Demystifying Arbitration: A Police Officer’s Experience

BRETT RUTKOWSKI
Attorney
Ferrone Law Group

Most employees have heard about the pre-disciplinary process, commonly referred to as a Skelly hearing. Before the discipline becomes effective, an employee is statutorily offered the right to challenge the discipline at a hearing before a decision-maker, which is usually the chief, city manager or either of their auxiliaries. This appeal process is determined by your MOU, personnel rules or municipal codes.

However, what happens if the discipline is made effective? An employee often never proceeds beyond the pre-disciplinary process and only hears rumors of the post-discipline appeal process. In this article, we will explore the post-disciplinary process known as arbitration and utilize the experience of a police officer to help navigate your understanding of this process.

In 2023, a police officer was fired for salacious allegations involving the use of force on an inmate. Although these issues were adequately addressed at the police officer’s Skelly hearing, the discipline was made effective, casting this police officer into a year-long nightmare of stress, fear and unemployment. The police officer, with the approval of the union, courageously opted to challenge this discipline by having the case heard by an arbitrator. Please note, the arbitration process may be lengthy, and the mere appeal to arbitration does not stop the discipline from being imposed. In this case, the police officer remained terminated during this appeal process, which lasted nearly a year.

After requesting arbitration, unless the aforementioned appeal process rules state otherwise, a request is made for a list of random arbitrators. This is known as the “strike list.” Typically, the strike list encompasses seven arbitrators. This list is usually acquired from the State of California, which maintains a voluminous list of arbitrators. When making the request for arbitrators, your attorney and agency counsel, who is the prosecutor of the case, request the list of arbitrators be pulled from those with experience in law enforcement cases.

After the State compiles the list, the “strike list” is sent to both your attorney and agency counsel. The packet contains the resumés of the arbitrators, which detail the arbitrators’ history. Both sides then take turns striking one name at a time, until a final arbitrator remains and is thus selected. Upon selection, the arbitrator is contacted and the arbitration is scheduled.

Arbitration is like a trial. The arbitrator is the judge and jury. Agency counsel is akin to the prosecutor, and you are the defendant. Arbitration has a similar structure to court trials in that the agency has the burden of proof. For arbitration, the standard of proof is “preponderance,” meaning the agency only needs to show by more than 50% that you committed the allegations. This standard is distinguishable from what you are typically used to in the criminal court system, where the much higher threshold of “beyond a reasonable doubt” is the standard of proof.

The agency must also establish that the discipline is in accordance with the “just cause” standard. “Just cause” is essentially that the discipline is reasonable, fair and not extreme.

The arbitrator is typically tasked with addressing these questions:

1. Did the agency prove by a preponderance that the employee committed the act or allegations?
2. If the agency proved the allegations were committed, is the discipline just and/or reasonable?
3. If not, what is the appropriate discipline, if any?

As we navigate toward the hearings, exhibits are assembled. I will usually attempt to contact witnesses because it is improper to solely rely on the investigation report. You must understand that the investigator has countless cases, and usually their reports only reflect what they or the agency deemed relevant. The investigator is an agent for the department, and their reports by their very nature contain the evidence they chose to find relevant, thereby making these reports skewed and biased.

In this police officer’s case, in the weeks leading up to the hearing, I interviewed many of the witnesses the investigator had previously interviewed. Due to my separate interviews with these witnesses, I was able to pry into areas investigators never explored and that, therefore, the chief and Internal Affairs never considered or actually ignored. I was able to uncover glaring and troubling issues within minutes of interviewing these witnesses that impeached the integrity of the agency’s case, as well as serious issues of misconduct tied to the command staff. This is called building a defense.

During the arbitration hearings, there are opening statements from both sides in which they explain what the issues are and how they should be resolved in their favor. After opening statements, the agency presents their case-in-chief first. The agency presents their witnesses, who testify under oath. Unless agreed to otherwise, a court reporter is also present to memorialize the hearings. The employee, by and through their attorney, can cross-examine the agency’s witnesses. Once the agency rests their case, the employee then presents their case-in-chief with the presentation of evidence and testimony of witnesses.

In this police officer’s case, the chief was the sole witness to testify to the case and rationale for discipline. Although most agencies will present firsthand witnesses and the investigator to supplement their case, the agency chose to rest their case on the testimony of a chief. During cross-examination, it became blatantly apparent the chief was ill-prepared and chose not to review the case file upon which the police officer’s termination was based. The chief, who was quick and accommodating in answering the agency’s questions, was coincidentally unable to answer my questions. The chief repeatedly deferred from answering my questions by claiming my inquiries were outside his jurisdiction. He repeatedly refused to answer the questions by asserting I should ask someone else. This is called “punting” and is characteristic of an evasive witness. The fact that the chief was unable to testify to facts detailed in the investigation report — upon which he claimed to have based his decision to terminate the officer — undermined the agency’s case against the police officer. A witness should never come across as intentionally evasive. A good arbitrator will latch onto that and view this as a negative. In this case, the arbitrator held this behavior against the chief and ultimately the agency’s case.

For our case-in-chief, we presented several witnesses, including a commanding officer. Testimony revealed this commanding officer was well aware of prior similar incidences and issues within the department that were essentially “swept under the carpet.” We also presented several percipient witnesses who were present for the incident and underscored the good character traits of the police officer.

After the hearing, both sides usually write closing briefs instead of making verbal closing arguments. The briefs summarize the case and present the arguments based on the evidence and testimony from the hearing. The briefs are submitted to the arbitrator, who often has a requisite time period, usually 30 days, to render a written decision. The decision is commonly referred to as an “award.” In this case, the union entered into an agreement that arbitrations are “binding,” meaning neither side can appeal the decision to superior court. This allows the arbitrator to reach a decision, hopefully objectively, and be creative in their award.

In this police officer’s case, the termination was overturned. The arbitrator determined the agency failed to meet its burden, both with the allegations and with the discipline. The arbitrator further directed the police officer be immediately reinstated and “made whole,” meaning the agency was directed to provide the officer with back pay for lost wages, sick time and other benefits he would have earned during the period he was separated from the agency. The arbitrator also ordered the agency to restore the police officer to his previous assignment before the termination.

As you can see, the arbitration process can be a trying and emotional time for the police officer. It requires diligence from counsel and proper preparation to develop your defense to the charges lodged against you. By using zealous and creative advocacy, the attorneys at Ferrone Law were able to overturn the termination and recapture this police officer’s employment. This case also reminded the agency of the “just cause” standard and placed them on notice to be fair and rational as they continue to review future cases for discipline against their employees.

About the Author

Brett Rutkowski is an attorney at Ferrone Law Group and focuses entirely on representation and defense of first responders in California. Brett handles disciplinary proceedings ranging from internal affairs investigations and appeals, responses to critical incidents, and filings of unfair labor practice complaints and writs.