City of Cleveland v. Cleveland Police Patrolmen's Ass'n

• Decision Date: 25 February 2016
• Docket Number: No. 103010.,103010.
• Citation: 47 N.E.3d 904
• Parties: CITY OF CLEVELAND, Plaintiff–Appellant. v. CLEVELAND POLICE PATROLMEN'S ASSOCIATION, Defendant–Appellee.
• Court: Ohio Court of Appeals

47 N.E.3d 904

CITY OF CLEVELAND, Plaintiff–Appellant.

v.CLEVELAND POLICE PATROLMEN'S ASSOCIATION, Defendant–Appellee.

No. 103010.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Feb. 25, 2016.

Barbara A. Langhenry, Director of Law, Susan M. Bungard, Assistant Director of Law, Cleveland, OH, for Appellant.

Marisa L. Serrat, R. Brian Moriarty, Cleveland, OH, for Appellee.

Before: E.A. GALLAGHER, P.J., KILBANE, J., and McCORMACK, J.

Opinion

EILEEN A. GALLAGHER

, P.J.

{¶ 1} Plaintiff-appellant the city of Cleveland (the “city”) appeals the decision of the Cuyahoga County Court of Common Pleas denying the city's application to vacate an arbitration award under R.C. 2711.10(D)

and granting defendant-appellee the Cleveland Police Patrolmen's Association's (the “CPPA' ”) motion to confirm the arbitration award. The city contends that the arbitrator exceeded the powers delegated to him under the parties' collective bargaining agreement by modifying the disciplinary sanction imposed against Vincent Lucarelli, a detective with the Cleveland Police Department, from termination to a lengthy suspension without pay after concluding that the city had just cause to discipline him for on duty “sexting” and other violations of the Cleveland Police Department's rules. The city further contends that the arbitration award should have been vacated because (1) the arbitration award included a requirement that Detective Lucarelli receive unspecified counseling following his return to work and, therefore, was not “final and definite,” and (2) the arbitrator's reinstatement of Detective Lucarelli violated public policy. For the reasons that follow, we affirm the trial court's judgment.

Factual Background and Procedural History

{¶ 2} In 2001, Vincent Lucarelli was hired by the city of Cleveland as a patrol officer in the Division of Police. In 2009, he became a detective in the Fifth District. In May 2012, the police department's Internal Affairs Unit (“IAU”) commenced an investigation into Detective Lucarelli's conduct (the “IAU investigation”) after cell phone records, which had been subpoenaed for a criminal case involving private investigator Brenda Bickerstaff, revealed that during his shifts, Detective Lucarelli had been inappropriately texting or “sexting” women, including the victims in several criminal cases on which he had worked and which had been disposed or on which he was currently working. The IAU investigation into Detective Lucarelli's sexting covered the time period January 2012 through May 2012.

{¶ 3} As part of the IAU investigation, statements were taken from seven women Detective Lucarelli had texted or sexted while on duty and with whom he either had a romantic relationship or sought to have a romantic relationship. Two of the women, H.S. and B.N.W., were victims in criminal investigations Detective Lucarelli had handled two to three years earlier. The investigation revealed that, after their cases had been resolved, Detective Lucarelli came into contact with H.S. and B.N.W. while working as a security guard at a neighborhood liquor store. Detective Lucarelli admitted using an unmarked police car to transport H.S. and B.N.W. within his district and to pick up groceries and other items for them. He also admitted stopping at B.N.W.'s home while on duty and staying there for periods of time, collecting pay for time he had not worked, and to touching women in an “affectionate manner” while they were in his police car.

{¶ 4} Detective Lucarelli also engaged in on duty “flirtatious texting” with a neighbor, E.S., with whom he had a sexual relationship. Detective Lucarelli admitted to once leaving the city and using a city vehicle to pick her up in Beachwood during a snowstorm. Although he claimed to have received permission from an unnamed sergeant to make this trip, there was no evidence corroborating his claim.

{¶ 5} Another woman Detective Lucarelli texted, B.E., was a felonious assault victim. Her case was originally assigned to Detective Lucarelli but was reassigned after it was alleged that Detective Lucarelli knew her. B.E. acknowledged receiving text messages from Detective Lucarelli but regarded them as “harmless flirting.” Detective Lucarelli also texted M.B., a suspect in a criminal investigation, and attempted to flirt with her via text message. She did not respond to his advances and no relationship ensued.

{¶ 6} The two most serious cases involved V.R. and J.H., victims in two active criminal investigations to which Detective Lucarelli was assigned. According to V.R., while the case in which she was named as a victim was pending, she received text messages from Detective Lucarelli stating that her baby's father was a loser and that she needed someone like Detective Lucarelli to protect her. V.R. rejected his advances and told him to “just handle your case.”

{¶ 7} J.H. also received and responded to various “sexts” from Detective Lucarelli while the criminal case in which she was named as a victim was pending. Detective Lucarelli sent J.H. texts about the status of her case and his desire to come over to her house and perform sex acts with her. When asked by the IAU investigator whether she was intimidated by Detective Lucarelli's sexting, J.H. replied “kind of,” but that she “didn't want anything to jeopardize her case” but she ultimately felt that her case was handled properly by Detective Lucarelli regardless of their sexting relationship. There was no evidence that the sexting led to a sexual relationship with J.H.

{¶ 8} There was no dispute that all of the sexual relationships in which Detective Lucarelli was alleged to have been involved during the time period at issue were consensual. None of the women complained about Detective Lucarelli's conduct before being contacted by the IAU, and none of the women sought to have any action taken against Detective Lucarelli after being contacted by the IAU. No criminal charges were filed against him. Although the IAU investigation revealed extensive unprofessional and inappropriate conduct by Detective Lucarelli, there was no evidence that he had used or abused his position as a police officer to influence the criminal cases in which any of these women were involved or that any of those cases was compromised because of his interactions with these women.

{¶ 9} Detective Lucarelli accepted responsibility for and expressed remorse regarding his misconduct. He claimed that following the end of his marriage, his “personal issues * * * clouded [his] professional judgment” until “it just got out of control.” He explained: “Ego. Things bad at home. You know, some guys turn to alcohol, some guys turn to drugs, some guys gamble and I found women.”

{¶ 10} The investigation led to the discovery of other transgressions by Detective Lucarelli as well. First, Detective Lucarelli failed to appear for a Garrity interview¹ scheduled for June 28, 2012. He claimed to have inadvertently missed the interview because he had worked an 8:00 p.m. to 4:00 a.m. shift the morning before the interview and fell asleep. He admitted this was no excuse for missing the interview and appeared for the interview the following morning. In addition, Detective Lucarelli had failed to obtain the necessary authorization prior to working a second job as a security guard at a local liquor store.

{¶ 11} The city and the CPPA are parties to a collective bargaining agreement (the “CBA”). Article IV of the CBA, Management Rights, provides in relevant part:

(4) Except as expressly limited by the terms of this Contract, any and all rights concerned with the management of the Division of Police are the exclusive and sole responsibility of the employer. It is further recognized that the City has the right to:

* * *

(e) Suspend, discipline, demote or discharge for just cause, layoff, transfer, assign, schedule, promote, or retain employees; * * *.

(Emphasis added.)

{¶ 12} On January 18, 2013, the city terminated Detective Lucarelli based on the following specifications:

1. Insubordination for failing to appear for an investigatory interview;

2. Working secondary employment without authorization;

3. Sending sexually explicit and inappropriate messages to crime victims and attempting to enter into relationships with seven women between January 1, 2012 and May 5, 2012 (the period of the investigation);

4. Utilizing an undercover police vehicle to transport individuals without legitimate law enforcement purpose during the same period of investigation;

5. Leaving the City to pick up his neighbor in the City of Beachwood during this same period of investigation;

6. Hugging, kissing, and touching females while inside an unmarked police vehicle during this same period of investigation; and

7. Having personal visits with females while on duty without authorization during this same period of investigation.

{¶ 13} Article XXII of the CBA requires that “any dispute arising out of or connected with the subject matter of [the CBA] or the interpretation, application or enforcement of any of its terms,” including disputes involving disciplinary action, be resolved through the CBA's grievance procedure. The CPPA challenged Detective Lucarelli's termination and the issue was submitted to binding arbitration in accordance with the grievance procedure. As agreed to by the parties, the issues to be resolved by the arbitrator were: (1) “Was the Grievant discharged for just cause in accordance with the labor agreement?” and (2) “If not, what remedy is appropriate?” Detective Lucarelli and the CPPA conceded that the city had just cause to take some form of disciplinary action against him but argued that termination was excessive and not an appropriate sanction under the circumstances.

{¶ 14} On November 7, 2013, after a hearing on the matter, the arbitrator issued his decision, upholding the grievance in part and concluding that although discipline was warranted, Detective Lucarelli's “discharge” was not “for just cause” under the CBA. The arbitrator...