Dec. 09--Columbus firefighter Thomas Eckenrode was facing a misdemeanor charge of fondling a 16-year-old girl when he asked his supervisor whether pleading no contest to avoid a trial would cost him his job.
He was told that an employee has never been fired for a disorderly-conduct conviction. But after Eckenrode was sentenced to 30 days in jail and the Fire Division conducted an internal investigation, Fire Chief Ned Pettus fired him.
Eckenrode appealed his termination in 2008, and an arbitrator ruled that even though he never denied fondling the girl, the city failed to prove wrongdoing. Eckenrode got his job back.
More than half of such appeals have succeeded over the past decade, a review of the police and fire divisions' internal investigations shows. Arbitrators upheld just six of the 13 firings that police or firefighters appealed under their union contracts.
Many of those who won their appeals also were awarded back pay and lost benefits.
The Dispatch checked the records after finding last month that the Police Division has developed a list of officers who are still on duty even though they've been found guilty of internal charges of lying. Many of those officers were fired but got their jobs back through arbitration.
It's a record that doesn't sit well with Public Safety Director Mitchell J. Brown, who said he has zero tolerance for employees who lie or break the law. Brown said he does not comment to the news media about specific discipline cases, but he stands by his decisions to fire the officers and firefighters.
The reasons for overturning the terminations vary. Sometimes the city did not meet investigation deadlines agreed to in union contracts. In other cases, arbitrators found that the city did not meet the burden of proof to fire an officer, despite a criminal conviction, as in Eckenrode's case.
Eckenrode did not respond to a request for comment.
Union leaders say they are not always happy about representing those who are terminated in arbitration, but they are obligated to make sure an employee is being treated fairly. They say it's important to protect employees from office politics or witch hunts by disgruntled supervisors.
Jim Gilbert, the president of the city's police union, said there have been cases that the union refused to take to arbitration because the officer's actions were so egregious.
"That's happened about five times in the six years I have been president," Gilbert said. "I want the public to understand that it's my responsibility to make sure the process spelled out in the contract is followed, but I want to work alongside professional police officers, and we're not with you when you decide to violate policy."
Those officers whom the union declines to represent in arbitration have the option of a Civil Service Board hearing. It is rare for the board to reverse the termination, and officers say it's an option only for those desperate to get their jobs back.
The arbitration process is straightforward. The city and union present their cases to an arbitrator whose name is drawn randomly from among six who do the work.
The six arbitrators are lawyers based in Ohio with backgrounds in mediation and arbitration case law. They're paid $950 per hearing and up to $950 a day for work leading up to the hearing.
Charles Wilson, a lawyer and law professor at Ohio State University, is an expert in labor law and mediation. He said the most-important factor in an arbitrator's ruling is the terms of a union contract.
"An arbitrator is bound to follow what the contract says even if you don't like the contract or think one side or the other shouldn't have agreed to put that in the contract," Wilson said. "The second issue is, you have to have just cause to fire someone because that is what arbitrators consider the death penalty."
Police Officer Gregory Stevens got his job back after an arbitrator found that the city did not act within 90 days of his offense and did not ask for an extension.
Stevens was fired in 2008, a year after the investigation was launched. He was found to have illegally searched a confidential police database for information about his former girlfriend's new boyfriend. Investigators also determined that he harassed or stalked his ex-girlfriend even after she sought a protection order against him, a fourth-degree felony.
No criminal charges were filed against Stevens. He has since become a homicide detective. Stevens did not respond to requests for comment.
Wilson said arbitrators overturn some terminations because administrators are heavy-handed with offenses such as insubordination or missing work.
"One of the big things an arbitrator will look at is the employee being treated differently than employees who committed the same infraction in the past," he said. "Has a person ever been warned or served notification of the consequences for their actions, because progressive discipline is a big factor, as well."
In other instances, no warning or progressive discipline is necessary.
Police Officer Donny Smith was fired in 2007 after he told a woman he would overlook her boyfriend's criminal warrant if she exposed her breasts, according to police records. The woman, an Ohio State student, obliged Smith's request.
She told her mother about the incident, and a complaint was filed with police.
Smith told supervisors that the woman voluntarily exposed her breasts to avoid her boyfriend's arrest.
An arbitrator ruled that Smith's actions were egregious enough to warrant termination despite his clean but short employment history.
Other times, the arbitrator upholds the termination because of previous disciplinary problems.
Firefighter Lloyd Spencer was fired in 2006 because officials believed he faked a back injury to block a job transfer, according to fire-division records. The arbitrator agreed with the termination because Spencer had gone AWOL 11 times from 2002 to 2005 and had been suspended for those instances.
Spencer could not be reached for comment.
Jack Reall, the president of the city's fire union, said a grievance panel decides which terminations the union will protest. He said he tells the panel to "take the face out of the discipline" and look at only the facts of the case.
"But I tell all new recruits that I didn't get you this job, and it's not my job to keep you here," he said. "It's my job to make sure you're treated equally and fairly, and beyond that, it depends on what you've done to deserve that discipline."
@DispatchSully
Copyright 2012 - The Columbus Dispatch, Ohio
