By J. STEVEN DILLON
A former Findlay police sergeant who was fired years ago for “behavior unbecoming a police officer” may be going back on duty as a result of a ruling Wednesday by the Ohio Supreme Court.
The high court reversed an appeals court ruling and reinstated an arbitrator’s finding that Dave Hill should be suspended, but not terminated, for a 2012 incident that occurred while Hill was employed with the police department.
The matter will now be revisited by the Cuyahoga County Common Pleas Court, where one of Hill’s appeals was heard in 2015.
Findlay Law Director Don Rasmussen said Wednesday he was disappointed by the latest ruling in a long legal struggle, but said the city has little choice but to comply. Oral arguments were made before the Ohio Supreme Court in Columbus in February.
“It’s a bad decision,” Rasmussen said. “There will be a lot of things to work out, details about wages and retirement status, things like that.”
Neither Hill nor attorneys for the Ohio Patrolmen’s Benevolent Association, which represented him, could be reached for comment Wednesday evening.
Hill still lives in the area, but has been out of law enforcement since 2012.
He was hired by the Findlay Police Department in 1992 and was promoted to sergeant in 2005.
According to court documents, Hill’s employment problems and lengthy legal battle began on July 6, 2012, when he helped create a video of him using a Taser on the son of a fellow officer. That violated the department’s “social media policy” and he was given a written reprimand.
On July 27, 2012, Hill made disparaging comments about another officer’s mental health, and placed the barrel of his own service weapon in his own mouth while on duty.
As a result, then-Chief Greg Horne recommended that Hill be suspended for 30 days, with 15 days stayed, “for conduct unbecoming an officer.”
An arbitrator, Jonathan Klein, later reduced the suspension to 10 days, saying Horne had exceeded the “discipline matrix” without justification.
The discipline matrix — which would be the key issue when the matter got to the Supreme Court — is a labor contract device that spells out specific penalties for officer transgressions.
Under the matrix guidelines, discipline can range from a 3- to 10-day suspension to termination.
Hill was disciplined again for a Nov. 13, 2012, incident in which he referred to a female officer as “Whoregan” in response to a question about the Fraternal Order of Police Christmas party. The female officer filed a complaint claiming, among other things, that Hill had made the comment based on a running joke that she was pregnant with the baby of a municipal building custodian.
Following that incident, Chief Horne concluded that Hill had violated several department rules and regulations, the most serious being its sexual harassment policy, and he recommended Hill’s termination.
Hill filed a grievance asserting there was “no just cause” for his termination, and the chief’s application of the discipline matrix violated the collective bargaining agreement between the city and police union.
Service-Safety Director Paul Schmelzer agreed with the chief’s recommendation and denied Hill’s grievance, setting the stage for another round of arbitration.
A second arbitrator, James Mancini, found the evidence did not clearly demonstrate that Hill had violated the department’s sexual harassment policy and set aside the termination penalty, but concluded the city had “just cause to impose severe discipline” because Hill had engaged in conduct unbecoming an officer and failed to carry out his supervisory duties.
Mancini determined “a lengthy disciplinary suspension” was warranted, and because a period of time had already passed, ordered Hill reinstated with full seniority but with no back pay.
Further court action resulted when Hill claimed the city refused to reinstate him, and the city filed to vacate or modify Mancini’s arbitration award.
Cuyahoga County Common Pleas Court combined those appeals in 2015, and vacated Mancini’s finding, saying he had exceeded his power since he departed from the matrix, which only allows for a 3- to 10-day suspension or termination.
The 8th District Court of Appeals affirmed the common pleas court finding, but a dissenting judge found Mancini “had full authority to fashion a remedy,” setting up Hill’s appeal to the Ohio Supreme Court.
In affirming Mancini’s decision, the Supreme Court dealt with the discipline matrix issue.
The city and its police union disagreed whether the matrix must be strictly followed when an arbitrator is called in to settle a dispute.
In a 6-1 majority, Justice Terrence O’Donnell wrote that rules for how discipline will be imposed for “just cause” violations must be followed if the employer and union bargain for those rules and incorporate them into a contract.
If they are not incorporated, then an arbitrator can use the “discipline matrix” as a guide to help him fashion an appropriate remedy.
In a dissenting opinion, Chief Justice Maureen O’Connor wrote that the court should not have taken Hill’s appeal, since the court had previously interpreted the law at issue in the case.
O’Connor said the majority’s opinion, requiring discipline to be written into a collective bargaining agreement, is “overbroad” and may have “unintended consequences.”