Two recent arbitration awards involving Cincinnati police officers highlight the issues of double jeopardy and equality of treatment, and the impact of those principles on a Department’s efforts to discipline officers.
On September 26, 2018 Officer Donte Hill was recorded on a body cam using a racial slur while dealing with two individuals engaged in a physical altercation. Because the incident included the use of force (a taser) the body cam footage was reviewed by the Sergeant who determined that the language used was inappropriate. He advised the Captain who agreed and recommended an official reprimand. That recommendation was set forth in a memo, which included a link to the body cam video, ultimately reviewed by the Chief, who approved the recommendation. The reprimand was issued to Officer Donte on October 29, 2018.
On December 23, 2018, Officer Dennis Barnette responded to a parking complaint. While at the scene he became involved in dealing with two individuals engaged in a physical altercation. The interaction, recorded on a body cam, included Officer Barnette’s use of the same racial slur used by Officer Hill. The incident was reviewed by Officer Barnette’s supervisor, and the video became the subject of local media attention. The matter was investigated by Internal Affairs. IA informed the Chief of the prior incident involving Officer Hill. The Chief subsequently testified that he had not recalled the prior incident but, after being informed of the video of the incident involving Officer Hill, he instructed IA to conduct a “full investigation” of the Officer Hill incident.
On June 10, 2019 Officer Barnette was issued a 56 hour suspension. On June 12, Officer Hill was issued a similar 56 hour suspension. Both suspensions were grieved and submitted to arbitration for resolution.
On December 5, 2019, Arbitrator Daniel Zeiser issued an award overturning the suspension of Officer Hill. Arbitrator Zeiser found the suspension of Officer Hill a “classic double jeopardy situation.” He noted:
The City argues that new information was learned during Sgt. Fox’s investigation, including that the individuals involved in the incident were offended by the Grievant’s remark. This argument misses the mark. Nothing new about the Grievant’s misconduct was discovered — the body cameras recorded his comments and these comments were known in October when the written reprimand was issued. Even if new information had been discovered, that does not necessarily mean the City could have disciplined the Grievant based on that information. It is only when an employer’s incomplete knowledge of the facts at the time of the initial discipline was not the employer’s fault that double jeopardy might not occur. For example, if information is intentionally kept from an employer, it may be able to impose additional discipline upon discovering it without causing a double jeopardy situation. That did not happen here. The Grievant’s comments were included in Sgt. Putnick’s memo, along with a link to the body camera footage. The Chief admitted that he simply did not read the memo carefully enough and did not look at the footage. Thus, the City had all the information as to the Grievant’s misconduct in October and acted on it by issuing the written reprimand. It cannot go back and issue additional discipline for the same misconduct. Simply put, Chief Isaac erred in not reading the memo closely enough and conducting a full investigation. That his error was later brought to his attention does not justify trying to correct it by disciplining the Grievant again. Rather, the City must live with the error. Suspending the Grievant in April for the same conduct upon which his reprimand was based was double jeopardy and invalidates the suspension.
Based on the time-honored, Labor-Management principle of Just Cause, as recognized in the CBA, the imposition of Disciplinary Action must be consistent and evenhandedly administered like Disciplinary Action for like infractions. Here, an African American Police Officer, who made the same utterance two (2) times within a 36-month period – the second of which occurred just three (3) months prior to the incident at issue herein – at the time, received a Written Warning. Whereas, the Grievant in this matter, of Caucasian decent, uttered the same racially insensitive, derogatory slur for which he received a 56-hour Suspension and suspension of Police powers preventing him from pursuing extra duty details and other compensated opportunities. Clearly, the discipline imposed was inconsistent and not applied to the two (2) violators – Employees of the Police Department – evenhandedly. Without question, the video footage of the Body Worn Camera, satisfactorily substantiates the Grievant did indeed engage in the misconduct for which Disciplinary Action is appropriate; however, based on that previously issued to other Officers who have violated this rule , especially Officer Donte Hill who uttered the same term two (2) times in a 36-month period, the 56-hour Suspension and suspension of Police powers, is inconsistent with that Disciplinary Action established for violation of this Rule or such Rules, Policies and/or Regulations addressing and prohibiting such utterances.
This matter must be gauged and analyzed based on that conduct which occurred at the time Disciplinary Action was issued and not that taken after the fact when Officer Hill’s Disciplinary Action was subsequently increased to reflect the same type of Disciplinary Action imposed against the Grievant. While that matter is not properly before this Arbitrator, the issuance of the Written Warning for the utterance of the same racial slur indeed must, and does, serve as compelling guidance with respect to the manner in which Disciplinary Action for this particular violation was established and effectuated; as was the case for other Officers who have violated this Standard when similar derogatory and/or offensive comments were uttered. Disciplinary Action for this violation, regarding this Employee was inconsistently determined and not applied evenhandedly for the same misconduct as other Employees found to have violated this Standard. As previously indicated, work rules, policies and/or procedures are drafted and implemented as Employee-neutral guidance for day-to-day workplace conduct and must be applied on a consistent basis to all Employees as Members/Employees of the Division of Police for the City of Cincinnati.