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Cuyahoga Metropolitan Housing Authority v. Fraternal Order of Police Ohio Labor Council, Inc.

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 22, 2018

CUYAHOGA METROPOLITAN HOUSING AUTHORITY PLAINTIFF-APPELLANT
v.
FRATERNAL ORDER OF POLICE OHIO LABOR COUNCIL, INC. DEFENDANT-APPELLEE

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-853632

          ATTORNEYS FOR APPELLANT Adrian D. Thompson Jennifer B. Orr Taft Stettinius & Hollister, L.L.P.

          ATTORNEY FOR APPELLEE Michael W. Piotrowski

          BEFORE: Keough, P.J., Kilbane, J., and McCormack, J.

          JOURNAL ENTRY AND OPINION

          KATHLEEN ANN KEOUGH, PRESIDING JUDGE

         {¶1} Plaintiff-appellant, Cuyahoga Metropolitan Housing Authority ("CMHA"), appeals from the judgment of the Cuyahoga County Common Pleas Court that affirmed an arbitrator's award reinstating Detective Robert Wohlheter ("Wohlheter") after he was terminated by CMHA for his conduct in an incident involving a suspected drug transaction, and for his conduct during the subsequent investigation of the incident. For the reasons that follow, we affirm the trial court's decision.

         I. The December 3, 2013 Incident

         {¶2} Wohlheter worked in the CMHA police department as a detective. On December 3, 2013, he and two other detectives, Robert Weis ("Weis") and Clinton Ovalle ("Ovalle"), were conducting "quality of life" patrols on Lakeview Estates, a CMHA property. As found by the arbitrator, the events leading to the instant grievance matter unfolded as follows.

         {¶3} While patrolling the CMHA property, the three officers observed what appeared to be a drug transaction between a man and a woman, later identified as Thomas Moore ("Moore") and Tamblyn Stanley ("Stanley"), respectively. The officers exited their vehicle to investigate the suspected drug transaction. Spotting the officers, Stanley began to walk away. Ovalle approached her while the other two officers approached Moore. While Ovalle searched Stanley, Weis and Wohlheter ordered Moore to the ground, handcuffed him, and conducted a pat-down search. They found a CMHA key in his possession but no drugs. Moore told the detectives the key belonged to his child's mother, who was a tenant in a CMHA apartment. The officers released Stanley, but decided to search the CMHA apartment for drugs. They placed Moore in the police vehicle and had him direct them to the apartment. As soon as they entered the apartment building, the officers detected the odor of marijuana and encountered another man who appeared to have been smoking marijuana. Ovalle stayed behind to investigate that man while Weis and Wohlheter continued to the apartment with Moore, who was still handcuffed.

         {¶4} Det. Weis used the seized key to open the door of the apartment. While Weis stood by the doorway with Moore, Wohlheter entered the apartment. As Weis testified later, Wohlheter searched the apartment; specifically, he searched the kitchen, refrigerator, freezer, cupboard cabinets above the refrigerator, and two cereal boxes. No drugs were found, however. Ovalle then arrived and also entered the apartment. He talked to Wohlheter and decided that they could not legally search the apartment. The two then exited the apartment. According to Weis's testimony, Wohlheter was in the apartment for about ten minutes.

          II. The Internal Investigation of the Incident

         {¶5} Stanley subsequently filed a complaint alleging that Ovalle used excessive force when searching her. Sergeants Gregory Drew ("Drew") and Paul Styles ("Styles") were assigned to investigate her complaint. As part of that investigation, they interviewed the three officers, Stanley, and Moore. The investigation revealed that the three detectives engaged in conduct that violated CMHA police department's policies and procedures. Drew found Wohlheter not only participated in the unlawful arrest and transportation of Moore from one location to another, but also unlawfully searched the apartment and then provided an untruthful account of the events during the subsequent investigation of the matter.

         {¶6} According to Drew, Wohlheter was deceptive and tried to cover up his actions during the investigation. Wohlheter initially misled the investigation by claiming Moore was not handcuffed and opened the apartment door himself, although Wohlheter later admitted in the predisciplinary hearing that it was Weis who opened the door. Wohlheter maintained he was in the apartment for only 10 to 12 seconds. He also denied searching the kitchen. These statements were directly inconsistent with both Weis's and Moore's accounts of the events, which indicated Moore was handcuffed the entire time and Wohlheter stayed in the apartment for about ten minutes and searched some items in the kitchen.

         {¶7} After a predisciplinary review, CMHA terminated Wohlheter on April 24, 2014. CMHA cited Wohlheter's violation of CMHA's rules and regulations, violation of Moore's civil rights, illegal search of the apartment, and dishonest conduct during the investigation. Ovalle was also terminated and Weis was given a 30-day suspension.[1]

          III. The Grievance and Arbitration

         {¶8} On April 30, 2014, on behalf of Wohlheter, the Fraternal Order of Police, Ohio Labor Council, Inc. ("the union") filed a grievance procedure pursuant to the Collective Bargaining Agreement ("CBA"). The union contended the termination was without just cause. The grievance was denied. The union then pursued arbitration on behalf of Wohlheter pursuant to the CBA.

         {¶9} The arbitrator conducted a two-day hearing. Before the arbitrator, the union argued that Wohlheter did not engage in any misconduct and he was not dishonest during the internal investigation. The union also argued CMHA engaged in disparate treatment - punishing Wohlheter more severely than Weis, who was a more senior officer and only received a 30-day suspension as opposed to Wohlheter's termination, and that it did not have just cause to terminate Wohlheter.

         {¶10} CMHA argued that Wohlheter was terminated for just cause - for the illegal arrest of Moore and illegal search of the apartment, and for his dishonesty during the investigation of the incident. CMHA argued that it was not required to impose progressive discipline because of Wohlheter's dishonesty during the investigation.

         IV. The Arbitrator's Decision

          {¶11} On August 4, 2015, the arbitrator issued a decision reinstating Wohlheter, with a substantial suspension (nearly 16 months) and denial of back-pay. The arbitrator found Wohlheter violated CMHA's rules and regulations in the prolonged detainment of Moore and the illegal search of the apartment. The arbitrator also found Wohlheter engaged in acts of dishonesty. But because of the difference in treatment of penalties between Wohlheter and Weis, and because of the mitigating evidence in Wohlheter's favor, the arbitrator ultimately concluded that termination was "too severe" and "not reasonable under the just cause provision of the CBA." The arbitrator reached this decision as follows.

         {¶12} Here, the arbitrator acknowledged CMHA Police Chief Andres Gonzalez's emphasis on Weis's honesty and recognized that, despite an initial lack of candor during Drew's interview of him, Weis eventually provided a truthful and complete account of the unlawful detention of Moore and search of the apartment. Weis's ultimate truthfulness enabled the CMHA police department in its investigation to ascertain the facts surrounding the incident. The arbitrator also noted Chief Gonzalez's emphasis on Weis's expression of remorse as an indication that he has learned a valuable lesson from the incident and could continue to be an asset to CMHA police department. And the arbitrator acknowledged Weis's contrite attitude both later during the investigation and at the arbitration hearing. But the arbitrator also remarked that, although eventually truthful, Weis initially attempted to hide the illegal detention and search as well, and he only became truthful when pressed further. Ultimately, although finding that Wohlheter's conduct during the incident was more egregious than Weis's conduct, the arbitrator believed the difference in the conduct did not justify the "level of difference in the penalty." The arbitrator acknowledged, however, that because Wohlheter's conduct was more severe, "a more severe penalty is justified." After considering mitigating factors, such as Wohlheter's work record, service time, and the gravity of the offenses, the arbitrator decided Wohlheter's penalty for his conduct should be a substantial suspension without pay instead of termination.

         {¶13} In reinstating Wohlhether, the arbitrator further acknowledged concern over public policy but stated that "there is no evidence in the record which indicates that there is 'an explicit, well-defined and dominant public policy' against the reinstatement of an officer who has engaged in the misconduct as outlined in the decision." See Arbitrator's Decision, page 29. Accordingly, the arbitrator ordered CMHA to modify the disciplinary action to a suspension from the date of termination to the date of reinstatement, without back pay or benefits.

         V. Trial Court's Decision

         {¶14} CMHA filed a motion to vacate the arbitrator's award with the trial court. The trial court denied CMHA's motion, stating that the arbitrator's decision to reinstate Wohlheter drew its essence from the CBA and did not violate public policy.

         {¶15} CMHA now appeals, raising as its sole assignment of error that the trial court erred by not vacating the report and award of the arbitrator pursuant to R.C. 2711.10(D) because the arbitration award is unlawful, arbitrary, and capricious and is against public policy.

         VI. Standard and Review Under R.C. 2711.10

          {¶16} "The public policy favoring arbitration requires that courts have only limited authority to vacate an arbitrator's award." Assn. of Cleveland Fire Fighters, Local 93 of the Internatl. Assn. of Fire Fighters v. Cleveland, 99 Ohio St.3d 476, 2003-Ohio-4278, 793 N.E.2d 484, ¶ 13.

         {¶17} Pursuant to R.C. 2711.10(D), the court of common pleas shall make an order vacating an arbitration award if "[t]he arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made." "Given the presumed validity of an arbitrator's award, a reviewing court's inquiry into whether the arbitrator exceeded his authority, within the meaning of R.C. 2711.10(D), is limited." Bd. of Edn. of ...


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