Arbitrator Rolland Toenges upheld the termination of a Cloquet, MN police officer fired after the County Attorney notified the City that she would not use him as a witness. Arbitrator Toenges’ award can be found here.
Grievant was employed as a police officer for the City of Cloquet, MN since June 1997. On February 25, 2019, the Carlton County Attorney notified the City that grievant was a “Brady Cop.” This designation was premised on three incidents of alleged misconduct reflecting dishonesty and credibility issues. These incidents took place on December 22, 2004, January 3, 2005 and July 24, 2017.
On June 4, 2019, the City terminated grievant’s employment “based on his inability to perform essential duties of his position.” The termination was grieved and submitted to Arbitrator Rolland Toenges for resolution.
The city argued that because the County Attorney determined that grievant was an unacceptable witness to testify in court proceedings, and that she would not prosecute cases where the grievant would be a witness, it would put public safety at risk to continue to employ him. It argued further “[w]hether the County Attorney’s determination is righter wrong is not a matter within the Police Department’s authority. The Police Department must accept that Grievant is not qualified to perform the essential duties of a Police Officer. … The only remedy available to the Employer is termination of the Grievant.”
The Union questioned the County Attorney’s decision to bar grievant from testifying, asserting that it was premised on her personal animosity toward grievant, and noting that a judge or jury could determine whether grievant’s testimony was credible. It also claimed that termination of grievant for the three earlier incidents, for which he had already been disciplined, constituted double jeopardy. Finally it argued that “Brady designation does not require discharge.”
Arbitrator Toenges denied the grievance, concluding that “the City Attorney’s position to not prosecute in situations where the Grievant would be a witness, renders him unable to perform an essential part of police officer duties.” He rejected the Union’s double jeopardy claim, noting that he was not terminated because of the prior misconduct “but due to the County Attorney’s position not prosecute cases where the Grievant would be a witness.” He concluded that the small Department had no other position for which it could use grievant.
The Arbitrator’s decision is summarized in his Findings:
1. Court testimony is an essential duty of a police officer.
2. Essentially all police arrests or investigations either will, or will likely, involve court testimony.
3. Based on the Grievant’s disciplinary record involving untruthfulness, the County Attorney will not prosecute cases where the Grievant’s testimony would be involved.
4. The effect of the County Attorney’s decision renders the Grievant unable to perform an essential duty of a police officer position.
4 The UNION in its Post Hearing Brief acknowledges there is “No mechanism to challenge Brady designation.”
5. The Police Department does not have the resources necessary to employ an officer who cannot perform essential duties.
6. The Police Department is without authority to change the County Attorneys position.
7. The County Attorney, as a member of the Citizens Advisory Board, has direct knowledge of the Grievant’s misconduct and disciplinary history.
8. It is axiomatic that the County Attorney having direct knowledge of the Grievant’s misconduct and discipline history is qualified to assess the effect application of the Brady Law may have on the Grievant’s creditability as a witness.
9. The County Attorney has confirmed that the decision to not prosecute cases where the Grievant would be a witness is final and not subject to reconsideration.
10. The County Attorney’s decision is not subject to the Arbitrator’s review.
Brady issues are also discussed in the following posts:
Police dishonesty, public policy and reinstatement – Mass SJC upholds arbitrator’s award reinstating police officer who filed “”intentionally misleading” report
Termination of police officer for dishonesty overturned, disparate treatment renders discipline excessive
Termination of police officer for off duty DWI upheld
Law Enforcement: Untruthfulness, reinstatement and Brady issues
Police officers, Brady/Giglio, dishonesty, exoneration and just cause