AMERICAN ARBITRATION ASSOCIATION

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In the Matter of the Arbitration *
*
between *
* OPINION
Syracuse Firefighters Association, Local 280 *
* AND
and *
* AWARD
City of Syracuse *
*
AAA Case: 01-17-0002-5514 *
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BEFORE:
Ronald E. Kowalski, Ph.D.
Arbitrator

APPEARANCES

For the City

Thomas R. Babilon, Esq. Assistant Corporation Counsel

Thomas Lund Detective
Paul Linnertz Chief of Fire
David Demand Police Officer
Lisa Purvis
Steve Evans First Deputy Chief

For the Union

Nathaniel E. Lambright, Esq. Attorney for the Union

Rick F. Buck District Fire Chief
Mark McLees Retired Fire Chief
John J. Falge Retired Chief of Police
Jeffrey Schiano Attorney
Rocco Marganti Firefighter
Edward Akerman Grievant

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 Hearings on the above-referenced matter took place in Syracuse, New York

on November 8, 2017, February 6, 2018, March 1, 2018, April 5, 2018 and May 7,

2018 before the Undersigned who had been appointed as Arbitrator in accordance

with the parties’ Collective Bargaining Agreement as well as the rules and

procedures of the American Arbitration Association. The parties were in all

respects accorded a full and fair hearing including the right to present oral and

written evidence and to examine and cross-examine witnesses. Briefs were

submitted as agreed by the parties.

ISSUE

The parties were unable to agree on the issue in this Arbitration. The

Arbitrator would frame the issue as follows:

Is Edward Akerman guilty of the Charges of April 25,

2017?

If so is there just cause for termination?

If not, what penalty, if any, is appropriate?

BACKGROUND FACTS

Edward Akerman, the grievant, was a firefighter with the City of Syracuse

Fire Department (hereinafter “City”). Mr. Akerman was hired by the City in 2004

and served on the departments rescue company and was regarded as a good

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firefighter by his superiors.

On March 20, 2017 Mr. Akerman was at the Pastimes Club, an athletic club

in Syracuse, New York playing basketball. Mr. Akerman was the president of the

club. He planned to meet two long time personal friends, Ben Mashie and Peter

Rausch, that day to make plans for Peter Rausch’s upcoming wedding. He met the

two men at the club around 8:00 PM after playing the basketball game and

showering at the club. From 8:00 PM to 10:00 PM the three men talked, socialized

and had beer to drink. The three men then left to go to a restaurant, Twin Trees II,

with Mr. Mashie and Mr. Rausch leaving the club at 10:00 PM and Mr. Ackerman

at around 10:30 PM after continuing to help at the Pastimes Club.

The three men continued socializing and had a dinner at the restaurant. Mr.

Akerman had two shots of liquor and some beer as well as did his friends.

The three men left Twin Trees II at around 12:15 AM for Singers Karaoke Club

where they all socialized and had additional beers to drink. They decided to go

home around 1:22 AM. Mr. Rausch and Mr. Mashie went in Mr. Rausch’s car

which he drove and Mr. Akerman followed in his truck. At approximately 1:30

AM Mr. Akerman who was following Mr. Rausch witnessed at the corner of Bear

and Salina Street Mr. Rausch’s car possibly hit someone who walked out into the

street and passed an object which was the victim Seth Collier’s body on the side of

the street. Mr. Akerman continued down the street and then drove around in a

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multi block circle returning to a block away and eventually going to the Pastimes

Club which was a couple of blocks from the accident. Seth Collier had sustained a

blunt trauma when he was hit by Mr. Rausch and suffered a cranial hemorrhage

and died two days later.

Mr. Rauch had also driven to the Pastimes and left his vehicle there and took

off on foot before Mr. Akerman arrived at the club. Mr. Mashie was at the club

and he and Mr. Akerman entered the then locked club. The police found Mr.

Rausch’s vehicle parked at the club and knocked at the door to see if anyone was in

the building. The police eventually secured a key and searched the building

finding Mr. Akerman and Mr. Mashie in the basement area. Mr. Akerman had at

2:36 AM after the police arrived shut off the surveillance equipment that had

included indoor and outdoor cameras.

The police took both men in for questioning trying to find out where Mr.

Rausch might have gone. Mr. Akerman was interviewed at some length at the

Public Safety Building and eventually admitted that he had seen someone

apparently walk in front of Mr. Rauch’s car, get hit and what appeared to be a

person on the ground (City Exhibit 4).

Mr. Akerman was suspended from the Fire Department the same day, March

21, 2017. (City Exhibit 7) He was served with charges by the Fire Department on

April 15, 2017 alleging misconduct. (City Exhibit 13) On April 20, 2017 the

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Syracuse Police Department charged Mr. Akerman with one count of tampering

with evidence. Mr. Akerman presented himself for arraignment on Friday, April

21, 2017 accompanied by local union President Paul Motondo. Mr. Motondo

informed Chief Linnertz on April 24, 2017 of the arrest at Mr. Akerman’s request.

Mr. Akerman was served with Amended Charges on April 25, 2017 and was

terminated on April 27, 2017 (City Exhibit 15, 7, 27, 30). On January 30, 2018

District Attorney Oakes, presented Mr. Akerman’s matter to the Onondaga County

Grand Jury. The Grand Jury determined there was no reasonable cause to believe

Mr. Akerman committed a felony in turning off the surveillance cameras or any

other crime. The charges were dismissed pursuant to Criminal Procedure Law

Section 190.75(1).

On September 2017 Mr. Rausch pled guilty to drunkenly causing a fatal

crash and leaving the scene. He was sentenced to 2-6 years in prison (City Exhibit

27).

The Syracuse Fire Fighters Association, Local 280 (hereinafter “Union”)

filed a grievance over Mr. Akerman’s termination. (Joint Exhibit 2) The matter

was pursued through the contractually provided procedures to this Arbitration.

CHARGES

Pursuant to Section 75 of the Civil Service Law of the State of New York, you are hereby
notified that the following charges are preferred against you.

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 CHARGES 1-3

VIOLATION OF THE RULES AND REGULATIONS OF THE DEPARTMENT OF

FIRE OF THE CITY OF SYRACUSE, AS AMENDED.

1.1.4 Members shall be held accountable for their conduct while on or off duty. They
shall, at all times, show courtesy to the public and conduct themselves to the credit
of the Department.

Charge 1 – On March 21, 2017, you witnessed a car-pedestrian accident at or around the
intersection of N. Salina and Bear Street. At the time of the incident you failed to contact the
Onondaga County 911 Center to report the accident. Your actions have brought discredit to the
Department of Fire.

Charge 2 – On March 21, 2017, you witnessed a car-pedestrian accident at or around the
intersection of N. Salina and Bear Street. At the time of the incident, as a sworn Firefighter and
certified Emergency Medical Technician you failed to stop and render first aid to the victim of
this accident. Your actions have brought discredit to the Department of Fire.

Charge 3 –On April 20, 2017, you were arrested by the Syracuse Police Department and charged
with Tampering with physical evidence, a Class E Felony. Your actions have brought discredit
to the Department of Fire.

CHARGES 4-6

VIOLATION OF THE RULES AND REGULATIONS OF THE DEPARTMENT OF

FIRE OF THE CITY OF SYRACUSE, AS AMENDED.

1.1.21 Members shall not conduct themselves in a manner unbecoming, or prejudicial to

the good reputation, the order, or the discipline of the Fire Department.

Charge 4 – On March 21, 2017, you witnessed a car-pedestrian accident at the intersection of N.
Salina and Bear Street. At the time of the incident you failed to contact the Onondaga County
911 Center to report the incident. This conduct was unbecoming, or prejudicial to the good
reputation, the order, or discipline of the Fire Department.

Charge 5 – On March 21, 2017, you witnessed a car-pedestrian accident at the intersection of N.
Salina and Bear Street. At the time of the incident, as a sworn Firefighter and Certified
Emergency Medical Technician, you failed to stop and render first aid to the victim of this
accident. This conduct was unbecoming, or prejudicial to the good reputation, the order, or
discipline of the Fire Department.

Charge 6 – On April 20, 2017, you were arrested by the Syracuse Police Department and charged
with Tampering with physical evidence, a Class E Felony. Your conduct was unbecoming, or
prejudicial to the good reputation, the order, or discipline of the Fire Department.

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 CHARGES 7-10

VIOLATION OF THE RULES AND REGULATIONS OF THE DEPARTMENT OF

FIRE OF THE CITY OF SYRQACUSE, AS AMENDED.

1.1.24 Members, while on or off duty, shall not be involved in the commission of an act
which might tend to discredit the Fire Department.

Charge 7 – On March 21, 2017, you witnessed a car-pedestrian accident the intersection of N.
Salina and Bear Street. At the time of the incident you failed to contact the Onondaga County
911 Center to report the incident. Your failure to contact 911 under these circumstances as an act
which might tend to discredit the Fire Department.

Charge 8 - On March 21, 2017, you witnessed a car-pedestrian accident at the intersection of N.
Salina and Bear Street. At the time of the incident, as a sworn Firefighter and certified
Emergency Medical Technician, you failed to stop and render first aid to the victim of this
accident. Your failure to render first aid under these circumstances was an act which might tend
to discredit the Fire Department.

Charge 9 – On April 20, 2017, you were arrested by the Syracuse Police Department and charged
with Tampering with physical evidence, a Class E Felony. Your actions have brought discredit
to the Fire Department.

Charge 10 – On March 21, 2017, as a sworn Firefighter you sought refuge in the Pastime Athletic
Club in an attempt to elude the Police as they investigated a serious personal injury automobile
accident that you witnessed. Your actions in eluding police in on March 21, 2017 was an act
which might tend to discredit the Fire Department.

CHARGE 11

VIOLATION OF THE RULES AND REGULATIONS OF THE DEPARTMENT OF

FIRE OF THE CITY OF SYRACUSE, AS AMENDED.

1.1.25 An employee, who is arrested shall notify the Fire Chief’s office at the first
available opportunity.

Charge 11 – On April 20, 2017, you were arrested by the Syracuse Police Department and
charged with Tampering with physical evidence, a Class E Felony. As of this date, you have
failed to notify the Department of your arrest.

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 CHARGES 12-13

VIOLATION OF THE RULES AND REGULATIONS OF THE DEPARTMENT OF

FIRE OF THE CITY OF SYRACUSE, AS AMENDED.

1.1.37 Neglect of duty will not be tolerated such as: failure to give suitable attention to
the performance of duty or failure to take appropriate action at a fire scene or other type
of emergency.

Charge 12 – On March 21, 2017, you witnessed a car-pedestrian accident at the intersection of N.
Salina and Bear Street. At the time of the incident you failed to contact the Onondaga County
911 Center to report the incident. Your failure to contact 911 on this date constituted a neglect of
duty.

Charge 13 - On March 21, 2017, you witnessed a car-pedestrian accident at the intersection of N.
Salina and Bear Street. At the time of the incident, as a sworn Firefighter and certified
Emergency Medical Technician, you failed to stop and render first aid to the victim of this
accident. Your failure to render first aid on this date was a neglect of duty.

CHARGES 14-15

VIOLATION OF THE GENERAL ORDERS OF THE DEPARTMENT OF FIRE OF

THE CITY OF SYRACUSE.

1.2.1 The Chief of Fire fully expects every member to conduct themselves as
“Professionals”. This is vital on the fire ground, without question. However, it is also
important in the Fire Station, during inspections and in training.

Charge 14 – On March 21, 2017, you witnessed a car-pedestrian accident at the intersection of N.
Salina and Bear Street. At the time of the incident you failed to contact the Onondaga County
911 Center to report the incident. Your failure to contact 911 on this date constitutes
unprofessional behavior.

Charge 15 - On March 21, 2017, you witnessed a car-pedestrian accident at the intersection of N.
Salina and Bear Street. At the time of the incident, as a sworn Firefighter and certified
Emergency Medical Technician, you failed to stop and render first aid to the victim of this
accident. Your failure to render aid on this date constitutes unprofessional behavior.

CHARGE 16

VIOLATION OF THE GENERAL ORDERS OF THE DEPARTMENT OF FIRE OF

THE CITY OF SYRACUSE.

Gen. Order No. 5.1.1 It is the intent of the Syracuse Fire Department to provide emergency
medical care to any person in this community by trained and certified fire department
personnel.

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Charge 16 - On March 21, 2017, you witnessed a car-pedestrian accident at the intersection of N.
Salina and Bear Street. At the time of the incident, as a sworn Firefighter and certified
Emergency Medical Technician, you failed to stop and render first aid to the victim of this
accident. Your failure to render aid to the victim on March 21, 2017 constituted a violation of
General Order No. 5.1.1.

CHARGE 17

VIOLATION OF THE GENERAL ORDERS OF THE DEPARTMENT OF FIRE OF

THE CITY OF SYRACUSE.

Gen. Order No. 5.1.2 Members shall provide the level of care to which they are authorized by
the Syracuse Fire Department.

Charge 17 - On March 21, 2017, you witnessed a car-pedestrian accident at the intersection of N.
Salina and Bear Street. At the time of the incident, as a sworn Firefighter and certified
Emergency Medical Technician, you failed to stop and render first aid to the victim of this
accident. Your failure to render aid to the victim on March 21, 2017 constituted a violation of
General Order No. 5.1.2.

CHARGE 18

VIOLATION OF THE GENERAL ORDERS OF THE DEPARTMENT OF FIRE OF

THE CITY OF SYRACUSE.

Gen Order No. 5.2.1 Syracuse Fire Department personnel who are certified as Certified First
Responder, Emergency Medical Technician or Advanced Emergency Medical
Technicians shall administer all patient treatment according to New York State Basic Life
Support protocols. All advanced procedures such as defibrillation, intubation, IV access,
shall also meet Central New York Regional protocol as set forth by the Syracuse Fire
Department’s Medical Director.

Charge 18 - On March 21, 2017, you witnessed a car-pedestrian accident at the intersection of N.
Salina and Bear Street. At the time of the incident, as a sworn Firefighter and certified
Emergency Medical Technician, you failed to stop and render first aid to the victim of this
accident. Your failure to render aid to the victim on March 21, 2017 constituted a violation of
General Order No. 5.2.1.

CHARGE 19

VIOLATION OF THE GENERAL ORDERS OF THE DEPARTMENT OF FIRE OF

THE CITY OF SYRACUSE.

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 5.3.1 Care provided to patients shall be done in accordance with New York State Basic
Life Support Protocols and/or Central New York Advanced Life Support
Protocols.

Charge 19 - On March 21, 2017, you witnessed a car-pedestrian accident at the intersection of N.
Salina and Bear Street. At the time of the incident, as a sworn Firefighter and certified
Emergency Medical Technician, you failed to stop and render first aid to the victim of this
accident. Your failure to render aid to the victim on March 21, 2017 constituted a violation of
General Order No. 5.3.1.

RELEVANT CONTRACT PROVISIONS

The relevant contract provisions are found in Article 20 of the Collective

Bargaining Agreement as follows:

ARTICLE 20

20.5 Conduct of Arbitration Hearing

In any arbitration hearing held under the provisions of this Article, both the Department

and the Firefighter involved shall have the right to be represented by counsel and to present

witnesses and engage in the cross-examination of witnesses presented by the other party. The

arbitration hearing shall be de novo proceeding, and a decision shall be made by the arbitrator on

the basis of the legal evidence as presented at the arbitration hearing. The arbitrator is mandated

either to accept the departmental penalty or to reject it in full or to fashion a lesser penalty if such

is in his judgment required, but the arbitrator may not remand to the parties for the creation of

alternative remedies. The fees and necessary expenses of the arbitration proceedings shall be

shared equally by the City and the Association. Each party shall bear the expense of the

preparation and presentation of its own case.

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 POSITION OF THE PARTIES

City

The City argues the Grievant, Edward Akerman, is guilty of the amended

charges of April 24, 2017. The misconduct is egregious and warrants his

termination as a firefighter.

The City has contended that the standard to be applied to evaluating

discipline in this case should not be just cause as it is not explicitly set out in the

provisions of the Collective Bargaining Agreement, but rather should be whether

there is substantial evidence as set out in Civil Service Law Section 75. The City

further argues there is such substantial evidence that Mr. Akerman did commit the

acts alleged in the charges and should be terminated.

The City asserts that while the misconduct alleged took place off duty that

both the law and the parties Collective Bargaining Agreement allows for discipline

for off duty conduct. In spite of former Fire Chief Mark McLees’s testimony that

he had never disciplined a firefighter for off duty conduct who had not been

convicted of a crime he did admit that Department rules 1.1.4 and 1.1.24

specifically state they apply to off duty conduct. (City Exhibit 22) Deputy Chief

Steve Evans also testified that a review of disciplinary records during Chief

McLees’s tenure reveal incidents of discipline for off duty conduct for former

firefighter, Doug Martin, which led to a 44 day suspension and after further

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misconduct to his termination.

Mr. Akerman did commit serious off duty misconduct on March 21, 2017 as

alleged in the Charges in violation of Fire Department rules. Charges 1-3 allege

the Grievant violated Rule 1.1.4 of the Fire Department which states members of

the Department shall be held accountable for their conduct on and off duty and

conduct themselves to the credit of the Department. It is clear from the evidence

that Mr. Akerman did witness a car pedestrian accident on March 21, 2017 but

failed to stop and render assistance or call 911 which actions brought discredit to

the Fire Department. Instead of calling 911 he left the scene without stopping and

went to the Pastimes Club where he hid from police investigating this hit and run.

Chief Linnertz testified that Mr. Akerman’s actions that day in failing to render

assistance or to call 911 where matters reported in the press and the public

responses in the hundreds on Syracuse.Com were overwhelmingly negative and

embarrassing for the Department. A number of his fellow firefighters also felt the

same way about Mr. Akerman and would not sign a petition the Union was passing

around in support of him.

Mr. Akerman was arrested as alleged in Charge 3 and charged with

tampering with evidence, a felony. His arrest, again reported in the newspapers

caused discredit to the Fire Department. The Grievant admitted he did unplug the

surveillance video of the Pastimes Club as alleged in the charges and as reported in

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the press.

Charges 4-6 allege violations of Rule 1.1.21 which states that members shall

not conduct themselves in a manner unbecoming or prejudicial to the good

reputation, order or the discipline of the Fire Department. It is again clear from the

evidence and testimony that Mr. Akerman’s actions on March 21, 2017 in not

stopping to render assistance or call 911 after witnessing the accident and his

subsequent arrest for evidence tampering was conduct that was prejudicial to the

good reputation of the Fire Department as noted in chief Linnertz’s testimony. Mr.

Akerman is guilty of these charges as well.

Charge 7-10 allege violation of Rule 1.1.24 which states that members while

on or off duty shall not commit an act which might tend to discredit the Fire

Department. It is undisputed that Mr. Akerman did, by not stopping to render

assistance or call 911 after witnessing an accident on March 21, 2017 and was

arrested for tampering with evidence after trying to allude the police, did act in a

fashion which tended to discredit the Fire Department as noted in the earlier

charges.

Charge 11 alleges the Grievant failed to notify the Fire Chief’s office at the

first opportunity if arrested in violation of Rule 1.1.25. Mr. Akerman admitted that

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he did not notify Chief Linnertz of his arrest. Instead he spoke with Union

President Paul Motondo and Mr. Motondo said he would inform Chief Linnertz of

the arrest which he did by email. The Rule requires Mr. Akerman do so directly to

the Chief.

Charges 12-15 allege violation of Rule 1.1.37 which states Neglect of Duty

will not be tolerated in the performance of duties and of Rule 1.2.1 which states the

Fire Chief fully expects every member to conduct themselves as professionals.

Once again, Mr. Akerman’s actions on March 21, 2017 did not satisfy either of

these rules as he both neglected his duties in failing to render assistance and not

call 911 and was arrested for tampering which are failures to perform his duties as

well as a failure to conduct himself as a professional. Mr. Akerman is clearly

guilty of these charges. The City has withdrawn charges 16-19.

Mr. Akerman was aware of all the rules cited in the charges and was thus on

notice of what was expected of him as a firefighter. His actions on March 21, 2017

were in violation of those rules as set forth in the charges. Chief Linnertz testified

he believed a majority of the membership did not want Mr. Akerman to return to

duty as his actions discredited the Fire Department. Given these facts and the

gravity of the offense, termination was the appropriate penalty for the misconduct

engaged in by Mr. Akerman on March 21, 2017, even under a just cause standard.

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 The City submits the grievance is without merit. The City requests the

Arbitrator deny the grievance in its entirety.

Union

The Union argues Firefighter Akerman’s actions while off duty on March

21, 2017 do not constitute violations of applicable rules and regulations to warrant

his termination under just cause. Just cause is also the appropriate standard in this

case for the review of discipline by the City. Prior arbitration awards between the

City and the union have included just cause as the standard utilized in determining

discipline matters.

The Union further argues that charges 4, 5, 6, 12, 13, 14, 15, 16, 17, 18 and

19 in the amended charges of April 25, 2017 (City Exhibit 15) cite violations of

rules and regulations that only apply to on duty conduct. The conduct that is the

subject of this case was off duty conduct on March 21, 2017. These charges have

no basis as they are rules for on duty not off duty conduct.

The Union asserts that with respect to charges 1, 2, 3, 7, 8, 9 and 10 which

state violations of rules that apply to off duty conduct they generally allege he

brought discredit to the Fire Department by his actions on March 21, 2017 which

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was misconduct sufficient given the public notoriety to warrant his termination.

The Union argues the evidence does not support termination given the arbitral

standards applicable to discipline for off duty conduct and just cause.

The Union asserts that the City has not shown by clear and convincing

evidence that Mr. Akerman’s actions constitute sufficient grounds for discharge. A

key element of just cause is that it requires the degree of discipline to be

proportionate to the alleged offense. If the alleged misconduct is off duty

arbitrators look at a set of factors established in case law which include whether the

misconduct effects the employee’s ability to perform their job, work with fellow

employees or might be repeated as to whether discipline is appropriate and its

degree.

Mr. Akerman’s actions on March 21, 2017 in leaving the scene of an

accident without stopping to render aid and not calling 911 while they were widely

reported in the press as was his later arrest for tampering with evidence are not

misconduct that outweighed his thirteen years of good service with the Fire

Department that by the testimony of even the City’s witnesses was outstanding

with no prior discipline. He also has worked as a coach and organized programs

for youths in Syracuse. The charges against Mr. Akerman were dismissed by a

16
grand jury so he committed no crime on that morning of March 21, 2017. Mr.

Akerman also had no obligation to stop and render assistance as he was off duty,

nor to call 911. Mr. Akerman acknowledged in his testimony that he wished he

had stopped and called 911 and acted differently on that night and deeply regrets he

did not. However, his behavior was the result of fear and panic that overtook him

after seeing a good friend possibly hit someone and drive on after the accident.

The fact that he had been drinking also made it improper for him to respond to an

emergency situation under the parties Drug and Alcohol Policy and Rules which

forbid it. (Joint Exhibit 1)

There is no evidence that Mr. Akerman’s actions affected his ability to

perform his job or would ever be repeated. He has been an exceptional firefighter

since 2004. The Union also submits there is no evidence in the record that Mr.

Akerman’s behavior that night has led fellow firefighters to refuse to be willing to

work with him. District Chief Rick Buck, who has worked with him testified he

would work again without hesitation and his actions that night were out of

character for him. Union Vice President Marganti testified the vast majority of

members supported Mr. Akerman’s return to work. He should be given a second

chance as Chief Buck has stated in his testimony and his presence would not impair

17
the Fire Department’s ability to do its work.

The Union further argues that Charge 11 which alleges firefighter Akerman

improperly failed to notify the Chief of his arrest is also without merit. The

purpose of the rule in question requiring the Chief to be notified of an arrest is so

that the Fire Department may take appropriate actions with respect to the

firefighter’s employment. In this case Mr. Akerman was arraigned on Friday,

April 21, 2017 and Union President Motondo who was present at the arraignment

informed Chief Linnertz the following Monday April 24, 2017. (Union Exhibit 5)

Mr. Akerman was suspended at the time and the rule does not prohibit someone

else from informing the Chief of an arrest in a timely fashion.

Mr. Akerman sincerely regrets what he did not do on March 21, 2017 in not

stopping and calling 911. Panic and fear overtook him and he made a mistake.

However, his actions do not support the conclusion that there is cause for discipline

and certainly not for termination. The Union therefore submits the grievance has

merit. The Union asks the grievance be sustained and Mr. Ackerman be reinstated

with full back pay and benefits as remedy.

OPINION

The issue before the Arbitrator in the instant matter is a question of

18
discipline. There is also a question as to whether the standard for review is just

cause. The facts are largely not matters of dispute in the instant case. The central

issue is whether the actions of the Grievant, Edward Akerman, on March 21, 2017

in not stopping at the scene of an accident he had witnessed and not calling 911 as

well as going to the Pastime Club and not responding to the police when they

knocked at the door constitutes off duty misconduct which warrants his

termination. The City believes the evidence supports the conclusion Mr.

Akerman’s actions were a violation of rules and of an egregious enough nature to

support termination. The Union has argued Mr. Akerman’s actions were prompted

by fear and panic, did not violate any laws and that he was not under any

contractual obligation to stop or call 911. The Arbitrator is of the opinion that the

evidence and testimony adduced at the hearings sustains some of the charges in the

April 25, 2017 Amended Charges (City Exhibit 15) but does not support

termination as the appropriate penalty in this matter.

With respect to whether just cause is a standard to be applied in this case the

City has in a prior disciplinary case stipulated to just cause as the accepted standard

of review for discipline. (AAA Case: 153900079313 [2014]) In doing

so it has recognized and agreed to this generally accepted standard for review of

disciplinary matters in labor arbitration which is implicit in arbitration clauses. As

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such this is the standard for review in the instant case.

With respect to the Amended Charges of April 24, 2017 there is a question

as to whether all the charges are draw from rules and regulations of the Fire

Department that apply to off duty conduct which is the subject of the discipline in

this case. The City has argued that all the rules cited in the Charges apply to both

on duty and off duty conduct. The Union contends that a number of the charges

arise from rules that only apply to on duty conduct and therefore have no

application in this matter. The Charges in question are Charges 4, 5, 6, 12, 13,

14and 15 with charges 16-19 having been withdrawn.

A Collective Bargaining Agreement sets out negotiated rights and

obligations that govern the relationship between the Employer and employees in

the workplace represented by the Union as do work rules. They do not govern an

employees’ actions while off duty outside the workplace unless there is clear

agreement set forth by the parties or a nexus is established. In the instant matter

the Department Rules and Regulations which are incorporated into the Collective

Bargaining Agreement under Article 17 govern behavior only while on duty with

the exceptions in this case of rules 1.1.4 and 1.1.24 which apply to Charges 1-3 and

7-10. These are the only cited rules in this case that explicitly include off duty

conduct which the parties have agreed is subject to review for discipline. Charge 11

is an on duty matter. The rules referenced in Charges 4, 5, 6, 12, 13, 14, and 15 do

20
not apply to off duty conduct which is the alleged misconduct in this case and are

therefore dismissed.

With respect to the remaining Charges 1-3, 7-10 and 11, the Arbitrator is of

the opinion the evidence and testimony supports a finding of guilt with the

exception of Charge 11 in the following degrees and manner. There can be no

dispute that Mr. Akerman’s actions on March 21, 2017 in not stopping and call 911

after witnessing a possible accident with a pedestrian injured or killed brought

discredit to the Fire Department as well as himself as alleged in Charges 1-3.

These are not actions the public would expect from a firefighter. The pedestrian

was struck and killed by a car driven by Peter Rauch and the matter became well

known to the public through the press including the actions or inactions of Mr.

Akerman which did bring discredit to the Fire Department. However, Mr.

Akerman did not drive the car that killed the pedestrian and was not involved in the

accident. Whether he should have stopped and rendered aid is problematic with

respect to the latter. Mr. Akerman should have stopped and called 911 as stated in

charges 1 and 2, but he had been drinking that evening and while there is no

evidence as to the degree of any intoxication, it’s clear from the parties Collective

Bargaining Agreement in Article 4 of the Appendix that even a .002 blood alcohol

content is a degree at which an EMT or others should not perform emergency

services. (Joint Exhibit 1) Mr. Akerman could have presented a danger to the

21
pedestrian if he rendered any service while under even some influence of alcohol.

As concerns Charge 3, Mr. Akerman was arrested and charged with

Tampering with evidence. The charge was subsequently dismissed by a grand jury.

While this was a matter also known to the public and reported in the newspapers

and on television and certainly did bring discredit to the Fire Department, Mr.

Akerman was ultimately exonerated as the charge was dismissed.

With respect to Charges 7-10 which allege Mr. Akerman was involved in the

commission of an act which might tend to discredit the Fire Department Mr.

Akerman is guilty to the same degree and in the same fashion as noted in Charges 1-

3. Mr. Akerman did witness a car-pedestrian accident and did not either stop or

call 911 as alleged in Charges 7 and 8, however, rendering first aid as noted above

could have been problematic, again for reasons stated in the review of Charges 1-3.

Charge 9 goes to his subsequent arrest which while producing more negative press

for the Fire Department did end with the charges being dismissed. Charge 10

which references Mr. Akerman’s hiding from the police at the Pastimes has

substance as well. Mr. Akerman should have been willing to come forward

immediately knowing the Police were in the parking lot but did not and it did bring

discredit to the Fire Department as it was reported in the press.

Charge 11 alleges Mr. Akerman did not notify the Chief’s office at the first

opportunity of his arrest on April 20, 2017. While Mr. Akerman did not personally

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notify the office he did have Union President Motondo inform the Chief the

Monday following the arrest that he had been arrested. The rule cited 1.1.25 says

an employee should notify the Fire Chief’s office and while it implies the

individual it does not prohibit the employee from asking someone else to make the

notification which satisfies the intent which is to make the Chief aware of the

arrest.

Mr. Akerman is thus guilty of the Charges 1-3 and 7-10. There was a great

deal of notoriety surrounding the events of March 21, 2017 with extensive press

coverage as well as public responses to the actions of Mr. Akerman on

Syracuse.Com. The mother of Seth Collier, the pedestrian who was killed, also

started a petition on line to get signatures with respect to how Mr. Akerman’s

employment should be treated as a result of his actions that night. While clearly

Mr. Akerman’s well publicized actions did bring discredit to the Fire Department

and reflected very poor judgement on his part which he admitted to at the hearings

with respect to determining an appropriate penalty the Arbitrator is bound by

arbitral standards to consider a number of factors. These factors include not only

the seriousness of the misconduct but also the employee’s prior service record,

length of service, and likelihood of reoccurrence in assessing what is a proper

penalty. (See Enterprise Wire Co. 46 LA359 (1966) Arbitrator Daugherty standards

for just cause) .

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 Mr. Akerman has had an outstanding work record with the Fire Department

on its rescue squad as all have testified to at the hearings. He has never had any

prior discipline and has served and volunteered in his community on the north side

of Syracuse helping young adults. He appears to have panicked on the night of

March 21, 2017 after seeing a good friend likely hit a pedestrian as evidenced in

his driving off and then driving around in a multi-block circle which made no sense

and then back to Pastimes. He panicked and apparently did not know what to do.

Hiding in the basement and turning off the video system later also made no sense

as it served no purpose and again reflects panic and a lack of rational thinking.

None of this excuses him from his inaction that night or the substantial discredit it

brought to the Fire Department but coupled with his good prior record and

outstanding performance it makes termination not appropriate for one night’s

terrible mistake.

The Arbitrator believes given the factors noted above the appropriate penalty

is a lengthy suspension without pay and the understanding that should anything of

this nature or seriousness occur again it will result in termination. Mr. Akerman

shall therefore be reinstated to his position but without any back pay as penalty

converting his termination into a suspension.

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 AWARD

Edward Akerman is guilty of Charges 1-3 and 7-10 in the Amended Charges

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of April 25, 2017 in the degrees noted in the opinion.

Termination is not the appropriate penalty.

The appropriate penalty is a lengthy suspension without pay. The Grievant

shall be reinstated to his position but without back pay constituting a suspension

and with the understanding any further serious misconduct will lead to his

termination.

Date Ronald E. Kowalski, Ph.D.

Arbitrator

State of New York )

) SS:
County of Onondaga )

I, Ronald E. Kowalski, Ph.D., do hereby affirm upon my oath as Arbitrator that I

am the individual described in and who executed this instrument which is my
Award.

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