IN THE SUPREME COURT OF OHIO

The City of Piqua, Ohio

Appellant,

VS.

Fraternal Order of Police,Ohio Labor Council, Inc.

Appellee:

Case No: 10-0130

On Appeal from theMiami County Courtof Appeals, SecondAppellate District

Court of AppealsCase No. 09-CA-19

APPELLF.E'S MEMORANDUM IN RESPONSETO APPELLANT'S MEMORANDUM

IN SUPPORT OF JURISDICTION

Stacy M. Wall (0070114) (COUNSEL OF RECORD)Law Director201 W. Water St.Piqua, Ohio 45356(937) 778-2042(937) 778-2043 Facsimile

Jonathan J. DownesDownes Fishel Hass KimLLP400 South Fifth Street, Suite 200Columbus, Ohio 43215(614) 221-1216(614) 221-8769 Facsimile

Counsel for Amici OHPELRA,Counsel for Appellant, CCAO, OMLA, City of Lima,City of Piqua, Ohio OACP, OML, City of Dayton,

City of Dayton, City ofCincinnati, City of Middletown

Douglas J. Behringer (0066483) (COUNSEL OF RECORD)General CounselPaul L. Cox (0007202)Chief CounselFOP/Ohio Labor Council, hic.222 East Town StreetColumbus, Ohio 43215(614) 224-5700(614) 224-5775 Facsimile

Counsel for Appellee,Fraternal Order of Police,Ohio Labor Council, Inc.

TABLE OF CONTENTS

Paee

STATEMENT OF PUBLIC INTEREST. . . . . 1

STATEMENT OF THE CASE. . . . . . . 2

APPELLANT's MISSTATEMENS OF THE CASE AND FACTS.. 3

APPELLE'S POSITION ON APPELLANT'S PROPOSITIONS OF LAW. 4

Proposition of Law No. I: An arbitrator is bound by the termsof the collective bargaining agreement and cannot expand theplain meaning of the language. . .

Proposition of Law No. II: There is an explicit, well-definedand dominant public policy governing the conduct of policeofficersin the State of Ohio. . . .

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CONCLU S ION. . . . . . . . . 12

CERTIFICATE OF SERVICE. . . . . . . 14

STATEMENT OF WHY CASE IS NOT OFPUBLIC OR GREAT GENERAL INTEREST

The Appellant has urged this Court to accept jurisdiction of this case to, in

essence, clarify its ruling in Bd. of Tiustees of Miami Twp. v. Fraternal Order of Police,

Ohio Labor Council, Inc. (1998) 81 Ohio St. 3d 269, This Court should decline

jurisdiction because the question of what burden of proof an arbitrator should apply in a

just cause review is not of public or great general interest. That is a question for the

parties to a Collective Bargaining Agreement to address during their contract

negotiations. If the Appellant has concerns with evidentiary or procedural issues in an

arbitration hearing then the proper l'orum to address those concerns is in negotiations. At

that tirne the Appellant can propose language to the Collective Bargaining Agreement

setting forth guidelines on procedural or evidentiary matters which an Arbitrator must

follow in an arbitration hearing.

The Appellant is also urging this Court to take the case and create a public policy

exception, based upon Jones v. Franklin County, (1990), 52 Ohio St.3d 40, that would

allow arbitration awards to be overturned based solely on the Jones decision. This issue

has already been repeatedly addressed by this Court and is not the basis for a valid

statement of public or general interest.

Finally, the only real issue in the case at hand has already been decided by this

Court's decision in Miami Township. There is no interest to be served, public or general,

by this Couit accepting jurisdiction of a case already decided by this Court. The public

interests would be better served by this Court declining jurisdiction. The Court declining

jurisdiction renders the 2 "d District Court of Appeal's decision confirming the Arbitrator's

award as final. Such a result is exactly what the parties bargained for when they agreed

in the Collective Bargaining Agreement that all decisions of the arbitrator shall be final

and binding upon the City, the Labor Council, and the grievant.

STATEMENT OF THE CASE

The Grievaut, Brett Marrs, was a police officer for the City of Piqua. On May 4,

2008, he was involved in an automobile accident with a bicyclist. On that date, at

approximately 9:30 p.m., Officer Marrs approached a four-way intersection and came to

a complete stop. It was dark and the bicyclist was wearing dark clothing and had no light

source on his bicycle. AI`ter checking the intersection, Officer Marrs proceeded forward

and the bicyclist struck the left front of the police cruiser.

Officer Jim Burton was sunnnoned to investigate the accident involving a police

cruiser and the bicyclist. After thoroughly investigating the accident scene, Officer

Burton, a twenty-seven year veteran of the City of Piqua Police Department, concluded

that Officer MalTs had not violated any policies or traffic laws. Afterwards, Officer

Burton was ordered by a deputy chief who had not investigated the facts to change the

accident report and issue a traffic ticket (for Iinproper Start) to the Grievant, Brett Marrs.

On May 12, 2008, the Grievant was terminated from the Piqua Police Department. On

August 8, 2008, after listening to the testimony and weighing the evidence and credibility

of the witnesses, Judge Gene R. Hoellrich in the Miami Couuty Municipal Court found

the Grievant not guilty of Improper Stat.

Brett Marrs' grievance then proceeded and the arbitration was held on September

26, 2008, before Arbitrator David Stanton, who had been mutually selected by the

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parties. On December 2, 2008, Arbitrator Stanton issued his Opinion and Award and

ordered the Appellant to reinstate Brett J. Marrs.

APPELLANT'S MISSTATEMENTS OF THE CASE AND FACTS

The Appellant has repeatedly misstated the facts in its Memorandum and

Appellee feels these misrepresentations must be addressed.

The Appellant states that Officer Marrs stiuck the bicyclist with his police cruiser.

(Appellant's Memorandum, pg. 3). The officer that investigated the accident scene, the

traffic trial judge, and the arbitrator all reached a different conclusion. The arbitrator has

stated that it was the bicyclist that struck the police cruiser and as such, this is fact.

(Arbitration Award, pg. 20, Attached as Exhibit A to Appellant's Memorandum in

Support).

In addition, the Appellant states that the Grievant "had no explanation as to why

or how" the accident occurred. (Appellant's Memorandum, pg. 4). Again, this is

factually not true. The Grievant explained how the accident occurred at both the traffic

trial and the arbitration. What the Grievant was unable to explain was how the accident

occurred under the "facts alleged by the Appellant." The problem for the Appellant is

that the officer that investigated the accident scene, the traffic trial judge, and the

arbitrator have all concluded that the accident did not happen as the Appellant has

alleged. The Appellant is arguing this case from the point of view of a fantasy.

Despite the Appellant's claims to the contrary, the Grievant Brett Marrs never

admitted to any violations of policy or the law.

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Appellant states that the arbitration award "repeatedly references the criminal

outcome as being `outcome determinative"'. (Appellant's Memorandum, pg. 9). First,

the phrase "outcome determinative" only appears in the arbitration award once. The

actual quote is: "This factual consideration is indeed compelling and must be rendered

outcome determinative of whether indeed the Employer had established a factual basis

that the grievant was in anyway guilty of any wrongdoing." (Arbitration Award, pg. 20,

Attached as F,xhibit A to Appellant's Memorandum in Support). Examining the entire

paragraph in which the quote appears, the arbitrator is clearly discussing the "totality of

the evidence as presented". Nowhere in that paragraph does the arbitrator even mention

the traffic court decision or the "not guilty" find'uig.

Throughout its Memorandum, the Appellant is once again attenipting to re-litigate

the facts of the case by offering a litany of allegations and evidence from the arbitration

that were purportedly in the record. Allegations or assertions are not proof of

wrongdoing. These allegations were addressed at the arbitration hearing, and the

Appellee continues to dispute their merits and factual basis.

APPELLEE'S POSITION ON APPELLANT'SPROPOSITIONS OF LAW

Proposition of Law No. I: An arbitrator is bound by the terms of thecollective bargaining agreement and cannot expand the plain meaningof the language.

The Appellant argues in this first proposition that the Arbitrator applied the wrong

burden of proof. In formulating this argument the Appellant ignores the issue that was

placed before the Arbitrator. The issue before the Arbitrator was whether the Appellant

had just cause to discharge the grievant, and if not, what shall be the remedy. The

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Appellant neither placed any restrictions on that authority nor ever even argued that there

were any limitations on that authority to determine just cause. In fact, the Appellant

never raised the issue of the burden of proof to the arbitrator. The tenn just cause is

undel'ined in the parties Collective Bargaining Agreement. Therefore, the arbitrator was

free to niterpret the term "just cause", absent any express limitations on that authority.

The Appellant has continued to misstate and misrepresent the burden of proof

applied by the arbitrator. The Arbitrator did not apply the "beyond a reasonable

doubt" burden of proof standard. Appellant argues that the arbitrator applied a burden

of proof of "beyond a reasonable doubt." The Appellant conveniently ignores that the

arbitrator states on three separate occasions in his award that the standard of proof that he

applied was the "clear and convincing" standard. (Arbitration Awarrl, pgs. 16, 17, and

22, Attached as Exhibit A to Appellant's Memorandum in Support). Since arbitration

awards are presumed valid, under Rice, the arbitrator's repeated statement that the "clear

and convincing" evidentiary standard was applied must be taken as truthful and accurate.

Rice v. Hassenpflug (1987), 45 Ohio St. 377) (the courts engage in all fair presumptions

to sustain an arbitration award). Ohio law favors and encourages arbitration and the

courts inake every effort to favor the regnlarity and integrity of an arbitrator's award.

Campbell v. Automatic Die & Products, Co., (1954), 162 Ohio St. 321.

Appellant also argues that the arbitrator improperly relied upon the evidence

presented at the bench trial for the traffic case. (Appellant's Memorandum, pg. 9). The

Appellant was the party that introduced the trial transcript from the traffic trial of the

Grievant into evidence, not the Appellee. The Appellant insisted that the arbitrator

consider the transcript froin the traffic trial, in reaching his decision. After submitting the

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evidence the arbitrator considered, the Appellant is now arguing that the arbitrator should

not have considered the very evidence that the Appellant introduced into evidence for his

review. If there was any error, which the Appellee does not concede, the Appellant

created the error by introducing the evidence and insisting that the arbitrator consider that

evidence in reaching his decision.

Appellant also argues that an arbitrator must follow Civil Service Rules on

procedural matters, in deterinining whether just cause existed to uphold the termination

of an employee. This argument is contrary to the parties Collective Bargaining

Agreement and relevant State and federal case law.

The parties Collective Bargaining Agreement provides for "final and binding

arbitration." (CBA, Article 7, Section 3, pg. 8). Under R.C. §4117.10(A) the Civil

Service Commissions and State Personnel Board of Review are expressly divested of

jurisdiction when there is "final and binding arbitration." In addition, Article 7, Section

3, Step 3, of the parties Collective Bargaining Agreement expressly states that "Tliis

grievance and arbitration procedure shall be the sole and exclusive remedy for all claimed

violations of this Agreenient and shall be in lieu of all rights under civil service rules."

(CBA, Article 7, Section 3, pg. 8). Therefore, the parties Collective Bargaining

Agreement expressly provides that Civil Service Rules do not apply.

Appellant's reliance upon Batavia, for the proposition that Civil Service Rules

apply to the parties grievance and arbitration process is misplaced. State ex rel. Ohio

Ass'n of Pub. Sch. Employees/AFSCME, Local 4 AFL-CIO v. Batavia Local Sch. Dist.

Bd. of Educ. (2000), 89 Ohio St.3d 191, 200 Ohio 130. First, the parties CBA expressly

states that the Civil Service Rules do not apply. Secondly, Batavia does not apply

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because there is no "statutory right" in qtiestion. The issue, concetning the burden of

proof, is a procedural matter, not a "statutory right".

Both the Appellant and the Amici were unable to offer any case law that states an

arbitrator tnust apply a specific burden of proof or that an arbitration award can be

overturned solely based upon that issue. The sole arbitration award cited by the

Appellant for the proposition that the burden of proof should have been "preponderance

of the evidence" actually used the "clear and convincing" evidentiary standard. Kroeer

Co., 25 LA 906 (Smith, 1955).

The leading treatise on evidence maintains that most arbitrators are generally

using a "clear and convincing" evidence standard in all discharge cases. Hill and

Sinicropi in Evidence in Arbitration (BNA 2"d Ed., pp. 37-38). This is especially true in

those cases involving allegations of criminal conduct or stigmatizing behavior, such as

the case at bar. Elkouri & Elkouri: How Arbitration Works, (6' Ed. 2003) at 950-951.

The vast body of arbitration case law supports the "clear and convincing" evidentiary

standard in matters involving criminal allegations, loss of professional license, or

stigmatizing behavior.

In Miami Twp., this Court adopted a two part burden of proof standard for ` just

cause" in discipline and discharge cases. Miami Twp. Bd. of Trustees v. Fraternal Order

of Police, Ohio Labor Council, Inc. (1998), 81 Ohio St.3d 269, 272. The standard is:

In applying the test of "just cause" the arbitrator is generally required todetermine two factors: (a) has the commission of the misconduct, offense or

dereliction of duty, upon which the discipline administered was gr•ounded, beenadequately established by the proof; and (b) if proven or admitted, thereasonableness of the disciplinary penalty imposed in light of the nature, characterand gravity thereof-for as frequently as not the reasonableness of the penalty (aswell as the actual commission of the misconduct itself) is questioned orchallenged in arbitration.

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In the absence of contract language expressly prohibiting such power, thearbitrator, by virtue of his anthority and duty to fairly and finally settle and adjust(decide) the dispute before him, has the inherent power to determine tlcesufftciency of the cause and the reasonableness of the penalty imposed.(emplaasis added)

Schoonhoven, Fairweather's Practice and Procedure in Labor Arbitration (3 Ed. 1991),

quoting Arbitrator Burton B. Turkus, in Great Atlantic & Pacific Tea Co. (1962), 63-1

Labor Arbitration Award, 91 8027, at 3090. See, also, Elkouri & Elkouri: How

Arbitration Works (5a' Ed. 1997), 886-888; Summit Cty. Children Servs. Bd. v.

Communication Workers of Am. Local 4546 (2007), 113 Ohio St.3d 291. In the instant

case, the CBA specifically grants the arbitrator the authority to determine ` just cause",

contains no express prohibitions upon that authority, and specifically prohibits the

application of the civil service niles.

The issue of the burden of proof is a procedural rnatter, which the courts have

consistently held are for the arbitrator to decide. John Wiley & Sons, Inc. v. Livin sg ton

(1964), 376 U.S. 543; United Paperworkers Internal. Union v. Misco, Inc. (1988), 484

U.S. 29; District 30 United Mine Workers of America v. Agipcoal USA, Inc., 889 F.2d

1087, 1989 WL 142066 (C.A. 6 (KY.), 1989); Keebler Co. v. Truck Drivers, Local 170

(C.A. 1, 2001), 247 F.3d 8; Amalgamated Meat Cutters & Butcher Workmen of N. Am.,

Dist. Local No. 540 v. Neuhoff Bros. Packers Inc. (C.A. 5, 1973), 481 F.2d 817; Gen.

Drivers, He ers and Truck Terminal Employees,Local No. 120 v, Sears, Roebuck & Co.

(C.A. 8, 1976), 535 F.2d 1072.

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Proposition of Law No. II: There is explicit, well-defined anddominant public policy governing the conduct of police officers in theState of Ohio.

'rhe Appellant's public policy argument in support of its motion to vacate is

predicated on a generalized assertion that police officers are held to a higher standard and

therefore it violates public policy to reinstate a police officer, even if he is found to have

not violated any law, policy, or procedure. In other words, if the employer alleges any

violations against a police officer, public policy prohibits his reinstatement whether the

allegations are proven or not. Just cause would cease to have any meaning or effect, as it

pertains to police officers. In any event to accept the argument of the Appellant, this

Court would have to make findings of fact contrary to those found by the arbitrator.

In order for a court to vacate an arbitration award upon public policy grounds the

policy must be well defined and ascertainable by reference to the law and legal

precedents and not from generalized considerations of supposed public interests. W.R.

Grace & Co. v. Loca1759 (1983), 461 U.S. 757. It is the arbitration award that must be

found to violate public policy, not the underlying conduct that was the basis of the

discipline.

In its Memorandum the Appellant ignored the most recent decision of the United

States Supreme Court on this issue, a decision that rejected the public policy exception as

grounds for vacating an arbitration award. Eastem Associated Coal Corporation v.

United Mine Workers of America (2000), 531 U.S. 57. In that case a labor arbitrator

ordered an employer to reinstate an employee truck driver who had twice tested positive

for marijuana. The issue before the U.S. Supreme Court was whether considerations of

public policy required the courts to refuse to enforce that arbitration award. The

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agreement at issue in the Eastern case specified that in order to discharge an employee

the einployer must prove that it had just cause. The arbitrator ordered the grievant's

reinstatement provided that he be suspended without pay for three months, reimburse the

parties for the cost of the arbitration hearing, continue to participate in a substance-abuse

prograin, continue to undergo random diug testing and agree to resign if hc tests positive

again within five years. Eastern, at pages 60-61. The United States Supreme Court held

that public policy considerations did not require the court to refuse to enforce the

arbitration award and that the employer must reinstate the grievant.

From the Eastern decision is clear that the Appellant must prove there is a public

policy which is well-defined, dominant and ascertained by reference to laws and legal

precedents, not from general considerations of supposed public interests. The Appellant

relies on the assertion that as a police of'ficer the Grievant is held to a higher standard of

conduct. The Arbitrator recognized that standard in his decision and still found that the

Employer did not prove that it had just cause to terminate the Grievant.

The Appellant argues that there is an "explicit public policy" that is "well

defined" that allows an arbitration award to be overturned, because police officers are

held to a higher standard. Jones v. Franklin County Sheriff (1990), 52 Ohio St. 3d 40.

First, it should be noted that Jones was an appeal of a State Personnel Board of Review

case, which is subject to a completely different standard of review than an arbitration

award. Secondly, Jones does not apply in the instant case. The Grievant was found to

have not violated any law, statute, policy, or procedure. There is nothing in the Jones

decision, or any other statute or case, which requires the termination of a police officer

who has done nothing wrong. This fact was recognized by the lower court when it stated:

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"An award reinstating an einployee who has done nothing wrong does not violate Ohio

public policy" (Opinion of the Court (iAppeals, Case No. 09-CA-19, page 22

(December 11, 2009), Attached to Appellant's Memoranduan in Support.)

The use of the Jones "higher standard for police officers" argument as a public

policy exception which allows an arbitration award to be overturned has been

consistently rejected by the courts. Lima v. Fratemal Order of Police (3'u App. Dist.),

2003 Ohio 6983; Review Denied, (Ohio Supreme Court, May 12, 2004), 102 Ohio St.3d

1447. Miami Twp Bd of Trustees. v. Fraternal Order of Police, Ohio Labor Council

Inc., (1998), 81 Ohio St.3d 269. Dayton v. Fraternal Order of Police, (1991), 76 Ohio

App.3d 591. In each of the cases listed above, the police officer was fouud to have

committed a violation of the law, policy, or procedure. In the instant matter, the Grievant

did not violate the law of Ohio or any departmental policy or procedure. Therefore, there

is no public policy argument that can even be rationally made under any case cited by the

Appellant.

The Appellant's failure to specify any statute or case law which mandates that a

police officer be fired, even though he has cornmitted no wrongdoing, must result in a

finding that the public policy argument caimot be used to vacate the Arbitrator's award.

Appellant' continued and repeated reliance upon the Cleveland Bd. of Edn. case

to this court as the basis to vacate the arbitrator's award on a public policy exception can

best be described surprising. Cleveland Bd. of Edn. v. Internatl. Bd. of Firemen & Oilers

Local 701 (8" App. Dist. 1997), 120 Ohio App.3d 63. Appellant states that this Court

has criticized the Cleveland decision in Southwest Ohio Regional Transit Authoritv v.

Amalgamated Transit Union. Local 627 (2001), 91 Ohio St.3d 109. Actually, this Court

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did more than criticize the Cleveland case, the holding in Cleveland was expressly

overturned in the Southwest Ohio Repional Transit. Auth. decision. There is a

fundamental difference between criticizing a decision and expressly overturning the

decision.

CONCLUSION

This case does not involve any matterof public or great general interest. Both

issues raised by the Appellant: burden of proof and public policy, where never raised

during the arbitration or in the post hearing briefs. This case only involves the re-

litigation of issues of fact. Every legal issue raised by the Appellant has previously been

decided by this Court in Miami Township. Appellant seeks to limit an arbitrator's

authority to determine procedural matters such as the burden of proof, even though the

parties Collective Bargaining Agreement place no such restrictions upon the arbitrator.

The Court of Appeals relied on cases decided by tlxis Court to analyze the issue

before them. The Appellant does not rely on any cases decided by this Court but on a

case involving the appeal of a civil service commission ruling which involves a totally

different and distinct standard of review. Under the precedent established over many

years by this Court the lower Court engaged in the appropriate analysis. The lower Court

was cognizant of this Court's strong admonition in cases involving an appeal pursuant to

R.C. §2711.10(D) that it was not free to interject either its own interpretation of the

contract or findings of fact in an arbitration appeal.

Appellant's and Amici's inotives on the burden of proof issue should be readily

apparent to this Court, every discipline case that either party loses would result in an

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instant appeal to court. The courts would be flooded with arbitrations appeals and the

concept of "final and binding arbitration" would cease to exist. In the instant case, the

Grievant has been denied his employment for nearly two full years, despite being found

to have violated no law, statute, policy or procedure.

Based on the foregoing the Appellee respectfully requests this Court declines

jurisdiction over this case.

Respcctfully submitted,

DOUGLAS J. BEHRINGER (0066483)General CounselPAUL L. COX (0007202)Chief CounselFraternal Order of Police,Ohio Labor Council, Inc.222 East Town StreetColumbus, Ohio 43215(614) 224-5700

ATTORNEYS FOR APPELLEE

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CERTIFICATE OF SERVICE

I do hereby certify that the foregoing Memorandum in Response was sent by

regular U.S. mail this _LI_4b day of Febiuary, 2010 to Stacy M. Wall, City of Piqua Law

Director, 201 W. Water Street, Piqua, Ohio 45356 and Jonathan J. Downes, Downes,

Fishel, Hass & Kim, LLP, 400 South Fifth Street, Suite 200, Columbus, Ohio 43215.

.; G^t wDODUL.AS'J. BEHRINGER

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