Page 19 - FOP August 2021

tigators were awaiting for the decision of the state’s attorney’s office to determine administrative or criminal rights would be given.” The arbitrator recognized that “the presenting of crim- inal rights was not common apparently because of waiting on the state’s attorney’s office to determine whether prosecution would be declined or a decision otherwise was made that crim- inal prosecution was not probable.” Such a practice stopped in the wake of the anti-police culture and with the emboldened authority of COPA.
Given the history of Section 6.1 presented by the Lodge, the arbitrator rejected Ms. Kersten’s testimony that COPA did not change its practice, holding instead “the fact is COPA did change the practice.” The arbitrator further rejected any argument that the creation of COPA could be “considered a type of changed condition justifying ignoring a long-standing past practice by first OPS then IPRA who were charged with the duty to investi- gate allegations against officers.”
The arbitrator then returned to the language in the contract “which contemplates the availability of two separate forms with one or the other form being presented to the officer depend- ing on the allegations.” Thus, the arbitrator concluded that the “language does not contemplate only presenting the statutory administrative form in all cases regardless of the allegation[,]” as recognized by the parties’ past practice, but depending on the nature of the allegation.
The arbitrator then discussed the meaning of the word “prob- able,” as utilized in Section 6.1(I), in contrast to the word “pos- sible,” before discussing specific instances in which a criminal prosecution was clearly probable. For one officer who had al- ready been indicted and still denied criminal rights by COPA, the arbitrator found it to be “a classic case of a contract viola- tion.” In the case of another officer being investigated by the state’s attorney’s office who also was denied criminal rights and further disciplined for asserting Fifth Amendment rights, the arbitrator again found a violation because “COPA was put on notice by [the officer’s] counsel that prosecution was probable.” As Arbitrator Roumell explained, “When the COPA investigators arranged for a department supervisor to order [the officer] to answer all questions against a background of a history of not giving criminal rights, COPA was ignoring the contract language in [the officer’s] situation and for this reason the order to [the officer] to answer the question violated the CBA.” He ordered the City to make both officers whole.
The arbitrator recognized that COPA’s own rules and regula- tions state that it will adhere not only to all applicable collec- tive bargaining agreements, but also to all Department General and Special Orders. He then cited General Order GO8-O1 which states, in relevant part, that:
If the allegation under investigation indicates that a rec- ommendation for separation is probable against a mem- ber, the member will be given administrative proceedings rights . . . or, if the allegation indicates that criminal pros- ecution is probable against the member, the member will be given the criminal rights . . . .”
The language mirrors the language found in Section 6.1(I) in the parties’ contract.
The arbitrator next highlighted inconsistencies between the City’s own Departments. The evidence presented by the Lodge undisputedly showed that BIA provides criminal rights in appropriate cases, despite COPA’s refusal to do so, which the arbitrator found demonstrated that BIA “is able to ascertain whether an allegation against a member indicates criminal prosecution is probable.” The arbitrator further noted that “Ms. Kersten acknowledged that COPA coordinates its investigation with the prosecution agencies.” Thus, he noted, this coordina-
tion is “a possible vehicle for COPA to determine whether pros- ecution is probable” and that “it was not explained persuasively why COPA did not wait for a period of time to determine if pros- ecution would be declined.”
While recognizing the City’s concerns that the longer wait might jeopardize the ability to take appropriate disciplinary action, the arbitrator found that COPA could act sooner once it determined that prosecution is probable “to bring the officer in and give the officer the criminal rights statement with the option to remain silent.” As long as an officer is “given the op- portunity to tell his or her side of the story,” they have received due process, even if they take their Fifth Amendment rights and decline to provide testimony. The arbitrator further emphasized that an officer’s invocation of Fifth Amendment rights “does not prevent COPA to interview other witnesses and obtain other ev- idence as part of the investigation and based thereon to deter- mine if discipline should be forthcoming.”
The arbitrator went on to reject the City’s request that he “is- sue an opinion holding as a general proposition that the trier of facts entertain an adverse inference against the officer” who had asserted Fifth Amendment rights. Instead, the arbitrator explained that “the arguments for an adverse inference in a giv- en case are for the trier of the facts to consider, if at all.”
The arbitrator retained jurisdiction for a limited period of time to address any outstanding issues. Absent the City seek- ing a review of the award in state court, the award will become binding on the City. The Lodge successfully has challenged the City’s unilateral actions in its attempts to circumvent the con- tract and will continue to do so in the future. With this award, the arbitrator once again reaffirms the Lodge’s position that the contract language is there not only to be read, but also to be followed. And the Lodge will make sure the City complies with all of its obligations.
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