FEDERAL MEDIATION AND CONCILIATION SERVICE In the Matter of the Arbitration between: * FRATERNAL ORDER OF POLICE, LOCAL 38, * FMCS Case No.: 16-54618-3 + Grievant * * Grievant: Russell Ayers ve a * CITY OF NAPLES * ARBITRATOR: KENNETH STARR Employer * * AWARD Pursuant to Article 5, Paragraph 5.07 of the current CBA, the undersigned arbitrator was selected by the parties in the above matter to determine the resolution of grievances filed on or about March 4, 2016 by, or on behalf of, Russell Ayers, Grievant herein.’ The hearing was held on three different dates: November 8, 2016, January 9, 2017 and March 21, 2017 at the Naples City Hall in Naples, FL. ? Robert C. Buschel, Esquire, represented the Fratemal Order of Police, Local 38 (hereinafter “FOP” or the “Union”), Wayne L. Helsby, Esquire, represented the City of Naples (hereinafter the “City” or the “Employer”). At the conclusion of the hearing, representatives for the parties requested through April 25, 2017 within which to submit post-hearing briefs and later, by agreement, extended that date to April 28. ‘The Arbitrator received the electronic briefs on April 28 and the hearing was deemed closed on that date, ISSUE Whether Grievant was terminated for just cause and, if not, what is the appropriate remedy? " Two separate grievances were filed inthis matter: one in connection with internal admi and the other internal administrative investigation INQ 15-021 ? The hearing was adjourned, pursuant to a verbal Motion submitted by the City, near the end of the first hearing date when it became apparent that two witnesses who had been subpoenaed by the City were not going to appear to testify. It was adjourned near the end ofthe second hearing date when it was revealed the Union had obtained documents from the Florida Department of Law Enforcement (hereinafter “FDLE”), through a public records request, which had not previously been disclosed to the Employer.BACKGROUND Russell Ayers, Grievant herein, had been employed by the Naples Police Department (hereinafter “NPD” for approximately 17 % years. He attained the rank of Master Officer prior to his termination on. February 29, 2016, The termination was based primarily upon two separate incidents — the first incident, involved a polygraph examination that occurred on January 6, 2015 and the second involved ‘communications between Grievant and a private citizen that occurred on May 22, 2015. However, after hearing all of the testimony presented and reviewing the documentary evidence introduced at the hearing, the arbitrator believes a summary of various alleged incidents that occurred within the NPD going back at least to 2003 (and probably earlier) is necessary. On January 3, 2003, on the day after Grievant advised the NPD he wished to advance a grievance concerning a written reprimand to the next level, his wife, Linda Roebeck Ayers, appeared unannounced. at the office of Naples Police and Emergency Services Director, Steven Moore, and presented a list of complaints regarding several officers in the NPD. Apparently, Ms. Ayers had no personal knowledge of the conduct complained of, but had acquired that information from her husband. The City conducted an internal investigation as a result of the Ayers’ complaints. Subsequent to the investigation, Naples City Manager, Robert E. Lee, contacted Naples Attorney Jon Fishbane to review the results of that investigation.? Fishbane concluded the investigation was comprehensive, involving interviews with no less than 17 individuals. According to Fishbane, the investigation, inter alia, disclosed two officers, Bobby and Amy Young, had been guilty of sleeping while on duty and were disciplined.* One other NPD officer did not fully cooperate in the internal investigation, but apparently was not disciplined as a result. Another officer was found by Fishbane to have verbally abused a fellow officer > Attomey Fishbane’s Memorandum Report, admitted over objection, is dated April 27, 2004 (City Ex. #19). The arbitrator limited his use of the Report to factual findings he deemed relevant to the issues in this grievance, plus Fishbane’s conclusion bout the “overall atmosphere" that existed within the NPD at that time. * Itappears to the arbitrator that Mr. and Ms. Young were married at the time ofthis offence. ‘Their names will surface again Tater in this Award. 2and had actually placed his hands upon said officer in a threatening manner. That conduct also did not result in any discipline, Fishbane’s review of the internal investigation reflected that Ayers, himself, had personal knowledge of alleged improper conduct of at least two fellow officers for several months prior to his wife presenting the complaints, but failed to notify superiors of that earlier conduct. Fishbane’s review also reflected that, on February 4, 2003, in the late evening hours, Ms. Ayers telephoned the NPD and reported having been harassed and intimidated by a NPD officer driving a patrol car, The harassment allegedly occurred around 11:15 p.m. when Ms. Ayers was driving home alone from her work shift at Naples Community Hospital. The alleged perpetrator of the harassment and intimidation was the same officer who had been uncooperative in the prior internal investigation. Fishbane concluded the late night incident had, in fact, occurred and several NPD officers were complicit in the intimidation. Ostensibly, that action was “pay-back” for submitting the list of complaints against several NPD officers. In fact, the attomey’s review of the investigation revealed that several NPD officers had already given ‘Ayers the nickname “Whiskers,” denoting he was a “rat.” None of the offending officers received any discipline for the incident involving intimidation and harassment of Ayers’ wife. Another incident reviewed by Fishbane involved an alleged comment by Ayers to the effect that “he wouldn’t be surprised if” a fellow officer who had drowned on August 10, 2003 had actually been drowned (murdered) by fellow officers “and that management had covered it up.” Ayers, when questioned previously by the NPD Chief, denied ever having made that comment. However, when Ayers ‘was questioned by Fishbane, he said “the comment was probably made in a moment of frustration, and there was no basis to it” No further investigation or discipline followed. Fishbane’s review of the prior internal investigation also discussed other troubling incidents that, had occurred in the NPD. In sum, Fishbane concluded several of the complaints listed by Ms. Ayers were frivolous, but apparently elicited retribution from various other officers. According to Fishbane, no evidence of 3criminal behavior was found, however the overall atmosphere and conduet within the NPD was childish and “hurts the Department, tamishes its reputation, and affects professionalism.” On or about October 1, 2008, Thomas Weschler was elevated from “acting” Chief of Police to the permanent position. At that time, he apparently stated that one of his goals was to “restore department morale after past allegations of internal squabbling, corruption and ethical lapses by department leaders.” Sometime thereafter, anonymous letters and emails began arriving on the computers and in the offices of NPD superiors, as well as the Naples Mayor and City Council members and other governmental entities outside of the Naples geographical area, These communications were replete with allegations of wrongdoing on the part of NPD officers. The allegations are, to say the least scandalous. Some involved alleged criminal conduct, some alleged covering up internal malfeasance and others alleged inappropriate sexual behavior both on and off duty. ‘The arbitrator was unable to satisfy himself that any of the allegations were trustworthy — save one, In July 2014 Officer Amy Young, who at that time was married to Sgt. Bobby Young, apparently ‘was living with Det. David Monroig.’ On July 9 a dispute arose between Ms. Young and Det. Monroig that resulted in Ms. Young receiving a serious gunshot wound and Monroig’s death. ‘The ensuing investigation determined Monroig to have been the perpetrator of Ms. Young’s gunshot wounds and his ‘own death. After recovering from her gunshot injuries in late 2014, Ms. Young desired to be returned to duty with the NPD. Her former husband, Bobby, was President of the local FOP at that time and wanted to help her get back on the force. Grievant was opposed to Ms. Young returning to work at the NPD. ‘The January 2015 incident that directly led to Grievant’s termination involved Ayers’ participation an FDLE polygraph examination in connection with a service weapon that tumed up missing on or about November 17, 2014.6 According to the polygrapher, Bryan Waid, and another FDLE investigator, Carl Shedlock, Grievant failed or refused to fully cooperate in the polygraph examination by virtue of * Bobby Young was apparently promoted from Sergeant to Lieutenant sometime after his wife was shot. The missing service weapon belonged to Set. Young and that incident will be discussed more fully, Infra. 4utilizing known and documented “counter measures” in an effort to defeat the examination. The City concluded Grievant's failure or refusal to cooperate in the polygraph examination constituted a violation ‘of one City Personnel Policy and one General Order.” The May 2015 incident involved an early moming meeting Grievant had with a private security guard, Sergio Covarrubis, sometime between 3:00 and 6:00 am. on May 22, 2015* During that meeting, Grievant allegedly told the security guard that (then) Set. Young, had been involved in the 2014 shooting of his wife, Amy, and the shooting death of Det. Monroig. Ayers further (allegedly) told the security guard that Sgt. Young had also been involved in a “cover-up” of the shooting. Thereafter Covarrubis, who was acquainted with Sgt. Young, contacted him and conveyed Ayers’ allegations. The City concluded these alleged statements were untrue and constituted a violation of “numerous City of Naples Personnel Policies and [NPD] General Orders.”® Subsequent to Grievant's February 2016 termination, the FOP filed two separate grievances on behalf of Ayers and both were ultimately denied by the City. The Union invoked the arbitration provision of the current CBA and the undersigned arbitrator was appointed on or about May 3, 2016 by the Federal Mediation and Conciliation Service to conduct the arbitration hearing. RELEVANT FLORIDA STATUTES CBA PROVISIONS, NPD PERSONNEL POLICIES and GENERAL ORDERS Florida Statutes §112.532 Law enforcement officers’ and correctional officers’ rights. (© LIMITATIONS PERIOD FOR DISCIPLINARY ACTIONS. — (a) Except as provided in this subsection, disciplinary action, suspension, demotion, or dismissal may not be undertaken by an agency against a law enforcement officer or correctional officer for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within 180 days after the date the agency receives notice of the allegation by a person authorized by the agency to initiate an investigation of the misconduct. If the agency determines that disciplinary action is appropriate, it shall complete its investigation and give notice in writing to the law 7 See: selected Personnel Policies and General Orders, Infra INQ 15-021 * See: selected Personnel Policies and General Orders, Infra. 5enforcement officer or correctional officer of its intent to proceed with disciplinary action, along with a proposal of the specific action sought, including length of suspension, if applicable. Notice to the officer must be provided within 180 days after the date the agency received notice of the alleged misconduct . . . Collective Bargaining Agreement Article 2.02 Police Officers’ Bill of Rights and Disciplinary Action 2.02 ‘The Bargaining Unit members may seek redress under the Police Officers’ Bill of Rights for disciplinary action resulting from a find (sic) on a complaint or allegation originating from a citizen. City Personnel Policies & Procedures Manual, Section 19—Employee Conduet/Ethies I. Standards of Conduct/Ethies City employees are expected to maintain high standards of conduct and to conduct themselves in a manner which positively reflects on themselves and, co-workers, supervisors, administrators, elected officials, and the City’s reputation, Employees’ conduct should be considered at all times during working hours; whenever serving on official City business; in any capacity as a representative of the City; when speaking on behalf of the City as an authorized or appointed representative. Employees are expected to use good judgment and integrity keeping in mind the expectations the public has of its employees. Failure to comply with these standards may result in disciplinary action up to and including termination of employment. City Personnel Policies & Procedures Manual, Section 20—Di V. ‘Types of Offenses 5. Use of offensive conduct, language, or gesture toward the public, supervisors, or co- workers, 15, Failure to be forthright, truthful, and cooperative in providing information during any internal, administrative, or extemal investigation or hearing. ary System ui. iplinary Measures the recommended penalties may be modified by management, including a lesser or ‘more severe penalty when extenuating circumstances are found. Groups of Offenses 3. Group I offenses shall include, but not be limited to: hh, Making or publishing false, vicious or malicious statements concerning any employee, supervisor, the city or its operation. 65. Group III offenses shall include, but not be limited to: i, Immoral, unlawful or improper conduct or indecency, either on or off the job, which would tend to affect the employee's relationship to his job, his fellow workers, his, reputation or goodwill in the community. s. Chronic offender of the Code of Conduct (Guide: Four (4) or more violations of any departmental or city rule or regulation which result in a Disciplinary Form being issued). FACTS: ‘The facts in this case, as reflected above, are somewhat convoluted. The two 2015 “incidents” described, Supra,, that resulted in Grievant's termination, arose out of the other two incidents (the shooting and the missing service weapon) that occurred in 2014, The shooting incident was widely publicized and the official report indicated that Monroig had received a single gunshot wound to the head. Grievant admittedly told NPD Master Officer, Linda Lines, a few days after the shooting that Monroig had been shot in the chest as well as in the head. Ayers testified he had received information about the shooting from a conversation with a Naples Fire Department employee, John Morrison, shortly afier the shooting. According to Grievant, Morrison had told him that “a friend up in Lee County,” who had been on the site immediately after the shooting, told Morrison that Monroig had been shot in both the head and the chest. Morrison testified, quite credibly at the arbitration hearing. He stated he didn’t recall any discussion with Ayers about the shooting incident. Nor did he provide Ayers with any information about the shooting because he “had none.” He also denied having received any information about the shooting from a friend who had been on the scene. In May 2015, nearly 10 months after the shooting incident, the conversation occurred between Grievant and Covarrubis, the security guard. Ayers admitted at the hearing he spoke with Covarrubis on the night in question, but categorically denied Covarrubis’ assertion of having made any comments about the shooting, Lt. Young’s possible involvement or any attempt by Lt. Young to cover up his alleged involvement.The second 2014 incident involved the disappearance of Lt. Young’s Glock 9 mm service pistol sometime around November 14-16, 2014. Lt. Young testified that he left work after his shift at about 5:30 a.m. on the morning of Friday, November 14, 2014. He left his service pistol in his locker in the Sergeants’ office, which is located in a secured area of the police station. He apparently had the weekend off and when he returned to the Sergeants’ office on the evening of Monday, November 16, he discovered the key visibly sticking out of the lock on his locker and his service weapon was missing. Lt. Young checked other possible locations where he may have left his weapon, but was reasonably sure he had left it in the locker “where I always leave it.” According to a statement Lt. Young gave to FDLE Special Agent Shedlock on or about November 24, 2014, he initially thought someone had “borrowed” the weapon and sent out an email to a number of supervisors in an effort to locate it. When the pistol was not located, Lt. Young reported it missing and eventually submitted a swom complaint for “theft ofa firearm.” NPD thereafter contacted FDLE and requested that a formal investigation into the missing service ‘weapon be initiated. Agent Shedlock was the lead investigator on the case and conducted an extensive investigation. He interviewed all 30 individuals (including NPD officers and civilian employees) who had access to the general area where the weapon had allegedly been left. According to Agent Shedlock, the only suspect was Russell Ayers. Shedlock apparently had reached his conclusion in this regard due to several factors. First, when Ayers was asked if he took the missing gun, he responded by laughing very loudly and saying: “Of course not.” According to Shedlock, after he completed the interview with Grievant, Ayers declined to leave the room and said something to the effect that he “wasn’t done yet.”"” Grievant allegedly then advised the Agent he was a Christian man who prayed a lot and offered comfort to other people. Also, according to Shedlock, Grievant “appeared inappropriately informal and in a Joking manner.” Next, when Shedlock asked Lt. Young if he had any suspicions about who may have "It should be noted that Grievant directly deni concluded. having told Agent Shedlock that he wasn’t done yet when the interview 8taken the weapon, Young responded: “Just one —Russ Ayers.” Young proceeded to tell Shedlock that, in his opinion, Ayers had undergone a “dramatic personality change” at some point in the past and believes that he (Ayers) “suffers from some sort of mental disorder.” Having concluded that Ayers was the only individual he suspected of having stolen Lt. Young’s ‘weapon, Shedlock’s investigation focused on Grievant.'' The polygraph examination of Grievant was a part of that investigation. As noted above, the polygraph exam was conducted by FDLE Agent Waid, though Shedlock watched the interrogation through a two-way mirror. Grievent testified that, prior to the beginning of the polygraph examination, Waid questioned him at length about a number of things. Apparently a part of that discussion involved internal problems at the NPD. According to Grievant, Waid told him that if things were really bad, he should just leave the department. Ayers responded to that suggestion by saying he is one of the good guys. Shedlock also reviewed video footage of the interior of the NPD over the weekend in November 2014 when Young’s service weapon allegedly disappeared. ‘That video reflected Grievant being in the portion of the building where the Sergeants’ office is located. From Shedlock’s observation of the video, he was of the opinion that, as Ayers exited the building, he was holding his right hand in a manner that might have permitted him to hide the missing firearm from view. Over the objection of Grievant's counsel, the arbitrator allowed the testimony of both Agent Waid and Agent Shedlock with regard to their independent observations and opinions surrounding the polygraph examination. Both FDLE agents were consistent in opining that Grievant actively utilized known counter measures to defeat the polygraph exam. Waid offered testimony to the effect that, even after witnessing Ayers’ “deceptive behavior,” the polygraph exam was completed. He also testified that the polygraph charts reflected deception. No testimony was presented to the effect that Ayers responded untruthfully to the critical question of whether he had taken the missing gun. Rather, the arbitrator "” Agent Shedlock determined the missing weapon had been stolen and, utilizing his training in the Reid System of Interrogation that is designed to elicit an admission of guilt, set out to prove the identity of the guilty party. He appeared to ‘have already concluded that party to be Officer Ayers. 9ed by Agent Waid was related to Grievant’s breathing and the pressure concludes the “deception” des: he applied to his hands where a Galvanic Skin Resistance monitor was attached. ‘Shedlock persisted in questioning Grievant after the conclusion of the polygraph examination, According to Shedlock, Ayers had no explanation as to why he might have been in the NPD building on his day off (November 15, 2014), during the weekend when Young’s weapon apparently disappeared. To counter the FDLE witnesses, Grievant's counsel presented the testimony of John Hisler, an expert with more than 20 years of experience with polygraph examinations; having conducted approximately 8000 such exams in his career. Mr. Hisler reviewed the polygraph charts from Ayers” examination and gave the opinion those charts fail to reflect the employment of counter measures. Furthermore he testified that, if counter measures are employed, evidence of those measures positively will appear on the charts. According to Hisler, there is no evidence of deception reflected on the Ayers charts. ‘The City presented testimony from Lt. Seth Finman and Chief Tom Weschler to support the termination decision, Finman obtained statements from various witnesses (noted above) and spoke at length with Special Agent Shedlock. Based upon those interviews and Shedlock’s conclusions, Finman found “many inconsistencies” in Ayers’ representations. CONTENTIONS OF THE UNION ‘The Union contends that Grievant did not voluntarily participate in the investigation surrounding the missing service weapon. Rather, he was impermissibly compelled to participate, even to the extent of being forced or coerced to submit to a polygraph examination. The Union also contends the City failed to prove that Grievant violated any NPD Policy or Order. It is further asserted the City failed to prove Grievant was a “chronic offender” and failed to take into account Grievant’s nearly 18 years of excellent service to mitigate any discipline which might have been imposed, had the City been able to prove any violation. 10Finally, the Union asserts the investigation and discipline in this matter were procedurally defective in that the City failed to complete its investigation within the limitation period contractually required by the CBA, which incorporates by reference Florida Statute §112.532 (the Law Enforcement Officer’s Bill of Rights). The discipline imposed in this case clearly occurred more than 180 days after the occurrence of the conduct ostensibly supporting the termination, Accordingly, the grievance should be upheld, Ayers should be reinstated with all benefits, back pay and no loss of seniority. CONTENTIONS OF THE CITY, ‘The City contends that Grievant intentionally engaged in deceptive measures and was uncooperative during FDLE’s investigation of the missing service weapon. He did so under oath in the course of a City intemal affairs investigation, which constituted a blatant violation of both a City Policy and an NPD General Order. ‘The City further contends that Grievant uttered false, vicious and malicious statements to a private citizen about a superior officer in the NPD regarding the superior’s alleged involvement in a shooting. This action also was a violation of numerous City of Naples Personnel Policies and NPD General Orders. ‘The City also asserts the investigation and termination in this matter were timely since the 180-day time limitation contained in the Law Enforcement Officer’s Bill of Rights does not apply to discipline stemming from allegations that originated within the agency. Accordingly, there was just cause for Grievant’s termination as a result of the above violations and the grievance should be denied. DISCUSSION It must be pointed out that the only issue before the arbitrator is whether there was just cause for Grievant’s termination on February 29, 2016. Everything else described above and contained hereinafter is simply background to assist the arbitrator in reaching a fair and just conclusion about this grievance. uwINQ 15-005 ‘The mysterious disappearance of Lt. Young’s service weapon in November 2014 that led to an internal investigation and the subsequent polygraph examination of Grievant will be discussed first. None of the evidence on this chain of events presented at the hearing convinced the arbitrator that Grievant violated any Personnel Policies or General Orders. Consequently, insofar as INQ 15-005 is concerned, there was no just cause to impose any discipline on Grievant, ‘The evidence was clear that Lt. Young placed his weapon in a locker or cabinet in the Sergeants’ office when he left the police station at the end of his shift in the early morning hours of Friday, November 14, 2014, When he returned for his next shift at approximately 9:00 p.m. on Monday, November 17, the weapon was gone. ‘The evidence also supports the finding that the cabinet of locker in question can be locked. However, Lt. Young frequently left the key in the lock and that’s the situation he observed on Monday, November 17. The door to the Sergeants’ office can be locked, limiting access to individuals who have no business within that office. However, the evidence also supports the finding that the door to the ‘Sergeants’ office is frequently unlocked, allowing access to anyone (law enforcement personnel and civilians including janitors) who are lawfully in the building. While 30 such individuals were questioned by FDLE agents, the only individual subjected to a polygraph examination was Grievant. According to Agent Shedlock, one of the primary reasons he singled Grievant out for the polygraph examination was the direct response to the question: “Did you take the gun?” According to Shedlock’s contemporaneous Investigative Report, Ayers “laughed very loudly and said: ‘Of course not.”” Also, according to Shedlock, rather than leaving when he was told he was free to do so, Ayers remained in the room discussing his religious beliefs. Shedlock felt Ayers “appeared inappropriately informal and in a joking manner.” 12FDLE summaries of other statements obtained at or around the same time reflected that two other individuals also laughed when asked the same question before responding in the negative. One of those individuals, and another officer, simply shook their heads but never verbally denied taking the weapon. Apparently another reason Agent Shedlock focused on Grievant was Lt. Young’s opinion that Ayers was the only person who might have taken his weapon. Additionally, Agent Shedlock viewed surveillance video footage of the interior of the police station over the weekend of the disappearance of the service weapon. Ayers was seen in the video and, according the Shedlock, he exited the building in a manner that made it appear he was concealing something that could have been a gun in his right hand. ‘The arbitrator viewed the same video footage and while Shedlock’s opinion is certainly plausible, it did not appear to the undersigned that Ayers was attempting to conceal anything. ‘There was some question raised at the hearing as to whether Grievant voluntarily consented to the administration of the polygraph examination or whether he was made to feel compelled to submit to it. According to Agent Waid, Ayers verbally consented to participate before the examination began. Grievant admitted he signed a consent form prior to the examination and the arbitrator concludes he voluntarily consented to the polygraph examination. By January 2015, the investigation into the “stolen” firearm was considered a criminal investigation by both NPD and FDLE. ‘Agent Shedlock questioned Ayers at the NPD on January 5, 2015 and at the FDLE regional office in Ft. Myers on January 6, 2015, shortly after the conclusion of the polygraph examination. Agent Shedlock is trained in the Reid system of interrogation, which according to Shedlock, is designed “to elicit an admission of guilt.” The FDLE office in Ft. Myers is equipped with audio and visual equipment. that can record and memorialize interrogations. Notwithstanding the fact that, by January 6, 2015, Grievant was the one and only target of a criminal investigation, neither the audio nor video equipment 13‘was utilized.'? Consequently, the only proof as to Ayers" alleged deceptive behavior was the testimony of Agents Shedlock and Waid. The arbitrator concludes that crucial portions of this testimony were not factual, but rather were the subjective opinions of trained law enforcement personnel. ‘The arbitrator, in no way, intends to question the honesty of the FDLE agents. He feels they both offered their respective opinions as they perceived the occurrences they witnessed. As noted above, once the polygraph charts were obtained by Grievant, via a public records request to FDLE, the Union had those charts reviewed by another expert polygrapher. ‘That witness’s opinion testimony was in direct contradiction to the opinion testimony of the FDLE agent. To reiterate the conclusion noted above, the arbitrator does not find any of the evidence submitted by the City in connection with INQ 15-005 trustworthy enough to support a termination — or any form of discipline, INO 15-021 ‘There is no doubt that Grievant met with Sergio Covarrubis during the early morning hours of May 22, 2015. He acknowledged they met that moming at the condos where Covarrubis was working, but denied any discussion about the July 2014 shooting or Lt. Young’s alleged involvement. Covarrubis ‘was very definite that the subject of the shooting was raised that moming by Ayers and that he (Ayers) believed that Lt. Young was “the third person” on the scene. Ayers apparently did not make any reference to the number of gunshot wounds Det. Monroig had suffered the night of his death. Ayer did, of course, tell Officer Lines back in July 2014 that Det. Monroig had suffered two gunshot wounds — one in the chest and one in the head. He never told Ms. Lines that Lt. Young was involved in the shooting or that Young had been “the third person” on the scene, " Agent Shedlock’s explanation forthe failure to memorialize either of the interviews of Grievant in January 2015 or the ‘polygraph examination was that FDLE had previously incurred sizable transcription fees and thereafter he had been instructed. ‘not to record any interviews. It should be reiterated, by January 2015, Ayers was the only suspect in the eriming 14As noted above, Ayers testified that he got the information about the two gunshot wounds from firefighter Morrison. Morrison testified unequivocally that he never provided that information to Ayers. He had no information about the shooting other than what he had read in the newspaper. From a thorough review and consideration of all the evidence submitted at the hearing, the arbitrator is convinced that Grievant had been very upset with the atmosphere, and several of the employees, at the NPD for some period of time. Either personally, or with the assistance of his wife, Ayers had made prior complaints about several of the NPD officers, including Bobby and Amy Young. He apparently was unhappy about the prospect of Ms. Young being returned to duty after the July 2014 shooting. He was also upset with the fact that Sgt. Young was never disciplined after his service weapon disappeared in November 2014. It is clear to the arbitrator that the service weapon was not adequately secured and rather than the NPD imposing discipline to Sgt. Young, he was promoted to the rank of Lieutenant sometime thereafter. Additional evidence was presented at the hearing, which if true, would further buttress the conclusion that Grievant was very upset with conditions within the NPD. As noted above, Ayers discussed conditions in the NPD with Brian Waid just prior to the polygraph examination. According to Ayers the description he communicated resulted in Waid suggesting that if things were that bad, he should just leave the department, According to Shedlock, when Ayers was asked if he was the author of the anonymous letters alluded to above, he allegedly responded: “All of them?”"? Lt. Young gave a statement to Agent Shedlock shortly after his service weapon disappeared. In that statement, Young stated he had encountered Ayers at the copy machine one day and after Ayers left, Young found a copy of one of the anonymous letters left in the machine. This assertion, if true, does not necessarily imply Grievant was the author of any of the letters in question. It does, however, lead to the inference that Grievant wished to have copies of the letter, possibly to disseminate to others. It is important to note Lt Ayers denied having made that comment in response to Shedlock’s question and further denied having anything to do with any of the letters. 15‘Young’s assertion regarding the letter allegedly left in the copy machine was never brought up at the hearing, so Grievant had no opportunity to deny or refute it. The arbitrator concludes that Ayers did, in fact make statements to Sergio Covarrubis on the morning of May 22, 2015 that implicated Lt. Young in the July 2014 shooting incident and further implied that Young (and possibly the NPD) actively covered up his involvement. The issue, in the mind of the arbitrator, is not whether Ayers” statements were false. Rather, it is whether the “publication” of those statements violated express policies. With regard to INQ 15-021, the City listed six distinct policies to support the termination of Grievant in this matter. The arbitrator finds that two portions of General Order 132 (reprinted above) are relevant to this controversy. General Order 132, III, B, 3, h expressly states that “Making or publishing false, vicious or malicious statements concerning any employee, supervisor, the city or its operation” is a Group Il offense. Having concluded Grievant, in fact, made the statements to Covarrubis, the arbitrator must address whether those statements violated General Order 132. If the statements were either false, or vicious or malicious, they would constitute a violation of the Order. It is not necessary to address whether the statements were false. The arbitrator is confident that any reasonable person would conclude those statements were vicious and malicious; thus constituting a Group II offense. ‘The City did not base the termination in this case solely upon the single incident that occurred on. May 22, 2015. It also alleged that Grievant is a “chronic offender” as referenced in General Order 132, UL, B, 5, s: “Chronic offender of the Code of Conduct (Guide: Four (4) or more violations of any departmental or city rule or regulation which result in a Disciplinary Form being issued).” The City referenced four prior incidents of discipline (written reprimands) imposed upon Grievant going back to 2002. The CBA does not place any limit on how old prior discipline may be before it can no longer be used to impose, or enhance, discipline on a Bargaining Unit member. 16The Union argues the City failed to adequately prove the four prior disciplines alleged. The Union proved that in one case, the City manager reduced a written reprimand to verbal counseling and in another case, the discipline was rescinded, ‘The arbitrator finds the NPD disciplinary system is designed to be progressive, rather than punitive. The first step in the disciplinary system is “Oral Warning Report.”"" The arbitrator finds the reduction of the written reprimand to verbal counseling is tantamount to the imposition of an Oral Warning Report. The written reprimand that was rescinded cannot be counted as prior discipline. ‘Therefore, Grievant had only three prior instances of discipline on his record as of the date INQ 15-021 was instituted. The violation of General Order 132 in this matter was the fourth violation. Based upon the plain language of the Order, the City was within its rights to find the violation in this case (a Group II offense), made Grievant a “chronic offender.” ‘Taking into account all of the facts and implications contained hereinabove, the arbitrator finds the City was justified in imposing discipline upon Grievant, up to and including, termination.'> The Law Enforcement Officers’ Bill of Rights Article 2.02 of the applicable CBA clearly incorporates the Law Enforcement Officer’s Bill of Rights." That statute stat . - disciplinary action, suspension, demotion, or dismissal may not be undertaken by an agency against a law enforcement officer .. . for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within 180 days after the date the agency receives notice of the allegation by a person authorized by the agency to initiate an investigation of the misconduct. ‘The meeting and conversation between Ayers and Covarrubis took place on May 22, 2015. The substance of that conversation was conveyed from Ayers to Lt. Finman, who is listed as the “Investigator on INQ 15-021, on June 1, 2015. Finman spoke to Covarrubis, via telephone, on June 2, 2015. The General Order 132, 1, Ay. See also: General Order 132, II, A reprinted in part above. -S. §112.532(6)a). 7intemal investigation that followed concluded with Grievant’s termination on February 29, 2016.'” Approximately nine months elapsed from the date Lt. Young learned of the statements allegedly made by Grievant until the date of termination, The City argues that F.S. §112.532(6)(a) “is only applicable to investigations that were generated by an external complaint.”"* It is further asserted that, since the “internal affairs investigations in this case resulted from internal complaints generated by the City of Naples Police Department's Professional Standards Division, and not from some external complaint,” the 180-day limitation contained in F.S. §112.532(6)(a) does not apply. The Union counters that the allegation that precipitated the internal investigation, vis-a-vis INQ 15-021, came from an external source ~ Sergio Covarrubias. If a law enforcement agency were permitted to convert all complaints of misconduct into internal complaints by simply having someone from within the agency listed as the “complainant,” the time limitation contained in F.S. §112.532(6)(a) would be rendered meaningless. The arbitrator has reviewed the transcript, the case law supplied by the parties, the content of F.S. §112.532(6)(a) and also the CBA. It does not appear to the arbitrator that a “complaint” in this instance originated from an external source. After speaking with Lt. Young privately, Covarrubias was extremely hesitant to come forward and file a formal complaint, speak with Lt, Finman face-to-face or appear to testify at the hearing. The arbitrator finds that Covarrubias did, however, verbally make allegations to Lt. ‘Young (though not in his official or public capacity as a police officer). The plain language of F.S. §112.532(6)(a) uses the word “allegation” rather than “complaint.” Pursuant to the statute, the1 80-day limitation begins on “the date the agency receives notice of the allegation by a person authorized by the agency to initiate an investigation of the misconduct.” "” The Investigative Report, authored by Lt. Finman in INQ 15-021, reflects the investigation proceeded as an “internal 489 (Fla. Ist DCA 2010). 18,Article 2.02 of the CBA also recognizes that an allegation may be different from a complaint. Nevertheless, either if “originating from a citizen” triggers the Police Officers’ Bill of Rights. ‘The arbitrator finds the allegation in this case originated with Sergio Covarrubias. While that allegation was communicated to Lt. Young on May 24, 2015, no evidence was presented to the effect he was “a person authorized by the agency to initiate an investigation of the misconduct.” Young apparently reported Covarrubias’ allegations to Finman on June 1, 2015. Approximately five months later on October 30, 2015, he (Young) provided a sworn statement to Finman concerning Covarrubias’ allegations. A little more than three months later, Finman obtained a sworn statement from Grievant. No evidence was presented to explain the City’s lengthy delay between having learned of Covarrubias’ allegations and the initiation/completion of the subsequent investigation, ‘The City’s argument that F.S. §112.532(6)(a) does not apply in this case because INQ 15-021 was the result of an internal complaint “generated by the City of Naples Police Department's Professional Standards Division, and not from some external complaint” must be rejected.!? AWARD The arbitrator finds that Grievant's conduct, with regard to INQ 15-021, provided just cause for his termination, However, the arbitrator also finds that F.S. §112.532(6)(a) is applicable to this case and the City failed to complete the investigation and impose otherwise justified discipline within 180 days from its receipt of the allegation that led to the discipline. Accordingly the arbitrator cannot, in good conscience, uphold the termination. ‘The grievance in this matter is therefore SUSTAINED in part. The grievant shall be reinstated to his previous position with all benefits and no loss of seniority. However, the arbitrator finds that an "° Notwithstanding this conclusion, the arbitrator feels very strongly that Grievant exhibited unacceptable repetitive behavior; possibly in an effort to address what he felt was reprehensible conduct within the NPD. It isnot the arbitrator’s job, nor does he have the authority, to pass judgment on the past conduct of the NPD or the officers employed there. He is limited in this arbitration proceeding to focus on the conduct of Grievant and to determine if that conduct violated rules or policies of the Employer sufficient to warrant a just cause termination. The arbitrator has found that Ayers conduct cannot continue to be lwlerated by NPD (or any other law enforcement agency) for a myriad of reasons. 19award of back pay in this case is inappropriate for several reasons.” Grievant in this case bore most, if not all, of the responsibility the problem that resulted in his termination. Additionally, Grievant failed to mitigate his (back pay) damages and, in fact, provided no evidence that he even attempted to find work elsewhere. Accordingly, that portion of the grievance requesting back pay is DENIED in its entirety. This the 9" day of May 2017. Kenneth Starr, Arbitrator * See: Elkouri & Elkouri, How Arbitration Works, 7 Ed., at Ch. 18.3.4. 20 ‘and Ch. 18.3.1. (2012)