IN THE MATTER OF AN ARBITRATION

BETWEEN

CITY OF CHILLICOTHE, OHIO, FMCS Case No. 180725-06750

Arbitrator: Jerry B. Sellman
The Employer Decision Dated: January 18, 2019
Issue: Termination of Netter
and

FRATERNAL ORDER OF POLICE/

OHIO LABOR COUNCIL, INC.

The Union

APPEARANCES

FOR THE EMPLOYER:

Andrew Esposito - Account Manager/Shareholder, Clemans, Nelson & Associates, Inc.,

representing the City of Chillicothe, Ohio
Michael Short - Sergeant with the Chillicothe Police Department, Witness
Larry Bamfield, Jr. - Captain with the Chillicothe Police Department, Witness
Jonathan Robinson - Sergeant with the Chillicothe Police Department, Witness
Timothy Claytor – Deputy Sheriff (Corrections Officer) at the Ross County Sheriff’s Office,
Witness
Michael Holman - Deputy Sheriff (Corrections Officer) at the Ross County Sheriff’s Office,
Witness
Julie Preston – Police Officer with the Chillicothe Police Department, Witness
Jeremy Tuttle - Sergeant with the Chillicothe Police Department, Witness
Chief Keith Washburn – Chief of Police with the Chillicothe Police Department, Witness
Jeffrey Carman – Safety Director for the City of Chillicothe, Witness

FOR THE UNION:

Kay E. Cremeans, Esq. – General Counsel with the Fraternal Order of Police/Ohio Labor
Council, Inc., representing the Union and the Grievant
Thomas Fehr, Esq. – Senior Staff Representative, Fraternal Order of Police/Ohio Labor Council,
Inc., representing the Union and the Grievant
Reginald Netter – Former Police Officer with the Chillicothe Police Department, Grievant and
Witness
I. NATURE OF THE CASE

Just Cause for Termination; Excessive Use of Force; Language; Failure To Turn On

Body Camera; Disparate Treatment; Progressive Discipline: This matter came for hearing before

Arbitrator Jerry B. Sellman on October 3, 2018. The hearing was held at the Chillicothe Police

Department, 28 N. Paint Street, Chillicothe, Ohio. The proceeding arises pursuant to the

provisions of the Collective Bargaining Agreement (hereinafter “CBA” or “Agreement”)

between the City of Chillicothe (hereinafter the “Employer”) and the Fraternal Order of

Police/Ohio Labor Council, Inc. (hereinafter the “Union”). This case concerns a grievance filed

by Reginald Netter (hereinafter “Grievant”) on May 30, 2018. The Grievant alleges that the

Employer did not have just cause, as required under Article 12 and Article 13 of the Parties’

Agreement, to terminate his employment for allegedly striking an inmate at the Ross County Jail

in the facial area and violating other police department policies arising out of the same incident.

The Grievant admits that he was incensed by racial slurs directed toward him by an inmate upon

whom he was serving a citation and admits angrily gesturing with his hands in the inmate’s

personal space, but does not now, and did not then, believe he hit him in the face. Further, to the

extent any departmental policies were violated, the Employer failed to apply progressive

discipline in this case and did not discipline the Grievant as it has with others charged with

similar offenses. The Employer argues that it had just cause for termination because witnesses

observed the Grievant striking an inmate in the facial area, and the Grievant lied about it. He also

violated other Departmental Rules for not activating his body camera, using coarse, unacceptable

language, and not remaining calm under the circumstances, which police officers are required to

do. Since he had received both a ten-day and a fifteen-day suspension within the last two years,

his current conduct warranted termination.

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 At the beginning of the hearing, the Parties stipulated that the matter was properly before

the Arbitrator for resolution. At the conclusion of the hearing, the Parties requested permission to

file post-hearing briefs, which request was granted. Post-hearing briefs were filed on December

19, 2018.

The issue, proffered by both Parties, is as follows:

Was the Grievant terminated for just cause? If not, what is the appropriate
remedy?

The applicable provisions of the Agreement in this proceeding are as follows:

COLLECTIVE BARGAINING AGREEMENT

ARTICLE 12
CORRECTIVE ACTION
AND PERSONNEL FILE

SECTION 12.7. The Employer shall not discipline a non-probationary employee

without just cause.

DEPARTMENTAL RULES AND REGULATIONS

Rule 131-Incompetence

Incapable of the satisfactory performance of police duties. The lack of any of the
following is evidence of incompetence: Courage, Honesty, Emotional Stability,
Sound Judgment, Industry, Alertness, Decisiveness, Power to Observe, Initiative,
Energy, Intelligence, and Ability to get along with People.

Rule 137-Malfeasance

The doing of an unlawful act in office.

Rule 403-Conduct

Members and employees of the Division of Police shall so conduct their private and
professional lives as to avoid bringing discredit or disgrace upon the Division of
Police by scandal or ridicule.

• 403.2 - Members and employees shall at all times be civil, orderly,

courteous, and quiet in their conduct and deportment. They shall maintain

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 an even disposition and remain cool and calm regardless of provocation in
the execution of their office.

Rule 409-Truthfulness

Members and employees of the Division of Police shall speak the truth at all times
whether under oath or not.

Rule 413-Language

Members and employees of the Division of Police shall refrain from using coarse,
violent, profane, or insolent language.

Rule 471-Use of Force

In no instance shall a police officer of this Division use force other than that
necessary to lawfully and properly neutralize an unlawful assault or that which is
necessary to overcome resistance by a person being taken into or escaping from
custody.

DEPARTMENTAL RULES AND REGULATIONS

Policy Number 109—Use of Force

Policy Number 124—Body Worn Cameras

II. SUMMARY OF THE TESTIMONY AND POSITION OF THE PARTIES

The Grievant has been employed as a Police Officer with the Chillicothe Police

Department since February of 2000. On March 7, 2018, the Grievant worked the night shift

(11:00 pm – 7:00 am). When he was on patrol, he observed a vehicle make a left turn without

using a turn signal. He pulled behind the vehicle, ran the license plate, and discovered that there

was a warrant for the owner. He activated his overhead lights to stop the vehicle.

After approximately two (2) blocks, the vehicle pulled over, and the driver jumped out

and took off running. The Grievant started to pursue the individual but decided to secure the

vehicle because it was still running. Present in the vehicle was a female passenger who stated

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that she was the fiancée of John Master, the driver who took off running. Mr. Master was

subsequently apprehended by other officers and transported to the Ross County Jail.

Later in the shift, the Grievant went to the Jail to issue Mr. Master a traffic citation for

failure to use a turn signal. Mr. Master was transported to the second floor where he met the

Grievant. Corrections Officer Deputy Holman was near Mr. Master, and Corrections Officer

Deputy Claytor was at a desk in the area. The Grievant presented the Citation to Mr. Master for

his signature. When Mr. Master refused to sign the citation, the Grievant advised Mr. Master that

if he refused to sign the citation, there could be an obstruction charge filed. When he again

refused, the Grievant said “Wrong fucking answer” and walked toward the elevator. As the

Grievant was walking away, Mr. Master started to walk around a desk and yelled at him, “Fuck

you, you fat, black bastard.” The Grievant turned toward Mr. Master, put his clipboard down

and walked up to Mr. Master, face to face, bumping into him with his belly and bulletproof vest.

Deputy Claytor, who was at the desk and observed the start of a confrontation, activated

his body camera and walked toward the Grievant and the inmate. Video footage from the body

camera of Deputy Claytor showed that during the confrontation the Grievant was very

demonstrative with Mr. Master, using his hands and pointing his finger at Mr. Master. Mr.

Master continued to verbally abuse the Grievant. As the confrontation ended, the Grievant can be

seen on the video camera footage pointing his finger near Mr. Master’s face, then quickly

making a fist and then lowering his arm. Mr. Master immediately claimed that the Grievant

struck him on the jaw and commented that it was recorded on the jail camera, and he was going

to call the Deputies as witnesses. The Grievant walked away as Mr. Master continually called the

Grievant a nigger and “a fucking piece of shit nigger.” He then asked to file a complaint against

the Grievant.

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 The Grievant left the Jail, and Mr. Master was returned to his cell. Mr. Master was

interviewed in his cell a little later and filled out a Preliminary Complaint Form indicating the

Grievant punched him. Photos were taken of Mr. Master, and they did not show any injuries or

marks, although he indicated he had a sore jaw.

Later that same day, Sergeant Uhrig of the Ross County Sheriff’s Office contacted

Sergeant Short of the Chillicothe Police Department and indicated that the Grievant had been

involved in an incident, and it was claimed that he struck an inmate in an argument. Sergeant

Short later contacted the Grievant, who informed the Sergeant that his body camera was not

active during the incident, and he did not have any video footage, but he did not believe he

punched Mr. Master. The Grievant indicated that he did not activate his body camera because he

was in the jail, just routinely delivering a citation to an inmate, and did not want to pick up

conversation among the guards. That same day, the Grievant was notified that he was under

investigation and was placed on administrative leave.

On March 7, 2018, Deputy Claytor created an Incident Report. He reported that the

Grievant was at the jail to have Mr. Master sign a citation. When he refused, the Grievant

indicated he could charge him with obstruction but walked away. While walking away, Mr.

Master called the Grievant “a fat fucking nigger.” The Grievant turned around, grabbed Mr.

Master by his shirt collar and hit him in the face with his right fist. On March 7, 2018, Deputy

Holman created an Incident Report and essentially related the same series of events.

On April 20, 2018, an Internal Investigation Committee (IIC), consisting of three (3) of

the Grievant’s fellow Union members were appointed to conduct an investigation of the matter.

The IIC determines what rules and regulations or policies, if any, apply to the situation and if the

Grievant may have violated any of them. As part of the internal investigation by the IIC, footage

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from the body camera of Ross County Sheriff’s Deputies Timothy Claytor and Michael Holman

and footage from the jail’s stationary camera(s) were requested. The committee only reviewed

footage from Deputy Claytor’s bodycam; no footage was provided from Deputy Holman’s

bodycam showing the incident, and video from the jail stationary camera in the area was not

made available. In a subsequent report, Sergeant Short indicated that he did review the jail

stationary camera video footage, but it was of poor quality and the lighting was dark. Due to the

poor quality and the angle of the video, he indicated he was unable to determine if the Grievant

struck the inmate or not.

After reviewing the video footage of Deputy Claytor, all of the committee members

concluded that the Grievant did strike Mr. Master.

In addition to the video footage and Incident Reports, the Committee interviewed Deputy

Claytor, Deputy Holman, Mr. Master, and the Grievant. Deputy Claytor, in his interview,

indicated that the Grievant grazed Mr. Master across his chin with his fist. Mr. Master did not

appear to be injured and did not complain of an injury. Deputy Holman advised of the same

occurrences as Deputy Claytor. Mr. Master indicated that it “almost appeared that Officer Netter

caught himself mid punch and thought “woo woo” I better stop and that is why the punch was

not so hard.” The Grievant indicated that he did not recall hitting the Grievant, but he was upset

about the racial slurs.

After its investigation, the IIC concluded that the Grievant was in violation of Rule 403,

Rule 403.2, Rule 471, Policy 109, Rule 131, and Rule 137 of departmental rules and policies for

striking of the inmate. That by stating “Wrong fucking answer” to the inmate, the Grievant used

coarse, violent, profane, or insolent language and was in violation of Rule 413. Because of the

Grievant’s reaction to the racial slurs and interaction with the inmate, such action amounted to

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incompetence in violation of Rule 131 because of the Grievant’s failure to maintain emotional

stability and use sound judgment. The Grievant’s failure to activate his body-worn camera was a

violation of Policy Number 124. The Grievant’s statement to Sergeant Short that he did not strike

the Mr. Master was untruthful and in violation of Rule 409 regarding truthfulness.

On May 23, 2018, a Pre-Disciplinary Conference was held at which time the Grievant

was presented with the findings and given the opportunity to respond.

On May 29, 2018, the Grievant was terminated. On May 30, 2018, the Grievant filed a

grievance protesting his termination. The parties agreed to waive the lower steps of the

grievance procedure and proceed directly to arbitration.

Position of the Employer

The Employer argues that it had just cause to terminate the employment of the Grievant

because (1) substantial evidence supported a finding that the Grievant violated numerous

departmental rules and policies including using course language, using excessive force,

exhibiting a lack of emotional stability and sound judgement, not remaining calm under

provocation, not activating his body cam, and being untruthful; (2) the Grievant was aware of the

Employer’s Rules and Policies, which he did not dispute were reasonable; (3) the Employer

applied its rules, orders, and penalties, even-handedly and without discrimination to all

employees; and (4) the degree of discipline administered by the Employer in this particular case

was reasonably related to the seriousness of the employee’s proven offense and the record of the

employee in his service with Employer. . Analytically following the analysis of just cause as

discussed in Enterprise Wire Co. and Enterprise Independent Union issued March 28,1966 (46

LA 359), the Employer argues that it met all of the criteria set forth therein supporting a finding

of just cause to terminate the Grievant.

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 The Employer determined that the reports and interviews of the two Deputies and the

footage on Deputy Claytor’s body camera resulted in substantial evidence that the Grievant

committed the offenses cited for his conduct leading up to and including inappropriately striking

an inmate. The members of the IIC unanimously agreed that the Grievant engaged in the conduct

charged and that he was being untruthful when he stated that he did not strike the inmate. The

inmate was not a threat to the Grievant’s safety, the Grievant did not try to deescalate the

situation or separate himself, and the Grievant in fact re-engaged with the inmate after walking

away initially.

Further, in this instance, the lack of evidence is additional proof to support this charge.

Policy Number 124 for the City of Chillicothe Police Department mandates the use of body-worn

cameras. The Grievant was issued and was wearing a body camera, but there is no footage

available from the Grievant’s body camera because the Grievant did not activate it. The

Grievant’s failure to activate his body-worn camera was a violation of Policy Number 124.

The Grievant was well aware of the rules and policies to which he was subject and agreed

that they were reasonable.

The Employer’s investigation was conducted fairly and objectively. This element is,

generally, where an employer examines the “holy trilogy” (Loudermill, Weingarten, and

Garrity). Here, the Employer extended all rights to the Grievant. The Union has made no claim

to the contrary. A thorough two(2)-month long internal investigation was completed by the IIC,

consisting of three (3) of the Grievant’s fellow Union members and one (1) captain, which

unanimously sustained the complaint that his actions on March 7, 2018, violated numerous rules,

regulations, and policies. When the Grievant was interviewed during the course of the internal

investigation, the Grievant had his Union Representative present and was advised of his rights

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under Garrity. Pursuant to the terms of the collective bargaining agreement and Loudermill and

Weingarten, the Grievant was provided a chance to present his position and answer to the

allegations against him — with assistance from his Union Representative — during a pre-

disciplinary hearing. Only after the completion of this process, did the Employer take

disciplinary action.

The Union’s allegation that the Grievant was subject to disparate treatment compared to

two other police officers must be rejected. The Grievant’s conduct was different than that of both

the employees identified by the Union. First, the Grievant had prior suspensions of ten (10) days

and fifteen (15) days, both of which were still active in his disciplinary record. Second, the

allegations against the Grievant were unanimously substantiated by the four (4) members of the

IIC assigned to investigate the incident involving the Grievant. To the contrary, the IIC

members that investigated the two employees identified by the Union did not sustain the

allegations in those cases.

The first comparator employee identified by the Union was Officer Dubay. He was

involved in an incident occurring in 2014 involving an allegation of excessive use of force.

After the incident, there was an internal investigation in which the IIC found no violation of the

use of force policy, and at the time Officer Dubay had no significant record of active discipline.

Additionally, at the time of this incident there was an entirely different administration including

a different Mayor, different Director of Service & Safety, and a different Chief of Police than

that which is in place today.

The second comparator employee identified by the Union was Officer Moore, who was

involved in a series of three incidents regarding alleged excessive use of force that occurred

more recently. All three (3) of these incidents involved Officer Moore’s use of force in the

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course of an arrest, not in the controlled confines of a county jail. An internal investigation was

conducted into these incidents, and the IIC found no violation of the use of force policy.

Additionally, at the time of his incidences, Officer Moore had no significant record of active

discipline.

In contrast to the incidents involving both Officer Dubay and Officer Moore, the Grievant

was found to have violated the use of force policy, as well as several other rules, regulations, and

policies, through a unanimous vote of the IIC, and the Grievant had significant active discipline

in the form of a ten (10)-day and a fifteen (15)-day suspension. Neither Officer Dubay nor

Officer Moore was similarly situated to the Grievant. Additionally, Chief Washburn testified

that there have been no employees similarly situated to the Grievant.

The degree of discipline administered by the Employer in this particular case was

reasonably related to (a) the seriousness of the Employee’s proven offense, and (b) the record of

the Employee in his service with Employer. It is well established that law enforcement officers

are held to a higher standard of conduct and honesty than the general public. Arbitrator J. Scott

Tharp noted this belief when he stated: “Clearly, because of his role in society, a police officer

must stand on a higher plain than many ordinary citizens. His moral behavior and reputation for

truth and veracity should be above reproach.” In re Washington Metropolitan Are Transit

Authority (Washington D.C.) and Teamsters’ State County and Municipal Employees, Law

Enforcement Division, Local 246, 84 LA 292 (1985).

Police Officers will always be under public scrutiny, and for that reason, Courts and

Arbitrators have held that they are to be held to a “higher standard” of conduct. See Jones v.

Franklin County Sheriff, (1990) 52 Ohio St.3d 40, City of Warrensville Heights v. Jennings,

(1991) 58 Ohio St.3d 206; City of Cincinnati v. Queen City Lodge, No. 69, FOP, 2005-Ohio-

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1560 (higher standard, even when off duty) City of Cuyahoga Falls and FOP/OLC, 116 LA 545

(Coyne); and In re Arnold, (1996), 50 Ohio App 2d 393. Franklin County Sheriff’s Office, 124

LA 654 (Bell, 2007). The Grievant was a sworn, commissioned Police Officer, and

acknowledged and accepted that Police Officers are held to a higher standard.

The Employer’s decision to terminate the Grievant was reasonable. Police Officers are

held to a higher standard, and the Department’s own rules and regulations require officers to

“remain cool and calm regardless of provocation in the execution of their office.” The

Employer does not dispute that the insults hurled at the Grievant by the inmate were offensive

and provocative, but it was the Grievant’s responsibility to keep his temper in check and ensure

that he acted in accordance with the high standard of conduct expected of Police Officers. The

Grievant failed this duty and fell well below the conduct expected of him when he became the

aggressor and escalated the situation into a physical altercation where the Grievant struck an

inmate.

The Grievant’s denial of responsibility is an aggravating factor. Immediately after the

incident took place, the Grievant was untruthful to Sergeant Short when the Grievant stated that

he did not punch the inmate. The Grievant continued to be evasive during his testimony during

the arbitration and consistently stated that he did not recall striking the inmate despite having the

opportunity to view the body camera footage and hear testimony of first-hand witnesses and

other officers that had reviewed the body camera footage all stating that the Grievant struck the

inmate.

Due to the seriousness of the multiple offenses, termination is appropriate. The very heart

of responsibility of a law enforcement officer is to be calm, composed, honest, and be able to

appropriately respond to situations. In this case, the Grievant engaged in a verbal argument, in

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which he used foul language with an inmate of the Ross County Jail, struck the inmate, then

denied that he did so to a superior officer. The Grievant’s conduct breached his responsibilities

as a peace officer and resulted in the violation of seven (7) different departmental rules and two

(2) different departmental policies. Even though progressive discipline has been followed in this

case, it is the Employer’s position that if that were not the case, the behavior of the Grievant in

this case is so severe that the Employer is not bound by the principles of progressive discipline.

Position of the Union

The Grievant argues that the Employer did not have just cause to terminate him for a

number of reasons: the Employer did not prove that the Grievant engaged in conduct that

violated the rules and policies cited; the Grievant was the subject of disparate treatment; and the

level of discipline was not progressive under the progressive disciplinary policy of the Police

Department’s Office.

The primary reason behind the Employer’s termination of the Grievant is its belief that he

struck Mr. Master. However, the Employer failed to establish that the Grievant actually struck

Mr. Master. It is undisputed that there were no injuries that resulted from the confrontation and

evidence purporting to establish that the Grievant struck Mr. Master is factually inconclusive.

The failure to call Mr. Master as a witness at the arbitration hearing raises a question of

Mr. Master’s credibility and further denied the Grievant’s right to cross-examine Mr. Master. A

party’s failure to call a witness, particularly the complainant, permits the inference that such

testimony would not have been favorable to that party.

The Statements from the two Corrections Officers are questionable at best. Deputy

Claytor represented in his Statement that the Grievant hit Mr. Master in the face with his fist, yet

in his interview he indicated that the Grievant “grazed” Mr. Master. Mr. Master also indicated to

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Sergeant Robinson in his investigation interview that the Grievant “grazed” him. Additionally,

what the two Corrections Officers indicated that the Grievant said at the time of the incident

differed from what is heard on the body camera. These discrepancies raise questions of

credibility as to the accuracy of their testimony in regard to their visual observations.

The body camera footage of Deputy Claytor does not establish that the Grievant hit Mr.

Master. It does not reflect that he made any contact with Mr. Master. While Mr. Master can be

observed moving his head backwards, it cannot be determined what caused that movement. Did

Mr. Master simply flinch because Officer Netter got too close? Maybe. The Grievant and Mr.

Master were face-to-face with the Grievant pointing his finger at Mr. Master. Maybe it was an

automatic reflex that caused Mr. Master to move his head backwards. But such a reflex does not

establish that the Grievant hit Mr. Master.

An individual’s perceived observation is not always what actually occurred. The position

or location of an individual to the event is critical to whether their observation is accurate. A

slight deviation in the positioning of the observer could render a totally different observation.

This is most evident in sporting events when a call is made upon a referee’s observation but then

changed upon review from a different angle. Sergeant Tuttle acknowledged that one person’s

perception as to what might have happened might not be what actually occurred because of the

different angles or directions. The Union submits that is what most likely occurred in the instant

case with Deputy Claytor and Deputy Holman’s observations. They were not positioned to get a

clear observation and just assumed that the Grievant hit Mr. Master.

While the IIC concluded that the Grievant struck Mr. Master, their observations and

testimony was that it “appeared” the Grievant struck Mr. Master. An appearance is not the same

as a fact. By using the word “appear”, it can only be concluded that the investigating officers

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could not make a determination that the Grievant actually hit Mr. Master. A termination cannot

be upheld on an uncertainty, an appearance, or an assumption. As such, there was no use of

force and no use-of-force violation.

While the Grievant denies any remembrance of hitting Mr. Master, he does not deny that

he was involved in a verbal exchange with Mr. Master. His verbal reaction and comments were

justified and not a violation of Departmental Rules and Policies in response to Mr. Master’s

racially derogatory slurs. As the Grievant started to walk away, Mr. Master began to yell, using

racially derogatory language and rounded the desk toward the Grievant spewing racially-charged

derogatory names toward the Grievant. The Grievant cannot be expected to be subjected to such

vicious and vile language without reacting, and his reaction was completely justified. The

Grievant was face-to-face with Mr. Master, pointing his finger at Mr. Master. There is nothing

wrong with his reaction. He certainly cannot be disciplined for this reaction, especially when the

discipline is termination.

The Employer did not conduct a fair and objective investigation. While Deputy Holman

indicated he had his body camera on, and there was also a stationary surveillance camera in the

area, only clips from Deputy Claytor’s body camera were reviewed. The IIC’s report indicates

that the committee requested the footage from all three cameras (Deputy Claytor, Deputy

Holman, and the jail camera), and they were received, yet no footage from the one camera was

used. The Union has no way of knowing if the other cameras provided footage that would have

clearly shown that the Grievant did not strike Mr. Master. One can only conclude that clips from

the other camera footage were not helpful in supporting the Employer’s termination of the

Grievant.

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 In its investigation, the Employer did not properly investigate the source of Mr. Master’s

sore jaw. While it is undisputed that Mr. Master did not receive any injuries, Sergeant Short

relayed that Mr. Master had advised him that he had a sore jaw. Despite this assertion, the

investigating officers failed to interview the officers who apprehended Mr. Master. When Mr.

Master was apprehended, Officer Music had Mr. Master on the ground. It is possible that Mr.

Master had a sore jaw as a result of being taken to the ground during the apprehension by the

other officers. The investigating officers’ failure to interview the apprehending officer as to the

possible cause of Mr. Master’s sore jaw has rendered the investigation to be incomplete.

The Grievant was not dishonest for telling Sergeant Short that he did not hit Mr. Master.

The Grievant had no recollection or remembrance of hitting Mr. Master. This was an honest and

truthful response in accordance with his memory. Officer Netter cannot be found guilty of

dishonesty for giving an answer that corresponds to his memory and recollection. Here there is

no clear showing of dishonesty.

The Grievant’s failure to activate his body camera was not a violation of the Employer’s

policies. The Grievant did not believe that activation of the body camera was necessary. He was

not on the street when he issued the citation. He was not at a crime scene. Instead, he was in the

jail. As previously stated, this was a routine, run-of-the-mill matter. The Grievant was simply

going to hand Mr. Master the citation, ask him to sign it and leave. Under these circumstances,

the Grievant should not be terminated for this insignificant matter of failure to activate his body

camera.

The Grievant was treated in a disparate manner. Other officers have engaged in

questionable use of force, but not been terminated.

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 Officer Moore was involved in three (3) use-of-force cases, and he received no discipline

at all.

Officer Chris Dubay was involved in an incident where in a conversation with an

apprehended individual in the back of his cruiser, he called the suspect a “hard-ass” multiple

times. Upon arrival at the Jail, Officer Dubay dragged the suspect (handcuffed behind his back)

out of the cruiser half-way across the Sally port floor and slammed him to the floor where he hit

his head rendering him unconscious and resulting in significant injuries that necessitated that he

be life-flighted to a hospital in Columbus. Officer Dubay’s actions resulted in a lawsuit in which

the City paid a significant sum of money to the individual to settle the matter. Officer Dubay

received a reprimand for this conduct.

The discipline in this case was not administered in a progressive and corrective manner as

required by the Agreement. Progressive discipline should be applied for same or similar

misconduct. The Grievant was never disciplined for the same or similar misconduct. There is no

prior discipline for the Grievant for an improper use of force. While there was a charge of

truthfulness in a prior investigative report, the report noted that “… it was unanimously felt by

the committee that Ofc. Netter was not necessarily dishonest, but confused when being

questioned…”. This does not constitute a prior finding of dishonesty.

The termination of the Grievant does not bear a direct relation to the degree of

seriousness of his conduct. A termination far exceeds any misconduct. Termination is reserved

as discipline for the most severe instances of employee misconduct. It is not to be used for those

instances that are less severe. If a less severe form of discipline can be used to correct an

employee’s conduct, then the less severe form of discipline should be imposed.

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 If it is determined that the Grievant engaged in inappropriate conduct, simple notice or a

lesser level of discipline could have corrected his behavior. He must be given the opportunity to

learn from his mistake and correct his behavior. Additional training, similar to the training that

was afforded to Office Moore, might also be beneficial to the Grievant.

The Grievant is a long-term employee with eighteen (18) years of service with the

Chillicothe Police Department. He has no prior discipline for use of force. Since the Employer

did not discipline the Grievant in a corrective manner, his termination must be reversed.

III. DISCUSSION AND OPINION

The issue before the Arbitrator is whether the Employer had just cause to terminate the

employment of the Grievant for his conduct on March 7, 2018, at the Ross County Jail.

The burden of proof in demonstrating just cause for discipline rests upon the Employer.

This Arbitrator has held on many occasions that the burden of proof is met only upon a

demonstration of clear and convincing evidence. To that degree, it is incumbent upon the City in

this case, at a minimum, to demonstrate through clear and convincing evidence that the Grievant

committed the infraction(s) for which he is charged, and that the discipline meted out by the

Employer was for just cause.

In order to establish that the “just cause” standard of review has been followed, a number

of tests have been used by arbitrators in the past. Fundamental among the criteria to be examined

is whether a grievant had notice that he/she could be disciplined for certain misconduct, whether

the grievant engaged in the misconduct alleged, and whether the discipline issued was just and

not unreasonable, capricious, or arbitrary. Many of the commonly accepted tests were derived

from an Award rendered by Arbitrator Carroll R. Daugherty in 1966, 1 which included seven

1
Enterprise Wire Co. and Enterprise Independent Union issued March 28,1966 (46 LA 359).

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tests: (1) the employee must have been given advance warning of the possible or probable

disciplinary consequences of his or her conduct; (2) the rule or order the employee violated must

be reasonably related to the efficient and safe operation of the business or agency; (3) they must

have made an effort to discover whether the employee did, in fact, violate the rule; (4) the

employer’s investigation must have been conducted fairly and objectively; (5) there must be

substantial evidence of the employee’s guilt; (6) the employer must have applied its rules, orders,

and penalties without wrongful discrimination; and (7) the penalty must be reasonably related to

the seriousness of the employee’s offense and record of past service. Over the years, these tests

have not been interpreted as “hard and fast” rules that form the basis of a checklist under which

each rule must be answered in the affirmative for discipline to apply, but as guidelines in arriving

at a finding of just cause for discipline. Both the Employer and the Union used this criterion in

supporting their positions.

Based upon an examination of the facts in this proceeding in light of the above criteria, it

is the Arbitrator’s opinion that the Employer did have just cause to discipline the Grievant, but

under the circumstances of this case, termination was not proper for the reasons set forth below.

One of the first determinations that needs to be made in any disciplinary case is whether

the evidence supports a finding that the affected employee actually engaged in the conduct

alleged to have been in violation of an Employer’s Departmental Rules, Regulations, and

Policies subjecting him to potential discipline. At issue here is the conduct of the Grievant when

he confronted an inmate in the Ross County Jail when trying to obtain a signature on a citation.

Video tape and eyewitness testimony primarily support the findings of the IIC investigatory

committee regarding the conduct of the Grievant, leaving in question only whether the Grievant

actually struck or hit the inmate.

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 All of the Departmental Rules, Regulations, and Policy infractions resulted from one

incident: the confrontation with the jail inmate. What is undisputed is that the Grievant did not

have his body camera on; that he did not maintain emotional stability and use sound judgment;

that he used coarse and profane language; that he bumped up to the inmate and angrily pointed

his finger in his face; and that he made a fist that was directed toward the inmate. What is

disputed is whether the Grievant actually hit the inmate and whether the Grievant was dishonest

when he told a superior officer that he did not remember striking the inmate. The disputed

evidence is of most importance because it results in the most serious charges.

The Union is correct that the body camera video of Deputy Claytor does not show the

Grievant actually making contact with the inmate’s face. In reviewing it frame-by-frame, the

observer can see the Grievant transitioning from a pointing finger to a fist, his fist and arm

dropping, and the inmate’s head moving backward. The angle of the camera does not show

contact. It appears both Deputies were beside the inmate, so their view was similar to the body

camera. Supplementing the video is the protestation and complaint of the inmate that he was hit

on the jaw, and the two reports filed by the Corrections Officers on the day in question that the

Grievant hit the inmate on the face. The inmate modified his statement in a later interview

indicating that the Grievant’s fist connected slightly with the left side of his face. He said the

Grievant did not hit him as he could have. Deputy Claytor referred to the contact in a later

interview as more a grazing then a punch. The evidence also demonstrates that there was no

visible injury on the inmate’s face. The inmate’s complaint of a sore jaw cannot be verified for it

is completely subjective.

Based upon the evidence submitted, it is logical to conclude that the Grievant did slightly

graze the face of the inmate. It can be concluded that the Use-of-Force Policy was violated, but

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the circumstances in which the violation occurred must be taken into consideration when

determining the discipline administered for the violation. Based upon the totality of the

circumstances, it appears the Grievant, as a trained police officer, overacted to the racial slurs of

the inmate and, while in the heat of the moment, restrained himself from punching or striking the

inmate, but nonetheless grazed his jaw.

Under the circumstances just described, it is believable that the Grievant did not realize

that he made contact with the inmate. That does not excuse the conduct, but it supports his

position that he was not dishonest with his superior officer. His position has been consistent that

he did not recall hitting him. As such, I do not find that he purposefully lied or was dishonest.

While there was some merit to the Union’s argument that a full and fair investigation did

not take place, I eventually rejected it. The primary argument by the Union was that the

Employer should have preserved both the stationary jail camera footage and Deputy Holman’s

body camera footage for review and provided it to the Union. It believes it was not provided

because it would have been supporting evidence that the Grievant did not make contact with the

inmate.

While the report of the IIC indicated that all of the footage (body cameras and stationary

jail video) was requested and reviewed, members on the committee testified that they did not

review the jail video footage, because Sergeant short indicated it was of poor quality and was too

dark, and they reviewed all of the body camera footage the County provided to them. Knowing

that two clips of body camera footage should have been received from the jail 2, and there was no

footage from a second body camera that showed the incident, questions should have arisen in the

2
The body camera of Claytor shows Officer Holman, the inmate, and the Grievant, as he approaches the
confrontation. There is no other body camera footage of the incident, so the body camera footage of Holman could
not have been provided.

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course of the investigation. I would agree with the Union that not obtaining all of the body

camera video (Holman clip of the incident) and the jail stationary camera video seems suspect,

but there is no evidence to further infer or suggest that the City withheld evidence. A different

conclusion may have been reached if the City was the custodian of those records, but it is the

County that has custodial authority over the video clips, and the Union could, or should, have

requested the documents from the County. As such, it will remain speculative as to whether the

additional video clips would have further supported or negated the evidence presented. It must

also be noted that if the Grievant had his body camera on, additional footage would have been

available to impact the evidence. As such, I cannot find that the two-month investigation, which

followed all of the due process procedures enumerated in the Agreement, to be unfair or

prejudicial to the Grievant.

Based upon the video footage, reports, and the statements of the inmate placed into

evidence, I do not find that the Employer’s failure to call Mr. Master as a witness at the

arbitration hearing would have any further impact on Mr. Master’s credibility or otherwise deny

any due process rights of the Grievant due to an inability to cross-examine him.

The Union’s argument that the Grievant received disparate treatment for his conduct by

the Employer is persuasive. To prove a disparate treatment claim with regard to the penalty for

an act of misconduct, the Grievant must show that a similarly-situated employee received a

different penalty and the circumstances surrounding his/her offense were substantively like those

of individuals who received more moderate penalties. While two comparator examples were

given by the Union, the case of Officer Dubay is the most relevant. 3 While the Employer argued

3
Because the other comparator officer, Officer Moore, was involved in potential improper use of force allegations
that were not deemed excessive use of force by an investigatory committee and were in the field, the Arbitrator did
not consider the circumstances similar enough to be a comparator.

22
that Officer Dubay’s circumstances were different, and a reprimand was issued under a different

Mayor, different Director of Service & Safety, and a different Chief of Police, the actual facts of

that case do not justify such disparate treatment. The fact that the Internal Investigation

Committee did not find any excessive use-of-force violations, the Officer did not have any prior

discipline, and a different Chief of Police was involved, body slamming a hand-cuffed prisoner,

who was not resisting, backwards to the floor, in the confines of the Jail, with two (2) Deputies

present, resulting in serious injuries and a successful lawsuit against the City, is insufficient to

justify a reprimand in that case and a termination under the circumstances of this case.

The fact that disparate treatment exists in regard to discipline given for the same or

similar conduct does not mean that the same discipline is required in every case. Variations in

punishments among employees will be upheld if a reasonable basis exists that justifies such

differences. In regard to the facts surrounding the use-of-force violations in these two cases, the

Employer cannot justify suspension in one and termination in the other.

I also find that the Employer failed to properly subject the Grievant to progressive

discipline under the Parties’ Agreement. As argued by the Union, the purpose for imposing

discipline on an employee is to correct an employee’s behavior, not punish him, unless it can be

shown that the employee has demonstrated that his behavior cannot be corrected, or the

employer has tried repeatedly in the past to no avail. Discipline should also be commensurate to

the seriousness of the offense and termination is reserved as discipline for the most severe

instances of employee misconduct.

While the Grievant had received a 10-day and a 15-day suspension within the last two

years, those suspensions had nothing to do with use of force or hitting/striking an individual or

using crude language. Progressive discipline should be applied for same or similar misconduct

23
in order to bring about a change in the behavior of employees. The charges brought against the

Grievant in this case involved misconduct, which was deemed uncharacteristic of him and of a

completely different nature than of the other misconduct violations. Under the circumstances of

this case, there is no reasonable basis to justify ignoring the application of progressive discipline

and terminating the Grievant.

Improper use of force by a police officer cannot ever be tolerated by an employer. Police

officers are trained to handle abuse and maintain emotional stability. Police Officers must refrain

from using coarse, violent, profane, or insolent language and they must avoid conduct that brings

discredit or disgrace upon the Division of Police. In angrily confronting the jail inmate, using

inappropriate language, and grazing him with his fist, the Grievant violated these principles.

Even though he was racially provoked, his conduct was unjustified. Because he had never been

disciplined for this type of behavior before and was a long-term, eighteen-year employee of the

Police Department, and also in light of the disciplinary treatment given other Police Officers for

improper use of force, termination is unreasonable and arbitrary for the offenses committed

under the circumstances of this case. Because the conduct of the Grievant was serious and

involved violations of several Departmental Rules and Policies, a fifteen-day suspension is

warranted.

V. AWARD

For the foregoing reasons and conclusions, the Grievance is sustained in part and denied

in part. The Grievance is sustained in that the discipline of discharge is not reasonably related to

the seriousness of the Grievant’s offense and record of past service, particularly in light of the

discipline given to other officers for similar use-of-force conduct. The Grievance is denied to the

extent that the Grievant did violate numerous Rules, Regulations, and Policies as set forth in the

24
above Discussion and Opinion. The Employer is hereby directed to reduce the discharge to a

fifteen (15)-day suspension. The Employer is further directed to restore the Grievant to his

former job and make the Grievant whole for all wages and benefits lost as a result of having been

discharged from employment.

___________________________________
Jerry B. Sellman, Arbitrator

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