding the Grievants 2-day suspension
for his handling of the domestic violence situation involving

. When asked on cross-examination

whether the discipline was for being untruthful she stated, I frankly dont know but said that one of the
multiple rule violations was not reporting where he was where he was when he was supposed to be
somewhere else. My concern when I reviewed it was truthfulness.

32

She declined to agree that the six

disciplinary charges in that matter did not involve untruthfulness. I dont know if theres a particular rule
thats called lying, but I would consider any one of these things a variety of different ways to say lying.
[TR. p. 168].
The witness testified that the Grievant was not truthful about the circumstances surrounding the
filing of a motor vehicle crash report.
Q: Are you claiming thats untruthfulness?
A: Its untruthfulness when your supervisor asks you whether you have done it and you
say no. Thats untruthfulness.
Q: Why
A: Or, Im sorry, when your supervisor asks you if you have done something and you say
yes, you have done it when, in fact, you havent done it, thats untruthfulness. [TR. pp.
113-114].
When asked if she was claiming that the Grievant deliberately lied about the accident report she
answered, yes. [TR. p. 114]. She stated that it was not relevant to me that the Department did not
claim the Grievant had been untruthful because I am making my decision as the person who has to put
this officer on the stand and vouch for his credibility and it was my opinion, based on what I read that he
was untruthful. [TR. pp. 114-116].
States Attorney Rietz testified that her office is comprised of 21 assistant states attorneys and
43 full-time staff. Her office handles all state crimes that occur in the county and that the office annually
files approximately 1,800 felony cases, the same number of misdemeanor cases, the same number of
traffic tickets, and juvenile delinquency and juvenile abuse and neglect cases. [TR. pp. 29-30]. She

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
32!As the previous discussion indicates the record evidence is that he did notify METCAD that he was
enroute to the address where

resided on a Code 27.

37!

testified that because of the heavy workload her office must make decisions based entirely on the
information contained in officers reports and that they do not have the technology to review video to
make sure it is consistent with what the officers report says occurred prior to making charging decisions.
[TR. pp. 32-34].
States Attorney Rietz explained a prosecutors responsibility under Brady v. Maryland and said
that her office takes it very seriously. [TR. p. 33]. She said that her officer does not keep any Brady list
of officers with credibility problems because quite frankly, we dont have that problem in Champaign
County and she has never received information about truthfulness issues from another department with
the exception of the Grievant and another officer who was charged with three sexual assaults and
terminated after pleading guilty. [TR. pp. 34-35].
In her view her office must vouch for the credibility of officers.
throughout her testimony.

She emphasized that view

33

As a prosecutor, we are putting these officers on the stand and vouching for their
credibility and we have to be able to do that and they have to be able to trust us and
know that were are trying to do the very best we can for them and that we understand the
difficulty of the work they are doing. [TR. p. 31].
States Attorney Rietz testified that her offices ability to prosecute cases had already been
affected by the Grievants actions. The criminal case of Benjamin Mann, a plaintiff in one of the civil
cases filed against the Grievant and other officers, was dismissed after the Grievant was terminated in
August 2014 and prior to his reinstatement in April 2015.

34

She testified that in another criminal case her

office allowed the defendant to plead to a lesser charge and receive probation rather than prison for a
number of reasons, including difficulty in getting witnesses. The prosecution went through great lengths
to prepare its case without using the Grievant as a witness. However, she testified that defense counsel

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
33!See, e.g. [TR. p. 80] (Every time an officer gets on the stand, their credibility is at issue and my office
is responsible for vouching for that credibility every time.); [TR. p. 114] (I am making my decision as the
person who has to put this officer on the stand and vouch for his credibility . . . .); [TR. p. 131] (its my
responsibility to put cases in front of juries and vouch for the credibility of the witnesses that I am putting
on . . . .); [TR. p. 86] (Every time an officer gets on the stand, their credibility is at issue and my office is
responsible for vouching for that credibility every time.).
34!States

Attorney Rietz did not explain the reason for the dismissal of this case. The Grievant was not
employed by the Champaign Police Department at the time of the dismissal.

38!

subpoenaed the Grievant as a witness and indicated that the defense would attempt to make the Grievant
an issue in the case. [TR. pp. 36-39 & 147-150}.
As previously mentioned, States Attorney Rietz testified about a conversation with a member of
the City of Champaign legal staff during which she learned that the Grievant was not a great witness for
himself in connection with the civil case. This caused her concern because obviously how an officer
testifies is significant to their credibility in front of a jury. [TR. p. 69].
She also explained a statement in her press release concerning individuals having mental health
issues:
Moreover, our concerns about his judgement and decision-making with regards to his
approach and contact with citizens in crisis, particularly those with mental health
concerns, makes us unable to vouch for his credibility and reliability as a witness in our
cases, regardless of role. [JOINT EXH. 2, p. 2].
She testified that by screaming at Precious Jackson come here, come her he unnecessarily escalated
the situation. [TR. p. 74]. When considered together with the unfounded complaint by

who was not

happy with how the Grievant talked to her son [TR. p. 55], the Grievants ability to interact with people
with mental health issues is, in her opinion, a major concern. [TR. p. 105].
The witness testified that she has not asked a judge whether the information concerning the
Grievants disciplinary history would be admissible. [TR. p. 135-136]. She testified that having a judge
make a determination on the admissibility of potentially impeaching evidence would not solve the problem
because there are significant issues of truthfulness that the judge would likely say should be put in front
of a jury, first of all, and second of all, every defense attorney out there would want their opportunity at
this. It would it would be a ridiculous waste and distraction in criminal cases. [TR. p. 91]. Even if her
office attempted to work around the Grievant testifying by using other officers as witnesses, the defense
could call him and derail the case. All of this is out there in the public. [TR. p. 90].
The witness was asked about the legal significance of Arbitrator Dichters exoneration of the
Grievant on the allegation that he had been untruthful concerning his use of force in the arrest of Precious
Jackson.

She said that the arbitration decision could not be presented to a jury and that there is

absolutely no legal basis to admit an arbitrators decision into evidence to rehabilitate an officers
credibility. [TR. p. 142]. This prompted a follow-up question:

39!

Q: If you if Officer Rush were called to the stand and a judge ruled that the Chiefs
finding that he was untruthful was relevant, it came into evidence, wouldnt a finding by
an arbitrator or anybody that he is truthful be appropriate rehabilitation evidence?
A: Fist of all, no. And, second of all, I wouldnt try to discredit the Chiefs opinion.
[TR. p. 143]. To clarify the answer I restated the question:
Q: If the Chief of Police made a finding of dishonesty that made its way into court, the
question was would the arbitration decision that overturned that decision be proper
rehabilitation. And, frankly, I dont know the answer to that question.
A: I dont either. [TR. p. 145].

TESTIMONY OF CHIEF OF POLICE ANTHONY COBB


Chief Cobb explained in detail the reasons that States Attorney Rietzs refusal to allow the
Grievant to testify would adversely affect police department operations. An officer who is unable to testify
could not perform many of the essential functions required of patrol officers. [TR. pp. 171-185].
Consequently, the department would need to deploy an extra officer to meet minimum manning
requirements. [TR. p. 176]. Other officers could feel that accommodating an officer who cannot testify is
giving him special treatment. [TR. p. 177]. The work of patrol officers consists of everyday responsibilities
that frequently require testimony. This includes traffic enforcement. [TR. p. 189]. He said that if an
officers investigation cannot be described in court citizens are victimized a second time. [TR. p. 178]. An
officer who cannot testify in court cannot fulfill the job requirement of cooperating in the prosecution of
criminal offenders by giving testimony in grand jury, coroners inquests, or trial proceedings. [TR. pp.
180-183].

Although an officer could respond and handle some calls for service for example a

neighbor dispute about a non-criminal matter he could not appropriately do what needs to be done
when dealing with a shoplifting case or a homicide or sexual assault crime scene. [TR. pp. 180-185]. The
Chief does not think it is an effective use of taxpayer funds for officers to aimlessly drive around the city.
[TR. p. 223].
Chief Cobb testified that the department does not have any positions that the Grievant could fill if
reinstated. [TR. p. 177 & p. 185]. For example, an officer whose integrity has been called into question
could not be placed in an evidence technician position because access to the evidence vault could
jeopardize every case involving evidence rather than just the officers own cases. [TR. pp. 190-191].

40!

Desk jobs are the bargaining unit work of another union. [TR. p. 190]. Assigning him as the second
officer would be giving him a free pass because I am not getting the work out of him and thats not
how we operate. [TR. p. 191]. Light duty positions are available for officers with on-duty or off-duty
injuries on a short term, temporary basis if we can find something that the employee can do. [TR. pp.
191-192]. There have been no assignments to permanent light duty and if someone is permanently
assigned it would deprive other officers of the opportunity to work when injured. [TR. p. 191].
Chief Cobb testified that the department does not currently use body cameras for officers but will
be converting squad car dash cameras to body cameras. [TR. p. 196]. He stated that although body
cameras are good they would not solve the problem because they do not catch everything. Unlike the
human head that swivels, body cameras are fixed on the front of the body and incapable of capturing
something that occurs off to one side. They may not function in a low light environment. [TR. pp. 195197].
Chief Cobb testified that he sent the States Attorney Office and the United States Attorneys
Office a Brady letter concerning another officer.

35

He explained:

It was a letter that was sent in regards to an incident in which we did an internal
investigation where [the officer] was dispatched to a call; he was at a location; his
supervisor had known him to not to frequent this location more active as a
friend/acquaintances home. The supervisor happened to be a couple blocks away when
the call came out. The officer acknowledged the call over the radio and never cleared
that friends house. He stayed there the entire time and several minutes later cleared the
call saying whatever he was supposed to investigate wasnt there, at which point in time
the supervisor addressed it and dealt with it and that was the initial untruthfulness over
the radio, but when we confronted him about it, he became 100 percent clear on what he
did and we moved forward from there but we notified the states attorneys office. [TR. pp.
210-211].
The officer was disciplined. The Chief did not recall the discipline that was imposed but the officer was
not terminated. He said that he has not been notified by the States Attorneys Office that the officer
would not be called to testify and that he never heard back once I sent the letter. [TR. pp. 213-214]. He

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
35!The name of the officer is in the record but I deem it unnecessary to include it in this Opinion. I am
cognizant of the provision in Article 33.5 concerning the disclosure of officers names in disciplinary
matters.

41!

testified that he could not say whether the officer has testified without speculating but he would guess that
he has testified after he sent the letter. [TR. p. 216].

36

On cross-examination Chief Cobb agreed that all the discipline matters discussed in the hearing
have already been addressed and said he was not asking the arbitrator to revisit those issues we are
here for the letter. [TR. p. 217-218]. He also agreed that none of the discipline prior to the first arbitration
involved an allegation of untruthfulness. [TR. p. 232]. He agreed that physically the Grievant can testify
but explained that an officer cannot barge into a courtroom and say, Judge, I want to tell you whats
going on. [TR. p. 221]. He agreed that the Grievant has never indicated an unwillingness to testify. [TR.
p. 222]. He stated that in his experience the letter from the States Attorney Rietz is unprecedented and
that none of the chiefs from across the state that he talked to were aware of any States Attorney
preventing an officer from testifying. [TR. p. 226].

TESTIMONY OF MATT RUSH


In large measure the Grievants testimony has already been discussed.

With regard to the

accident report he testified that through word of mouth he learned that officers were also having reports
disappear and that he did not know that the accident report he prepared was not showing up in the
system. He confirmed that he was not disciplined for not completing the report or misrepresenting the
facts and that he deserved the one-day suspension for forgetting to turn in the citation. [TR. pp. 252-253].
He also agreed that the three day suspension arising out of the arrest of Kissica Seets for being
discourteous and unprofessional and for not documenting the knee strike in his report was justified and
more than fair. [TR. pp. 250-251].
He testified that after the attorney who handled the lawsuit filed by Benjamin Mann obtained the
defendant officers personnel files he contacted other persons who had complaints against him and then
more lawsuits came. [TR. p. 259]. He testified that the City settled the lawsuits without his involvement.
[TR. p. 261]. He testified that he learned about the States Attorneys press release and the letter to Chief
Cobb through the media. [TR. p. 272].

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
36 !Chief Cobb estimated that the frequency with which officers testify varies depending on their
assignment and how proactive they are but estimated that the majority of officers testify around five or six
times a year. [TR. p. 182].

42!

The Grievant testified that he is fully capable of performing everything listed in the job description
of a patrol officer. He said the he is able to cooperate with the States Attorneys Office and that he has
always had good working relationships with Assistant States Attorneys. [TR. p. 274]. He said that he has
testified approximately 40 to 50 times and his credibility has never been an issue. [TR. p. 275].
On cross-examination the Grievant agreed that it is up to the States Attorney to decide to call
witnesses on behalf of the state. [TR. p. 286]. He stated that there is no factual basis for the States
Attorneys decision not to use him as a witness. [TR. p. 293]. With regard to the domestic violence
incident involving

he stated that code 27 is used for a follow-up investigation and conceded that

what he was not doing would not be considered a follow-up investigation. He agreed that he did not give
either

or

a domestic violence package. [TR. p. 302]. He said his mistake was not investigating

something that he should have but he did not lie. [TR. p. 307]. He admitted that the citation related to the
accident investigation was not turned in after it was initially returned for corrections. [TR. p. 317]. He
admitted that he had been stopped in 2011 by a University of Illinois police officer and that the officer
exercised his discretion not to make an arrest. [TR. p. 322].

He said that he did not report any

suspension to the States Attorneys Office because he was unaware of any obligation to do so and
assumed that any mandatory reporting obligation would be taken care of by administration. [TR. p. 322].

37

With regard to the use of force involving Kissica Seets, the Grievant stated that he did not consider his
action to be a knee strike as he interprets that term. [TR. p. 325].
On redirect examination he explained that with regard to his actions concerning

and

that

he thought they were just intoxicated and trying to get each other in trouble. [TR. p. 335]. He restated his
explanation about the computer issue with the motor vehicle crash report and explained that he simply
forgot to resubmit the citation after it had been turn back by a supervisor for a correction. [TR. pp. 337340]. He insisted that he told the truth when asked about the accident report and citation and asserted
that the one-day suspension was not based on an allegation that he had been untruthful. [TR. p. 337].

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
37! There is nothing in the record that members of the Champaign Police Department have been made
aware of any self-reporting requirement when discipline is imposed.

43!

POSITIONS OF THE PARTIES

38

EMPLOYER
The City relies on the description of just cause in The Common Law of the Workplace. The
essence of the just cause principle is that the employer must have some demonstrable reason for
imposing discipline that concerns the employees ability, work performance, or conduct, or the employers
legitimate business needs. Just cause is not synonymous with fault and does not require proof that the
employee intended to commit the violation.

The standard of proof applicable to this case is the

preponderance of evidence but, in the Citys view, under any quantum of proof the record establishes that
the Grievant is unable to perform the essential functions of his job because his own misconduct has
caused the States Attorneys Office to determine that he cannot be called as a witness in any criminal
proceeding.
The Unions argument that the Grievant should remain employed even though he cannot perform
any meaningful employment for the City because he is physically and mentally able to testify despite the
States Attorneys conclusive decision is unsupportable and should not be credited. The well-established
persona non grata doctrine is intended to address situations where, as here, an outside party renders a
decision that makes a Grievant unemployable, even when the person would otherwise be covered by a
just cause discipline provision. The City maintains that the application of the persona non grata doctrine
requires denial of the grievance.
In Harris Trucking Co.

39

Arbitrator Joseph Gentile considered how a just cause discipline

standard is applied in a persona non grata situation. He established a seven factor analysis to determine
when an arbitrator should uphold the termination of an employee in such circumstances.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
38!Where deemed helpful to an understanding of the cases cited by the parties, or my assessment of their
relevance, I have included additional factual background or information about the cases. I have included
the parties positions as outlined in opening statements as well as post-hearing briefs.
39

Harris Trucking Co., 80 LA 496 (Gentile, 1983). The trucking company that employed the Grievant
provided loading and unloading and delivery services using its eight tractor trailers. Far West operated a
wholesale lumber yard and contracted with Harris Trucking to deliver product to its customers.
Approximately 95% of the companys business came from Far West. The Grievant made deliveries of
Far Wests products for 19 years and prior to his termination raised concerns that other drivers were

44!

1. Is the dispute between the employer and the employee or between the employee and a third party?
2. Did the employer act in good faith when it complied with the third partys demands?
3. Was there collusion between the employer and the third party to circumvent the just cause
provision?
4. Did the third party act in good faith when it made its demands on the employer?
5. Was there available work from the employee if the employer complied with the third partys demands?
6. Was there a clear showing that the third party would no longer allow the employee to work on its
equipment or the property?
7. Is there a real possibility of adverse economic impact on the employer if it does not comply with the
third partys demands?
The Citys position is that in this case these factors can be distilled to the following three questions:

Did the States Attorney make a good faith determination that her office could not use the
Grievant as a witness?

Did the States Attorney reach her decision independently without any influence from the City?

Does the Grievants inability to testify in court render him unfit for duty?

The record evidence establishes that States Attorney Rietz did not make her decision lightly. She
testified that in the twelve years in her current position and seven years as an Assistant States Attorney
she had never had to publicly address an officer with the level of discipline, particularly an officer who
has only been on the force for five years. Along with her first assistant and lead prosecutor she carefully
reviewed the voluminous materials because she wanted to make sure she was being very fair to the
Grievant as well as being very aware of the citizens who were bringing the issue to her attention.
According to the City, the Grievants claim that he has never been disciplined for untruthfulness is
not persuasive. A police officer can be untruthful in more than one way: being intentionally untruthful or
being untruthful by omission. In fact three of the disciplinary actions (the 2013 discipline for mishandling

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
receiving preferential delivery routes and filed a grievance with Harris Trucking about his complaint. The
same month Far West received two complaints from its customers about the Grievants disruptive
performance. Far West told the company that the Grievant was a troublemaker and that he could not
enter onto Far Wests facilities. The Grievant was laid off or terminated for lack of work. Subsequently,
in the arbitrators words, the Grievant placed gasoline on the flames when he solicited Far West
customers to provide character references on his behalf. Arbitrator Gentile concluded: There is no work
for which the Grievant was employed by the Company. The Company is not required to make work
where none exists. The grievance was denied.!

45!

the domestic violence complaint, the arrest of Kissica Seets, and the arrest of Precious Jackson involved
discipline for failing to submit complete or accurate police reports.

The Unions heavy reliance on

Arbitrator Dichters opinion that the Grievant did not intentionally lie about punching Precious Jackson
ignores at least four points. First, States Attorney Rietz is entitled to come to her own conclusion.
Second, Arbitrator Dichter was considering only three incidents.

States Attorney Rietz made her

credibility determination after reviewing thousands of pages spanning his entire disciplinary and complaint
record. Third, his opinion is not binding on the States Attorneys Office nor would it be admissible in a
criminal case as evidence of his truthfulness. Fourth, and perhaps most importantly, Arbitrator Dichter
identified four acts of misconduct, including omissions from the reports he completed.

He failed to turn in a traffic ticket and failed to file a report, justifying a one-day suspension.

He omitted from official reports that the arrestee had kicked at him or that he grabbed her
arm while escorting her to the police vehicle, justifying a three-day suspension.

He failed to take immediate steps from preventing a situation from escalating which the
arbitrator concurred is a continuing problem.

He wound up throwing a punch which was contrary to his testimony and written reports,
justifying a 30 day suspension.

Thus, a single arbitration decision disclosed: 1) one incident of failing to submit any ticket or report at all;
2) two incidents of inaccurate reports; 3) a continuing pattern of preventing situations from escalating; and
4) testimony from the Grievant that contradicted events that actually took place. As the California Court
of Appeals explained, the submission of reports that contain omissions and numerous inaccuracies
constitute Brady material that must disclosed to defense counsel and would be admissible impeachment
40

evidence.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
40! Adolf v. Civil Service Commission of Ventura County, 2003 Cal. App. Unpub. LEXIS 1809 (2d Dist.
February 26, 2003). The involved Deputy was assigned to the sexual assault unit and had been the
primary investigator in 99 cases. After being informed of discrepancies by the Ventura County District
Attorneys Office that resulted in the dismissal of several cases, the Sheriffs Department conducted an
investigation that revealed a pattern of misrepresenting or mischaracterizing witness statements. In one
case he attributed statements to the suspect and victim they did not make. In another case he failed to
disclose that a suspect requested an attorney shortly before and during an interview. In another case he
omitted a victims statements that could have been used to attack the victims credibility. In another case
he stated that a victim said that she remained standing during an attack when the interview transcript
showed that her statement was that she had fallen to the ground. The departmental investigation
concluded that he misinterpreted and misstated facts, failed to investigate and document inculpatory and
exculpatory evidence, and incorrectly quoted suspects, victims, and witnesses.

46!

The Grievants handling of the domestic violence incident that started with a call from his friend
on July 28, 2013 similarly caused the Grievant great concern. He did not report to dispatch where he was
going or what he was doing; instead he falsely reported that he was code 27 meaning he was
conducting a follow-up investigation. He took an intoxicated victim home and gave her a bag of ice with
no further medical treatment to address what turned out to be a significant broken wrist and ignored the
requirement to give the victim a state-mandated domestic violence package.
The arbitrator urged the parties to address in their briefs the question of what, if any significance
would it have on the issue before me if the states attorney based the decision on non-Brady material?
As an initial matter it must be emphasized that much of the material the States Attorney relied on is
Brady material. All of the following constitute material omissions and errors that could constitute potential
impeachment evidence that would have to be disclosed to criminal defense counsel:

Grievants failure to turn in a traffic ticket and his failure to write a report.

Grievants omission from his official reports that an arrestee had kicked at him or that he had
grabbed her arm while escorting her to the car.

Grievants failure to report use of pepper spray and a hip toss during an arrest.

Grievants dishonesty telling dispatch that he was conducting a follow-up investigation when he
was actually leaving the jurisdiction to help a friend.

Grievants failure to submit a report or case file when his friend was involved in a felony domestic
battery.

Grievants failure to give a domestic violence packet to the victim of his friends abuse.

The Citys position is that it is immaterial whether a court would construe these incidents as Brady
material because the correct inquiry in applying the persona non grata doctrine is whether the third party
(here, the States Attorney) acted in good faith, not whether they were right or wrong in every detail of
their analysis. Corley Distribution

41

is on point. The Grievant was discharged because he was denied

access to the premises of a major customer. Arbitrator Ipavec sustained the discharge even though the

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
41!Corley Distribution, 68 L.A. 513 (Ipavec, 1977). The Grievants job was to drive to and from the Stroh
Brewery in Detroit to the Stroh warehouse in West Virginia. The Grievant had a disagreement with the
dock supervisor who stopped a particular pallet from being loaded onto his truck. His conduct was
described as very loud and almost obnoxious. As a result Stroh management instructed the employer
that the Grievant was no longer to be used to transport its product. The Grievants version that he was
did not act in an abusive manner as alleged and that the disagreement concerned the truck being
improperly loaded that could cause the load to shift and cause breakage.

47!

third-party customers decision left much to be desired and tend[ed] to have an abusive effect on the
arbitrators sense of justice. However, faced with the unalterable fact that the customer had banned the
employee from the premises he could not perform the requirements of his job. Finding just cause the
arbitrator denied the grievance.
According to the City the same unalterable fact analysis controls here as well. States Attorney
Rietz made it clear that under no circumstances would she call the Grievant as a witness even if the
Arbitrator orders him reinstated.

To succinctly answer the arbitrators question: whether the States

Attorney relied in part on information that is not Brady material within the strict confines of that term is
not dispositive because her decision involved a large amount of Brady information and the determination
that her office would not rely on his reports or testimony was made fairly and in good faith.
The City also maintains the second applicable Harris Trucking factor is clearly satisfied. Chief
Cobb and States Attorney Rietz both testified that neither he nor anyone under his command had
anything to do with the decision that he would not be called as a witness. Indeed, when she requested
the Grievants personnel file the Chief refused and required her to obtain a subpoena. No one from the
police department or the city was present when the States Attorney met with citizens who wanted the
Grievant to be criminally charged.
The City asserts that the record supports Chief Cobbs conclusion that an indispensible
requirement for every position in the police department is the ability to testify in criminal cases. The
Unions suggestion that all would be well if he were assigned with another officer does not withstand
scrutiny because police work sometimes requires partners to split up. What would happen, the City asks,
if the Grievant alone saw a homicide suspect dispose of the gun used to kill the victim in a trash can
during a foot chase and the weapon is the only evidence linking the suspect to the crime? The City also
believes that having the Grievant testify would contaminate the credibility of other officers because
defense attorneys could call him as a witness and create a sideshow where the focus of the trial would be
his extensive disciplinary history instead of the behavior of the defendant. States Attorney Rietz testified
that a judge would likely require the jury to consider the evidence. She also testified that her office
cannot review video to make sure it shows what the officer has written in its reports.

48!

The City contends that reinstating the Grievant would violate public policy. Under the current
contract his annual salary is $73,289.63. The Illinois Constitution, Article VII, Section 1(a) states: Public
funds, property or credit shall be used only for public purposes. Chief Cobbs testimony explained in
great detail the reasons why the citizens of this community would not be receiving the full value of their
taxpayer money if he is reinstated but incapable of performing the essential job requirement of being
called as a witness on behalf of the State.
The Union relies on two types of mitigating evidence: character testimony and letters of
commendation and awards. The City argues that none of that evidence is convincing and most certainly
does not overcome the fundamental problem that has resulted from his own conduct. Of approximately
120 sworn police officers only 11 came forward to testify on his behalf. With the exception of a few Field
Training Officers who worked with him as a trainee, none of the witnesses had supervisory authority.
Only one of the officers was familiar with the three disciplinary offenses that led to his first termination.
None of the officers put forth any evidence that the States Attorneys decision was made in bad faith and
only two officers specifically testified as to the Grievants credibility or trustworthiness.

The Unions

argument that his seven letters of commendation and awards constitute grounds for mitigating the
disciplinary sanction imposed by the Chief of Police is unpersuasive.

The Chief testified that his

disciplinary record is near the top in the department despite his relatively short tenure. The Grievants
seven commendations are far outweighed by his total of 39 unpaid suspension days from eleven
separate counseling and disciplinary incidents! The Department lists the following:
1.

7.
8.
9.
10.

April 29, 2013. Counseling for missing court.


September 10, 2013. 2-day suspension for mishandling of a domestic violence call.
August 8, 2014. 1-day suspension for failure to complete reports in a timely fashion.
August 8, 2014. 3-day suspension for failure to document use of force and discourteous
behavior.
11. August 8, 2014. 30-day suspension for excessive use of force, failure to document use of force,
and discourteous behavior.

49!

The City claims that the Union introduced the Grievants performance reviews as a last-ditch effort to
obtain reinstatement. Each of the reviews summaries show that he consistently met standards, no more
and no less. Simply meeting, not exceeding standards is hardly justification to retain an officer who
cannot conduct criminal law enforcement activities.
The City argues that the cases relied upon the Union do not support the requested relief of
reinstatement because they are factually and legally distinguishable. For example, in Wetherington the
North Carolina Supreme Court in significant part reversed parts of the lower courts decisions and
remanded the case to the Personnel Commission for further proceedings. Unlike here the issue in that
case concerned the statutory, not contractual, definition of just cause. In that case the lie involved the
trooper saying a truck came by and blew his hat off his head, when in fact he simply lost his hat. The
critical distinction is that no prosecutorial authority had made a decision that he could not testify in court.
That is not the case here where the States Attorney decided she cannot rely on the Grievants reports
and that calling him as a witness would be detrimental to the prosecution of criminal defendants. Unlike
Trooper Wetherington, the Grievant here is barred from testifying in court.
While factually similar, the City argues that the legal holdings in Brown v. Nero lend no support to
either partys position in this case. The only question in that case was whether the indefinite suspension
based on the county and states attorneys letter was properly considered a non-disciplinary termination
disentitling her to a civil service hearing. The Court of Appeals simply held that she was entitled to a
hearing but decided that it did not have jurisdiction to rule on the merits of the officers claims. The case
is factually distinguishable in another respect as well. In a separate lawsuit in federal court the former
officer claimed that the county and district attorneys had agreed to retract the letter of no-confidence.

42

Hubacz v. Village of Waterbury is not a persuasive authority for the Unions argument because
the employer produced absolutely no evidence as to why the States Attorney determined that the officer
would not be called as a witness and that the letter, standing alone, was insufficient to establish officer
misconduct as that term is used in the applicable Vermont statute. Tellingly, according to the City, the
District Court did not order the officers reinstatement but instead remanded to allow the Board of

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
42!Brown v. Nero, 2016 U.S. Dist. LEXIS 67808 (W.D. Tex., May 24, 2016). The District Court denied
defendants motion to dismiss plaintiffs claims brought under 42 U.S.C. 1983.

50!

Trustees to reconsider its decision in light of the guidelines in the courts decision.

The decision

suggested that the officers inability to testify could be considered a legal disability insofar as he is unable
to effectively perform his job.
Duchesne v. Hillsborough County Attorney involved a case where three officers were disciplined
and the arbitrator completely overturned the discipline and ordered that the incident be expunged from
their personnel files. In that case a court decided as a matter of law that there was nothing in the
officers files that was potentially exculpatory. [Emphasis in original]. Unlike in that case, the Grievant
has not brought any litigation against the States Attorney. Furthermore, according to the City, a more
recent case of the New Hampshire Supreme Court

43

distinguished Duchesne and declined to order an

officers removal from the Laurie list because the original arbitration decision, which upheld discipline for
the officer while finding there was no intentional deceit, was certainly enough of a reflection of the
plaintiffs general credibility to trigger at least a prosecutors obligation to disclose such information to a
court for in camera review. [Emphasis in original].
The City asserts that the Unions reliance on Polk County is strange because in that case the
arbitrator upheld the termination.

While declining to consider the Brady letter as evidence of the

Grievants guilt, the arbitrator did say that a Brady letter would be relevant to reinstatement in the event
that the employer fails to establish just cause for its disciplinary action.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
43!Gantert v. City of Rochester, 168 N.H. 640 (2016). The officer mistakenly thought a required Lethality
Assessment Protocol form (LAP) had not been completed by the arresting officer and after unsuccessfully
attempting to contact the arresting officer watched the victims videotaped interview and completed a
second LAP form. The original form answered almost all the questions yes which triggered the protocol;
the second form answered almost all the questions no and did not trigger the protocol. An arbitrator
found that under the circumstances the department had just cause for discipline but that termination was
an excessive penalty because the Grievant had a good record and this was an isolated event. The officer
subsequently sued the City of Rochester for tortious interference with advantageous business relations,
violations of procedural due process, and damage to his reputation. The Supreme Court agreed with the
trial court that the Grievant was afforded an adequate opportunity to explain his side of the story and that,
unlike the circumstances in Duchesne, the arbitrators just cause finding was based on the same
information that led to the Grievants placement on the list. Had his findings been different, they could
have had the same ramifications as in Duchesne, i.e., providing a basis for removing the plaintiff from the
Laurie List.

51!

Although actually not cited in its post-hearing brief, the City anticipated that the Union would rely
on Franklin County Sheriffs Office.

44

In that case there had been no finding by the States Attorneys

Office that the deputy would not be called as a witness. The arbitrator also relied on the fact that other
officers had been disciplined but not discharged for being untruthful and that during his 18 year career the
deputy never testified in court. There is no such evidence of disparate treatment in this case. The
Grievant estimated that he has testified, 40, 50 times probably.

This case is, therefore, readily

distinguishable from Franklin County.


According to the City, the Grievant in this case is not an innocent victim of circumstances beyond
his control. His poor judgment and own disciplinary problems have created the situation he now finds
himself in. It was his own actions that caused the understandable loss of confidence from the States
Attorneys Office and its inability to rely on his reports or vouch for his credibility. Because he cannot
testify in court he cannot serve as a law enforcement officers. The citizens of Champaign must not be
saddled with the burden of paying the substantial salary and benefits of a police officer unable to perform
45

the essential functions of his job. The grievance must be denied.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
44!Franklin County Sheriffs Office, 127 LA 283 (Felice, 2010). The case involved a note that was taped
th

on another deputys locker that contained a racial slur. During an interview on March 12 the Grievant
was asked if he ever wiped the locker down and he answered, no. Several days later he approached
th
his supervisor that he wanted to speak with internal affairs again and in a second interview on March 17
he stated that he had wiped the locker with cleaning solvent. The Grievant in that case testified that he
met with his pastor two days after the first interview and was told that he needed to tell the truth. The
arbitrator acknowledged that under Giglio v. United States the failure to disclose evidence affecting
credibility could result in the reversal of a conviction. Nevertheless, based on evidence that the Sheriffs
Office had issued discipline less that termination for untruthfulness on numerous occasions after Giglio
was decided, the arbitrator overturned the dismissal and imposed a 90-day suspension.
45!Subsequent

to the submission of briefs the City, with the concurrence of the Union, submitted an
Opinion & Award authored by Arbitrator Marvin Hill captioned City of Crystal Lake & MAP, dated
December 6, 2016. Both parties have shared their comments concerning the case. The case involved
an officer who had been involved in an on-duty motor vehicle accident and was subsequently dismissed
because he repeatedly lied about the extent of his injuries and his physical capacity to do police work.
Arbitrator Hill denied the grievance. He discussed the Brady implications when disciplinary charges that
an officer has been untruthful are sustained. The City asks that I adopt Arbitrator Hills viewpoint that
when an officers documented untruthfulness is at issue an arbitrator should not lightly substitute his
judgment and discretion for the judgment and discretion honestly exercised by a Chief of Police who met
the contractual requirements of due process, fairness and just cause. The Union argues that the case
decided by Arbitrator Hill is entirely different than this case because, contrary to Arbitrator Dichter,
Arbitrator Hill agreed that the Grievant repeatedly lied. The Union says that to be comparable the facts in
that case would have to be that an arbitrator found the employee not guilty of lying, ordered
reinstatement, and fired him a second time because the States Attorney disagreed with the arbitrator and
banned him from testifying. I find Arbitrator Hills reasoning persuasive and I have taken it into account.!

52!

UNION
The purported basis for States Attorney Rietzs pronouncement that the Grievant would not in the
future be allowed by her office to testify as a witness in any criminal case is the decision of the United
46

States Supreme Court in Brady v. Maryland.

Although she testified that she did not put the Grievant on

an actual Brady list per se, the net effect was the same as if she had: she absolutely and unequivocally
barred him from testifying ever, regardless of the case or the circumstances. The Union maintains that
she misapplied the Brady doctrine and by doing so abused her discretion as a public official. In deciding
that her office would not vouch for his credibility she impermissibly acted as prosecutor, judge, and jury.
Consequently, Chief Cobbs decision to terminate his employment which was based solely on a
unilateral decision by a third party flies in the face of due process and violates the contractual
requirement that discipline be consistent with principles of just cause.
The Brady line of cases requires the prosecution to disclose to the defense evidence favorable
to the accused that is material either to guilt or punishment.

This duty to disclose encompasses

exculpatory information as well as information that may be used to impeach the States witnesses, and
applies whether or not the defendant requests the information.

The individual prosecutor has an

obligation to learn of favorable evidence known to others acting on the governments behalf, including the
police. The prosecutors disclosure obligation applies even when the police do not disclose all that they
know to the prosecutor. In practice, if Brady material is disclosed, it is up to the presiding judge to
determine if it is relevant and admissible. If it is used at trial to impeach the witness, the States Attorney
is free to rehabilitate the witness using other relevant information or evidence.
The Unions post-hearing brief references case law that it contends amply supports the
conclusion that the States Attorneys interpretation and application of Brady is unsupportable. Moreover,
the Union maintains that case law it relies upon likewise establishes that Chief Cobb acted inconsistently
with just cause by terminating the Grievant in reliance on the wrongful decision of a third party.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
46!Brady

v. Maryland, 373 U.S. 83 (1962). The disclosure requirements at issue are known in some
agencies as Brady/Giglio or Giglio policies. The reference is to a decision of the United States
Supreme Court that reinforced the disclosure obligations of prosecutors established in Brady v. Maryland.
Giglio v. United States, 405 U.S. 150 (1972).

53!

The Union asserts that the misapplication of Brady by the States Attorney is illustrated by the
47

North Carolina Court of Appeals decision in Wetherington v. Dept. of Crime Control & Public Safety.
48

state trooper was terminated for violating the Agencys truthfulness policy.

The agency contended that

Brady would require his untruthfulness to be disclosed to defense counsel in any case in which he was
involved and consequently he could not perform the essential job duty of providing sworn testimony in
criminal cases. The appellate court rejected that argument and affirmed the lower courts findings that
terminating his employment was arbitrary and capricious and that the agency lacked just cause for ending
the officers career. It concluded:
Respondents argument depends on at least two assumptions that Respondent does not
address: (1) that defense counsel will elect to impeach Petitioner using this finding; and (2)
that defense counsels impeachment will necessarily influence a jury to the point that a
jury will disregard the entirety of Petitioners testimony. The possibility of impeachment
and the possibility of impeachments success must both occur in order to diminish
Petitioners performance of the duty to testify successfully. Respondent presents no
argument that the likelihood of the two possibilities justifies dismissal.
The Unions position is that Wetherington demonstrates that just cause for discipline must be based on the
employees own misconduct rather than what an individual who is not a party to the collective bargaining
agreement assumes might occur in future cases.

49

The Union emphasizes that in this case, unlike in

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
47!Wetherington v. North Carolina Dept. of Crime Control & Public Safety, 752 S.E.2d 511 (N.C. App.
2013). The case concerned the circumstances under which the Grievant lost his hat during a traffic stop
on a highway. Regulations of the North Carolina Highway Patrol require troopers to wear hats when
leaving the patrol vehicle. He had previously been reprimanded for not wearing his hat during a traffic
stop. The trooper confided to another officer that after he left the location of the traffic stop he realized
that he did not have his hat. He was unable to locate it when he returned to the scene and falsely told his
supervisor that he was wearing the hat during the investigation and it blew off his head when an eighteenwheel truck drove by and that he had been unable to find it. In fact he had placed it on either the trunk lid
of the stopped vehicle or on the light bar of the patrol vehicle. A citizen eventually returned the
undamaged hat and the trooper subsequently acknowledged that the statement to the supervisor that he
had been wearing the hat was untruthful. The cost of the hat was $50.
48!The

policy provided: Members shall be truthful and complete in all written and oral communications,
reports, and testimony. No member shall willfully report any inaccurate, false, improper, or misleading
information.!

49!As

noted in the Unions post-hearing brief, the North Carolina Supreme Court affirmed and modified the
Court of Appeals decision. Wetherington v. North Carolina Dept. of Public Safety, 780 S.E.2d 543 (N.C.
2015). The Supreme Court remanded the case for further review by the agency because the agency
head, Colonel Randy Glover, mistakenly believed that when there is a substantiated or adjudicated
finding of untruthfulness he has no choice but to terminate a troopers employment. The Supreme
Court stated that the Colonels erroneous understanding that he lacked discretion in cases involving

54!

Wetherington, there is no comparable finding of untruthfulness on the part of Officer Rush.

States

Attorney Rietz misstated the facts in her February 23, 2016 letter to Chief Cobb and the press release.
She said, the States Attorneys Office is unable to call PO Rush as a witness on behalf of the State in
criminal proceedings in light of his repeated failure to adequately document use of force and multiple
discipline actions for untruthfulness. The record evidence substantiates that during his career there has
been only one disciplinary action for untruthfulness and that finding was in connection with the description
of his use of force in effecting the arrest of Precious Jackson. However, the Departments discipline for
being untruthful had been overturned almost a year earlier by Arbitrator Fredric Dichter. He stated: The
Arbitrator after observing Grievant and listening to the testimony of others finds Grievant to be a credible
person.

Even his supervisors have said they found him to be a honest person.

Arbitrator Dichter

continued:
The Arbitrator finds the most plausible explanation is that in Grievants mind the video
does comport to his recollection and his recounting of events. Others observing it,
including this Arbitrator see it one way and he may very honestly be seeing it another.
Lying requires intent. Grievant is apparently wrong in his perception of what he did, but
the Arbitrator finds it is based on his errant perception of events and not an intent to
deceive. That is not an uncommon occurrence. No doubt the action he took was taken
for the purpose he has stated, he just did not do it the way he thinks he did. There is a
difference between being simply mistaken and knowing what one says is wrong and
saying it anyway. One requires intent and the other does not. Finding such intent to
deceive for this Grievant is a bridge too far for this Arbitrator given all that preceded this
event.
The States Attorneys misapprehension that a Brady disclosure to defense counsel is required
when an officer who has been charged with being untruthful is subsequently exonerated, the Union
argues, is at odds with case law. It relies on a recent decision by a Texas appellate court in Brown v.
Nero

50

that it contends is instructive because the facts of that case closely parallel the facts here. In

Nero, an individual with whom Georgetown Police Officer Stephanie Hoskins Brown had been in a
previous relationship alleged that she had been taking his prescription medication and that she had

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
untruthfulness was an error of law. It ordered that the matter be returned to the agency for
reconsideration with the understanding that termination is not mandatory and that factors such as the
severity of the violation, the subject matter involved, the resulting harm, the troopers work history, and
discipline imposed in other cases involving similar violations are appropriate considerations in deciding
issues of just cause. The Supreme Court left untouched the Court of Appeals Brady analysis.
50!Brown

v. Nero, 477 S.W.3d 448 (Texas App. 2015).

55!

ingested mescaline, a controlled substance. As the result of the investigation Chief Nero terminated her
employment on June 11, 2013. She appealed and a civil service hearing before an independent thirdparty hearing examiner was conducted on August 26-27, 2013. Three days later, and before the hearing
officer issued a decision, Chief Nero met with the County Attorney and County District Attorney and told
them about her alleged misconduct. Following the meeting the prosecutors issued a joint letter to Chief
Nero dated October 31, 2013 informing him that their offices would no longer accept cases in which
Officer Brown has played a role. The following day the hearing officer issued a decision that concluded
that the Grievant had used prescription medication prescribed for her acquaintance but also found that
she had her own prescription for the same medication and that she had not used if for recreational
purposes. He also found that the department had not met its burden of proof on the charge that she used
mescaline that she had been untruthful during the investigation. He overturned the dismissal, imposed a
15-day suspension, and ordered her reinstated with back pay and benefits.
th

She was reinstated on

th

November 7 . On November 8 Chief Nero fired her a second time solely based on the joint letter. The
termination letter explained that since the County Attorney and County District Attorney would no longer
sponsor her as a witness she could no longer fulfill one of the essential job functions for her position.
Furthermore, because Chief Neros letter characterized his action as a non-disciplinary termination the
civil service director refused to allow her to appeal on the ground that only disciplinary actions are
appealable under the civil service statute. The Court of Appeals of Texas rejected the Citys essential
job function argument.
The defendants presented no evidence that she was incapable of testifying or performing
any other required function. Brown was not fired because she failed to maintain a license,
pass an exam, or perform satisfactorily in the field. Rather, the evidence showed that the
prosecutors decision not to accept Browns cases was based on Chief Neros accusations
of untruthfulness, which the hearing examiner found to be groundless. And instead of
abiding by the hearing examiners award, which was final and binding on all parties,
Chief Nero allowed the unilateral decision of elected officials to circumvent the protections
of the Civil Service Act.
The Court reasoned that acceptance of the Citys argument would give prosecutors unbridled discretion
to declare that they will not accept cases from an officer, and the police chief may and, in fact, has a
duty to terminate that officer. It continued: The Civil Service Act was intended to prevent the sort of
factual scenario we have before us. The purpose of this chapter is to secure efficient fire and police

56!

departments composed of capable personnel who are free from political influence and who have
permanent employment as public servants. (Citation omitted, italics in original).
The rationale and result in Brown should be applied in this case, the Union argues, because the
relevant facts are indistinguishable. Like Officer Brown, Officer Rush was ordered reinstated with partial
back pay and benefits. Like the independent hearing examiner in that case, Arbitrator Dichter determined
that the allegation of untruthfulness was groundless. As did the prosecutors in Brown, States Attorney
Rietz chose to disregard that the Grievant was exonerated in a final and binding decision. And like Chief
Nero, Chief Cobb terminated the Grievants employment in the absence of any new allegation of
misconduct but solely based on the letter declaring that the Grievant would not be called as a prosecution
witness. As in Brown, the Citys argument that the Grievant could not perform an essential job function
had nothing to do with failing to maintain a license or not passing an exam or unsatisfactory performance.
As in Brown, where the Court found that her termination was unrelated to her qualifications and the
employer presented no evidence that she was incapable of testifying, the City of Champaign is similarly
off the mark when it says that the Grievant who has testified 40 to 50 times without his credibility ever
being impeached -- is incapable of testifying. According to the Union these facts are more compelling
because in Brown the officers second termination occurred one day after her reinstatement. In contrast,
the Grievants work record after being reinstated in April 2015 and prior to the second termination in April
2016 was exemplary. And for the same reasons that persuaded the Brown court, the arbitrator must not
uphold the decision to terminate his career when it is based solely on the unilateral decision of a third
party politician and without any evidence of misconduct on his part that the Department had not already
addressed.
The Union similarly relies on Hubacz v. Village in Westbury

51

in which the United States District

Court of Vermont granted summary judgment to the plaintiff officer when the sole basis for firing him was
an announcement by the county prosecutor that the officer would no longer be called as a prosecution
52

witness in criminal cases.

The Court considered whether the Village Trustees decision comported with

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
51!Hubacz v. Village of Waterbury, Vermont, 2014 U.S. Dist. LEXIS 52131 (D. Vt. April 15, 2014).
52!Officer

Hubacz worked as a patrol officer in the Village of Waterbury Police Department from 2009 until
his termination on January 27, 2012. The termination resulted from a decision by Washington County

57!

a state statute that specified that the removal of full-time police officers must be based on negligence or
dereliction in performance of official duties or engaging in acts constituting conduct unbecoming an
officer.

53

Since the Board of Trustees made no findings of specific misconduct and based their ruling

entirely on the prosecutors decision, according the Union, the dispositive question was whether that
decision -- effectively barring Hubacz from performing his job -- provided sufficient grounds for
termination as negligence or dereliction or conduct unbecoming. It did not.
Rather than finding specific misconduct, the Trustees concluded that Hubacz was unable
to perform his job. This inability, they reasoned, constituted dereliction and conduct
unbecoming an officer.
Section 1932, however, entitled Negligence of officer:
suspension; hearing clearly contemplates officer misconduct. Instead of reviewing the
officers actions, the Trustees considered actions of a third party that impacted the officer.
Nothing in Section 1932 suggests that such third-party conduct is a valid basis for
54
termination under its terms. (Emphasis in original).
The Union urges the arbitrator to adopt the Courts reasoning: conduct by a third party that impacts the
officer cannot be considered to be the same thing as the officers own misconduct.
A critical issue in this case, the Union argues, is the significance of States Attorney Rietzs
decision to rely on an allegation of untruthfulness that was overturned by an arbitrator who, contrary to

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
States Attorney Thomas Kelly that his cases would no longer be prosecuted. After the Chief of Police
confirmed that information he advised the officer that he was recommending his dismissal because in
light of the prosecutors decision he could no longer function effectively as a police officer. At the hearing
before the Village Trustees the parties stipulated that the sole basis for the termination was Kellys
decision to stop prosecuting his cases. The Trustees acknowledged that Officer Hubacz was a good and
diligent officer in that he fulfilled his duties, was community-minded, showed an aptitude for police work,
and an interest in learning more. Nevertheless, the Trustees upheld the Chiefs decision because they
thought that Officer Hubaczs involvement would jeopardize the investigation of cases and [i]n such
instances crimes would go unprosecuted and the law would be left unenforced. The Trustees reasoned
that the department had only four full-time officers and concluded that allowing him to retain his position
would constitute a misuse of taxpayers funds.

53!The

Trustees concluded that Hubaczs inability to contribute to the prosecution of cases rendered him
negligent and derelict in his duties. They also concluded that his inability to participate in police work is
encompassed in the meaning of conduct unbecoming an officer because it would destroy public respect
for police officers and confidence in the operations of the police department. The Trustees rejected the
officers argument that termination on the basis of States Attorney Kellys decision would essentially
permit prosecutors to determine who may serve as police officers.!!

54!The

District Judge concluded that the Villages argument sought to carry the removal statute beyond
its plain language in an effort to encompass the facts of this case, urging the Court to read the statute
broadly, but also to assume misconduct. A fair reading of the statute, as well as Vermont Supreme Court
precedent, counsels otherwise.! The District Court remanded the matter to the Trustees for
reconsideration of the question whether recourse for termination of a police officer is limited under
Vermont law to the removal statute.

!
!

58!

the conclusion reached by Chief Cobb, found the Grievant truthful and credible. The New Hampshire
Supreme Court addressed that question in Duchesne v. Hillsborough County Attorney
sheds light on the appropriate disposition of this matter.

55

and the answer

Three officers of the Manchester Police

Department were involved in an off-duty altercation at a bar that was widely reported in the media. A
criminal investigation by the New Hampshire Attorney Generals Office concluded that the officers
conduct was justified under state law and that no criminal charges were warranted. An internal affairs
investigation resulted in disciplinary charges alleging that the officers had used excessive force and the
Chief sent letters advising of that finding to the County Attorney. The County Attorney placed the officers
on a Laurie list.

56

The officers appealed the discipline to arbitration and the arbitrator ruled in their favor

finding no just cause. References to the discipline were removed from their personnel files and the Chief
sent a second letter requesting that, pursuant to the arbitrators award, their names be removed from the
Laurie list. The County Attorney declined to do so because the Chief initially sustained the allegation.
The officers brought an action to have their names removed from the list and the trial court ruled in the
Countys favor reasoning that granting the requested relief would substitute the courts judgment for that
of the prosecutor.
The New Hampshire Supreme Court reversed the lower court and held that the officers were
entitled to have their names removed from the Laurie list.
[A]lthough petitioners were initially disciplined by the police chief for their alleged
excessive use of force, the chiefs decision was overturned by an arbitrator, a neutral fact
finder, following a full hearing conducted pursuant to procedures agreed to in a CBA. . . .
Given that the original allegation of excessive force has been determined to be unfounded,
there is no sustained basis for the petitioners placement on the Laurie list.
As did the Hillsborough County Attorney, States Attorney Rietz chose to ignore the finding that
the Grievant was in point of fact adjudged truthful in the only instance where the Department charged
him with being untruthful. She thinks Arbitrator Dichter got it wrong. That opinion cannot abolish the

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
55!Duchesne v. Hillsborough County District Attorney, 119 A.3d 188 (N.H. 2015).
56!The

Laurie case is a New Hampshire case that imposes an obligation on prosecutors to disclose
potentially exculpatory material in personnel files of police officers for an in camera review by the
presiding judge for a judicial determination if it must be turned over to defense counsel and potentially
admitted as evidence at trial. State v. Laurie, 653 A.2d 549 (N.H. 1995).

59!

principle that when an arbitrator overturns a disciplinary charge of untruthfulness based on the factual
finding that the officer had been truthful there is no Brady problem.
The Union points out that the issue being decided in this proceeding is not one of first
impression. A deputy sheriff in Oregon who was receiving workers compensation benefits was fired
57

because he allegedly lied about the extent of his physical disability from an on-duty injury.

The

th

arbitration hearing appealing his dismissal was scheduled for June 9, 2015. On June 8 the Polk County
District Attorney notified the Grievant by letter that pursuant to Brady v. Maryland in the future he would
be disqualified as a witness for the prosecution in criminal proceedings based on his deceptive
conduct, deceptive statements, and dishonesty. The Deputy Sheriffs Association contended that the
District Attorneys issuance of a Brady letter to Grievant is highly suspect and appears to be an effort by
the Sheriffs Office to justify Grievants termination. The arbitrator concluded that the District Attorneys
letter was entitled to no weight.
The County relies on the Brady letter issued to Grievant by the District Attorney to argue
that he is no longer fit to testify on behalf of the prosecution in criminal cases and
therefore he is functionally unemployable as a law enforcement officer. On this point, I
agree with the Associations contention that a Brady letter does not provide an
independent basis for discipline under the collective bargaining agreement and the
employer must still prove that it had just cause for discipline or discharge. Therefore, I
give the Brady letter no weight in the just cause analysis. At most, a Brady letter would be
relevant to the issue of reinstatement in the event an employer fails to establish just cause
for its disciplinary action.
Although he concluded that the District Attorneys Brady letter was entitled to no weight, the
arbitrator upheld the discharge because he determined that the surveillance video clearly and
convincingly showed that on multiple occasions he intentionally misrepresented his physical ability to use
his right arm. As a result the County had just cause to terminate his employment.
The Union argues that Polk County is similar and dissimilar to this case. Neither the letter from
the Polk County District Attorney nor the Champaign County States Attorneys letter can provide an
independent basis for fulfilling the requirement that the Grievant not lose his job except for just cause.
The Polk County Sheriff accused a deputy of being untruthful and the Chief of Police accused the

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
57 !Polk County, 15-2 ARB 6507 (Landau, 2015). The Grievant testified under oath at a workers
compensation hearing that at the time he was receiving disability benefits for an on-duty slip and fall he
was unable to use his right hand. Surveillance video showed him performing activities (including washing
his car) that the City maintained contradicted that claim.

60!

Grievant of being untruthful. However, unlike Arbitrator Landau, who found the evidence in that case
substantiated the untruthfulness allegation, Arbitrator Dichter concluded the opposite. The Citys attempt
to reopen and relitigate closed matters is improper. The reason that Arbitrator Landau ruled that just
cause existed in that case proof of misconduct was alleged and proven at the hearing -- is the reason
that just cause cannot support this Grievants dismissal. Misconduct (except old charges that had already
been adjudicated) was neither alleged nor proven.
As has made clear, the Union strongly disagrees that Brady requires, or justifies, disqualifying the
Grievant as a witness in future criminal cases. Her misinterpretation and misapplication of that doctrine
should be determinative of the outcome here. However, even if the arbitrator overlooked those problems
the Union asserts that the Grievants termination cannot pass muster. Essentially, the Union contends
that this case involves overreaching by a politician in an election year

58

encouraged by a small

percentage of citizens who have an issue with Officer Rush from media coverage over which he had no
control about lawsuit settlements in which he had no say. The contention in her letter to Chief Cobb that
the Grievant had multiple discipline actions for untruthfulness is a blatant falsehood because, as has
been repeatedly explained, the Department issued only one accusation of untruthfulness and Arbitrator
Dichter exonerated him of that charge.

The States Attorney chose to ignore and reweighed findings

made by the Department and considered events as discipline when no discipline was involved. Not only
did she not afford the Grievant an opportunity to respond but also astonishingly she did not consider
his version of events contained in the investigative reports because Garrity

59

statements should not be

considered in deciding whether a prosecutor will bring criminal charges. However, she conceded that
there was nothing preventing her from considering those statements in deciding whether she would or
would not call him as a witness. The Department already scrutinized everything that gave rise to her
concerns and where discipline was deemed appropriate the discipline had been administered. In other

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
58!The Union contends that the States Attorney Rietzs decision to issue a press release after her review
determined that there were no grounds to file criminal charges was really all about politics. According to
the Unions opening statement, she has a right to campaign the way she wants but not on the back of
this officer. [TR. p. 22]. The Citys post-hearing brief indicates that States Attorney Rietz was reelected
to her position on November 8, 2016.

59!Garrity

v. New Jersey, 385 U.S. 493 (1967).

61!

words, nothing presented in this arbitration concerned any allegation of misconduct that had not already
been finalized and adjudicated. After his reinstatement on April 7, 2015 he received no discipline and not
a single complaint. On the contrary he received several emails from superior officers commenting on his
good work. All of this should lead the arbitrator to conclude that the States Attorney interjected herself
into the disciplinary process without authority or justification. The Citys invitation to the arbitrator to
overlook the failure to afford due process and the resultant abuse of just cause principles should not be
accepted.
Finally, the Union contends that the Citys reliance on the persona non grata doctrine is spurious.
As noted in the Elkouri & Elkouri treatise, the doctrine is invoked in circumstances when the bargaining
unit employee performs his duties on the premises of a customer and the employee is barred from the
customers premises.

Often these cases arise when the complaining party is the companys most
60

significant client and not acceding to the clients demands would have an adverse financial impact.
UGL UNICCO

61

is a typical case. It involved a company that provided facilities maintenance

services at a tire manufacturing facility. The Grievant was a lead mechanic who had worked at the
customers facility for 34 years and had a flawless record. The customer became dissatisfied with how
the Grievant responded to a report of a fire and informed the company that he was banned from the
premises. The employer investigation concluded that the response was not mishandled but its efforts to
reverse the decision to ban him were unsuccessful because the customer thought he had a bad
attitude.

62

The arbitrator analyzed the companys persona non grata argument and decided that the

Grievants termination was not supported by just cause.

63

At the same time he acknowledged that an

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
60!See Rebar Engineering Inc., 105 L.A. 662 (Riker, 1995). See also Corley Distributing Co., 68 L.A. 513,
515 (Ipavec, 1995) (Arbitrator concluded that the companys business was dependent upon the major
supplier and termination of the employee was the only course of action so as to not jeopardize its beer
franchise).
61!UGL

UNNICO, 126 L.A. 474 (Yancy, 2008).

62!The

company did not attempt to defend the customers decision to ban the employee from the plant.
On the contrary, it conceded at arbitration that it was wrongful, irrational and downright reprehensible.
The arbitrator saw it the same way. The arbitrator finds the third partys actions obnoxious, troublesome,
repugnant, and totally devoid of fairness.
63!Arbitrator

Yancy wrote: The arbitrator notes that the ability of a third party to ban an employee from a
facility based on the mere unsupported assertion that he has a bad attitude, and thus effectively

62!

order returning the Grievant to work at the customers facility would be futile, unenforceable, and not
worth a tinkers damn. His award required to the company to again ask the customer to reconsider its
decision and to revisit the feasibility of assignment to a different work location. The award provided that if
both courses of action failed the matter was remanded to the parties to determine damages. He retained
jurisdiction. Eventually the arbitrator awarded the Grievant damages equivalent to 68 weeks salary (two
weeks for each year of service).
The employer brought an action to vacate the award. The federal district judge granted the
Unions motion to enforce the award.

64

The Court decided: (1) the collective bargaining agreement did

not specifically provide for the non persona grata situation; (2) an arbitrator commissioned to interpret and
apply a collective bargaining agreement is expected to bring his informed judgment to bear to each a fair
solution of a problem; and (3) the companys good-faith did not cure the breach of the just cause
provision.
The Citys persona non grata argument is unpersuasive because, among other reasons, there is
no similarity between a publicly employed police officer and a subcontracted private sector employee.
As was true in UGL UNNICO, the absence of a specific clause giving a third party removal authority

65

requires that the just cause provision be enforced. So even if this arbitrator takes a quantum leap and
finds that the persona non grata doctrine applies to the case at hand, that does not eviscerate the
contractual obligation that an employee be discharged only for just cause. The Union has convincingly
shown that just cause does not exist and the parties agreement does not delegate a police officers
removal from service to a third party. A politicians ill-motivated, unilateral, unsubstantiated opinion to
decide the fate of bargaining unit members is not what the parties incorporation of the just cause
provision intended.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
terminating him from his job, seems to render the labor agreement between the parties a sham and the
grievance process a mockery.
64!UGL

UNICCO v. District Lodge 110 International Assoc. of Machinists & Aerospace Workers, 723 F.
Supp.2d 844 (E.D.N.C. 2010).
65!The

Unions post-hearing brief cited an arbitration case involving a collective bargaining agreement that
allowed a house account customer to prohibit an employee from driving one of the customers trucks for
a justifiable reason. The provision allowed the driver to be laid off until a vacancy with another customer
became available. Transports Drivers Inc., 1997 L.A. Supp. 101989 (Hockenberry, 1997).

63!

In conclusion, for the above-stated reasons the Union, on behalf of the Grievant, respectfully
requests that the arbitrator find there was no just cause for termination, reinstate the Grievant, award
back pay and all lost benefits, make the Grievant whole, and take any further action deemed equitable
and just.

DISCUSSION
It is axiomatic that an arbitrator derives his or her authority exclusively from the express terms of
the collective bargaining agreement. The parties are at liberty to make that authority as broad or as
narrow as they deem appropriate. This contract forbids modifying any term of the Agreement in any
respect and divests an arbitrator of the authority to award any remedy that is contrary to any provision.
This means that my responsibility is to enforce the contractual undertakings by which the parties have
agreed to be bound. It is not within the authority of the arbitrator to substitute his own concepts of
fairness or justice for those that the parties have established. See University of Michigan, 103 L.A. 401,
403 (Daniel, 1994).
Brady v. Maryland was decided more than a half-century ago.

However, a familiarity with

reported judicial and arbitration decisions leads to the observation that judges and arbitrators have not
had occasion to deal with the thorny issues at the heart of cases like this one until much more recently.
Brady and its progeny erect valuable protections for defendants in criminal cases and impose important
duties on prosecutors. On the other hand, public safety officers have a weighty interest in decisions that
affect their livelihood and in enforcing hard-fought for job protections (i.e., just cause for discipline and
discharge) established in collective bargaining agreements. The potential for miscarriages of justice from
faulty thinking in cases like this one exist.

For example, it is too common that some individuals

unjustifiably attach the kiss of death label of untruthfulness to circumstances when an officer honestly
misperceives or misremembers or through oversight files a report that is shown to be inaccurate in some
detail.
Even more unsettling, the potential for behind-the-scenes collusion to end the career of a
disfavored officer by circumventing pledges to abide by final and binding decisions by arbitrators is,

64!

66

unfortunately, not illusory. A telling example is the Brown v. Nero case cited by the Union.

An ex-

boyfriend says a police officer used mescaline, the Chief believes him, and fires the officer for lying by
maintaining her innocence during the investigation. The appeal hearing does not go well (from the police
departments perspective) and sensing how the wind is blowing the Chief meets with the District Attorney
and County Attorney and gives them a one-sided assessment of her deficient credibility. He receives
what he seeks: a jointly signed no-confidence letter. As anticipated the arbitrator concludes that the exboyfriends accusation is not credible and in a decision issued on Friday orders the officer reinstated.
She is reinstated on the following Thursday. The next day she is terminated a second time for the nondisciplinary reason that the letter precludes her from being able to perform the essential job function of
testifying in court. In my view the Texas Court of Appeals Third District got it right: this cannot be how it is
supposed to work. If a prosecutor is empowered with the unbridled and unreviewable discretion to deem
an officer disqualified to testify -- with the consequence that she loses her job because obviously there
is no place in a police department for a law enforcement officer with that incapacity contractual or
statutory just cause protections are a nullity. An arbitrator would need to be more nave than parties
should expect not to realize that one must be alert to the danger that a losing party in a disciplinary
arbitration will try to undo a disappointing result by finding an alternative path to reinstate what the
arbitrator reversed. By no means is this to imply that a decision by a prosecutor that an officer will not be
called testify that results in her dismissal cannot in the appropriate case meet the just cause standard.
Rather, it means that an arbitrators non-delegable responsibility to determine whether just cause does or
does not exist requires that he bring informed judgment to the case with the recognition that deference to
the judgments of public officials cannot be blindly and uncritically ratified.
To avoid any inference from being drawn that is not intended, I want to say as emphatically as I
am able that there has been no collusion or underhandedness by Chief Cobb or the City. I found Chief
Cobbs testimony entirely credible in every aspect. He answered questions directly and did not attempt to
deflect the question asked to a question more to his liking. He did not avoid giving frank answers even
when the answer was not particularly helpful to the Citys position. The opposite was the case. As one

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
66!I am aware that in Texas police discipline cases arbitrators act as mutually selected hearing officers
and apply a just cause standard that is established by statute rather than contract. The term indefinite
suspension is synonymous with termination. These distinctions are not relevant to the discussion.

65!

example, counsel for the City asked him whether the Grievant activated the in-car video equipment during
the transport of

. He answered no but in fairness added that he acted consistently with then-

existing policy. His candor was also demonstrated by not withholding the information that he had sent a
Brady letter to the States Attorneys Office concerning another officer. Moreover, the record makes it
clear that he has treated this officer fairly throughout his career.

The suspensions imposed were

consistent with principles of progressive discipline and likely less severe than sanctions that would
survive arbitral scrutiny if grieved. When reinstated by Arbitrator Dichter

67

he gave the Grievant a fresh

start with a clean slate, arranged for increased supervisory monitoring, and afforded him opportunities to
attend training.

68

Chief Cobb unhesitatingly confirmed that after being reinstated in April 2015 the

Grievant had no citizen complaints, no disciplinary infractions, no out-of-policy uses of force, was moving
forward in a positive manner, handled his calls as the department expected, and did everything he was
asked to do. I credit his testimony and make the factual finding that the police department had nothing to
do with the States Attorneys decision. As previously mentioned but worth restating he said that the
Union is correct that except for the charge that was overturned by Arbitrator Dichter, the Grievant has not
been accused of or disciplined for being untruthful.

69

He acknowledged that he is certainly not here

today to say that we need to fire Officer Rush for all these disciplinary issues that have already been
addressed and confirmed that I am not asking [the arbitrator] to revisit those issues. We are here for the
letter. [TR. pp. 217-218].

70

He summed up the situation facing the Champaign Police Department in two

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
67!When asked about Arbitrator Dichters decision Chief Cobb insightfully put his finger on an important
nuance. He explained that the arbitrator agreed that the Citys interpretation of the video was correct
(i.e., truthful), but that, in the arbitrators view, the Grievants inaccurate description of what occurred
was from his perspective a truthful (i.e., honest) accounting. [TR. pp. 228-229].
68!This

included a Verbal Judo class for law enforcement officers. [CITY EXH. 3, p. 229]. This training
teaches officers to use ones choice of words, tone of voice, and body language to deflect invective and
hostile threats and to deescalate situations without resorting to the use of force.
69

Q: (by Ms. Cummings) Right. So before that, was there ever a finding of a rule violation, the rule being
untruth lack of truthfulness. I dont see any.
A: I am not aware of an untruthfulness violation against Mr. Rush prior to the first termination.
[TR. p. 232].
70!

Q: (by Ms. Cummings) Today, the issue we are here for today, we are here for one reason and one
reason only
A: Yes.

66!

sentences: it was not his choice but a Chief of Police must deal with reality. The reality is that if the
Grievants work as a police officer cannot be produced in court an offender he apprehends cannot be
prosecuted. Thats a problem. [TR. pp. 224-225].
1. Double Jeopardy
As is unmistakably obvious, the City and the Union do not agree about much concerning each
others theory of the case. The City disputes that by using past discipline as the foundation for the States
Attorneys decision -- which in turn precipitated its own decision to terminate his employment -- it has
acted inconsistently with the double jeopardy principle inherent in the just cause standard. The Union
says that is precisely what the City is doing.
The constitutional commandment that no person shall be subject for the same offence to be
twice put in jeopardy of life or limb has long been recognized not only to be deeply rooted in the
American tradition of justice but also a fundamental requirement of just cause.

71

In industrial relations

the significance of double jeopardy is that if an employee is punished for a specific act, he is entitled to
regard such punishment as final for that particular misconduct.

72

More recently, an arbitrator explained:

Any prudent employee, who has violated a rule, is charged with the violation, admitted to
committing the misconduct, and serves a 5-day suspension: would reasonably assume
that the issue is closed. They should have the full expectation that no further discipline is
to be administered on that misconduct. This should be true if the discipline is called
something else or it is rescinded. . . . When an employee violates a rule the agency is
limited to one charge and discipline for that offense, they are not free to make any
73
number of charges limited only by a thesaurus.
I believe there is substantial merit in the Unions position. On the other hand, the City is correct
that the States Attorney is not bound by the departments disciplinary decisions. That being said I think

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Q: -- and thats because Julia Rietz has said she will not call him to testify, correct?
A; Yes, that is the reason why we are here. [TR. p. 219].
71!Durham
72!City

Hoisery Mills, 24 LA 356, 358 (Livengood,1958).

of Kenosha, 76 LA 758, 759 (McCrary, 1981).

73!Department

of Homeland Security, 132 LA 745 at p. 8 (Hoose, 2013). The second page reference is to
the online version of the opinion that does not cross-reference the pagination in the bound volume of
LABOR ARBITRATION REPORTS (BNA).

67!

the City has somewhat exaggerated the extent of his disciplinary history to justify its contention that his
own disciplinary problems have created the situation he now finds himself in.
The Citys reference to counseling as support for that conclusion is problematic. Article 32.1
excludes counseling from the definition of disciplinary actions and crediting this expansive definition of
disciplinary problems would run afoul of the prohibition in Article 33.5 that I not amend or add to what
the parties themselves have defined as discipline. That the Grievant once missed court or once was late
for work several years ago is a historical fact that should have no bearing on whether his career is ended
in 2016. Similarly, it is a stretch to bolster the reasonableness of the States Attorneys decision by
reference to four year old reprimands for having an avoidable accident and not activating lights and
sirens. When counseling and reprimands are excluded the Grievants 39 unpaid suspension days are
based on 4 not 11 disciplinary actions.
I do not want to be misunderstood as minimizing the seriousness of this discipline or having
overlooked Chief Cobbs testimony that some officers finish careers with a spotless disciplinary record.
The best measure of the seriousness of misconduct is the penalty the employer adjudged to be merited.
Suspensions of one, two, or three-days should be kept in perspective. Those three disciplinary actions
are neither inconsequential nor of immense magnitude in a neutral assessment of an employees overall
disciplinary history. Article 32.1 requires discipline to be administered progressively and correctly based
on the individual circumstances of each case and the purpose of progressive discipline is to correct
unacceptable behavior by the imposition of penalties less than discharge to impress upon employees the
seriousness of the misconduct and to afford an opportunity to improve.

74

That the Grievant was not

disciplined again for those infractions suggest that the suspensions served that purpose. An arbitrator
cannot be expected to measure the seriousness of past misconduct more severely than the employer did.
Obviously the Grievants termination, converted to a 30-day suspension, is by any measure a very
serious disciplinary penalty and a heavy blot on his career.
Notwithstanding the cogency of the Unions double jeopardy argument, I cannot conclude that the
requested remedy of reinstatement can rest on double jeopardy alone.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
74!BRAND & BIREN, DISCIPLINE & DISCHARGE IN ARBITRATION!(2d ed. 2008).
!

68!

2. Persona non grata


The City has not, wisely in my view, taken the position that its obligation not to discharge the
Grievant, except for just cause, can be satisfied by embracing as its own position whatever the States
Attorney dictates, reasonable or otherwise.

Instead, the City argues that the relief the Union seeks

should be denied based on the well-established arbitral doctrine of persona non grata.

The Citys

comprehensive brief makes the best possible case for using that doctrine to resolve this dispute. The
Unions response is that the persona non grata doctrine is not applicable to the employment of public
sector public safety employees. The parties have not pointed me to a public sector arbitration case that
applies the doctrine and my own research (which I do not claim to be exhaustive) has not found any case.
By no means does the absence of precedent establish that the Union is correct and the City is wrong but
it does counsel caution.
There are readily apparent reasons to be skeptical that the private sector cases should be carried
over to the public sector in general and to the employment of law enforcement officers in particular. The
typical persona non grata case involves a dissatisfied customer who becomes displeased with the
companys employee who performs all or part of his work on the customers premises. First, it is a stretch
to analogize the relationship that exists between a police employee and a public prosecutor to the
relationship that exists between a private sector company and a third party customer.

Second, a

courtroom is clearly not the premises of the prosecutor. Third, unlike the situation where a businesss
economic viability can depend on not losing the customers business, that does not describe the
relationship between the Champaign County States Attorneys Office and the Champaign Police
Department.

But these differences do not compel the conclusion that the Citys persona non grata

argument should be rejected.


A close reading of several arbitration cases involving the persona non grata doctrine discloses
distinctions that are arguably important. In the cited arbitration cases (1) all of the conduct resulting in the
persona non grata status occurred on the third partys premises and affected the third partys business
interests; (2) in none of the cases did the third party justify the persona non grata status on past conduct;
and (3) in none of the cases was the conduct on which the third party justified the persona non grata

69!

status based on acts for which the employee had been previously disciplined.

75

In contrast, the States

Attorneys persona non grata designation involved conduct unrelated to the States Attorneys Office that
in some instances occurred several years earlier for which discipline had already been issued and
finalized. Furthermore, a good case can be made that the dismissal of a janitor, security guard, school
bus driver, truck driver, salesman, or ironworker does not impose comparable lifelong consequences as it
does for a fired police officer.

76

These distinctions notwithstanding, the Citys brief makes a compelling case that a police officer
is in a different category than other employees. Because they are entrusted with the authority to make
arrests and use force, as well as their duty to ensure the safety of the community, law enforcement
officers are not ordinary employees who are held to a lesser standard of accountability. Consequently, I
agree with the City that there can be circumstances when the persona non grata doctrine scrupulously
applied is appropriately considered in the police employment context. The question is whether the
Citys asserted justification in the words of Article 32.1 has been correctly applied based on the
individual circumstances in [this] case.
The City suggests that the seven Harris Trucking factors can be distilled to three questions. The
second of the Citys proposed questions (did the States Attorney reach her decision independently
without any influence from the City) has already been discussed. The answer is yes. The answer to the
Citys third question (did the Grievants inability to testify in Court render him unfit for duty) depends on

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
75!See, e.g., American Building Maintenance, 117 LA 17 (Herzog, 2002) (company employee used third
partys copy machine without authorization); Burns International Security Services, 98 LA 226 (Cox, 1991)
(security guard sleeping at nuclear plant); Corley Distributing Co., 68 LA 513 (Ipavec, 1977) (verbal
altercation with third partys employees on its premises); First Student, Inc., 121 LA 575 (McCurdy, 2005)
(involvement in unavoidable accident in third partys school bus); Harris Trucking Co., 80 LA 496
(Gentile, 1983) (threat to complain to Labor Board if third party did not accede to demand for more
desirable route); Granny Goose Foods, 42 LA 497 (Koven, 1964) (shortchanging third party grocery store
on delivery of merchandise); Rebar Engineering, Inc., 105 LA 662 (Riker, 1995) (saying Im going to kick
your fucking ass to an employee of third party); Wackenhut Corporation, 122 LA 1623 (Landau, 2006)
(viewing pornography on duty at federal office building).
76!See

Bishop v. Wood, 426 U.S. 341, 350 (1976) (Brennan, J., dissenting) (Petitioner was discharged
as a policeman on the grounds of insubordination, causing low morale, and conduct unsuited to an
officer. It is difficult to imagine a greater badge of infamy that could be imposed on one following
petitioners calling; in a profession in which prospective employees are invariably investigated, petitioners
job prospects will be severely constricted by the governmental action in this case.).

70!

the resolution of the Citys second question (did the States Attorney make a good faith determination that
her office could not use the Grievant as a witness).
Arbitrator Gentile did not define the term good faith in the Harris Trucking decision.

One

definition is the opposite of bad faith, a term that connotes actual or constructive fraud or the
conscious doing of a wrong because of a dishonest purpose.

77

The term good faith describes an

individuals subjective belief: an honest belief; a concept of an individuals of his own mind; the absence
78

of a design to defraud.

There is no doubt that Arbitrator Gentile was not using the term good faith as

an entirely subjective criterion because a patently spurious, irrational, or even delusional belief can be
honestly (even if foolishly) held. The Harris Trucking standard is more than that: it is a subjective good
79

faith belief that is objectively reasonable.

In explaining why the third party customer in that case met the

good faith criteria he said, from their perspective it barred the Grievant from its premises based on a
decision that had a rational and reasonable foundation. Arbitrator Gentile approvingly cited Granny
Goose Foods in which Arbitrator Koven articulated an objectively grounded definition of good faith.
But the doctrine of persona non grata as a basis for discharge obviously must have some
limits. In the Arbitrators opinion, those limits depend on a showing that the customers
assertion that the employee is unacceptable to it must be made in good faith. Not only
must there be good faith but there must be the strongest showing of good faith.
Otherwise the situation could well lend itself to a dubious understanding between the
Company and the customer where the Company improperly wishes to rid itself of one of
80
its employees.
It is with this understanding of the term good faith that the Citys persona non grata argument must be
81

evaluated.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
77!BLACKS LAW DICTIONARY 139 (6th Ed. 1991).
78!

Id. at 693.

79!

See United States v. Leon, 468 U.S. 897, 920 n. 20 (1984) (describing the Good Faith Exception to
the exclusionary rule as an objective standard of reasonableness that does not turn on the subjective
good faith of individual officers.).
80!Granny

Goose Foods, 42 LA 497, 502 (Koven, 1964) (emphasis added). Arbitrator Yancy evaluated
the fourth Harris Trucking good faith question to be whether the third partys action was rational. UGL
UNICCO, 126 LA 474, at page 8 (Yancy, 2008).
81!The

collective bargaining agreement includes, in my experience, a somewhat uncommon provision.


The Board of Fire and Police Commissioners or arbitrator shall be without authority to make a decision

71!

JUSTIFICATIONS NOT BASED ON BRADY v. MARYLAND


A. To the extent that the States Attorneys decision to bar the Grievant from
testifying is based on her stated concerns about his judgment and decisionmaking with regards to his approach and contact with citizens in crisis, particularly
those with mental health concerns, the Citys reliance on that decision as a
ground for terminating the Grievants employment violated the just cause
requirement in Article 32.1.
In the American system of justice a prosecutor yields enormous power: the authority to determine
who is and is not prosecuted with the potential consequence of losing ones freedom. While the law
invests prosecutors with enormous powers, it does not license prosecutors to usurp the authority and
prerogatives of other government officials. The States Attorneys letter to Chief Cobb, her press release,
and her testimony substantiate that one of the reasons the Grievant ended up being fired by the City of
Champaign is that on one occasion he instructed a woman with a history of mental health issues, in a
purportedly unnecessarily loud or screaming voice, to stop and come to me and come here, come
here which, in the States Attorneys opinion, was very unnecessary. [TR. p. 74]. And on another
occasion he told a developmentally slow 17-year-old that it will be your ass if he did not stop tearing
up his mothers house.

82

I feel confident that no one having familiarity with police labor relations and

totally confident that no American labor arbitrator would consider these incidents (undoubtedly a
minuscule percentage of the police matters handled annually by a Champaign police officer) adequate
grounds to end an officers career. To be clear my finding that Article 32.1 has been violated is not based
on the States Attorneys decision to bar the Grievants access to the witness stand in criminal cases
because of perceived poor decision-making skills. She is not a party to the contract and is free to think
83

what she thinks.

The problem is the Citys adoption of an ultra vires assessment as its own justification

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
which is contrary to or inconsistent with law or rules and regulations having the force of law. Article 33.5.
The parties have directed that I am not to ignore that instruction. Id.
82!

The States Attorney testified: This complaint was not sustained; however, I think the issues in that
caused me concern as I later reviewed the Precious Jackson situation. [TR. p. 66].
83

The press release stated:

72!

for meeting the requirements of the persona non grata doctrine.

I do not in any way minimize the

importance of interacting with all citizens in a professional manner.

However, giving that laudatory

concern full weight, neither Chief Cobb, nor the Mayor of Champaign, nor the Governor of Illinois, nor the
President of the United States could provide the City a sustainable basis to justify the Grievants
termination because of his interaction with these two individuals. Acceptance of the Citys theory that the
analysis is different when the opinion comes from the States Attorney is not supportable.

B. To the extent that the States Attorneys decision to bar the Grievant from
testifying is based on the opinion that not being a good witness for himself would
hurt his credibility with juries, the Citys reliance on that decision as a ground for
terminating the Grievants employment violated the just cause requirement in
Article 32.1.
Not any reason at all will suffice to fulfill the objectively reasonable/good faith persona non grata
standard.

States Attorney Rietz testified that a city attorney told her about his assessment that the

Grievant was not a great witness for himself and that concerned her because obviously how an officer
testifies is significant to his credibility in front of a jury. It is undoubtedly true that among the estimated
900,000 sworn law enforcement officers in the United States there are many who fall short of being great
witnesses. But to ask the question whether for that reason a tenured police officer protected by a just
cause provision can be terminated is to answer it.

84

For the reasons stated in the preceding paragraph the

Citys contention that it reasonably relied on this aspect of the States Attorneys decision to disqualify the
Grievant from being called as a witness is not well-founded.

JUSTIFICATIONS BASED ON BRADY v. MARYLAND


!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Moreover, our concerns about his judgement and decision-making with regards to his approach
and contact with citizens in crisis, particularly those with mental health issues, makes us unable
to vouch for his credibility and reliability as a witness, regardless of role. [JOINT EXH. 2, p. 2]
(emphasis added).
I concede difficulty in understanding the logic behind the idea that having poor judgment or decisionmaking skills rationally supports an insinuation that -- for those reasons a witnesss courtroom testimony
is either fabricated or unreliable.

!
84 !The

conclusion that one attorneys opinion is not enough would seem particularly apt when the
decision is made without consulting attorneys in her office who had used the Grievant as a witness to
ascertain if they shared that negative assessment.

73!

In City of Hutchinson

85

Arbitrator Kossoff considered a District Attorneys letter that said he would

not allow a police officer (who he concluded lacked credibility) to testify as a witness for the state in any
criminal prosecution unless absolutely necessary to avoid a gross miscarriage of justice or to protect the
communitys safety from a real threat. He reasoned that in order to determine if the letter could provide
just cause for the Grievants dismissal it was necessary to scrutinize the District Attorneys understanding
of the Brady and Giglio decisions and the Kansas Rules of Evidence concerning the admissibility of the
circumstances for which he was disciplined if he testified at a criminal trial. For reasons urged by the
Union, I agree that States Attorney Rietzs reasoning can properly be scrutinized because the Citys
persona non grata doctrine requires that the third partys stated justifications be objectively reasonable.
In doing so my view is that her judgment is entitled to appropriate deference.
C. To the extent that the States Attorneys decision to bar the Grievant from
testifying is based on the legally erroneous opinion that she must personally
vouch for any police officer the States Attorneys Office puts on the witness
stand, the Citys reliance on that decision as a ground for terminating the
Grievants employment violated the just cause requirement in Article 32.1.
As already noted States Attorney Rietz repeatedly contended that she is the person who must
vouch for the credibility of any police officer who the States Attorneys Office puts on the witness stand.
There is nothing in Brady or its progeny that even remotely supports that conclusion.

The Brady

obligation is a disclosure obligation. It is certainly true that a prosecutor (or for that matter any attorney)
cannot knowingly offer perjured testimony -- to borrow a phrase from Arbitrator Dichter -- but it is a bridge
too far to deduce that proscription entails vouching. Indeed, the law is exactly the opposite. As Illinois
law (and the law in every other state) makes clear: It is prejudicial error for the prosecutor to express
personal beliefs or opinions, or invoke the integrity of the states attorneys office, to vouch for the
credibility of a prosecution witness.

86

Clearly, it is the duty solely of the jury to determine the credibility

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
85!City of Hutchinson, 134 LA 1683, at p. 14 (Kossoff, 2014). Arbitrator Kossoff concluded that the District
Attorneys letter did not give the police department just cause to terminate the Grievants employment
because under Kansass law the officers conduct would be inadmissible to impeach his credibility. He
reinstated the employee with back pay.
86!People v. Lee, 593 N.E.2d 800, 804 (Ill. App. 1992) (emphasis added).

74!

of the witnesses; it is not the privilege of the prosecutor.

87

This expansive interpretation of a States

Attorneys power if correct would mean that by declining to vouch for an officer (and for that reason
saying he cannot testify on behalf of the state) sets in motion the police department process that ends in
the officers termination.
D. To the extent that the States Attorneys decision to bar the Grievant from
testifying is based on the conclusion that the Grievants exoneration of the charge
he had been untruthful is not relevant under Brady/Giglio, the Citys reliance on
that decision as a ground for terminating the Grievants employment violated the
just cause requirement in Article 32.1.
Among other reasons, States Attorney Rietz testified that Arbitrator Dichters decision
exonerating the Grievant on the charge of untruthfulness was in her estimation not relevant to
Brady/Giglio and that she would never discredit the Chief of Police. If I correctly understand the point it
is that being accused of misconduct by Chief Cobb conclusively establishes guilt.

Besides being

irreconcilable with elementary precepts of fairness and due process, the Citys reliance on that
interpretation is in my judgment unsupportable. It is true, as the City points out, that the States Attorney
is not bound by Arbitrator Dichters decision. But I find unpersuasive the argument that the City is not
obliged to abide by a decision that the collective bargaining agreement makes final and binding on all
parties.

I have been unable to find any arbitration decision or court case that supports the notion that

exoneration on the untruthfulness charge is not fatal to the employers reliance on Brady/Giglio as
justification for upholding a discharge.

Indeed, arbitral authority

88

and judicial authority

89

is to the

contrary.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
87!People v. Wilson, 557 N.E.2d 571, 573 (Ill. App. 1990).
88 !See,

e.g., City of Springboro, 04-1 ARB! 3809 (Richard, 2003) (There has been absolutely no
showing of dishonesty on the part of the grievant in this matter. The employers alleged concerns
regarding grievants credibility under Brady ignores one simple fact: no charge of dishonesty against the
grievant has ever been sustained, and therefore no disclosure is required.) (Clearly, the perceived
dishonesty and the accompanying Brady implications weighed heavily in the decision to terminate and, as
already noted above, there is insufficient evidence to sustain any finding of dishonesty.). See also FOP
Lodge, 2015 LA Supp. 199114 (Colflesh, Sept. 28, 2015) (He did not, therefore lie under oath, as the
Borough contends. Therefore, he should not be the subject of any disclosures to defense counsel that he
has previously perjured himself, and if returned to duty, he would not be a valueless member of the
Boroughs Police Department.).

89!See,

e.g., Duchesne v. Hillsborough County District Attorney, 119 A.3d 188, 197-98 (N.H. 2015).

75!

Besides being at odds with arbitral and case law, States Attorney Rietzs understanding of the
effect of an employees exoneration on Brady/Giglio disclosure obligations is at odds with the
understanding of other prosecutorial officials. The United States Department of Justice Giglio policy is
contained in Section 9-5.000 of the U.S. Attorneys Manual. With regard to law enforcement witnesses it
states allegations that cannot be substantiated, are not credible, or have resulted in the exoneration of
90

an employee generally are not considered to be potential impeachment information.

E. To the extent that the States Attorneys decision to bar the Grievant from
testifying is based on unsupportable inferences of untruthfulness completely at
odds with all record evidence, the Citys reliance on that decision as a ground for
terminating the Grievants employment violated the just cause requirement in
Article 32.1.
I have already laid out the evidence and testimony in great detail about the accident report and I
submit, respectfully, that the States Attorneys supposition that the Grievant lied falls outside the
parameters of reasoned analysis.

Frankly, I am at a loss to explain how one could arrive at the

conclusion that the Grievant came into the station on his day off to complete the report, told Lieutenant
Meyers that he did it before leaving, and lie about it. I have quoted the Departments own investigation
confirming that the reports of other officers were disappearing because of a software issue and operator
error due to inadequate training on the new system. No one from the police department ever said he lied.
Arbitrator Dichter clearly said the one-day suspension was because [h]e did forget to turn in the citation.
[CITY EXH. 3, p. 416]. The statement on page 19 of the Citys post-hearing brief that Arbitrator Dichter
specifically identified [as an act] of misconduct [that] Grievant failed to turn in a traffic ticket and failed to
file a report, justifying a one-day suspension is not supported by the record.
I believe three additional observations are in order.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
[A]lthough petitioners were initially disciplined by the police chief for their alleged excessive use of
force, the chiefs decision was overturned by an arbitrator, a neutral fact finder, following a full
hearing conducted pursuant to procedures agreed to in a CBA. . . . Given that the original
allegation of excessive force has been determined to be unfounded, there is no sustained basis
for the petitioners placement on the Laurie list.
See also, People v. Cacini, 45 N.E.3d 738, 757 (Ill. App. 2015) (holding that claims against officers that
were unfounded or not sustained by sufficient evidence are not discoverable or admissible).
90!

The U.S. Attorneys Manual is available at the Department of Justice website.

76!

First, I believe the Citys contention that fulfillment of the obligations imposed by Brady/Giglio
would automatically mean that if the Grievant were to testify every trial would entail a mini-trial within a
trial overstates the situation. As the North Carolina Court of Appeals observed in Wetherington, that
conclusion depends on several assumptions. Illinois case law does not necessarily support the States
Attorneys conclusion: it is a judge, not the defense attorney, who determines whether the jury will hear
evidence about an officers disciplinary record. For example, in People v. Collins,

91

the trial judge granted

the prosecutions motion in limine to bar the impeachment of the arresting officer with information
disclosed from his personnel file that included a one-day suspension for knowingly providing inaccurate
information to a superior officer. Ruling that impeachment evidence cannot be remote or uncertain and
must give rise to an inference that the witness has something to gain or lose by his testimony, the
appellate court agreed with the trial court that the officer could not be impeached by his disciplinary
history.
Here, the evidence contained in the personnel file indicated that Officer Tucker received a
one-day suspension for knowingly providing inaccurate information to a deputy chief
conducting an investigation in another department. The matter was not in any way related
to Officer Tuckers ability to conduct undercover drug transactions and did not raise an
inference that he had anything to gain or lose by his testimony in the present case. The
defendants argument that Officer Tucker would testify falsely to avoid any further
92
discipline is unsupported speculation that is remote and uncertain.
Indeed, as the Union has argued, when confidential files such as police personnel records are sought in
discovery the proper procedure is for the trial court to review the records in camera
discretion to disclose only material information.

93

and use its

94

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
91!People v. Collins, 985 N.E.2d 613 (Ill. App. 2013).
92!Id.

at 618. See also People v. Davis, 550 N.E.2d 677, 680 (1990) (affirming circuit courts refusal to
allow defendant to question officer where police department had not suspended or reprimanded the
officer regarding allegations of misconduct made in two civil suits).
93!!See,

e.g., People v. Jones, 2012 Ill. App. Unpub. LEXIS 1120 at p. 8 (Ill. App., May 14, 2012).
Moreover, the very practice employed here where the trial court reviews potentially
sensitive material [police personnel files] in camera and, thereafter, allows discovery of
only the relevant portion of that material is appropriate for addressing a situation where
one party contends that the information is sensitive and not discoverable.

94!!People

v. Cacini, 45 N.E.3d 738, 756 (Ill. App. 2015).

77!

Second, understanding that the police department had nothing to do with it, I am nevertheless
concerned with the fairness of the procedures that ultimately culminated in the Grievants dismissal. He
had no input into the decision to settle the civil cases that led to the newspaper articles that led to
95

citizens vociferously demanding

that the States Attorney prosecute him. Lawsuits are settled for many

reasons, including reasons that have nothing to do with whether an officers actions were justified such
as the cost of litigation and jury unpredictability. As described the inquiry was initiated to decide if
criminal charges were warranted, the subpoena said it involved a criminal investigation being
investigated by the Champaign County States Attorneys Office yet it commanded the production of the
entire personnel file.

96

Although the apparently unprecedented scrutiny prompted by community

demands revealed some problems (such as the Grievant improperly involving himself in matters
involving acquaintances and neglecting to follow proper investigative protocols), the States Attorney (nor
I) have any idea how many other Champaign police officers have been disciplined or reprimanded for
similar offenses. I have no idea how many use of force reports would reveal inconsistencies with the
video recording if similarly studied. If critical newspaper articles had instead been about an officer with
15 or 25 years of service, could decades old misconduct drawing a minor suspension be resurrected to
disqualify an officer from testifying? Although the Department afforded the Grievant ample opportunity to
be heard after the States Attorney made her decision, the fact that he had no opportunity to tell his side
of the story (and apparently did not have his side contained in police reports even considered) is
concerning. Finally, the Brady issue involving another officer who lied about responding to a dispatched

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
95!The States Attorney testified that people stormed the courthouse and said there were all kinds of
protest. [TR. p. 161].
96!States

Attorney Rietz testified that in all her years working as an Assistant States Attorney or States
Attorney she had never seen a personnel file of this volume. [TR. p. 89]. However, if I understood the
testimony correctly, her office does not routinely obtain personnel files [TR. p. 133] and Chief Cobb
refuses to release personnel files except under order of subpoena. [TR. p. 204]. I acknowledge that the
record is unclear on this point because the question States Attorney Rietz answered was, Have you ever
have you ever, based on a community request, subpoenaed an officers entire personnel file before?
[TR. pp. 132-133].

78!

police run but has not been disqualified from testifying raises the specter that the purported justification
for dismissing this officer might not be the entire story.

97

Third, I recognize that reinstatement places the police department in an unenviable quandary.
As the Citys post-hearing brief noted concerning Officer Browns situation, prosecutors sometimes do
reconsider their decisions and allow an officer to testify. It may be the case that the States Attorney
anticipated that the Grievants second dismissal would withstand arbitral scrutiny and rethink her
position. It could be that upon reflection the States Attorneys Office will reconsider the legal soundness
of the vouching theory. Perhaps that office will consider adopting the Department of Justices Giglio
policy that exempts from disclosure exonerated disciplinary matters. Conceivably the States Attorneys
Office will revisit the practice not to use the in camera inspection procedure approved by Illinois
appellate courts. Although the States Attorney made clear that she would not allow the Grievant to
testify, she was not asked (and perhaps has not fully considered) if she would move away from that
position if the consequence is turning loose a criminal who poses a threat to the safety of the citizens of
Champaign County. I do not know the answers to any of those questions, but the answer to whether the
Grievants discipline was administered correctly based on the individual circumstances of this case is
no.
Based upon the entire record I find that that the Grievants dismissal was without just cause.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
97!Regrettably States Attorney Rietz had already been excused when this information was disclosed and
did not have the opportunity to provide an explanation.

79!

AWARD
1. The grievance is granted.
2.

The Grievants discharge was not for just cause as required by Article 32.1 of the
Collective Bargaining Agreement.

3. The Grievant shall be offered reinstatement to his former position without the loss of
seniority.
4. Upon request by the Grievant, the date of reinstatement may be deferred for not more
than 21 days from the date of this Award for the purpose of providing appropriate notice
to his current employer (if any).
5. The Grievant shall be made whole for the loss of wages and benefits. Back pay shall be
calculated in accordance with Article 33.5 of the Collective Bargaining Agreement.
6. The Grievants personnel records shall be expunged of all references to this disciplinary
action.
7. The arbitrator shall retain jurisdiction for the sole purpose of resolving issues that may
arise concerning the implementation of this Award for a period of 90 days.

________________________
MICHEAL J. FALVO

Dated: December 30, 2016

80!