Res. No. 030-03-11579RESOLUTION NO.30-03-11 579
A RESOLUTION OF THE MAYOR AND CITY COMMISSION
OF THE CITY OF SOUTH MIAMI,FLORIDA RELATING TO
CLAIMS;REINSTATING DARBY WAGNER TO FULL DUTY
AS A POLICE OFFICER PURSUANT TO AN ARBITRATION
AWARD;DIRECTING PERFORMANCE OF CERTAIN
REQUIREMENTS UNDER THE ARBITRATION AWARD
INCLUDING AUTHORIZING PAYMENT OF BACK PAY
WAGES,AUTHORIZING RETROACTIVE SENIORITY WAGE
INCREASES,AND ALL OTHER BENEFITS;PROVIDING AN
EFFECTIVE DATE.
Whereas,the arbitrator inthe matter styled Darby Wagner v.City ofSouth
Miami,case number 32-390-00258-01,orderedthe employee reinstated with back
pay;and
Whereas,pursuant tothecollectivebargainingagreementbetweenthecity
and the Dade County Police Benevolent Association the arbitration award is
binding on the city.
NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF SOUTH MIAMI,FLORIDA THAT;
Section 1.Thecity manager is directed totakeactions required to
reinstate Mr.Wagner;with back payand benefits,as ordered intheannexed
award.
Section 2.The city manager is authorized to pay Darby Wagner the
sum of $67,660,as back pay,for 2001/02 and part of 2000/01fiscalyearsfrom
account number 504-1500-514.9925,tided "Self Insurance fund -Settlements".
Section 3.The city manager is authorized to reinstate Darby Wagner
as Police Officer,pay himthe back-pay,wages and benefits heis entitled forthis
Additions shown by underlining anddeletions shown by overstriking.
Res.No.30-03-11579
fiscalyear,calculated tobe$57,629,fromtheappropriateaccountswithinthe
police department's budget.
Section 4.This resolution shalltakeeffect immediately uponapproval.
PASSED AND ADOPTED this l_8th day of February,2003.
ATTEST:APPROVED:
_/K
CITY CLERK
ANB-APPROVED AS TO FORM:
WDell 6100\Documents\0022\DAJ\16776.doc
Page 2 of 2
MAYOR
COMMISSION VOTE:4-0
Mayor Feliu:Yea
Vice Mayor Russell:Yea
Commissioner Wiscombe:Yea
Commissioner Bethel:Yea
Commissioner McCrea:out of room
€
CITY OF SOUTH MIAMI
INTER-OFFICE MEMORANDUM
********************************************************************
To:Mayor and City Commission Date:February 14,2003 /
From:Sandy Youkilis A AGENDA ITEM #**
Acting City Manager y fa^/&e:Commission meeting Feb.18,2003
Darby Wagner's Arbitration
Settlement
********************************************************************
REQUEST
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OFSOUTHMIAMI,FLORIDA RELATINGTOCLAIMS;REINSTATING
DARBY WAGNER TO FULL DUTY AS A POLICE OFFICER PURSUANT
TO AN ARBITRATION AWARD;DIRECTING PERFORMANCE OF
CERTAINREQUIREMENTSUNDERTHEARBITRATIONAWARD
INCLUDING AUTHORIZING PAYMENT OF BACK PAY WAGES,
AUTHORIZING RETROACTIVE SENIORITY WAGE INCREASES,AND
ALL OTHER BENEFITS;PROVIDING AN EFFECTIVE DATE.
BACKGROUND
The attached resolution is requesting your authorization fortheCity Manager to reinstate Darby
Wagner as Police Officer pursuant to arbitration award.Mr.Wagner was terminated in June
2001.In accordance withthe PBA contract,Mr.Wagner requested arbitration hearingonhis
termination.The City and Mr.Wagner agreed to abide by the findings and recommendations of
the arbitrator.Atthe conclusion of the hearing,the arbitrator recommended thatMr.Wagner be
reinstated with back pay,including benefits,from the day he was terminated.Asperthe attached
schedule,the city administration has calculated the amount of Mr.Wagner's back-pay for part of
2000/01 and 2001/02 fiscal years tobe $67,660.The funds topayforthis amount arepartofthe
first quarter budget adjustment that is being provided for your approval.It will come out of
Gen^al-FundTis-eontributicmrto-S^l^Insurancerinorder-to-pay-it-as-a-settiement-from-our-Self-
Insurancefundaccountnumber 504-1500-514.9925.The$57,629topayhiswagesandbenefits
forthis fiscal yearhasbeen included aspartof police department's budget adjustment.
Approvalisrecommended.
Attachments
SAY/FIN
CALCULATION OF AMOUNT OF ARBITRATION ORDERED PAY FOR
DARBY WAGNER
6 PAYPRDS
2000/01 2001/02 2002/03
WAGES 10,328 46,990 48,400
FICA 790 3,595 3,703
UNIFORM ALLOWANCE 300 300
HAZARD 180 780 910
EDUCATION INCENTIVE 76 480 480
DENTAL 34 136 136
HEALTH INSURANCE 634 2,960 3,381
LIFE INSURANCE 30 135 139
DISABILITY 38 174 179
12,110 55,550 57,629
QtolW[7LawOfficef-c i*1
OF
George H.Tucker,P.A.
1401 UNIVERSITY DRIVE
SUITE 600
Coral Springs,FL 33071-6088
TELEPHONE (954)345-2788
TELECOPIER (954)755-4623
December 16,2002
Orlando Hernandez
Acting City Manager
Cityof South Miami
6130 Sunset Drive
South Miami,Florida 33143
Re:Reinstatementof Officer Darby Wagner pursuant to Arbitration Award.
Dear Mr.Hernandez:
Pursuant tothe Arbitration Award rendered by Arbitrator Ray Fernandez
reinstating Officer Darby Wagner to his employment with the City of South Miami
("CHy"),this is to hereby notify the City that Officer Wagner is ready,willing and able to
continuehis employment withthe City.
Additionally,since Officer Wagner was awarded full back pay and was ordered to
be "made whole"with respect to wages,seniority,and all other benefits which he would
have received had he not been wrongfully terminated,please provide the undersigned
with a breakdown of wages and benefits to which Officer Wagner is entitled pursuant to
the Award.
If youhaveany questions,feel free to contact me.
Sincerely,
IORGE H.TUCKER
cc:Officer Darby Wagner
Michael Spivak,Esquire
Attorney forCity
Dsc-18-02 12:45pa From-NAGIR GALLOP FlGUfcKfcUU
NaginGallopFigueredct
3U3-M«r0301
Attorneys &Counselors
\-LL9 r.vvifwiv r-ive
3225 Aviation Avenue -Hiird Floor
Telephone:(305)854-5353 Mkmi Florida 33133-4741 Faahmk:(305)854-5351
Date:
Tot
Fax:
Phone:
Re:
Client/
Matter:
Sender:
Comments:
FAX TRANSMISSION COVER SHEET
December 18,2002
Captain Bruce Ross
(305)663-6337
(305)668-4336
Darby WagntrArbitoatwn
0022-094
DebraA.Jester,Assistant lo Earl G.Gallop
YOU SHOULD RECEIVE 19 PAGE(S),INCLUDING THIS COVER SHEET.IF
YOU DO NOT'DECEIVEAJJLTHEPAGES,PLBASE CALL (305)854-5355
This transmission is protected by anomey-clieni and work product legal privileges,is strictly confidential,
and solely is intended for review by iheabove addressee.If you received this in error,please read no ftuther.Call
(305)854-5353 and arrangements immediately will bemade to retrieve this atno expense to you.
Dac-18-02 12:45pa Froa-NAGIN GALLOP FIGUEREDO M*WM»i i-"<r.uuc/ui.
@P AmericaiiArbitrationAssodatirfS^/Q\[S)^7
Dispute Resolution Services Worldwide X^VTX Ll U LTanyaKeilb-RfllnnaWi
Vice PttStdent,Case MaoagcraentCcnisr
2200 Century Parkway,Suite 300,Atlanta.GA 30345
December 99 2002 telephone:404-325-0101 foBrfmila:404-325-8034
interactht^//wvwv^dT4^/
George H.Tucker,Esq.
1401 Uxuvershy Drive
Suite 600
Coral Springs,FL 33071
Michael Spivak
City of South Miami
3225Aviation Ave,3rdFL
Miami,FL33133
Re:323900025801
DarbyWagner
and
City of South Miami
Grievances:Darby Wagner-Termination
Dear Parties:
By direction of me Aibit^
matter.
We also enclose the Arbitrator's bill for services rendered in me abovewaptioned matter.
Enclosed for Messrs George Tucker and Michael Spivak are copies of me arbitrator's billing in ihis
matter.
When paying me Arbitrator,checks shoald he prepared and mailed direct to the Arbitrator,not to theMUlMaAssociation.Your cooperation fa Ota matter i,greatly appreeurted.
The American Arbitration Association,in its publications Summary ofLabor Arbtraton A***,AmSS*Schools and Labor Arbitration in Govern**,reports ->*^£—"££
.*A«tfan eases These mooihlypubbV^c^have a wide distn^utiOT^^SS^^SS^SS^research purposes.We would like to consider the enclosed case of
yours for reporting in a forthcoming issue.
Unless we hear fiom you to ihe contrary wMim one (1)month from the date of mis letter of <™fnittd,
we^lstt1£^nWh^b^^^dfreXtotbePubHcations Department,AAA.335 Madison Avenue,10 Floor,New York,NY 10017.
D85-18-02 12:45pa Fron-RAGIN GALLOP FIGUEREDO wwwoi
Thank yon for choosing 1he services of theAmerican Arbitration Association.
Very truly yours,
otWAhgelmeS.Mason
4043250101
MasonA@adr.org
Enclosures
cc:Ray Fernandez
l~Lt9 r-vv*rvi«i
Dbc-18-02 12:46pm Froa-NAGIN GALLOP FIGUEREDO 305-854-5351 T-223 P.004/019 F-758
12/6/02
To:GeorgeH.Tucker.
1401 University Drive,Suite600
Coral Springs,FL 33071
954-345-2788
Michael Spivack
3225 Aviation Avenue
Third FloorMiami,FL 33133-4741 (^fl
From:Ray Fernandez,Arbitrator/y^
9791 SW123 Avenue *s
Miami,FL 33186
Re:Case#32-390-00258-01
Darby Wagner,Termination
Enclosed isa copy of the award and opinion for the above referenced case.
Please use this memorandum as my bill for services rendered for this case.
3 Days @ $750,00..,.$2,250.00
Amount Payable by the Grievant $1,125.00
Amount Payable by the City $1,125.00
Please make your checks payable to my corporation,SDIG,Inc.(BIN 65 044
7332)and mail to my address as listed above*
I would liketo thank you for giving me the opportunity toworkwithyou on this
caseandlook forward toservingyou again.
Dac-18-02 12:46pa FronHlAGIN GALLOP FIGUEREDO 305-854-5351 T-223P.005/019 F-758
In the Matter of Arbitration Between:
Officer Darby Wagner,
Gxievant
and
City of SouthMiami,
Employer
Award and Opinion
By
Ray Fernandez
Arbitrator
Case Number:
32-390-00258-01
Date:12/6/02
DaH8-02 12:46*FroHlAGlN GALLOP FIGUEREDO ,305-854-5351 T-223 P.006/019 F-T58
American Arbitration Association
Case Number:32-390-00258-01
Issue:Wasthe Grievant,Darby Wagner,terminated from his
employment withtheCity of South Miami for just cause,and if
not,whatshall be the remedy?
Date of Hearing:September 25,2001 before Arbitrator Jason Berkman.Due to
health reasons,Mr.Berkman was unable to write the awardand
opinion for this case and the transcript,exhibits and closing
briefs were delivered to me for me to write the awardand
opinionforthis case.
Arbitrator.Ray Fernandez
Representatives:Michael Spivack,for the City
George H.Tucker,fortheGrievant
Grievant:Darby Wagner
Witnesses:Frank Gilbert
Bruce Ross
Cokes Watson
John Barzola
Maeileen Alvarez
Charles Scurx
Darby Wagner
Dee-18-02 12:46pm From-NAGIN GALLOP FIGUEREDO ,305-854-5351 T-223 P-007/01B F-758
Proceedings
The hearing was held on September 25,2002 in Miami,Florida before Arbitrator
Jason Berkman.Duetohealth reasons,Mr.Berkmanwasunabletowritethe
award and opinion for this case and I was contacted bythe parties to write the
award and opinion for this case based on the transcript,exhibits and closing briefs.
At the hearing,the parties presented evidence through exhibits and testimony of
witnesses who were subject to direct and cross examination.The parties were
represented by legal counsel and an official transcript of the proceedings was taken
by Certified Shorthand Reporters,Inc.
I received me transcript,exhibits and closing briefs from the parties on November
15,2002.The award and opinion for this case isdueonor before 30 days after
November 15,2002.The date of thisawardandopinionis 12/6/02.
Exhibits
Joint:(1)CBA
(2)Termination Letter (6726/01)
Union:(1)Citizen Complaint (8/27/00)
(2)Memo WatsontoScurr (4/20/01)
(3)Judgment of Acquittal (4/25/01)
(4)Memo Feldman to Watson (2/7/01)
(5)Citation(8/7/00)
(6)Composite (Wagner-Perforrnance Reviews)
(7)Composite (Wagner-Recognition,Commendations)
City:(1)Arrest Affidavit (8/27/00)
(2)Alvarez/Statement
(3)Barzola'sStatement
(4)James'Statement
(5)ArrestWarrant(1/5/01)
(6)Daily Activity Worksheet (8/27/00)
(7)MemoRosstoWatson (2/1/01)
(8)April 24,2001 CourtTranscript
(9)April 25,2001 Court Transcript
(10)Alvarez'Deposition
Dac-18-02 12:46pm Froa-RAGIN GALLOP FIGUEREDO ,,305-654-5351 T-223 P.008/010 F-758
(11)Barzola's Deposition
(12)Second Barzola's Deposition
(13)Gilbert's Deposition
(14)Lea's Deposition
(15)Administrative Hearing Transcript
(16)James'Deposition
Dbc-18-02 12:47pn Frra-NAGIN GALLOP FIGUEREDO ,.,305-854-5351 T-223 P.008/018 F-758
Background and Facts
Very little,if anything,of the factual background to this case isin dispute,
•The Grievanthadbeenapolice officer fortheCity of SouthMiamisince1996.
•The Grievant's name isDarby Wagner.
•The Grievantisa member of thebargaining unit of police officers working for
theCity of South Miami.
*
•TheGrievant's wages,hours andworking conditions aregoverned by a
collective bargaining agreement betweentheCity of SouthMiamiandthe Dade
County Police Benevolent Association.
•Article21 of thecollective bargaining agreement betweenthe parties gives
management the right to fire,demote,suspend or otherwise discipline
employees forpropercause.
•Grievant wasterminated without the City obtaining a statement from him.
•The City is seeking to uphold the Grievant's termination based on whether there
wasacrowdornotonthenight of theincidentgivingrisetothisgrievance.
•The incident giving risetothis arbitration isan arrest conducted by Officer
Darby(the Grievant)onthe late night/early morning hours of August 26-27,
2000
Dac-18-02 12:47pi Froa-NAGIN GALLOP FIGUEREDO ,305-854-5351 T-223 P-010/019 F-758
City's Position
The credible testimony of the two witnesses supports the finding that there was no
crowd atthe scene of the arrest in the late night/early morning hours of August26-
27,2000.
The testimony of both eyewitnesses Alvarez and Lieutenant Barzola was that there
wasnocrowdatthe arrest location atthetime of Lea's arrest
While the testimony of either witness would be sufficient to find that there was no
crowd atthe scene ofthe arrest,when taken together,itis irrefutable that there was
nocrowdatthescene of the arrest whenit took place.
The City cannot condone an officer willing to lie on a statement that will be relied
upon by the courts in criminal investigations.Individuals sworn in as police
officers mustbe held toaveryhigh standard of truthfulness inthe performance of
their work.Their responsibility isto enforce all ofthe laws in an honest and
uruthful manner.
These laws are not tobe enforced simply because someone is rude or discourteous
to a police officer.Police officers cannot be allowed to tell half truths or to
outright lie,under oath,to the courts in an attempt to later justify their actions,
Wagner's usefulness as apolice officer is over.His fellow officers will not be able
to trust statements made bya known perjurer and all future arrests made by Officer
Wager will be subject to closer scrutiny as he will become a "walking reasonable
doubt to defense attorneys."
The fact that Alvarez'testimony does not exactly mirror Lea's testimony should
not be viewed as an attempt by her to lie for Lea,on the contrary,this should be
viewed as further evidence that she isa tmthfal lady simply testifying as to what
she saw and did not see.Certainly,if she was lying,she would have reported
seeing the Grievant slap Lea or the Grievant his Lea's head on the car.Her
demeanor while testifying before the court and the arbitrator should give a lot of
credibility to her testimony.Her testimony has been calm,collected and credible.
The City of South Miami has aduty to its citizens to ensure that only those few
individuals with cfthe right stuff'hold the police officer positions.
D8H8-02 12:47pm From-NAGIN GALLOP FIGUEREDO ,.305-654-5351 T-223 P.011/018 F-758
Wagner's perjuryhas shown that he does not belong ina police uniform.In a free
societywe expect police officerstobehonorableandtruthfulin making decisions
concerningourliberties.
The City feelsthat Wagner's usefulnessasapoliceofficeris over and his
grievanceshould be dismissed.
DBC-16-02 12:47^Fros-NAGIN GALLOP FIGUEREDO .,305-854-5351 T-223 P.012/018 F-758
Union's Position
The City failed to meet its burden of proof in this case.It chose not to produce as a
witness the arrestee/complainant whowas directly involved intheincident
Instead,it chose to rely exclusively onthe testimony of Ms.Alvarez,a witness
who admitted under oath that shehadan obstructed viewtothe location of the
arrest
The time,hours and location ofthe incident,along with the undisputed presence of
hundreds of persons in the area minutes before,the flashing lights ofa police car
and the admitted belligerent behavior of the arrestee,mandate the conclusion that
Officer Wagner was trathful in his recount of events in that persons were
congregating in the adjacent parking lot and were observing the detention and
patting down of Brian Lea.
The City wanted to get rid of Officer Wagner and in trying to do so,made two
attempts:
(1)Officer Wagner was acquitted bya jury in Miami-Dade County of
criminal charges of "official misconduct"arising out ofthe alleged incidents
surrounding thisarrest
(2)In a rush to justice,the City terminated Officer Wagner without even
doing a proper investigation.
City witnesses admitted that they had the right to interrogate the Grievant,but
chosenottodoso.Inthe instant case,theCity failed toevenattempttoviewthe
work record of Officer Wagner,and by failing to do so,predetennined that there
wereno factors which may have mitigated the penalty.
Amazingly,not one single witness testified that Officer Wagner was viewed as
untrothful or anything other than honest,yet without a proper investigation,heis
unjustly terminated.
Internal AffairsdidnotfindLeacredible by failing to sustain Lea's allegations
against Wagner for discourtesy,prejudicial remarks and improper conduct
including allegations of Wagner slapping Lea three times and hitting Lea's head on
the roof ofthe police car.Internal Affairs,also,did not find Lea's allegations
against Officer James credible,but somehow finds the lack ofa crowd to be a
credible claim by Lea.
DaH6-02 12:48pm Froa-NAGIN GALLOP FIGUEREDO •305-854-5351 T-223 P.013/019 F-758
The collective bargaining agreement between the parties gives management the
right to discipline employees for "proper cause."Various standards of proof have
been used by arbitrators rangmg from proof bya preponderance of the evidence to
prove beyond a reasonable doubt Tne reasonable doubt standard has been applied
most frequently where the alleged offense involves misconduct ofa kind
recognized and punished by criminal law.
Along the same lines,where the alleged offense involves either moral turpitude or
those equally punished by criminal law,management must be required to prove by
ahigh degree of proof,both the commission of the act and the existence of
criminal intent The employer must prove that both (1)the individual cornmitted
theoffense,and(2)thatthepenaltyis appropriate.
In conclusion,the termination of Officer Wagner was without just cause based ona
superficial investigation performed solely for the purposes of sustaining Lea's
charges for this arbitration.
Allegations of untruthfulness are serious and carry grave consequences.They
must be rejected unless there is ahigh degree of proof substantiating the charges.
In this case,the City has failed to meet its burden of proof and Officer Wagner
does not deserve to have his law enforcement career ended based upon deficient
and incomplete evidence.This grievance should be upheld and Officer Wagner
should be reinstated tohis position with back pay and benefits.
Dec-18-02 12:48**From-NAGIN GALLOP FIGUEREDO ,,305-854-5351 T-223 P-014/018 F-758
Opinion
The instant case arises outof an incident which occurred onthe evenmg/morning
hours of August 26-27,2000 when Officer Wagner (the Grievant)arrested an
individual by the name of Brian Lea for walking in the middle of the street and the
events that followed.
According to the Grievant,Mr.Lea refused to sign acitation,acted in adisorderly
manner,had no identification on him and was verbally abusive and disrespectful
towards him.
The day following the incident,Mr.Lea filed acomplaint against Officer Wagner
for the alleged manner in which Wagner conducted the investigation and the
subsequent arrest
Mr.Lea made a series of unsubstantiated allegations about the arrest:
(1)He was slapped by Officer Wagner (one to three times.)
(2)Officer Wagner hit Lea's head with the roof of the police car.
(3)Officer Wagner used verbally abusive language towards Lea.
(4)Officer Wagner did not start writing the citation at the site of the
arrest
However,the behavior of Lea towards Officer Wagner was undisputed.His
behavior was characterized as "sarcastic ""laughing and smirking,"persistent
demands to Officer Wagner to tehuny up because he (Lea)had other things to do
that night,"etc.
Mr.Lea went as far as to say "tough guy,I would liketo see you outofthe
uniform."While Mr.Lea's attitude towards a police officer was not proper,this
arbitration isabouttheGrievant and nottheArrestee.
The City's whole case was based on the truthfulness or untruthralness on the part
of Officer Wagner regarding the presence of persons gathering behind him in a
perking lot
,8C:,8.K ,2:«Pa FrcrHAGIN GALLOP F.GUEREDO .,«H«HIH MB M«/D»MB
TR 14'Q.(by Arbitrator):"Is it true that basically this trial centers around the fact whether
or not there wasa crowd?"
A (by Spivack):"Right if there was a crowd,Mr.Tucker will win at the end of
the day.If there was not acrowd,the City was correct m terminating
Officer Wagner."
TR 272-3:(Scurr)Q "Mr*City Manager,you heard your attorney today say that the only thing
they are seeking to uphold the termination of Officer Wagner is whether or
not there was a crowd;do you remember him saying that today?"
A."I did."
Q."That's the basis for the termination today?"
A.*T think crowd leads to the issue of truthfulness."
Q."I am asking you whether or not that's the issue.Only one count?'
A."Yes"
The only eyewitness to the arrest was alady by the name ofMayelin Alvarez.Her
accounts ofthe events at the arrest site are markedly different from those of both
me arrestee and Officer Wagner.Ms.Alvarez is a friend ofme arrestee,Mr.Lea.
There were aseries of allegations made by Mr.Lea with reference to mis arrest
All of the allegations made by Mr.Lea were dismissed by the City with the
exception oftwo allegations.
(1)He never refused to sign the citation at the site ofthe arrest.
(2)There were no people in or near the vicinity ofthe arrest.
The Grievant,Office Wagner,was acquitted ofall charges by ajury in acriminal
case in Miami-Dade County for all charges of official misconduct arising out of the
abovestatedallegedfalse statements.
Concentrating on the issue of whether or not there was acrowd at the site of the
arrest,I will now comment on Alvarez'statements and Balzola's statements.
Dbc-18-02 12:48pm Froi-NAGIN GALLOP FIGUEREDO •305-854-5351 T-223 P.016/018 F-758
Alvarez:(1)Testified that herlocation in viewing mis incident was contrary
tothatwhere Lea placedher.
(2)Testified that trees blocked her view of any people who could
havebeeninthe adjacent parking lot
(3)Alvarez said that she left Barnes and Noble atthe same time as
Leaandwas walking paralleltohim.
(4)Lea said that Alvarez left 4-5 minutes before him and could not
hear what was going on.
(5)Alvarez said that she did not continuously watch theincident
Barzola;
rap-321:•
Q.c*Now,when you saw the group of people going to 73 and 57 court,where
is that in relationship to where the incident occurred,where the150to 200
youths were?"
A."Perpendicular to the street,perpendicular to Sunset or Banyan Court"
TRp.232:
Q."You had already left but you had seen people walking around 73 and 57 ,
what time was it?"
A.6eBest Ican remember about12:30"
Q."So at that time there were still people there,correct?"
A."Yes,sir."
Givenall of the above,therecouldbethe possibility of acrowdatthe arrest scene;
however,in an apparent rush to justice the City decides to terminate Officer
Wagner without a complete investigation.
Dbc-18-02 12:48pm Froa-NAGIN GALLOP FIGUEREDO ><305-854-5351 T-223 P.017/018 F-758
Gilbert:
TRp.lOl:
Q,"In this case you did not take Officer Wagner's statement?"
A."No,I did not"
Q."So you did not have a complete investigation at that point,did you?"
A."Not adnnnistratively."
Q."You didn't take Brian Lea's statement either?"
A."No."
Q."So you did not have a complete investigation in that one either?"
A."Not administratively."
A well established principle is that prior to assessing punishment for discipline an
employer is obligated to conduct an impartial and thorough investigation of the
incident If noneisconducted,thediscipline must beoverturned.(Elkouri &
Elkouri)Chief Cokes and City Manager Scurr relied onan incomplete
investigation to terminate Officer Wagner.Having said all of this,let's look at the
probability ofa crowd gathering around the scene of the arrest
Thetime,hourand location of the arrest,along withtheundisputed presence of
hundreds of persons minutes before,the flashing lights of a police car,and the
admitted belligerent behavior of the arrestee would lead usto deduce that a crowd
would formaround this "show."The factthat people would congregate around
this "show"istobeexpectedand inescapable.
I was not at 57th and 73rd onthe night/early morning hours of this incident;
however,as a father of a teenage son,I have picked upmysonat midrngbt on
many occasions ator near the location of this arrest,and Ihave always seen this
area crowded with youngsters.
I can understand theemployer'shigh expectation asit relates to truthfulness and
credibility from its police officers;however,the evidence presented in this case
does not point to any untruthful statement onthe part of Officer Wagner.
Dbc-18-02 12:48pm From-NAGIN GALLOP FIGUEREDO '*305-854-5351 T-223 P.018/018 F-758
The proper standard to establish guilt ina termination case is "clear and convincing
evidence."This heightened standard isnecessarydueto the severenature of
discharge andthe devastating financial and emotionalimpactthatitcanhave.
In reading the transcript,exhibits and closing arguments supplied tome by the
parties,Ididnot find "clear and convincing evidence"that OfficerWagner was not
tmthful in hisrecount of theincidents of August 26-27,2000.Therefore,basedon
the evidence presented in this case and the surrounding drcumtstances,my award
follows.
Det-lW2 12:49m Froa-NAGIN GALLOP FIGUEREDO ''305-864-535!T-223 P.01B/01B F-758
Award
(1)Thiscase is closedas of 12/6/02.
(2)This grievance is upheld,
(3)The Grievant,Officer Darby Wagner,shouldbe reinstated to theposition of
police officer which he formerly held with the Qty of Sooth Miami.
(4)The Grievant should be given all back pay,seniority and all other benefits he
would have received had he not been wrongfully terminated.
(5)The back pay referred to in section (4).above,should be paid to the Grievantwithin30daysofthedateofthisaward.tj-nevant
(6)I hope that the parties can come to an agreement as to the amount due fiommeC*y to the Grievant;however,Iwill maintain jurisdiction over Ss^
to settle any disputes related to the back pay.
(7)The Union is instoucted to notify me upon receipt of back wages by the
Gnevantso that Imayclosethisfile.
Respectfully submitted,
RayYefnandez,Arbitrator 12/6/02