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Reinstated: Arbitration panel puts fired officer back on the job

"You have to have a way to hold the workforce accountable to standards of ethics and performance."

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A few months after off-duty Pittsburgh police officer Garrett Brown was accused of aggressively slamming into Blaine Johnston and Matthew Mazzie's delivery truck late in 2010, the city fired him.

But on Nov. 7, an arbitration panel unanimously decided to give Brown his job back, with some restrictions.

"We all agreed on the outcome — that's rare," says Robert Swartzwelder, a Zone 2 police officer who represented the Fraternal Order of Police on the arbitration panel.

Unanimity in arbitration cases is uncommon because tripartite panels include one representative each from the FOP (which advocates for the officer) and the city (which usually advocates to uphold the city's disciplinary action).

"The sides are convincing the neutral arbitrator to one side or the other," Swartzwelder says. "This case was very clear."

The city begged to differ. So did Mazzie and Johnston, who were both subpoenaed to testify before the arbitration panel and have filed a federal civil suit against Brown, the city and a handful of other officers. Their lawsuit claims Brown threw coins at their truck, punched its mirror and followed them without clearly identifying himself as a police officer. The police report tells a different story, claiming that Brown was rear-ended and tried to get the drivers to stop to exchange insurance information. Brown was charged criminally with insurance fraud, theft by deception, reckless endangerment and filing a false report. In May, he was acquitted of any criminal wrongdoing connected to the incident.

Brown will be reinstated (unless the city appeals within 30 days), but cases like his raise concerns about the arbitration process with Mayor-elect Bill Peduto's administration.

"Over the years, you see a lot of situations occur with alleged illegalities, and it goes to arbitration and people get their jobs back," says Kevin Acklin, Peduto's chief of staff, who notes the biggest problem is "a moral issue within the city workforce. ... You have to have a way to hold the workforce accountable to standards of ethics and performance."

Bryan Campbell, Brown's FOP attorney, says the process isn't problematic. After all, a neutral arbitrator typically has the most decision-making power.

Asked about efforts the new mayoral administration may make to review the arbitration process, Campbell says: "What's the alternative? You need a process to protect people."

And even though Acklin didn't offer a specific alternative, he also didn't rule out the possibility that the Peduto administration may look at ways to reform the process when the FOP's collective-bargaining agreement with the city is up for negotiation next year.

"We're approaching it with the respect that police and other uniformed officers deserve," Acklin says, "but with the goal over time of trying to restore the culture of accountability and ethics."

Still, city officials say the arbitrator's decision was reasonable.

"I can respect the decision of the arbitrator," says Wendy Kobee, an assistant solicitor who argued that Brown should have been fired. "I might not have reached the same conclusion [but] it was a thoughtfully rendered decision."

"I supported the city's case," says Deputy Chief Paul Donaldson, the city's representative on the arbitration panel, "but when the criminal charges were dismissed, it had a negative impact on our case."

Donaldson acknowledges that being cleared of criminal wrongdoing doesn't necessarily mean Brown became fit to be a police officer — and he says that's reflected in the city's burden of proof in arbitration hearings.

The panel operates by considering whether the city had "just cause" to fire Brown, which is a less-stringent standard than finding someone guilty beyond a reasonable doubt.

Conflicting expert interpretations of whether Brown was rear-ended or slammed into Mazzie and Johnston's truck made it difficult to discern exactly what happened, Donaldson says. "What do we have left here? We're not sure who caused the accident and the mirror is broken."

The outcome wasn't just influenced by factual disputes, according to Donaldson; arbitrators often shy away from terminating an officer.

"The arbitrators are willing to punish," Donaldson says, "but there is a reluctance to give the death knell — to take their job away from them," often because a fired officer will likely never be hired in law enforcement again.

That tendency may be reflected in Brown's case: He was given his job back, but with back pay only from May 20 (after he was acquitted of criminal wrongdoing) and without any compensation for lost overtime or secondary employment opportunities. He will face a one-year probationary period with a "last-chance" agreement, under which Brown could be terminated if he faces further discipline. He will also be required to participate in "employee assistance programs," but Donaldson declined to go into specifics.

And even though the decision "was not as flagrant as some of the others I've participated in," Donaldson says of Brown's arbitration, the process isn't ideal. "It certainly has a negative impact on our ability to manage. There are people who we believe should have clearly been terminated."

Chris Potter contributed to this report.

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