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that more than 50 percent of the evidence point to something. This is the burden of proof most often utilized in a civil trial and the least onerous of the three. It requires at least a “50 percent plus 1” confidence level that the facts support the final decision. Probable cause
Law enforcement officers are most familiar with another phrase: “probable cause,” which goes more towards evidentiary findings, rather than ultimate burdens of proof. Probable cause is a require- ment found in the Fourth Amendment that must usually be met before police can make an arrest, conduct a search or obtain a war- rant. Courts usually find probable cause when there is a reasonable basis for believing that a crime may have been committed (for an arrest) or when evidence of the crime is present in the place to be searched (for a search).
Just cause standard
Turning to grievance arbitrations under the parties’ collective bargaining agreement (“Agreement”), who has the burden of proof in a grievance arbitration hearing seeking to challenge the City’s decision to impose discipline? Section 8.1 specifically states, “No Officer covered by this Agreement shall be suspended, relieved from duty or otherwise disciplined in any manner without just cause.”
That is, the Agreement sets forth what is known as the “just cause standard” and establishes, by enforceable contract, that the relationship between the City and all officers below the rank of ser- geant is not one of “employment-at-will.” In other words, the City cannot discipline (or terminate) any officer on a whim or treat of- ficers’ conduct differently from one another. Rather, the City has the burden to demonstrate that it had “just cause” to impose dis- cipline.
Where a collective bargaining agreement requires “just cause” for discipline, the “burden” is on the employer to prove the em- ployee’s possible guilt before a neutral arbitrator. In a normal discipline arbitration, the standard is usually a “preponderance
of the evidence” which means, as described above, that the City must produce evidence to show that it was more likely than not that an officer committed an offense which led to an appropriate level of discipline. Moreover, arbitrators routinely require the City to produce actual eyewitnesses to the alleged misconduct and not rely on mere hearsay. The City is prohibited from relying on the underlying “CR file” itself to establish its burden. Further, in cases involving “criminal conduct, moral turpitude or stigmatizing be- havior,” many arbitrators will apply the higher standard of “clear and convincing evidence.”
As with any “just cause standard” analysis, the City is required to articulate the reasonable rules or standards that the City is seeking to enforce. Additionally, the City must demonstrate that these rules have been consistently applied and enforced and, finally, that the rules were widely disseminated so that officers know what conduct is unacceptable. As such, the City’s failure to enforce its rules with respect to other officers in a consistent manner may prevent the City from imposing varying degrees of discipline for a similar in- fraction.
Finally, the “just cause standard” requires that the punishment assessed must be reasonable in light of all the circumstances. What this means is that the City also must demonstrate, as part of substantiating the discipline, that the imposition of the penal- ty is commensurate with the nature of the infraction committed, consistent with the mandates contained within the parties’ Agree- ment, and (equally important) has been administered in a similar manner to disciplinary actions for similar violations. The punish- ment must fit the crime. For example, arbitrators routinely have reduced a penalty where the Lodge demonstrated that the officers who committed a similar infraction were not penalized as harshly.
Accordingly, the “just cause standard” contained within the Agreement is one of the most important protections afforded to officers and places the burden of proof where it belongs: on the City. d
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