IN THE MATTER OF ARBITRATION BETWEEN

JASON HOLDING, GRIEVANT | OPINION AND AWARD ||

and | Termination Grievance of | Jason Holding, Grievant

| CITY OF FORT LAUDERDALE FLORIDA | Employer/City/Department |

| Award Dated: August 19, 2016

Date and Place of Hearing: June 13, 2016 continuing on June 14, 2016 Offices of the EmployerFort Lauderdale, Florida

Date of Receipt of Post Hearing Briefs: August 1, 2016

APPEARANCES

For the Grievant: Eugene G. Gibbons, Esq.Buschel Gibbons P.A.100 S.E. Third Avenue, Suite 1300Fort Lauderdale, Florida 33394

For the Employer: Eugene K. Pettis, Esq.Adrian J. Alvarez, Esq.Haliczer, Pettis & Schwamm, P.A.100 S.E. Third Avenue, Suite 700Fort Lauderdale, Florida 33394

ISSUE

Whether or not the City had cause to terminate the employment of Officer Jason Holding, and if not what shall the remedy be?

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WITNESSES TESTIFYING

Called by the City Called by the Grievant

Pricilla Perez, Atila Coss,Former Fiancée of Resigned Co-worker of Grievant Officer Alvarez While he was detailed at the

Blue Martini Lounge

Sgt. Francisco Bettencort, Perpetua MichelInternal Affairs Investigator Friend of GrievantFort Lauderdale Police Department

Major Karen Dietrich, Jason Samuel Holding, GrievantCommander, Internal Affairs Unit Police Officer [Discharged]Fort Lauderdale Police Department Fort Lauderdale Police Department

Lee Feldman,City ManagerCity of Fort Lauderdale

Timothy Lee Donnelly,Assistant State Attorney – 17th Judicial DistrictBroward County State Attorney’s OfficeTestified by Video Recording of Deposition taken on June 3, 2016

Franklin Charles Adderley,Chief of PoliceFort Lauderdale Police Department

JURISDICTION

The issue in grievance was submitted to James L. Reynolds as a sole arbitrator pursuant

to the provisions of the Collective Bargaining Agreement [Exhibit 14] between the

parties. The parties stipulated at the hearing that the grievance was properly before the

Arbitrator for a decision and that he was properly called. At the hearing the parties were

given full and complete opportunity to examine and cross-examine witnesses and present

their proofs. Final argument was provided through post hearing briefs submitted to the

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Arbitrator by each party. The briefs were received by the agreed upon deadline, and the

parties cross served their briefs to opposing counsel. With the receipt of the post hearing

briefs by the Arbitrator, the record in this matter was closed. The issue is now ready for

determination.

STATEMENT OF THE ISSUE

The issue to be resolved here is whether or not the employment of Officer Jason Holding

with the Fort Lauderdale Police Department was terminated for cause, and if not what

shall the remedy be? There was considerable discussion at the hearing and in the briefs

of the parties as to whether “cause” or “just cause” was the appropriate standard to be

applied here. Counsel for the Employer pointed out that at Article 15, Section 1 the

Collective Bargaining Agreement between the parties [Exhibit 14] provides for a

standard of “cause”, and that the Arbitrator is prohibited by the Collective Bargaining

Agreement at Article 43, Section 3.4 from modifying any of the terms of the Agreement.

Counsel for the Grievant argued that the “just cause” standard should be applied.

Research into whether there is a meaningful difference between the “cause” and “just

cause” standard produced the following guidance from the respected arbitration authority

How Arbitration Works, 7th Ed. Elkouri and Elkouri, 2012, BNA/ABA Section of Labor

and Employment Law, 15.2.A.ii:

“[I]t is common to include the right to suspend and discharge for ‘just cause’, ‘justifiable cause’, ‘obvious cause’, or quite commonly simply for cause’. There is no significant difference between these various phrases. These exclude discharge for mere whim or caprice. They are obviously intended to include those things for which employees have traditionally been fired. They include the traditional causes of discharge in the particular trade or industry, the practices which develop in the day-to-day relations of management and labor and most recently include the decisions

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of courts and arbitrators. They represent a growing body of ‘common law’ that may be regarded either as the latest development of the law of ‘master and servant’ or, perhaps, more properly as part of a new body of common law of ‘management and labor under collective bargaining agreements.’ They constitute the duties owed by employees to management and, in their correlative aspect, are part of the rights of management. They include such duties as honesty, punctuality, sobriety, or, conversely, the right to discharge for theft, repeated absence or lateness, destruction of company property, brawling and the like. Where they are not expressed in posted rules, they may very well be implied, provided they are applied in a uniform, non-discriminatory manner.” 1

1. Worthington Corp., 24LA 1, 6-7(McGoldrick, Sutton & Tribble, 1955).

The Employer argues here that the “just cause” standard is a more strenuous challenge for

an employer to meet, and involves the seven tests for just cause first described by the

noted arbitrator Carroll R. Daugherty in Enterprise Wire Company (46LA 363, 1966).

Those tests are 1) reasonable rules and orders, 2) notice, 3) investigation, 4) fairness of

the investigation, 5) proof, 6) equal treatment, and 7) fairness of the penalty. The

elements the Employer considers as “cause” for discipline were not, however, presented.

It is difficult to imagine that applying a “cause” standard would not embrace these same

elements of due process and fundamental fairness as are found in the usual application of

“just cause”.

Counsel for Grievant Holding points to a similar set of standards for determining whether

or not cause exists for applying discipline to a police officer found in The Rights of Law

Enforcement Officers by Will Aitchison (5th Ed., 2004, Labor Relations Information

Systems, pp89-91) as follows:

1. Have the charges against the officer been factually proven?

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2. Was the punishment imposed by the employer disproportionately severe under all the circumstances?3. Did the employer conduct a thorough investigation into the incident?4. Were other officers in engaged in conduct similar to that of the officer treated as harshly?5. Was the officer’s misconduct the product of action or inaction by the employer?6. Did the employer take into consideration the officer’s good or exemplary work history?7. Did the employer take into consideration mitigating circumstances?8. Was the officer subjected to progressive discipline?9. Was the employer motivated by anti-union bias?10. Are the employer’s rules clear and understandable?11. Is the officer likely to engage in similar misconduct in the future?12. Was the officer accorded procedural due process in the disciplinary process?

Whatever elements of cause are applied, an employer is burdened to show with at least a

preponderance of the evidence that an employee is shown to have actually committed the

offense he/she is charged with, and that discipline was applied in a manner proportional

to the seriousness of a proven offense and was consistent with discipline applied to

similarly situated employees.

This Arbitrator is well aware of and respects the usual limitations on arbitrable authority

specified in collective bargaining agreements. Here Article 43, Section 3.4 of the parties’

Collective Bargaining Agreement [Exhibit 14] prevents the arbitrator from modifying any

of the terms of the Agreement. Accordingly, the “cause” standard was applied.

RELEVANT PROVISIONS OF THE COLLLECTIVE BARGAINING AGREEMENT

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ARTICLE 14 - MANAGEMENT RIGHTS

Section 1. The Union agrees that the City has and will continue to retain, whether exercised or not, the right to operate and manage its affairs in all respects except as modified by other articles of this Agreement. The rights of the City, through its management officials, shall include but not be limited to the following:

* * * *

D. to set standard for service to be offered the public.

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G. To suspend, demote, discharge, or take other disciplinary action and impose sanctions for cause involving deficiencies in performance and/or deficiencies in conduct.

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M. To establish and revise or discontinue policies, practices, programs, or procedures, provided that the exercise of such right does not have the practical effect of violating specific terms of this Agreement.

* * * *

ARTICLE 15 – DISCIPLINE AND DISCHARGE

Section 1. Employees may be disciplined only for cause involving deficiencies in performance and/or deficiencies in conduct. When disciplinary action is taken, the affected employees shall be informed in writing either prior to or at the time the action is taken of (1) the reason for the discipline; (2) the penalty assessed and (3) the effective date of the penalty.

1. Written Reprimand2. Suspension/forfeiture of Time3. Demotion4. Discharge

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ARTICLE 43 - ARBITRATION

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* * * *

Section 3.4 The arbitrator shall have no power to change, amend, add to, subtract from or otherwise alter or supplement this Agreement or any part thereof or any amendment thereto.

* * * *

Section 4.0 This Agreement constitutes a contract between the parties which shall be interpreted and applied by the parties and the arbitrator in same manner as any other contract under the laws of the State of Florida. The function and purpose of the arbitrator is to determine disputed interpretations of terms actually found in the Agreement or to determine disputed facts upon which the application of the Agreement depends. The arbitrator, therefore, shall not have the authority to change the intent of the parties as determined by generally accepted rules of contact construction. The arbitrator shall not render any decision which, in practical or actual effect, modified, revises, detracts from, or adds to any of the terms or provisions of this Agreement.

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ARTICLE 50 – DEPARTMENTAL POLICIES RULES AND REGULATIONS

Section 1. It is agreed and understood that the Police Department currently has policies, rules and regulations governing employment. The Union agrees that such policy [sic], rules, and regulations shall be formulated amended, revised and implemented at the sole and exclusive discretion of the Police Chief, provided, however, that said formulation, amendment, revision, and implementation will be neither arbitrary nor capricious. …..

* * * *

In addition to the above cited contract provisions the City has promulgated certain Police

Department Policies and Rules which the Grievant was found to have violated. They

read in relevant part as follows:

Policy 118 – RULES OF CONDUCT [Exhibit 6]

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A. INTRODUCTION

Effective law enforcement depends upon a high degree of cooperation and respect from the public that is served. The Police Department is the most conspicuous representative of government and, as such, is a symbol of stability and authority upon which the citizens can rely. We must be constantly mindful that the people with whom an officer comes into contact are individuals with varying problems and emotions, but regardless of their circumstances they are entitled to fair and courteous treatment by Police Department employees. Proper conduct is not an additional duty imposed on employees, but is inherent in the police profession. Since any neglect of or divergence from this standard of conduct reflects unfavorably on the Department and fellow employees, it is incumbent on all personnel to conduct themselves in an exemplary manner, maintaining the highest standards of performance, efficiency, and competence, which the citizens of our community expect and deserve.

The Rules of Conduct contained in this manual are promulgated in addition to City of Fort Lauderdale Personnel Rules, an existing labor agreement, or both. They are adopted for the administration, management, discipline and disposition of employees of the Fort Lauderdale Police Department.

The Rules of Conduct of the Fort Lauderdale Police Department, including any subsequent additions, deletions, corrections, or modification are made applicable to all employees and volunteers of the Department, unless stated otherwise. In the event of a breach of these rules or the engagement in activities that constitute a conflict of interest, it shall be presumed that the employee or volunteer had knowledge of and was familiar with any rule, order, or directive of the Department. Violation any rules may result in disciplinary action. These Rules of Conduct supersede all other previous Rules of Conduct.

* * * *E. CONDUCT

* * * *12. Misconduct Defined: Any of the following, in addition to the foregoing and to the Personnel rules, may constitute misconduct:

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d. Engaging in conduct unbecoming a police officer/Police Department employee.

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h. Conduct prejudicial disruptive to the good order of the Department [sic].

* * * *Policy 118.1 – CODE OF ETHICS [Exhibit 7]

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A. POLICY

1. Law enforcement effectiveness requires that actions of public employees be impartial; …. and that the public have confidence in the integrity of the Police Department. The purpose of this Code is to establish ethical guidelines of conduct for all department employees by setting forth those acts or actions that are compatible with the best interest[s] of the City of Fort Lauderdale and its citizens.

2. The adoption of this Code of Ethics will, with cooperation, improve the attitude and practices of our employees; minimize injustice or the perception of injustice; and heighten public confidence in our local government, institutions, positions, and people. All members of the Fort Lauderdale Police Department are required to abide by this Code of Ethics.

B. CODE

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I will keep my private life unsullied as an example to all, maintain courageous calm in the face of danger, scorn, or ridicule; develop self-restraint; and be constantly mindful of the welfare of others. Honest in thought and deed in both my personal and official life, I will be exemplary in obeying the laws of the land and the regulations my department. …

In addition to accusing the Grievant of violating the above referenced Departmental

Rules the Employer charges him with violation of the “Officer Requirements for Ethical

Standards of Conduct” promulgated by the Florida Department of Law Enforcement.

Those standards were entered as Exhibit 20 and provide for the following relevant

principles as follows:

Principle One: Police officers shall conduct themselves, whether on or off duty, in accordance with the Constitution of the United States, the Florida Constitution, and all applicable laws, ordinances and rules enacted or established pursuant to legal authority.

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Principle Two: Police officers shall refrain from any conduct in an official capacity that detracts from the public's faith in the integrity of the criminal justice system.

Principle Three: Police officer shall perform their duties and apply the law impartially and without prejudice or discrimination.

Rules * * * *

3.2 Police officers shall not express, whether by act, omission or statement, prejudice concerning race color, creed, religion, national origin, sex, marital status, status with regard to public assistance, disability, sexual orientation or age.

* * * *

Principle Four: Police officers shall not, whether on or off duty, exhibit any conduct which discredits themselves or their Department or otherwise impairs their ability or that of other officers or the Department to provide law enforcement services to the community.

Principle Five: Police officers shall treat all members of the public courteously and with respect.

* * * *

FACTUAL BACKGROUND

The Employer is a municipal corporation chartered under the laws of the State of Florida.

Among its other functions it provides police services to the residents and visitors to the

City of Fort Lauderdale. Officer Holding was not represented by the Fraternal Order of

Police [FOP] in this proceeding, although the Collective Bargaining Agreement between

the City and the FOP was regarded by the Grievant and the City as controlling.

Officer Holding was hired by the City on January 24, 2012. At the time of the

termination of his employment he was a Patrol Officer in District Two of the Police

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Department. During his tenure he received six commendations [Exhibit 15] and was

utilized in the evaluation process of the vehicle towing service companies used by the

City. He was suspended for two days on December 23, 2014 for improperly

documenting an arrestee’s personal property.

While employed by the City of Fort Lauderdale Officer Holding participated in text

message chats with Officers Alex Alvarez, Christopher Sousa and James Wells. Officer

Alvarez’s fiancée at the time was Pricilla Perez. Ms. Perez testified without challenge

that she and Officer Alvarez openly shared the content of their cell phones, including the

record of text messages that ultimately became the crucial piece of evidence in this case.

Ms. Perez and Officer Alvarez were living together and were engaged to be married.

That relationship was ended, however, after eight months of their engagement. Ms. Perez

testified in this proceeding that she became concerned about the comments she found on

Officer Alvarez’s cell phone that showed officers had made racist remarks during their

text messages. She took “screen shots” of the text messages exchanged among the

officers, and forwarded them to her mother’s cell phone for safekeeping. After the

engagement was broken off, Ms. Perez forwarded the text message “screen shots” from

her mother’s cell phone to Chief of Police Adderley on October 16, 2014 [Exhibit 1]. In

her accompanying email message [sent under the name of Hilary Gonzalez] Ms. Perez

stated that the text messages were obtained from Officer Alvarez’s phone, and included

“racist conversations between Officers Alex Alvarez, James Wells and Jason Holding”.

Ms. Perez “strongly encouraged” Chief Adderley to look into the matter, and stated that

the “information has not been sent to the media yet”.

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Chief Adderley was not able to open the screen shots that Ms. Perez referred to in her

email message. He directed the Internal Affairs Office to contact Ms. Perez and request

that she bring the phone to the Police Department where its contents could be examined.

On October 17, 2014 Ms. Perez signed a consent form [Exhibit 2] authorizing the Fort

Lauderdale Police Department to conduct a search of the cell phone which was shown to

contain the screen shots of the text messages involved here . That same day, October 17,

2014 Officer Holding was advised by Internal Affairs Office Commander Dietrich that

Internal Affairs was conducting an investigation into an allegation of misconduct, and he

was ordered to have no contact with Ms. Perez. Officer Holding testified in this

proceeding that he had no prior knowledge of Ms. Perez.

Upon receiving Ms. Perez’s email message and eventually retrieving the screen shots of

the text messages, an Internal Affairs investigation was begun. The screen shots of the

text messages described by Ms. Perez [Exhibits 9 and 10] included text messages using

racially inflammatory words and a highly racist video produced by Officer Alvarez The

video credited Officer Holding and other officers with its production [Exhibit 21]. At the

arbitration hearing Officer Holding testified without challenge that he was not involved in

the production of the video. Moreover, he testified that he sent a text message to Mr.

Alvarez describing his disapproval and cautioning him that there could be trouble if the

video was viewed outside of the text messaging group of officers.

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On November 20, 2014 Officer Holding was notified that he was relieved of duty with

pay, and on January 9, 2015 he was notified [Exhibit 5] that he was being investigated

regarding allegations that he violated the following sections of the Fort Lauderdale Police

Department Policy and Procedure Manual:

1. 118 E 12 (d) “Engaging in conduct unbecoming a police officer/employee”.

2. 118 E 12 (j) “Conduct prejudicial to the good order of the Department”.

In January 2015 the Internal Affairs Unit conducted interviews of Officers Holding,

Sousa and Wells [Exhibits 11, 12, 13].

On March 18, 2015 Major Dietrich reported the findings of the IA investigation. That

report stated the following: “the evidence and testimony in this case supports the charge

of ‘Conduct Unbecoming an Officer’ on Alvarez, Wells, Holding and Sousa”. It also

concluded that “the charge of ‘Engaging in Conduct Prejudicial to the Good Order of the

Department’ on all four officers is also sustained” [Exhibit 4]. Upon completion of the

Internal Affairs investigation, the case file and findings were reported to Chief of Police

Adderley, who affirmed the conclusions and recommendations. The report was then

reviewed by City Manager Lee Feldman, who made the final decision to terminate the

employment of Officer Holding. On March 20, 2015 Officer Holding was notified

[Exhibit 3] that he was being suspended and dismissed from City employment as a Police

Officer. His termination was effective on April 17, 2015.

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Prior to the completion and release of the Internal Affairs investigation the media became

aware of the investigation and in particular that it involved alleged racist conduct in the

Police Department. The media was vigorously inquiring about the case prior to the

investigation being completed. The Department held back releasing information about

the case until its investigation was completed and Officer Holding was notified of his

termination on March 20, 2015. Major Dietrich testified in this proceeding that some

information about the investigation had leaked out to the community and within the

Police Department. She went on to testify that there was considerable unrest in the

Department due to the rumors that were circulating about the case. Upon completion of

the investigation briefings with supervisors and all officers in the Department were held

and the evidence accumulated during the investigation was laid out to them. Fearing

community unrest the Department also elected to brief community leaders and hold a

press conference to show the evidence it had obtained during the investigation. That

press conference took place on March 20, 2015, the same day that Mr. Holding was

notified of his termination. Additionally, meetings were held with community leaders to

ensure they were aware of the facts, and to quell the prospects of any civil unrest.

Assistant State Attorney Donnelly first heard of the case at the press conference. Upon

learning of the case he directed the Assistant State Attorneys in the Broward State

Attorney’s Office to review the impact the case may have on filed criminal cases. As a

result several felony and misdemeanor cases were dropped. Officer Holding was placed

on the “Brady List” which disclosed to defense attorneys that “Officer Jason Holding’s

employment was terminated by the Fort Lauderdale Police Department after an Internal

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Affairs Investigation determined that he had engaged in conduct prejudicial to good order

of the department and conduct unbecoming a police officer” [Exhibit 17].

The conduct of the four officers involved in this case was referred to the Criminal Justice

Standards and Training Commission for review related to their license to serve as sworn

police officers. The Commission subsequently advised Chief Adderley that it was taking

no action related to the officer’s licenses. It found that “while the video and many of the

conversations outlined in the materials among the officers that your agency provided

were reprehensible and disturbing, the material failed to evidence a cognizable violation

that the Commission can legally charge. Similarly, the fact that the Office of the State

Attorney chose to drop several criminal cases, in which those officers were witnesses, is

not, by itself, an enumerated officer standards violation. Again the Commission has no

legal authority to ‘make an exception’, no matter how egregious the conduct in question

may be. …” [Exhibit 27].

Officer Holding appealed his termination and it was processed to arbitration. It was

heard on June 13 and 14, 2016.

POSITION OF THE PARTIES

Position of the Employer

The City maintains that it had cause to discharge Officer Holding and that the termination

of his employment should be upheld and his grievance denied. In support of that position

it offers the following arguments:

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1. The Collective Bargaining Agreement allows the City to discipline or terminate employees for “cause”. That is the standard specified in the Collective Bargaining Agreement, and the Arbitrator is without power to apply the “just cause” standard as suggested by counsel for Officer Holding.

2. The City’s policies authorize discipline where, among other things, an officer engages in conduct that is prejudicial to the good order of the Police Department or where an officer engages in conduct that is unbecoming to a police officer. All City policies are based upon the Florida Department of Law Enforcement standards and core principles. Within those principles FDLE policy 3.2 clearly states that “[p]olice officers shall not express, whether by act, omission or statement, prejudice concerning race color, creed, religion, national origin, sex, marital status, status with regard to public assistance, disability, sexual orientation or age.”

3. The City’s Rules of Conduct set forth in Policy 118 put all officers on notice that any “neglect of or divergence from” prescribed conduct reflects unfavorably upon the Department, and may result in disciplinary action. Importantly, the Policy requires all officers to be familiar with all rules, order and directives of the Department.

4. The City’s related Code of Ethics [Policy 118.1] provides ethical guidelines that require officers to, among other things, be impartial, maintain the confidence of the public they serve, and engage in conduct that is in the best interest of the City of Fort Lauderdale and its citizens.

5. Officer Holding agreed to keep his private life unsullied, and acknowledged that his position as a police officer was one of public faith and trust. It is imperative that police officers, whether on or off duty conduct themselves in a manner consistent with integrity, trustworthiness and confidence. Officer Holding violated those principles.

6. Officer Holding’s conduct was unbecoming that of a police officer. His derogatory use of the “N” word is not acceptable in any context by a police officer whether on duty or off duty. Police officers are held to high standards, and the use of that word in street culture or rap music does not make it acceptable for use by police officers.

7. Officer Holding agreed to abide by the Department’s principles and guidelines, yet the evidence submitted supports the fact that he violated them. He acknowledged that police officers are held to a higher standard and that he violated those standards.

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8. Officer Holding attempted to minimize the impact of the derogatory and racist words by stating that they were ‘immature talk’ and ‘joking’ among friends. He stated that he did not intend for them to be considered racially derogatory, and that he was desensitized to using the “N” word. He went on to state that he used the word to mean a “bad guy” or “criminal”, or a “dude or something like that”, and was not ascribing any specific gender or race to the word. Officer Holding admitted that his repeated use of the “N” word was inappropriate and in bad taste and exhibited a pattern of derogatory, racist behavior for which he took “full responsibility”.

9. Officer Holding maintained that he found Officer Alvarez’s racist video to be offensive, but his concern was only that if it got into the wrong hands the joking nature of it may not be understood. That implies that he believed that if it stayed within the group of texting officers it would be okay. Officer Holding should have stepped forward and reported the video as violating Policy 118. His failure to do so supports the charge of conduct unbecoming a police officer.

10. Officer Holding also made derogatory comments maligning and insulting his co-workers.

11. Officer’s Holding’s conduct is prejudicial to the good order of the City of Fort Lauderdale’s Police Department. It impacts both the City and the community. The offensive, racial and violent nature of Officer Holding’s text messages shed a negative light on the City and impacted both the Police Department and the community. Those comments could lead to civil unrest.

12. Information regarding an Internal Affairs investigation involving racial bias immediately caused turmoil with the Police Department and crated a racial divide amongst its officers.

13. As a result of his conduct Officer Holding was no longer able to fulfill the critical duties and responsibilities of a police officer. He could no longer fulfill his responsibility to testify as an officer in court. His participation in the text messages could be perceived as being biased against the African-American community in District 2 where he was assigned. The State Attorney’s actions in dropping several potential prosecutions and placing Officer Holding permanently on the Brady list confirmed the City’s fears that his conduct would greatly impact his ability to continue to perform his duties.

14. Termination was appropriate where Officer Holding’s evidence of similarly situated employees were not true comparators. None of the other employees cited by Officer Holding showed the level of violence or

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threats that Holding’s texts included, nor did they deal directly with the very people in the community that they had given the oath of office to protect and serve. Likewise the derogatory comments of the other employees were not made on a continuing basis as was the case with Officer Holding.

15. Officer Holding had no expectation of privacy with regard to the text messages, so it was appropriate for the City to obtain and utilize them for disciplinary purposes. There has been no governmental intrusion. Ms. Perez provided the City with copies of the text messages prior to voluntarily meeting with the Internal Affairs Detectives and providing them with access to her mother’s phone. Additionally, Officer Holding had no expectation of privacy with regard to messages on someone else’s phone. He did not own those phones and he cannot claim a right to privacy with regard to the information on them. Further, Officer Holding had no reasonable expectation of privacy with regard to the text messages he sent to others. Essentially, once the communication is sent, the sender’s expectation of privacy ends.

16. Chapter 934 of the Florida Statutes does not apply here. There was no illegal interception of the text messages. Ms. Perez did not illegally obtain the messages and voluntarily provided them to the Department. It is not disputed that she had full access to Officer Alvarez’s phone, and had permission to look at the messages therein. Absent any expectation of privacy, or any “illegal” interception of the messages, it was, and is, appropriate for the City to rely on them.

17. Officer Holding’s use of the “N” word is not protected speech under the First Amendment of the United States Constitution. His speech was not a matter of public concern, and making it known to the public does not make it so.

18. Even if Officer Holding’s speech is considered a matter of public concern, his termination was still appropriate. His free speech interests do not outweigh the efficiency interests of the City. The Pickering balancing test tips in favor of the City. The government, as an employer, has a legitimate interest in limiting certain employee speech for the purpose of promoting harmonious relationships among its employees.

19. Based on a preponderance of the evidence, the City had cause to terminate the employment of Officer Holding and that termination should be upheld.

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Position of the Grievant

It is the position of Officer Holding that the City’s termination of his employment was

not for cause; it should be overturned and his grievance upheld. He should be

immediately reinstated to his position as a Police Officer in the City of Fort Lauderdale,

and a lesser form of discipline should be instituted. The principles of just cause support

such an adjustment. In support of that position the following arguments were offered:

1. There is no meaningful difference between the “cause” and “just cause” standards for applying discipline. Just cause for discipline requires that the discipline be fair and appropriate under all the circumstances. Elements of just cause include the following, all of which are separate inquiries:

1. Have the charges against the officer been factually proven?2. Was the punishment imposed by the employer disproportionately severe under all the circumstances?3. Did the employer conduct a thorough investigation into the incident?4. Were other officers in engaged in conduct similar to that of the officer treated as harshly?5. Was the officer’s misconduct the product of action or inaction by the employer?6. Did the employer take into consideration the officer’s good or exemplary work history?7. Did the employer take into consideration mitigating circumstances?8. Was the officer subjected to progressive discipline?9. Was the employer motivated by anti-union bias?10. Are the employer’s rules clear and understandable?11. Is the officer likely to engage in similar misconduct in the future?12. Was the officer accorded procedural due process in the disciplinary process?

If any of these elements are not met by the City an arbitrator is compelled to reverse or mitigate disciplinary actions imposed. The record shows that the City has failed to meet all of these elements.

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2. The investigation and disciplinary process was not fair. All the officers involved were grouped together into one Internal Affairs investigation. Each officer’s involvement should have been considered separately.

3. The City imputed the video produced by Officer Alvarez to Officer Holding, thereby poisoning the fairness of the investigation and causing a prejudicial effect as to the appropriate level of discipline. Moreover, the City considered the video as evidence against Officer Holding in determining his discipline. Prior to making his final determination of discipline, City Manager Feldman was not advised that Officer Holding had no role in the production of the video. Mr. Feldman did not review the entire IA case file.

4. The City imputed the inappropriate text messages of other officers to Officer Holding. That is unfair and extremely prejudicial. Officer Holding’s due process rights were violated as related to his actual involvement in the text messaging. He did not even reply to many of the text messages, yet the City imputed the thoughts in those messages to him.

5. The text messages supplied by Ms. Perez were not placed in their proper context by the City. The City concluded that Officer Holding was a racist without understanding the context of the messages and his intent in making them. City investigators projected their own subjective view of bias into the text messages by reading into them an unintended meaning.

6. Officer Holding’s use of the term “14 Pointer” was misinterpreted by Internal Affairs to mean a large black man, and not a large deer as intended. Ms. Perez incorrectly stated that the picture of a black man with a gold teeth “grill” was a doctored picture of President Obama as contained in the Alvarez video. That is not the case.

7. The text messages introduced into evidence are not in any logical order do not accurately depict the nature of the texting conversation among the officers.

8. Officer Holding was referring to an inside joke when he used the phrase “I’d have the noose ready”. He was referring to the fact that he had been involved in three auto crashes in the past year and that the noose was for him.

9. Officer Holding was referring to Officer Wells when he used the phrase “crazy nigger” and was meant as slang for crazy “dude”. The “N” word was not used in a hateful or racist way. It is also important to note that the texting conversation took place while Officer Holding was not on duty.

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10. Officer Holding’s use of the phrase “If that’s true, I’ll kiss your ass, I want those niggers” in the course of a texting conversation with Officer Wells shows that Officer Wells was not offended by the “N” word and that he had used the word earlier in the conversation. Moreover, it shows that Officer Holding was influenced by Officer Wells’ use of the term.

11. Officer Holding’s use of the phrase “wet dream” in connection with other officers finding two black men and giving them the death penalty on the spot is merely a gross and vulgar attempt at humor and shows his frustration toward the VW occupants who escaped from apprehension.

12. Officer Holding’s occasional use of the “N” word was not intended to malign an entire race. He is a fine young man and not a violent racist as portrayed by the City. There are no complaints of mistreatment against him. No discipline and no allegations of excessive use of force have been lodged against him. His girl-friend, who is black, testified that he is a man of good character. The officers involved in this case were just trying to “fit in” to the culture of the Fort Lauderdale Police Department, as suggested by Chief Adderley.

13. Officer Holding is and was apologetic and remorseful and has learned a valuable lesson and will not repeat his conduct. His inappropriate and unprofessional use of the “N” word reasonably warrants some lower level of discipline.

14. The reasons for Officer Holding’s termination as expressed in his notice of termination did not refer to the cancellation of his pending cases or his ability to testify in future court cases. Those assertions came up after he was terminated. Similarly, the assertion that he violated the Florida Department of Law Enforcement/Criminal Justice Standards and Training Commission ethics standards came up after he was terminated. He was denied his due process rights in defending against those charges.

15. Prior to Officer Holding’s termination State’s Attorney Satz did not have a conversation with Chief Adderley relating to Officer Holding’s cases being dropped and that he would be placed on the Brady list. Chief Adderley’s testimony that such a prior conversation occurred is simply not true. Officer Holding was not placed on the Brady list by Assistant State’s Attorney Donnelley until July 8, 2015, well after his termination. Moreover, Mr. Donnelley did not know about the case until the press conference related to it.

16. Placement on the Brady list is not, in and of itself, a reason to terminate Officer Holding’s employment. Indeed, the State Attorney’s Office is not the deciding authority regarding his employment; the City of Fort Lauderdale is. It is important to note that the vast majority of

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criminal cases are settled without going to trial. Moreover, any question of Officer Holding’s credibility during his testimony in such cases is a matter for a Judge or jury to consider. Placement on the Brady list does not prevent him from testifying.

17. Officer Holding was afforded disparate treatment. He was treated more harshly than Officers Felderwert, Wilson and Smith. Officer Felderwert received only a ten day suspension for conduct that was arguably more egregious than that of Officer Holding. Officer Felderwert continues to be a Fort Lauderdale police officer. He was placed on the Brady list, but continues to give testimony in court.

18. The City’s concern about the public perception of this case should not determine the level of discipline to be imposed. Discipline should be imposed based on fairness and justice. The City threw Officer Holding to the media wolves with the meat of the Alvarez video and the text messages from the other officers. Officer Holding’s text messages were made to fellow officers while he was off duty. They were not disseminated to the public by him.

19. Officer Holding’s discipline was excessive and clearly influenced by political and community pressure. He accepts responsibility and does not seek to escape disciplinary action. He simply wants and deserves that discipline be progressive, reasonable, fair and appropriate. That requires that the City follow the discipline issued in similar cases where officers were given less discipline. Officer Holding should be reinstated so that he may serve as a mentor and example to his fellow officers.

ANALYSIS OF THE EVIDENCE

The controlling contract language is found in Article 14 of the Collective Bargaining

Agreement. That Article provides that the City must show cause for discipline imposed.

The City argued that “cause” was the appropriate standard to be applied, while counsel

for the Grievant argued that “just cause” was the appropriate standard. While the City

asserted that “just cause” was a more demanding standard, involving the frequently cited

seven tests for just cause attributed to Arbitrator Daugherty in Enterprise Wire Company

(46LA 363, 1966) it did not articulate what the elements of the cause standard would be.

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The issue of the standard to be applied was discussed supra and further consideration of

that issue is not necessary here. Suffice it to say that either standard will require an

employer to show with at least a preponderance of the evidence that a disciplined

employee is guilty of the offense he/she is charged with committing; that the discipline

imposed is proportional to the seriousness of the offense, and disparate treatment is not

shown.

Here the Grievant is charged with violating Fort Lauderdale Police Department Policy

118. In particular he is charged with conduct unbecoming a police officer and conduct

prejudicial to the good order of the Department.

These charges arose following disclosure of a series of text messages exchanged among

Officers Alvarez, Holding, Sousa and Wells. It is not disputed that Officer Alvarez’s

fiancée at the time, Pricilla Perez, had consensual free access to Officer Alvarez’s cell

phone while they were engaged to be married. Ms. Perez testified that she saw the text

messages on Officer Alvarez’s phone and became concerned about the racist nature of

some of them. When their engagement ended Ms. Perez took screen shots of the text

messages she found troubling and transferred those screen shots to her mother’s phone.

She subsequently provided them to the Department.

At the hearing and in its post hearing brief the City went to considerable effort to show

that it had obtained the text messages legally, and that there was no violation of Officer

Holding’s Constitutional rights, and that the text messages were not protected speech.

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The role of a labor arbitrator, as here, is not to determine matters of constitutional law,

but to apply the terms of the Collective Bargaining Agreement to the facts adduced at the

hearing. That said, the facts of the case involve the City obtaining the text messages and

the Alvarez video. Accordingly, careful consideration was given to whether the text

messages, including the Alvarez video were obtained improperly; that Officer Holding

had a reasonable basis for believing that they would be kept private or that they are

protected forms of his free speech. The arguments raised by the City are convincing that

the text messages and video were obtained properly, and that Officer Holding did not

have a reasonable expectation that they would be kept private. Additionally, the City has

shown that the utterances of Officer Holding in the text messages he wrote are not

protected forms of free speech.

There can be no doubt that rules prohibiting conduct unbecoming a police officer are

reasonable and appropriate for the Department to enforce. It is not disputed that police

officers are held to a higher standard of conduct than other professionals. Officer

Holding does not dispute that. Of course, the primary duty of police officers is that of

law enforcement. As such they are often the first to be involved in actions that could

result in depriving citizens of their freedom. That is a formidable responsibility. In order

to effectively discharge their responsibilities police officers must have the respect of the

community they serve. That requires that they adhere to high standards of conduct in

both their private and professional lives. To provide guidance to that end the Department

and the FDLE/CJSTC have promulgated rules of conduct that apply here. There is no

evidence that these rules were recently enacted, or that there was some other reason that

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Officer Holding would not have been aware of them. Indeed, he made no claim of being

unaware of the rules he is accused of violating in this case.

When the Department became aware of the text messages and Officer Alvarez’s video, it

initiated an Internal Affairs investigation. The IA Detectives obtained Ms. Perez’s

consent to examine her mother’s phone where the screen shots were stored. Officer

Holding was placed on paid administrative leave pending the results of the investigation.

On January 9, 2015 he was notified that he was being investigated on charges of

engaging in conduct unbecoming an officer, and conduct prejudicial to the good order of

the Department. In the course of the investigation Officer Holding and the other officers

were interviewed. The record of those interviews shows they were given an opportunity

to tell their side of the story.

During the investigation information about the case began to leak out within the

Department and out to the community. That caused dissention within the Department

and serious concern in the community that some Fort Lauderdale police officers were

racists. To its credit the Department did not release any findings until the investigation

was complete. Upon completion of the investigation the findings were reviewed by Chief

Adderley who recommended termination of the officers involved, including Officer

Holding. That recommendation was reviewed by City Manager Feldman who concurred.

Officer Holding was notified on March 20, 2015 that he was suspended and his

employment would be terminated effective April 17, 2015.

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The record of this proceeding does not show that the City rushed to judgment despite

public pressure to do so. The Grievant argues persuasively that application of discipline

must be done in a fair and just manner and not influenced by partially informed public

opinion. The City did not challenge that perspective. Fair and just application of

discipline is an important point, and was carefully considered here. That consideration

compels a finding that Officer Holding was not terminated simply to satisfy public

outcry. The investigation was done, and its findings reviewed by two levels of senior

management in the City who concurred. There is simply no showing that Officer

Holding was “fed to the media wolves” in order to placate community and political

pressures on the Department. There is no doubt that there was considerable public

interest in this case, and the media pursued it with great vigor, as they should. That said,

there is no evidence that the City acted arbitrarily or capriciously in order to satisfy the

public interest.

The screen shots of the text messages and the video produced by Officer Alvarez is the

primary evidence necessary to demonstrate the guilt or innocence of Officer Holding.

Dealing first with the video, Officer Holding testified convincingly, and without

challenge that he had no role in the production of the video. There is no doubt that the

video is highly racist in nature. It shows credit given to Officer Holding and others at the

end of the video, but that is not sufficient to convince a reasonable person that Officer

Holding was involved in any way with its production. Officer Holding and others were

work associates of Officer Alvarez, but there was no evidence that they collaborated in

the production of the video. The City has not presented evidence to show that Officer

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Holding was involved in producing the video. Accordingly, his testimony must be

credited regarding his non-involvement in its production. Officer Alvarez was not

present to testify as to who if anyone, assisted in the production of the video. It is noted

that Officer Alvarez resigned after the text messages and video where made available to

the Department.

Counsel for the Grievant argued that the City imputed Officer Holding in the production

of the video and that biased their perspective of the evidence. A reasonable person

viewing the inflammatory video may indeed, have been biased in evaluating the other

evidence against the Grievant. The record of this hearing, however, shows that there is

not sufficient evidence that Officer Holding was actually involved in the production of

the video. Accordingly, his involvement in producing it is dismissed.

The record does show however, that Officer Holding had viewed the video and actually

expressed concern over its content to Officer Alvarez. Expression of concern to the

producer of the video is not sufficient to meet the ethical and conduct standards he is held

to as a police officer. The blatantly racist nature of the video required that he go further,

and report it to his superiors. Understandably, that would have been difficult for an

officer trying to “fit in” with his colleagues. Notwithstanding his understandable

reluctance to do so, he was compelled to do so. In and by itself, however, Officer

Holding’s failure to report the video would not rise to the level of a dischargeable

offense. Taken together with the text messages, however, his conduct is very troubling.

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The 51 text messages in Exhibit 9 comprise the most damming evidence against Officer

Holding. It is noted, however, that it appears from the record that he responded to only

17 of them. His text messages that are of greatest concern are found in the following nine

screen shots: 1605, 1608, 1623, 1624, 1626, 1628, 1629, 1630, and 1633. On these

screen shots the record evidence clearly shows a racial response from Officer Holding.

On other screen shots racial comments are made, but either there is no response from

Officer Holding or Officer Holding testified that he did not make the comment or send

the image involved in the screen shot. He is afforded the benefit of doubt in regard to

those messages.

Accordingly, analysis is focused on nine screen shots where the most inflammatory

comments were made or racial photos were posted that can be clearly attributed to

Officer Holding. Where the disparaging term “nigger” is used in the text messages by the

officers involved it is shown without using the redacted “N” word in the analysis table

below in order to show the actual term used by the officers. The explanations Officer

Holding offered regarding the messages/images in the texts is shown in the table below:

Screen Shot Nature of Message/Image Officer Holding’s Explanation

1605 Image of a black man on a box of Found image on the internetShotgun shells. Officer Holding Believed it to be funny.writes: “The buck stops here”.

1608 Officer Holding writes “14 pointer 14 pointer referred only to a in VIP tonight, followed by an large male and did not referimage of a black man with gold to a black or white man. The“grill” teeth. term “14 pointer” referred to

Officer Holding’s interest in hunting.

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1623/1624 Officer Holding critical of other He was complaining about theOfficers who did not work in the work ethic of other officers.“hood”. He describes them as“lazy fucks”.

1626 Asked what his reaction would be Replies that he would have theif his personal vehicle was hit by noose ready. Testified that hecriminals. Would prepare the noose for

for himself because he had 3 previous accidents.

1628 Officer Holding responds: “crazy Testified that he meant he nigger" words to mean only a “crazy

dude”.

1629 Officer Wells wrote upon Testified that his use of theapprehending: “Niggers hit 3 word “nigger” was meant tocars and crashed and bailed”. mean any bad guy.Officer Holding responds:“…If that is true I’ll kiss yourass – I want those niggers”.

1630 Officer Holding writes: “I ‘bout Testified that he waskilled a man on 2 street boys”. exaggerating.

1633 Officer Holding responds to other Officer Holding testified that he officers: “I had a wet dream that was only embellishing and you two found those two niggers blowing off steam after a in the VW and gave them the vehicle took off after he had death penalty on the spot”. stopped it.

A reasonable person examining the inflammatory nature of the text messages and Officer

Holding’s explanations would conclude that his explanations are simply not plausible,

and they do not rise to the level that would excuse his conduct. Officer Holding testified

that he did not intend his comments to be racist or disparaging of anyone. The fact is

however, some of his comments were clearly racist and his intentions do not provide any

other meaning.

The record shows that Internal Affairs and this proceeding for that matter could not

discern the proper order and context of the text messages in the conversations among the

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officers. Because the order and context could not be accurately determined counsel for

Officer Holding argued that the innocent intent of Officer Holding was not made known.

That argument fails inasmuch as derogatory words within each message are reasonably

seen as racist in nature. It is not necessary to establish any further context for such

words. They speak loudly and disparagingly for themselves.

Officer Holding earnestly testified that he was not a racist. His testimony in that regard is

believable, but does not lead to a finding that his conduct in participating in the text

messages or his failure to report the Alvarez video is excusable. His comments were

racially offensive, and some were demeaning to members of the Department. His

conduct was clearly unbecoming that of a police officer and the record shows that it was

prejudicial to the good order of the Department. It is not likely that he would repeat his

misconduct, but a cloud over him would persist that would hamper his effectiveness as a

police officer in the City of Fort Lauderdale.

Officer Holding appears to have made his inappropriate comments in an attempt to fit in

with other officers by using the same unsavory language they did. His testimony that he

did not intend for his comments to be considered racist is simply not availing. What

matters is that a reasonable person seeing or hearing those comments would regard them

as racist and unbecoming a police officer. Officer Holding testified that the video and

text messages were made in a joking manner. No humor is seen in them.

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The City argues that Officer Holding could not continue to function as a police officer in

Broward County because he was placed on the Brady list that would disclose the charges

against him to attorneys defending individuals who he had arrested. Officer Holding’s

counsel argues persuasively that being placed on the Brady list is not necessarily an end

to a police officer’s ability to function. Indeed the case of Officer Felderwert was cited

as an officer who is on the Brady list and still functions as a Fort Lauderdale police

officer. Considerable deference must be given, however, to the judgment of prosecutors

in regard to whether a case where Officer Holding was a key witness could be

successfully prosecuted. These observations compel a finding that cause for the

termination of Officer Holding cannot be based simply on the fact that he was placed on

the Brady list. That said, by being placed on the Brady list the good order of the

Department was prejudiced by his conduct. What fundamentally matters here is the issue

of Officer Holding’s conduct as reasonably viewed by the Department and ultimately by

the community. Through that perspective the record supports a finding that Officer

Holding’s termination was for cause.

The record of this proceeding was carefully examined for disparate treatment of Officer

Holding. The three officers cited as comparators do not appear from the evidence to be

similarly situated. Officer Holding’s conduct was not a single episode as was that of

Officer Felderwert. The cases of Officers Wilson and Smith similarly do not provide a

showing of disparate treatment of Officer Holding. It is noted that in his responses to text

messages received Officer Holding used threatening or violent language toward black

people. Similar language is not shown to have been used by the comparators cited.

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A finding of cause for discipline requires that the penalty imposed is proportional to the

seriousness of the offense committed. Here Officer Holding joined with others in

conduct that had serious repercussions in the community. Counsel for Officer Holding

appropriately argued that discipline is not to be determined in the media or by a partially

informed public. It was correctly pointed out that discipline must be based on fairness

and justice. The entirety of the record here, however, compels a finding that termination

of Officer Holding’s employment with the Fort Lauderdale Police Department was a fair

and just penalty given all the circumstances present.

Unless a collective bargaining agreement specifically limits the authority of an arbitrator

to modify the level of discipline imposed on an employee, arbitrators generally have the

power to do so. Here the Collective Bargaining Agreement of the parties does not

impose such a limitation on the arbitrator’s authority. Modification by an arbitrator of a

penalty imposed by management after a fair investigation showed an employee to have

committed the acts he/she is charged with doing would not be undertaken lightly,

however. The penalty must be appropriate given all the facts in evidence, including the

impact of the offense on the efficiency of the operations of the employer, the tenure of

the employee, any prior discipline issued to the employee, and how the employee was

disciplined compared to other employees. Here, there is a convincing showing that the

conduct of Officer Holding had a disturbing effect on the trust the community placed in

police officers and the Police Department. The relatively brief tenure of Officer Holding

with the Fort Lauderdale Police Department showed that he received several

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commendations and good performances evaluations. As discussed supra, the record does

not show that he was afforded disparate treatment compared to similarly situated

employees. In total, the fairness balance between the legitimate interests of the City and

those of Officer Holding compel a finding that the termination of his employment was

appropriate discipline. Accordingly, this Arbitrator is without authority to overturn it.

This case was thoroughly and competently presented by counsel for both parties. Their

post hearing briefs were thoughtful and well argued. This arbitrator greatly appreciates

the assistance provided.

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IN THE MATTER OF ARBITRATION BETWEEN

JASON HOLDING, GRIEVANT | OPINION AND AWARD ||

and | Termination Grievance of | Jason Holding, Grievant

| CITY OF FORT LAUDERDALE FLORIDA | Employer/City/Department |

The termination of the employment of Officer Jason Holding was for cause and is upheld. The grievance and all remedies requested are denied.

August 19, 2016 James L. ReynoldsDated:___________________________ _______________________________

James L. Reynolds,Arbitrator

Awd 6.16a

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