Sunday, September 27, 2020

City Faces Challenges with Arbitration Ruling


Photo by Steve Stefanides


The issues regarding a recent arbitration ruling which went against the City of Marco Island may well likely cost taxpayers over $100,000. At the same time, it will return a police officer with a tainted reputation back to duty whose ability to carry out his responsibilities is severely compromised.  

However, these issues go deeper than the officer himself or the expenses to the city. It goes to the challenges being dealt with throughout the State of Florida by municipal and county law enforcement agencies.  

The problems regarding the Marco officer have a long historical background which we have covered. The Office of the State Attorney, 20th Judicial Circuit Court of Florida came forward as early as 2011 to make the Marco Island Police Department aware of their concerns involving testimony by thenSergeant Tige Thompson, regarding a DUI arrest. 

The State Attorney’s Office (SAO) returned a second time to make those concerns known to newly appointed Chief Don Hunter. They advised Hunter that Thompson was now considered to be unreliable and was being placed on the “Brady List.” 

Brady vs. Maryland was heard in 1963 and affirmed the responsibility of the prosecution to declare to the defense any exculpatory evidence. That would include the reliability of witnesses, otherwise, it amounts to a due process violation. 

New trials have been granted for defendants when it has been revealed that officers have had disciplinary action taken against them by their departments for breaching ethical guidelines and the moral standards of the position they hold. These actions are a direct result of the prosecution not revealing an officer’s background to the defense. 

In the case of Thompson, the SAO in Ft. Myers could have opened an investigation and if warranted, brought charges against Thompson, but failed to do so. When asked why they hadn’t by former Chief Al Schettino, he was told it was a decision made above that official’s rank in the same SAO offices in Ft. Myers.  

One of the issues that law enforcement agencies and the State Attorney’s Offices around Florida are dealing with lies with the lack of continuity regarding the Brady Ruling. Each jurisdiction deals with that ruling in a different way and not all counties within the state deal with the matter in a similar manner.  

Some have reviewed the idea of a “blanket policy” regarding a choice of not prosecuting cases to see it is a disservice to the system of justice and question that procedure.  

Will there be a call for legislation on the state level to solidify how to deal with this issue and the ramifications to an officer and their future?  

A policy which provides for a standard in the publication of lists, that also provides for a uniform process, might be a high priority on how to deal with this issue. This as state leaders seek to protect the rights of both the accused and those officers being painted with a scarlet letter for the rest of their career. 

Former Acting City Manager Harden chose to dismiss Thompson from his post due to his inability to carry out the duties assigned to an officer. The arbitrator who reviewed the case found that the city failed to provide any evidence of wrongdoing, with the exception of the SAO’s decision to not accept testimony from Thompson.  

The arbitrator required that the city return Thompson to his previous job assignment and pay him all back pay since his severance by thenActing City Manager Harden. Thompson’s one year of salary, any raises since his dismissal, in addition to his legal fees and those fees paid by the city to their legal representation will also have to be considered. 

Arbitration Process Being Reviewed 

Many communities around the state are reviewing the value of the use of “arbitration” in dealing with discipline issues, citing the tendency of arbitrators to rule on the side of the accused. Although it might be a cost-effective way to deal with these types of issues, it might be more costly in the long run. 

Arbitrators are not bound by the same procedural constraints of the courts, therefore allowing them to resolve disputes in a more cost-effective manner and with minimal delays compared to litigation within the courts but have a tendency to rule more in favor of the officer. 

The benefits of arbitration, however, do not come without tradeoffs, one of which is the right to traditional appellate review. The courts recognize the right of parties to arbitrate, but they will not for the most part interfere with a decision once reachedexcept for a very narrow number of statutory grounds. Any judicial review is extremely narrow and rarely undertaken. 

In the Thompson case, the arbitrator found that the city failed to provide any evidence of wrongdoing, with the exception of the SAO’s decision to not accept testimony from Thompson. The Arbitrator required that the city return Thompson to his previous job assignment and pay him all back pay since his severance by thenActing City Manager David Harden.  

The utilization of arbitration is found in the collective bargaining contract as agreed to by the city and the union representing the Marco Island Police Department in 2019. It is a 3-year contract covering wages, benefits and other items covering employment with the city. As part of that agreement, the city and employees of the department have agreed to “binding arbitration” should a member file a grievance concerning a personnel action. 

Police Chief Tracy Frazzano and City Manager Michael McNees are reviewing the terms under which Thompson will resume his duties within the department, as a result of the ruling by the arbitrator last month. 

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