ARBITRATION DECISION

AMERICAN ARBITRATION ASSOCIATION

J une 12, 2014


In the Matter of:

City of Cleveland )
) Case No. 53 390 00288 13
and ) Michael Donegan, Paul Wilson, &
) Ulrich Zouhar, Grievants
Fraternal Order of Police, Lodge No. 8 )


APPEARANCES

For the City:

William Menzalora, Chief Assistant Director of Law
Lieutenant Monroe Goins, Internal Affairs Unit
Tom Ciula, Video Forensics Operator
Commander J ames M. Chura, Bureau of Special Investigations
Commander Thomas Stacho, Bureau of Communications & Property Control
Commander Patrick Stevens, Third District
Martin Flask, Executive Assistant to the Mayor
Deputy Chief Dornat Drummond, Division of Police

For the Union:

Robert M. Phillips, Attorney/Advocate
Captain Brian W. Betley, President, FOP Lodge No. 8
Sergeant J erry Zarlenga, Vice President, FOP Lodge No. 8
Sergeant Paul Wilson, Grievant
Michael Donegan, Grievant
Lieutenant Ulrich Zouhar, Grievant
Captain Thomas Tube, Second District, Support Captain
Sergeant Randolph Daley, Second District

Arbitrator:

Nels E. Nelson


1
BACKGROUND
The instant case involves the City of Cleveland and Fraternal Order of Police, Lodge No.
8. The city consists of approximately 78 square miles and had a population of 396,815 in 2010.
The union represents the Sergeants, Lieutenants, Captains, and Commanders who work in the
Division of Police.
The city is divided into five police districts. Each district is led by a Commander and has
two Captains -- one is in charge of the districts basic patrol unit and the other is responsible for
the districts support units, including the vice, detective, and community service units. The
Patrolmen in each district are assigned to the A, B, or C Platoon with each platoon under the
command of a Lieutenant. The Patrolmen in each platoon are assigned to either basic patrol or a
support unit. They are supervised by either a Sector Supervisor or a Support Supervisor, both of
whom are Sergeants.
The department has a Bureau of Communications and Property Control, which includes
the Communications Control Section (CCS), commonly referred to as police radio dispatch. It
consists of call-takers and dispatchers. The call-takers receive calls for emergency service and
create an event in the computer-aided dispatch system. The call-takers then forward the event to
a dispatcher who assigns one of five priorities to the call and dispatches a patrol car. The
dispatchers monitor six computer screens, including one which shows the location of each police
car equipped with an Automatic Vehicle Locator (AVL). They work in close proximity so that
they can exchange information when necessary.
The department has nine radio channels. Each district has its own radio channel, which
Police Officers in the district are required to monitor. The department also has tactical channels
for secure, person-to-person communication. During a pursuit, Police Officers sometimes need to
2
monitor another districts radio channel or a tactical channel in addition to their own districts
channel.
The events giving rise to the instant case began at 10:26 p.m. on November 29, 2012. At
that time, Patrolman J ohn J ordan stopped a car registered to Timothy Russell on East 18th Street
between Rockwell and Superior Avenues. When J ordan approached the car, it fled west on
Superior Avenue. He pursued the car but when he lost sight of the vehicle, he broke off the
chase. J ordan did not broadcast his traffic stop or his pursuit.
A few minutes later, the car driven by Russell drove past the Mobile Services Unit, which
is located in the Third District on St. Clair Avenue across the street from the J ustice Center.
Patrolman Vasile Nan, who was assigned to the Second District Community Services Unit, was
at the Mobile Services Unit to have the computer in his car serviced. When he heard what he
thought was a gunshot, he took cover behind his vehicle. Once the vehicle passed, Patrolman
Nan gave chase and broadcast that a vehicle with two occupants had just popped a round and
was heading westbound on St. Clair Avenue. Sergeant Randolph Daley, the Second District
Community Services Unit supervisor, who was Nans immediate supervisor, began monitoring
the pursuit. Shortly thereafter, Patrolmen Nan broadcast that he had lost sight of the suspect car.
At 10:35 p.m., Second District Patrolmen David Siefer and J ames Hummel encountered
the suspect vehicle heading westbound on the Detroit-Superior Bridge. They pursued the vehicle
and the pursuit was joined by other police vehicles. It continued for approximately 22 minutes,
passed through four of the citys five police districts, and involved 105 Cleveland police officers
and at least 62 police cars, including ones from Cleveland, Bratenahl, East Cleveland, the
Cuyahoga County Sheriffs Department, the Ohio Highway Patrol, and the Regional Transit
3
Authority. The pursuit ended at Heritage Elementary School in East Cleveland where 13 police
officers fired 137 shots at what turned out to be two unarmed individuals, killing both of them.
There were two investigations of the events of November 29, 2012. First, the Bureau of
Criminal Investigation (BCI), which is part of the Ohio Attorney Generals Office, was
responsible for the criminal investigation. It did an extensive review of evidence and records and
conducted numerous interviews. On February 5, 2013, BCI forwarded its report to Timothy J .
McGinty, the Cuyahoga County Prosecutor. On the same day, Michael DeWine , the Ohio
Attorney General, offered a prepared statement regarding the investigation and suggested that the
events reflected a systemic failure.
Second, Michael McGrath, the Chief of Police, appointed a Critical Incident Review
Committee (CIRC). The purpose of the committee was to determine the facts on the night in
question and to identify possible policy and procedural violations for the purpose of the
administrative disciplinary process.
1
The committee was chaired by Commander J ames Chura,
who was in charge of the Bureau of Special Investigations. Other members of the committee
were Cassandra Bledsoe, the Administrator of the Office of Professional Standards; Commander
Dornat Drummond, the Commander of the Fifth District; Sergeant Monroe Goins, an
Investigator in the Internal Affairs Unit; Blaine Griffin, the Director of Community Policing;
Nancy Kelly, an Assistant Law Director in the citys Law Department; Sergeant Merrifield, from
the Training Section; Sergeant Robert Simon, from the Integrity Control Section; Commander
Patrick Stevens, the Commander of the Third District; and Lieutenant Ronald Timm, from the
Homicide Unit and the Use of Deadly Force Investigation Team.

1
Up to the time of the arbitration hearing, the CIRC had considered possible rule violations by Police Officers who
did not use deadly force. The 13 shooters had not been administratively charged at the time of the hearing.
4
On February 21, 2013, Goins, as a member of the Internal Affairs Unit, issued
Investigative Reports for Captain Ulrich Zouhar, the highest ranking officer on duty in the
Second District; Lieutenant Paul Wilson, the highest ranking officer on duty in the Third
District; and Sergeant Michael Donegan, a Sector Supervisor in the Second District. In each
case, he listed six alleged violations of department rules and procedures. Goins recommended
that the reports be sent up through the chain of command for review.
On April 24, 2013, the city made public a video presentation relating to the events of
November 29, 2012, produced by the CIRC. It included a description of the organization of the
department and the relevant General Police Orders. The presentation used video from
surveillance cameras located on the streets to show the pursuit as it went through the city and
then into Bratenahl and East Cleveland. It incorporated maps from the AVL system showing city
police vehicles, which were color-coded to indicate their district and whether the car was
assigned to a Patrolman or a supervisor.
On May 10, 2013, Martin L. Flask, the Director of the Department of Public Safety,
notified Zouhar, Wilson, and Donegan that he would be holding pre-disciplinary hearings for
them on May 20, 2013, and May 22, 2013. On J une 11, 2013, Flask demoted Zouhar to
Lieutenant, demoted Wilson to Sergeant, and terminated Donegan.
On J une 13, 2013, the union filed grievances on behalf of Zouhar, Wilson, and Donegan.
The union charged that there was not just cause for their discipline; that the discipline was
excessive, unreasonable, unsupported by the evidence, and inconsistent with progressive
discipline. It asked the city to return Zouhar and Wilson to their former ranks and make them
whole and to reinstate Donegan as a Sergeant and make him whole. The union also requested
that all of the records relating to their discipline be removed from Division of Police files.
5
When the grievances were not resolved, they were appealed to arbitration. On October 2,
2013, the American Arbitration Association notified the Arbitrator of his appointment. After the
parties agreed to combine the three grievances for arbitration, a hearing was held on February 5,
2014; February 12, 2014; and February 21, 2014. Post-hearing briefs were received on May 19,
2014.
ISSUES
The issues as framed by the Arbitrator are as follows:
1) Was there just cause to demote Captain Ulrich Zouhar? If not, what is the proper
remedy?

2) Was there just cause to demote Lieutenant Paul Wilson? If not, what is the proper
remedy?

3) Was there just cause to terminate Sergeant Michael Donegan? If not, what is the
proper remedy?


RELEVANT CONTRACT LANGUAGE
Article II
Management Rights

* * *

Section 2. Except as limited under this Agreement, the Citys management rights
include, but are not limited to, the right to:

* * *

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

* * *



6
CITY POSITION
The city argues that there was just cause for the discipline it imposed on Donegan,
Zouhar, and Wilson.
J ust Cause for Discipline - Sergeant Michael Donegan - The city argues that
there was just cause to discharge Donegan. It points out that it charged him with six policy and
procedure violations as follows:
Specification #1: On Thursday, November 29, 2012 you violated the Division of
Police Vehicle Pursuit Policy by not acknowledging the pursuit as a Sector
Supervisor.

Specification #2: On Thursday, November 29, 2012 you violated the Division of
Police Vehicle Pursuit Policy by actively engaging in the pursuit without notifying
the Communications Control Center.

Specification #3: On Thursday, November 29, 2012 you left the City of Cleveland
without permission; and, failed to take appropriate action with personnel under your
command also outside the city.

Specification #4: On Thursday, November 29, 2012 you failed to communicate
material information about a vehicle pursuit [to] other supervisors who assumed or
attempted to assume control of the pursuit.

Specification #5: On Thursday, November 29, 2012 you falsified your duty report by
failing to note that you responded to a vehicle pursuit.

Specification #6: On Thursday, November 29, 2012 you failed to assume supervisory
responsibility during a pursuit.

The city contends that as alleged in Specification #1, Donegan violated the Vehicle
Pursuit Policy by not acknowledging the pursuit as a Sector Supervisor. It rejects the grievants
argument that the pursuit was a Third District pursuit because it began in that district. The city
indicates that the pursuit began in the Second District when Patrolmen Siefer and Hummel
spotted the suspect car on the Detroit-Superior Bridge. The city indicates that since Donegan is
their Sector Supervisor, he was responsible for monitoring the pursuit but failed to do so.
7
The city discounts the unions claim that Daley was in charge of the pursuit. It points out
that Donegan stated at his BCI interview that Daley was monitoring the dispute but admitted that
he did not know his unit. The city notes that two months later in his Integrity Control interview,
he indicated that he knew that Daley was a Second District Support Supervisor. It emphasizes
that the pursuit policy states that a Section Supervisor must control a pursuit. The union claims
that if, on November 29, as Donegan admitted, he could not identify the unit in which Daley
was working (i.e., Basic patrol, CSU, etc.), and, as such, if Daley was or was not Nans (sector or
support) supervisor, Donegan, as Siefer and Hummels sector supervisor, was obligated, but
failed, to be in charge of the pursuit. (City Post-Hearing Brie, page 25)
The city challenges the unions contention that there was a working practice or culture
that allowed a Support Supervisor to control a pursuit. It reports that the pursuit policy requires
that in instances where the interpretation of this policy may not readily lend itself to bright-line
guidance, the policy shall be applied in the more restrictive manner[,] which in this case, would
have put a sector, not support, supervisor in charge of the Pursuit. (Ibid.)
The city observes that the Manual of Rules states that when a conflict [between the
orders of a superior officer] is apparent, it shall be the duty of the personnel knowing of such
conflict to so apprise the superior issuing the latest order. (Ibid) It claims that although the
Union proffered no evidence that Donegan, as a sector supervisor, was ordered by a superior
other than McGrath to relinquish control over any type of police pursuit (e.g., support-initiated)
to a support supervisor, if such an order was given, Donegan was required to notify the superior
officer of the conflict with the pursuit policy and request guidance on how to proceed, with the
superior possessing the same obligation. (City Post-Hearing Brief, pages 25-26)
8
The city acknowledges that in some instances Support Supervisors have monitored
pursuits. It points out, however, that on at least four occasions in 2012 prior to November 29,
2012, pursuits initiated by Patrolmen in support units were monitored by Sector Supervisors. The
city notes that in any event, just because earlier in 2012 some supervisory police officers in the
Second District (i.e., Zouhar) (or other police districts) below McGrath may not have enforced a
literal application of the pursuit policy at all times during police Pursuits or just because police
supervisors chose not to recommend disciplinary action against sector or support supervisors
during the mandated post-pursuit review process for police pursuits did not foreclose McGrath
from charging Donegan (and Zouhar) and Flask, as McGraths superior, from disciplining
Donegan (and Zouhar) for failing to follow the pursuit policy, a general police order, and for
failing to oversee the Pursuit and to take all other actions required of a sector supervisor in
charge of the police pursuit. (City Post-Hearing Brief, page 26)
The city maintains that the grievant violated Specifications #2, #3, and #4 by failing to
transmit anything regarding the pursuit. It charges that he failed to notify CCS that he was
actively engaged in the pursuit (Specification #2); left the city without permission (first part of
Specification #3); and did not communicate material information about the pursuit to other
supervisors (Specification #4).
The city claims that the grievants failure to transmit his active engagement in the pursuit
or that he was leaving the Second District and the city, deprived Zouhar, Daley, CCS, and others
of information about his whereabouts. It indicates that his failure to transmit first-hand
information regarding the pursuit deprived Daley of critical information he needed to control the
pursuit. The city acknowledges that Siefer and Hummel, as the lead car in the pursuit,
transmitted some information to Daley. It claims, however, that Donegan, as a Sector Supervisor,
9
would have a better appreciation for what information is important to controlling a pursuit than
would patrol officers. (City Post-Hearing Brief, page 29)
The city rejects the unions two-fold defense of Donegans failure to communicate. It
points out that contrary to the argument that he was not actively engaged in the pursuit, he
admitted at the arbitration hearing that he was in the Pursuit with City police cars in front and in
back of him. (City Post-Hearing Brief, page 27) The city notes that the unions claim that the
grievant needed to keep the air clear has no merit because Stevens testified that this directive
does not apply to information related to a pursuit.
The city argues that the grievant violated Specification #5 by falsifying his Daily Report
when he neglected to note that he responded to a vehicle pursuit. It observes that his report refers
to responding to East Cleveland but it does not reflect the time he spent in Tremont or elsewhere.
The city claims that whether it was an attempt to conceal his earlier actions and inactions
regarding the Pursuit or just another example of Donegans dereliction of his duties on the night
of November 29
th
, Donegan again and again failed to follow proper procedure. (City Post-
Hearing Brief, page 29)
The city contends that the grievant failed to take appropriate action with the people under
his command (second part of Specification #3) and failed to assume supervisory responsibility
during the pursuit (Specification #6). It states that just because Daley wrongly seized the mantel
of responsibility when Donegan did nothing after Siefer and Hummel initiated the Pursuit did not
absolve Donegan of his obligation to supervise (i.e., actively direct and control) his patrol
officers during the Pursuit. (City Post-Hearing Brief, page 30) The city indicates that while
eight of Donegans Patrolmen violated the pursuit policy by not requesting his permission to join
the pursuit, he needed to actively do whatever was required to determine whether any of them
10
were involved in the pursuit. It observes that while he was at the Second District office during
the early stages of the pursuit, AVL was available to him to determine the location of his
Patrolmen and that later he could have asked the Second District dispatcher to check AVL
system for the location of his Patrolmen.
The city charges that Donegan should have remained in the pursuit. It points out that at
his BCI interview, he stated that he disengaged when he heard on the radio that the suspect
vehicle was getting on I-90 at West 14
th
Street and felt that there was no point in trying to catch
up to the pursuit; at his Internal Affairs interview, he asserted that if it were necessary, Siefer and
Hummel could have called off the pursuit; at his pre-disciplinary hearing, claimed that problems
with his vehicle prevented him from continuing the pursuit; and at the arbitration hearing, he
testified that he had hoped to cut off the suspect vehicle as it left West 14th Street. The city
notes, however, that Donegan did not bad order his car for poor performance and that he did
not contact the Second District dispatcher to see that calls in the district were being properly
handled.
The city questions Donegans mentality and supervisory role on the night of November
29, 2012. It observes that in his second interview with Internal Affairs, he astoundingly [saw]
nothing wrong with all of his assigned (and over 90 other) patrol officers from adopting an all
hands on deck pack mentality, leaving the Second District (and other police districts), and
leaving the City of Cleveland (and its residents, visitors, and businesses behind) in response to
one alleged criminal incident. (City Post-Hearing Brief, pages 34-35) The city claims that the
grievant should have followed the relevant policies and procedures, done his job, and saw that
his Patrolmen did their jobs.
11
J ust Cause for Discipline - Captain Ulrich Zouhar - The city argues that Zouhars
six policy and procedure violations provide just cause for his demotion to Lieutenant. It states
that he was charged as follows:
Specification #1: On Thursday, November 29, 2012 you failed to require that the
work assigned to your subordinates be fully discharged by them in accordance with
the responsibilities of their respective rights and duties.

Specification #2: On Thursday, November 29, 2012 you reported that you monitored
the vehicle pursuit for policy violations, but did not intervene when a Support
Supervisor, as opposed to a Sector Supervisor, assumed control over the pursuit. You
further reported that you were aware of the fact that a Support Supervisor was in
control and did not intervene because it was a common practice that can be shown
by examining past pursuit investigations.

Specification #3: On Thursday, November 29, 2012 you did not use, monitor or
require the Communications Control Section or any of your subordinates under your
command to access or monitor the Automated Vehicle Locator (AVL) system to help
manage or coordinate a multi-district pursuit which involved serious allegations of
armed offenders fleeing police into areas that were potentially unfamiliar to pursuing
officers.

Specification #4: On Thursday, November 29, 2012 you failed to inquire with the
Communications Control Section or anyone else regarding pending priority
assignments, knowing that a significant amount of police unit under your command
were engaged in a pursuit and outside the City of Cleveland.

Specification #5: On Thursday, November 29, 2012, while assigned to car 2S24, you
failed to determine the appropriate number of police vehicles needed to engage in the
pursuit.

Specification #6: On Thursday, November 29, 2012 you failed to take any
supervisory action during a lengthy vehicle pursuit involving personnel and your
command.

The city contends that Zouhar violated Specification #1 by failing to require his
subordinates to fully discharge their responsibilities. It points out that three of the sergeants
under his direct command were charged with failing to supervise, direct, and control their
Patrolmen so that two of them received 10-day suspensions and one was discharged . The city
notes that 22 of the districts patrolmen were disciplined and 11 others, including 10 shooters,
12
are still facing discipline. It claims that Zouhars across the board lack of accounting for the
whereabouts of a super majority of the first line of defense for residents, visitors, and businesses
in the Second District is unfathomable. (City Post-Hearing Brief, page 39)
The city maintains that Zouhar violated Specification #2 by not intervening when a
Support Supervisor assumed control of the pursuit. It states that he did not follow McGraths
directive that the pursuit policy must be applied in the more restrictive manner. The city
indicates that if Zouhar thought the culture was at odds with the pursuit policy, he was duty-
bound to tell a superior officer of the conflict and request clarification. The city feels that it is
irrelevant that Zouhar may have believed that it was illogical for a Sector Supervisor to take over
a pursuit from a Support Supervisor.
The city argues that Zouhar violated Specifications #3 and #4 by neglecting to check the
AVL system or a have Section Supervisor or the dispatcher do it. It points out that as a result, he
admitted that he believed that only three city police cars were involved in the pursuit. The city
notes that this meant that he was not in a position to effectively assist Daley in managing and
controlling the Pursuit itself and to assist the four Second District sector supervisors managing
the involvement of their respective patrol officers. (City Post-Hearing Brief, page 40)
This city contends that at Heritage Elementary School, Zouhar violated Specification #4
by failing to ask CCS or anyone else about pending priority assignments in the Second District.
It suggests that since he delegated responsibility for the only order he received at the crime scene
to others, i.e., to keep the media back, he had the opportunity to check regarding priority
assignments in the district. The city indicates that Zouhar admitted that it was not until 4:30 a.m.
on November 30, 2012, that he released Second District patrol cars to return to the Second
District and called to make sure all runs were being handled.
13
The city maintains that Zouhar violated Specification #6 by failing to take any
supervisory action during the pursuit. It claims that he failed to give Daley or the Sector
Supervisors any guidance or assistance. The city charges that Zouhar tries to impale Daley with
sole responsibility for both knowing the actual number of police cars involved and determining
the number of police cars which should have been involved in the Pursuit (i.e., more or less).
(City Post-Hearing Brief, page 43)
The city rejects the unions contention that Zouhar cannot be disciplined for allowing a
Support Supervisor to monitor the pursuit because they have periodically done so. It points out
that Donegan should have been in charge of the Pursuit either because it began in the Second
District or, assuming it began in the Third District, all Third District police officers were called
off, and, thus, the Pursuit was wholly a Second District pursuit once Siefer and Hummel took
over after Nan lost the suspect car. (City Post-Hearing Brief, page 44)
J ust Cause for Discipline - Lieutenant Paul Wilson - The city argues that there
was just cause to demote Wilson. It reports that he was charged with six policy and procedure
violations as follows:
Specification #1: On Thursday, November 29, 2012 you failed to notify the
Communications Control Section that you were engaged in a vehicle pursuit.

Specification #2: On Thursday, November 29, 2012 you failed to inform
Communications Control Section to disregard late responding police units to a
vehicle pursuit that ended in the use of deadly force in East Cleveland.

Specification #3: On Thursday, November 29, 2012 you failed to make inquiries with
the Communications Control Section about other pending assignments knowing that
many Third Police District officers were out of their district and unavailable to handle
calls for service.

Specification #4: On Thursday, November 29, 2012 you failed to confiscate
photographs taken at the scene by Sergeant J ason Edens and enter those photographs
into evidence.

14
Specification #5: On Thursday, November 29, 2012 you failed to supervise personnel
under your supervision who were engaged in a vehicle pursuit.

Specification #6: On Thursday, November 29, 2012 you failed to take any
supervisory action during a vehicle pursuit.

The city contends that Wilson violated Specification #1 by failing to notify the
Communications Control Section that he was engaged in a pursuit. It rejects the unions claim
that he could not do so because it was important to keep the air clear. The city indicates that
even if this defense has merit, Wilson cannot rely on it. It states that he should have told the
Third District dispatcher that he and Edens were leaving the district and the city. The city
observes that instead, he claimed that Dispatch knew his location from the AVL system.
The city dismisses Wilsons assertion that he and Edens were never in the pursuit. It
indicates that they got in-line in the Pursuit, lights and siren on and with other City police cars
both in front and in back of them, and left the Third District and the City, they were part of the
Pursuit. (City Post-Hearing Brief, page 47)
The city maintains that Wilson violated Specifications #2 and #3 by not telling Third
District Patrolmen to disregard the pursuit. It observes that he admitted that he did not do so
because he assumed that the Patrolmen assigned to Sergeants Mark Shepard, Mark Bickerstaff,
J ason Edens, and Matthew Gallagher would have listened to the supervisors who told them to
break off the pursuit.
The city argues that Wilson violated Specification #4 by failing to ensure that two photos
taken by Edens were treated as evidence and provided to the appropriate investigative agency. It
acknowledges, however, that this specification involves a relatively minor violation.
The city contends that Wilson violated Specifications #5 and #6. It asserts that his
violations of these two specifications start with his possessing no basis for actually being
15
involved in the Pursuit, as opposed to appropriately putting himself and Edens in the area of the
Pursuit to block traffic or take other appropriate action. (City Post-Hearing Brief, page 48) It
suggests that Wilson should have inquired over Channel 2 regarding Daleys location or had the
Third District dispatcher check with the Second District dispatcher regarding Daleys location
and used the AVL at the Third District or while he was a passenger in Sergeant Edens cruiser to
determine whether the Patrolmen had complied with the orders to disengage from the pursuit.
The city maintains that Wilsons lack of knowledge of the whereabouts of his
subordinates compounded his situation. It points out that he did not know that two of his three
subordinates, Gallagher and Bickerstaff, responded to the pursuit and to East Cleveland despite
all Third District police officers being ordered to disengage. The city notes that Wilson was also
unaware that 37 of the Third Districts Patrolmen were involved in the pursuit. It asserts that
Wilson, as the passenger [in Edens car] could and should have either checked AVL on the
computer in the zone car or had the Third District dispatcher do it. (City Post-Hearing Brief,
page 49)
The city argues that Wilson failed to transmit any information to Daley on Channel 2 or
to the Third District dispatcher on Channel 3 for transmission to Daley and the responding
Patrolmen on Channel 2. It states that he could have reported the number cars in the pursuit and
their speed. The city indicates that he did nothing to determine if any of the cars in the pursuit
were from the Third District.
The city contends that Wilson used his rank as both a sword and a shield. It points out
that on one hand, he used rank as a sword to justify becoming involved in a Second District
pursuit. The city notes, however, on the other hand, he used it as a shield to claim he was not
16
responsible for failing to realize that the three shooters were involved in the Pursuit since they
were part of the Third District Vice (support) Unit. (City Post-Hearing Brief, Page 51)
The city maintains that Wilson also violated Specification #6 by failing to reprimand or
recommend discipline for Gallagher and Bickerstaff. It reports that they went to East Cleveland
even though Third District police officers were told to disengage from the pursuit.
Disciplinary Penalties - The city argues that the discipline it imposed was appropriate.
It admits that it did not use progressive discipline but observes that the collective bargaining
agreement does not require its use. The city adds that in any event, the magnitude of the incident
would have justified ignoring progressive discipline.
The city contends that actions that have serious consequences warrant serious discipline.
It observes that even though none of the three grievants (or any other supervisory officer) was
charged with failing to stop the Pursuit prior to its conclusion in East Cleveland the failure of
these three grievants to possess basic, readily available facts regarding the Pursuit which, in turn,
resulted in a failure to manage (either personally or by giving direction to others) the Pursuit
justified the discipline imposed. (City Post-Hearing Brief, page 52) It adds that the grievants
actions and interactions irrefutably led to an excessive number of police officers being in a
position to use deadly force against two unarmed individuals regardless of whether any particular
officer used or did not use deadly force. (Ibid.)
The city maintains that Zouhars and Wilsons demotions are justified. It points out that
their lack of supervision resulted in almost two-thirds of the Second and Third District Patrolmen
being out of their districts.
The city acknowledges that after the pursuit, Zouhar and Wilson were temporarily
promoted by the police department. It states, however, that they were demoted by Flask, who
17
was outside the department. The city indicates that in any case, there is nothing inconsistent with
his decisions because he did not include a provision barring either Zouhar or Wilson from
respectively taking the next promotional exam for Captain and for Lieutenant. (City Post-
Hearing Brief, page 53)
The city argues that Donegans actions warranted termination rather than demotion. It
charges that Donegan not only failed to act like a supervisor, he (unlike Zouhar) stopped acting
like a Second District police officer serving City residents living in the Second District (and
elsewhere in the City of Cleveland) when after actually encountering, observing, and becoming
part of the Pursuit he pulled over to a side street, parked, and did nothing for a significant period
of time. (City Post-Hearing Brief, page 53) The city indicates that Donegans claim that he
disengaged from the pursuit because of problems with his car is undermined by the fact that he
did not bad order his vehicle that day or on any later date. It asserts that Donegans testimony
is nothing more than a false, self-serving attempt at saving his job. (City Post-Hearing Brief,
page 54)
Unions Affirmative Defenses - The city argues that the unions affirmative defenses
are an elaborate exercise in misdirection. It indicates that constitutional due process merely
requires a public employer to provide an employee with notice of discipline and an opportunity
to be heard. The city reports that the grievants received written notice of their pre-disciplinary
hearings and that their pre-disciplinary hearings were held prior to the imposition of discipline. It
adds that each grievant was able to challenge the discipline he received through the contracts
grievance and arbitration process.
The city dismisses the unions objection to the creation of the CIRC. It states that the
CIRC was not formed to issue discipline, determine culpability, or exonerate police officers. The
18
city indicates that it was McGrath who issued the disciplinary charges and Flask who imposed
the discipline after conducting pre-disciplinary hearings. The city observes that McGrath and
Flask dismissed a number of the disciplinary charges suggested by the CIRC and disciplined
only 67 of the 70 Patrolmen involved in the pursuit. It adds that in any event, the union waived
any objection to the CIRC over one year prior to the arbitration hearing.
The city rejects the unions argument that McGrath created a conflict of interest when he
named Stevens, the Third District Commander, and Drummond, the Fifth District Commander,
to the CIRC. It acknowledges that some of their personnel were involved in the pursuit but
claims that the union failed to show how their appointment created an illegal or unethical
conflict of interest. The city stresses that it is commonplace for supervisors to review the work
of their subordinates.
The city contends that the unions conflict of interest charge is curious given the
testimony of Captain Brian Betley, the President of FOP Lodge No. 8. It observes that he stated
that the supervisors in a certain chain of command in that particular district took care of
those [pursuit] investigations. (City Post-Hearing Brief, page 57) The city claims that if an
immediate supervisor of the sector supervisor in charge of managing a police pursuit (i.e.,
usually a Lieutenant) is not conflicted out of reviewing the manner in which one of his or her
sector supervisors managed a police pursuit, the commander of the police district likewise
possesses no improper conflict of interest either in conducting the initial review of the pursuit,
particularly when ordered by the Chief to be part of such of the review process, or in reviewing
the pursuit when it is forwarded up the chain of command to the Deputy Chief of Field
Operations for further review. (Ibid.) It reports that in any event, Stevens and Drummond were
19
not on duty during the pursuits so their actions regarding the pursuit were not and are not in
question.
The city rejects the unions argument that it should not have imposed discipline before
the completion of the criminal investigation of the events of November 29, 2012. It states that
there is nothing in the collective bargaining agreement that bars it from conducting an
administrative investigation prior to or concurrently with a criminal investigation. The city
indicates that the only contractual language regarding criminal investigations addresses
bargaining unit members constitutional and statutory protections.
The city discounts the unions objection to its April 24, 2013, release of the CIRCs
findings and possible disciplinary charges. It points out that BCI had released the results of its
criminal investigation almost three months earlier. The city notes that Flask testified that the
City endeavored to be proactive in addressing the widespread media coverage and public unrest
that was a byproduct of the incident by being transparent regarding the results of its
administrative investigation. (City Post-Hearing Brief, page 59)
The city challenges the unions argument that it was a matter of the system failing the
officers rather than the officers failing the system. It acknowledges that a press release from the
Ohio Attorney General states:
Policy, training, communications, and command have to be so strong and so
integrated to prevent subjective judgment from spiraling out of control. The system
has to take over and put on the brakes. (Ibid.)

The city suggests, however, that the words command and system includes all of the
personnel who were on duty on November 29, 2012. It characterizes the unions view that
command includes only command officers, i.e., those holding the rank of Commander or
above, as myopic and unjustified.
20
The city characterizes as misdirection the unions attempt to reframe [the] charge of
failure to use available resources as being a charge of failure to obtain or direct the use of the
CPD helicopter and a failure to obtain or direct the use of stop sticks. (City Post-Hearing Brief,
page 60) It points out that Flask testified that the problem was that the grievants failed to use
simple telephone communications, the police radio, or the automated vehicle locator and to
properly evaluate the usage (i.e., too many or too few) of the most important asset of the
Division of Police -- its police personnel. (Ibid.)
The city rejects the unions charge that supervisors did not receive training regarding the
pursuit policy other than during their initial training in the Cleveland Police Academy. It states
that the unions witnesses failed to mention that the pursuit policy is reviewed with all the newly
promoted Police Officers during their week-long supervisory training. The city indicates that the
pursuit policy was reviewed multiple times in the Second District in 2011 and 2012 and in the
Third District in 2012. The city adds that the case against Zouhar, Wilson, Dunagan, and the
other nine supervisors is not about their failure to stop the Pursuit earlier than it did on its own
[but] it is about a more fundamental lack of knowledge borne out of a lack of communication
with their subordinates (e.g., asking questions) and the lack of use of available resources (e.g.,
radio, AVL, & personnel. (City Post-Hearing Brief, page 61)
Conclusion - The city concludes that the three grievances should be denied in their
entirety. It adds, however, that if the Arbitrator sustains any of the grievances, he cannot order it
to remove a record of the discipline from a grievants personnel file. It points out that the
collective bargaining agreement prohibits an Arbitrator from pass[ing] upon issues governed by
the law or mak[ing] an award in conflict with the law. The city notes that under the Ohio
Public Records Act, ORC 149.43, an employees disciplinary record is subject to a public
21
records request. It asserts that the Arbitrator, at most, could order [it] to include a copy of his
opinion and award in Zouhars, Wilsons, and Donegans respective personnel files. (City
Post-Hearing Brief, page 62)

UNION POSITION
The union argues that there was not just cause to discipline the grievants or, alternatively,
that the penalties imposed on them were too severe.
Burden of Proof - The union argues that the city bears the burden of proving that it
had just cause to discipline the grievants. It points out that Article II, Section 2(e), states that the
city may suspend, discipline, demote or discharge for just cause. The union notes that it is
well-established that pursuant to such language, the employer bears the burden of proof.
The union contends that Arbitrators have held that the concept of just cause places a
three-fold burden on an employer. It indicates that an employer must prove that the employee
engaged in misconduct or committed the offense of which he is accused; that the penalty is
proportional to the seriousness of the misconduct; and that the penalty is fair, reasonable, and
non-discriminatory. The union claims that the employer must also demonstrate that the employee
reasonably could have been expected to know the penalty for his misconduct.
The union maintains that in a discharge case, the degree of proof depends on the nature of
the allegations against the employee. It reports that in cases involving criminal conduct or moral
turpitude, Arbitrators commonly require clear and convincing evidence or proof beyond a
reasonable doubt. The union observes that in applying a high standard of proof, Arbitrators cite
the effect of an adverse employment action on an employees future employment.
The union argues that in the instant case, the Arbitrator should apply the clear and
convincing evidence standard. It claims that each of the grievants is charged with neglecting
22
his duty as a ranking officer [and that] the stigma attached to the allegations can have very
serious consequences in terms of later promotions and employment opportunities for [them].
(Union Post-Hearing Brief, page 11) The union asserts the equitable interests at stake require the
application of the clear and convincing evidence standard of proof.
The union contends that General Police Order 9.1.03 sets forth the basic conduct and
responsibilities of command and superior officers. It indicates that Section III, Part A, states that
Superior Officers conduct necessary business within their assignments and that Sections VII,
VIII, and IX further define the responsibilities of Sergeants, Lieutenants, and Captains. The
union observes that the definitions clearly demonstrate that captains are administrative,
lieutenants are primarily administrative, but operational as needed and sergeants are primarily
operational with administrative oversight of their immediate subordinates. (Union Post-Hearing
Brief, page 12) The union reports that in contrast to Superior Officers, Command Officers
provide continuous training and instruction for their personnel and regularly inspect facilities,
vehicles and equipment [and] are responsible for major incidents that occur in their
command. (Ibid.) It asserts that in light of these policies and procedures, it appears from the
record as a whole that, with after-the-fact very minor exceptions, each of the grievants was
compliant with their assigned duties. (Union Post-Hearing Brief, pages 12-13)
J ust Cause for Discipline - Captain Ulrich Zouhar - The union argues that Zouhar
performed his assigned duties. It observes that on November 29, 2012, he was the Patrol Section
Captain in the Second District and as such, his duties were exclusively administrative. The union
adds that Zouhar was the most senior Captain on duty at the time of the incident.
The union contends that when Zouhar became aware that a vehicle pursuit was underway
in the district, he immediately took steps to understand the exact nature of the pursuit. It points
23
out that from speaking with several Sergeants and listening to the radio traffic, he learned (a)
that a suspect vehicle was being pursued after probably discharging a firearm at or near police
officers; b) that the suspect vehicle was being pursued by Second District personnel, and c) that a
Second District supervisor, Sergeant Daley, was monitoring the pursuit. (Union Post-Hearing
Brief, page 13) The union notes that Zouhar was notified that aviation support and stop sticks
were not available.
The union maintains that Zouhar acted properly upon hearing shots fired and EMS
notified. It observes that he notified the Deadly Force Team and sent an e-mail to the Second
District Commander, who was not on duty. The union reports that Zouhar then proceeded to the
terminal point of the pursuit in East Cleveland where he assisted in establishing the crime scene.
The union questions the citys decision to demote Zouhar. It indicates that he achieved
the highest civil service rank in the Division of Police; that his Supervisory Performance
Evaluations rated him as outstanding with a score of 4.97 out of 5.00; and that since the
pursuit, he has sometimes been assigned as the Acting Commander of the Second District.
J ust Cause for Discipline - Sergeant Michael Donegan - The union argues that
Donegan, who was a Sector Supervisor in the Second District, performed all of his assigned
duties. It reports that when he learned about the pursuit from radio traffic, he was able to
determine: a) second district support officer (Nan) was concerned about shots fired at or near
him; b) that Officer Nan initiated a pursuit heading west; and c) that Officer Nans immediate
support supervisor, Sergeant Randy Daley, assumed monitoring of the pursuit. (Union Post-
Hearing Brief, page 14) The union observes that despite the pursuit entering his sector, Sergeant
24
Donegan was given to defer to custom and practice, allowing Sergeant Daley, a support
supervisor, to monitor the pursuit. (Ibid.)
2

The union contends that Donegans first reaction was concern for public safety. It states
that he went to the intersection of Fulton and Clark Avenues where he blocked civilian traffic as
the pursuit passed through the intersection. The union indicates that Donegan, anticipating the
route of the pursuit, then went to West 14
th
Street. It reports that when it became apparent that
the pursuit was entering I-90 at West 14
th
Street, he opted to remain in the Second District.
The union maintains that when Donegan subsequently heard on the radio that the
suspects were exiting I-90 at East 72
nd
Street, had hit a police car, and were going to bail, he
went to the area. It points out that he had worked on the eastside of the city for ten years and
believed that he would be an asset in a foot chase. The union notes that after he heard radio
traffic indicating that shots had been fired, he complied with Sergeant Daleys request to meet
him and transport him to Heritage Elementary School, the scene of the shooting. The union
explains that at the school, Donegan checked on the welfare of his subordinates and then
returned to the Second District to respond to calls for service.
The union argues that Donegans record suggests that his termination for his alleged
failure to supervise is a complete miscarriage of justice. (Union Post-Hearing Brief, page 17) It
states that he had no prior discipline and was considered an excellent performer and was
assigned as an acting Lieutenant before and after November 29, 2012. The union indicates that
the grievant had a cumulative performance rating of 4.51 on his November 23, 2012,
Supervisory Performance Evaluation.

2
The union acknowledges that the General Police Order 3.2.02 (Vehicle Pursuits) states that a Sector Supervisor is
to control a pursuit but it reported that FOP Exhibit A indicates that 25% of the pursuits in 2012 were monitored by
a Support Supervisor.
25
J ust Cause for Discipline - Lieutenant Paul Wilson - The union argues that
Wilson properly performed his duties. It reports that on November 29, 2012, he was the C
Platoon Shift Commander and was responsible for 15 subordinates, including two sergeants, and
was the ranking officer in the Third District.
3
The union observes that Wilsons primary duties
were administrative and that his responsibilities included the welfare of the citizens and officers
in the district. The union adds that 22 years of street experience as a Cleveland police officer, 4
years as a U.S. Marine, and 4 years as a Yuma, Arizona, deputy sheriff made him more than
capable of evaluating and engaging the appropriate measures for the events of November 29,
2012. (Union Post-Hearing Brief, page 17)
The union contends that Wilson responded properly to the events. It states that he initially
learned by radio traffic a) that shots were fired near the J ustice Center by a fleeing suspect; b)
that the suspect vehicle was being pursued in a westerly direction within the Second District by
Second District officers; and c) that the pursuit was being monitored by a Second District
supervisor. (Ibid.) The union indicates that he later found out from radio traffic that air support
and road spikes had been requested but were not available.
The union maintains that when the pursuit entered the Third District and it appeared that
the suspects might leave their vehicle, Wilson decided on a plan of action. It states:
Now possessed of even more radio information including a collision between a
cruiser and suspect vehicle, and the suggestion of a flat tire on the suspects vehicle
which contained two active shooters, Lt. Wilson took it as his responsibility to act. He
was also fully aware that owing to the lack of response to a Third District
supervisors request for pursuit information, that supervisor [Sgt. Shepard] told the
district officers not to engage in the pursuit. (TR-559) Nonetheless as the ranking
officer in the Third District and as noted, he found himself duty bound to move
toward the pursuit to evaluate and assist. (TR-556) In point of fact, Lt. Wilson with
Sgt. Edens did evaluate the pursuit by first blocking off intersection traffic for the
public safety (TR-563) and secondly, by observing the police cars in the chase for

3
The Patrol Section Captain and the B Platoon Shift Commander were not on duty on November 29, 2012.
26
unsafe driving actions. (TR-564) While the actual pursuit involved multiple police
vehicles, only a relatively few fit the description of being a vehicle in pursuit. (J oint x
7) As noted earlier, the definition describes a participant in the pursuit as one who is
making an active attempt to apprehend a fleeing vehicle. (J oint x 7) Frankly as
the video of pursuing vehicles clearly evidence, the overwhelming majority of the
pursuit police vehicles, including the car driven by Sgt. Edens in which Lt. Wilson
was a passenger, were in no position to apprehend the suspect car. As the video
shows, many vehicles were more than five (5) minutes behind the suspect car with
many more than two (2) to five (5) minutes behind. (City x 7) Case in point was that
while still mobile Lt. Wilson and Sgt. Edens heard the shots fired transmission and
were still a quarter of a mile distant. (TR-571, 572) To characterize the lieutenant and
his driver as making an active attempt to apprehend the suspects is simply not
realistic. Lt. Wilsons focus and function was to be in a position in the district of his
responsibility to render whatever help he could. He was NOT in a vehicle pursuit
despite the allegations of the City.

Exiting their cruiser and walking uphill for quarter of a mile, the lieutenant
realized he was the only white shirt, or senior supervisor on the scene. Initiating the
establishment of security at the crime scene, he thereafter contacted his commander
and when Deputy Chief Williams arrived, took direction from the deputy chief.
Completing his directed efforts and shortly after leaving the scene, he was called by
his commander to return with instructions for the patrol officers who fired their
weapons and being retained by the investigative unit. (TR-579-582) While several
Third District officers fired their weapons, none of Lt. Wilsons officers were
involved in firing. (City x 2) After this discussion, the lieutenant returned to the Third
District and responded through the balance of his tour of duty responding to calls for
service. (J oint x 5, Daily Duty Report) (Union Post-Hearing Brief, pages 17-19)

The union argues that Wilson had an outstanding record. It observes that he had no
discipline in 22 years as a Cleveland Police Officer and had received an e-mail from Stevens in
mid-2012 regarding his great performance. The union reports that on his November 30, 2012,
Supervisory Performance Evaluation, Wilson had a cumulative performance rating of 4.05 and a
comment from his Captain that his performance exceeds expectations.
Affirmative Defenses - The union argues that the alleged failures of the grievants on
November 29, 2012, were in large measure the consequence of a systemic failure. It claims
that the system failed the officers -- the officers did not fail the system. (Union Post-Hearing
Brief, page 19)
27
The union contends that Arbitrators recognize the importance of training in considering
whether there is just cause for discipline. It points out that in Michigan Dept. of Corrections, 93
LA 339 (1989), where a corrections officer was discharged for failing to take proper security
precautions, Arbitrator Knott found that the lack of evidence of specific security instructions or
training mitigated the grievants poor judgment. The union notes that in Cincinnati State, 130 LA
1205 (2012), Arbitrator Heekin reinstated the grievant with full back pay when he found that the
employers vehicle pursuit policy was ambiguous and that the grievant had received no training
in vehicle pursuits.
The union maintains that in the instant case, the grievants were confronted with the same
lack of training. It states that the vehicle pursuit of November 29, 2012, which involved reports
of shots fired at or near a police officer, went through four of five police districts, lasted nearly
30 minutes, and ended outside the city, was unprecedented. The union indicates that this suggests
that there was no template on how to respond. (Union Post-Hearing Brief, page 21)
The union argues that it is particularly troubling that it is a virtual certainty that there
was no vehicle pursuit training until after the incident of November 29, 2012. It reports that
witness after witness testified that their only hands-on training was during their initial training at
the Police Academy. The union adds that training focused on inter-district chases with the
inherent problems of communications between the districts, span of control beyond City limits,
and training central radio/dispatch center personnel to recognize the global magnitude and
variables of the pursuit was also nonexistent. (Union Post-Hearing Brief, page 21) It stresses
that it is unjust for the City to retroactively question the grievants professional judgment, when
the City failed to equip them with the proper training and knowledge to make an informed
decision prior to the night in question. (Ibid.)
28
The union contends that inadequate communications created circumstances where the
right hand did not know what the left hand was doing. (Ibid.) It observes that four of five
districts had a hand in the pursuit and that each had its own radio channel so that there was no
common channel to keep all of the pursuing officers on the same page. The union adds that
between the radio communications and the global monitoring of the automatic vehicle locator
(AVL), it should fall on radio central to have kept all the parties on the same page. (Union Post-
Hearing Brief, pages 21-22)
The union maintains that there were significant problems with the communication system
in place on November 29, 2012. It points out that there was no common radio channel to ensure
reliable communications but instead the Division of Police relied upon verbal exchanges in radio
central between the dispatchers assigned to each district. The union notes that officers in the field
needed to have multiple radios tuned to different district radio channels.
The union argues that the city failed to adopt a system that allowed for inter-district
communications. It states that the citys Motorola radio system had a patching component that
could do this. The union indicates, however, that Tom Stacho, the Commander of the Bureau of
Communications, testified that the patching feature was not in use because it had inherent
problems.
The union rejects the allegation that the grievants failed to monitor pending assignments.
It acknowledges that while they had some responsibility for doing this, CCS had equal or
greater responsibility. The union charges that unfortunately on the night of November 29, 2012,
the nerve center inclusive of less than reliable equipment failed to serve the officers included in
the pursuit as policy, custom, practice and common sense required. (Union Post-Hearing Brief,
page 23)
29
The union contends that the equipment needed in the pursuit was not available. It points
out that the Vehicle Pursuit Policy incorporates the aviation unit and the Road Spikes Policy
discusses their use in vehicle pursuits. The union notes that while reference to these assets for
use in vehicle pursuits raises the expectation of [their] availability by officers in the trenches,
neither was available on November 29, 2012. (Union Post-Hearing Brief, page 23) It adds that it
seems inconceivable that the road spikes couldnt even be located not to mention that there was
never any training or demonstration evidenced for the use of the spikes as required by existing
policies. (Ibid.)
The union maintains that Arbitrators have reduced penalties where an employers action
or inaction contributed to an employees inability to follow a policy or procedure. It cites Steel
Branch Mining, 96 LA 391 (1991), where Arbitrator Roberts reduced a discharge to a 30-day
suspension because the employer failed to replace a missing part on the grievants vehicle, which
contributed to the damage caused by his unsafe driving. The union also relies on Southwest
Airlines, 93 LA 575 (1989), where Arbitrator Morris found that a two-week suspension was
excessive where the employer was partially at fault for the grievants careless behavior because it
failed to paint lines on a ramp to show safe areas.
The union concludes that the grievants were not responsible for the lack of training and
asserts or communications problems. It claims that the failure of training, communications
and/or assets lies squarely at the feet of the City administration. (Union Post-Hearing Brief,
page 24) The union asserts that the Ohio Attorney General got it right when after an exhaustive
investigation he declared that we are dealing with a systemic failure Command failed
Communications failed ... The system failed. (Ibid.)
30
Proper Penalties - The union argues that public pressure explains the harsh discipline
imposed on the grievants. It indicates that Cleveland Safety Director Flask got it right when he
opined that the community wanted heads to roll [and] went on to say that unless the officers
involved went to jail the public would not be happy. (Union Post-Hearing Brief, page 25) The
union states that the question must then be asked whether the public outcry was so loud, and the
attendant publicity so intense, that it clouded the Citys sensibilities of reason in meting out
discipline. (Ibid.)
The union cites City of Portland Bureau of Police, 77 LA 820 (Axon, 1981). It points out
that in that case, the city discharged two police officers who placed a number of opossum
carcasses in front of a restaurant in a primarily black neighborhood. The union notes that it was
undisputed that in Portland, the police commissioner and the police chief gave great weight to
public opinion when determining that the officers should be terminated.
The union reports, however, that Arbitrator Axon reinstated the two officers. It observes
that he held that the city could not claim that the grievants, who had excellent records, were
beyond rehabilitation. The union reports that Axon also found that the city had only discharged
police officers who had engaged in serious criminal activity. It emphasizes that he found that
the grievants were not charged with criminal activity [and] that he was compelled to conclude
that [they] were singled out for discipline because of the substantial amount of media attention
given to the incident. (Union Post-Hearing Brief, page 26)
The union contends that the same intense media scrutiny was present in the instant case.
It states that Chura, the chairman of CIRC, acknowledged that the citys PowerPoint presentation
about the incident was made for the public. The union indicates that the media played portions of
the presentation almost weekly with editorial comment placing the police in a bad light.
31
(Union Post-Hearing Brief, page 27) It claims that the grievants were essentially scapegoats for
the Departments systemic failure. (Union Post-Hearing Brief, page 27)
The union maintains that Zouhar, Wilson, and Donegan became the poster boys for the
events of November 29, 2012. It points out that the testimony of their superior officers, the
commendations they received, and their evaluations suggest that they are in the top 5% of
Cleveland Police Officers. The union notes that Betley testified that he was surprised that the
grievants received the most severe punishment even though other supervisors had a more direct
and active role in the pursuit. It adds that he stated that it appeared that the grievants were
sacrificial lambs.
The union argues that the grievants were subject to disparate treatment. It indicates that a
spreadsheet prepared by Betley shows that in the past, police officers were discharged for alleged
crimes, issues of moral turpitude, and the misuse of drugs and alcohol. The union adds that
demotions always involved criminal action or the misuse of drugs or alcohol. (Union Post-
Hearing Brief, page 28)
The union contends that it is of particular note that after November 29, 2012, all of the
grievants were assigned to positions of higher authority and responsibility. It reports that Zouhar
was assigned as an acting District Commander and Wilson and Donegan as Platoon
Commanders. The union claims that the trust reposed in their professional responsibility by
their immediate supervisors belie the harsh penalties meted out by the Safety Director, who is not
within their Division of Police chain of command. (Union Post-Hearing Brief, page 29)
Conclusion - The union concludes that the city did not have just cause to demote
Zouhar or Wilson or to discharge Donegan. It asks the Arbitrator to return Zouhar and Wilson to
their former ranks with back pay and benefits and to reinstate Donegan as a Sergeant with back
32
pay and benefits.
4
The union adds that if he Arbitrator finds evidence of some administrative
oversight by any of the grievants, he should impose a suspension of 10 to 30 days, which is
consistent with the discipline the city imposed on other members of the bargaining unit who
were involved in the November 29, 2012, incident.

ANALYSIS
The instant dispute involves three separate grievances. In the first two cases, the union
challenges the citys decision to demote Captain Zouhar and Lieutenant Wilson. In the remaining
case, the union protests Sergeant Donegans termination.
In each case, the union charges that the city violated Article II, Section 2(e), of the
collective bargaining agreement. This provision gives the city the right to suspend, discipline,
demote or discharge for just cause. While contractual provisions giving an employer the right to
suspend or discharge for just cause are the norm, the parties collective bargaining agreement
adds that the city can demote for just cause.
Each of the grievances involves two issues. The first issue is whether there was just cause
to discipline the grievant. The second issue is, if there was just cause for discipline, whether the
penalty imposed by the city was proper.

J UST CAUSE
The charges against the three grievants are similar. In general terms, they are charged
with failing to fully perform their supervisory duties. To the extent that the charges differ, they
reflect the differences in the grievants responsibilities. In particular, Zouhar and Wilson, as the

4
The union argues that since it represents Sergeants, Lieutenants, Captains, and Commanders, the Arbitrator cannot
reinstate Donegan as a Patrolman. The union claims that such an award would be unenforceable because an award
must come from the essence of and within the four squares of the parties collective bargaining agreement.
(Union Post-Hearing Brief, page 30)
33
ranking officers in the Second and Third Districts, had administrative responsibility for their
districts while Donegan, who, as a Sector Supervisor and the immediate supervisor for 5 cars and
10 Patrolmen, had more operational duties than Zouhar and Wilson.
Captain Ulrich Zouhar - The record establishes that there was just cause to discipline
Zouhar. First, the testimony and evidence support the citys charge that he failed to see that his
subordinates properly performed their duties. It indicates that this resulted in a large portion of
the Second Districts Patrolmen being involved in the pursuit, leaving the district without the
usual number of officers to respond to calls. The record also reveals that three of the Sergeants
under Zouhars command received 10-day suspensions and the other Sergeant, Donegan, was
terminated.
Second, the evidence shows that Zouhar failed to use CCS and the AVL system to
manage the pursuit. Had he been monitoring the AVL system or asked CCS to check it, he would
have known that more than three cars were involved in the pursuit. As the ranking officer in the
Second District, he was responsible for assisting Daley and the other Sergeants whose Patrolmen
were involved in the pursuit.
Third, the citys charge that Zouhar failed to inquire about pending priority assignments
also has merit. When he arrived at Heritage Elementary School, he learned that a significant
portion of the Second District Patrolmen were not in the district. Despite this fact, his own
testimony indicates that he did not inquire about pending assignments until 4:30 a.m.
Finally, Zouhar bore significant responsibility for the events of November 29, 2012. As
the Patrol Section Captain, he was the highest ranking officer on duty in the Second District and
because the two Platoon Lieutenants were not on duty, he was also directly responsible for six
34
Sergeants. While many individuals share in the responsibility for the events of November 29,
2012, Zouhars position required him to be much more active in managing the events of that day.
Lieutenant Paul Wilson - The testimony and evidence indicate that there was just
cause to discipline Wilson. First, he failed to notify CCS that he was engaged in the pursuit.
Wilsons claim that he could not contact CCS because of the need to keep the air clear during
the pursuit has no merit. This rule applies to calls that are not relevant to a pursuit so it would not
have applied to a transmission from Wilson indicating that he was joining the pursuit. In any
event, he could have called the Third District dispatcher on Channel 3 rather than using Channel
2, where Daley was monitoring the pursuit.
Second, Wilson did not notify CCS to disregard late responding police units. He
incorrectly assumed that the Patrolmen assigned to Sergeants Shepherd, Bickerstaff, Edens, and
Gallagher were not involved in the pursuit so that there was no need to tell Third District
Patrolmen to disregard the pursuit.
Third, Wilson failed to ask CCS about pending assignments. He knew that many Third
District Patrolmen were out of the district and not available to respond to calls. Wilson should
have asked about pending assignments and whether there were any priority one calls.
Fourth, Wilson failed to see that the photographs that Edens took at the crime scene were
treated as evidence and forwarded to the appropriate investigative agency. He offered no
explanation for his failure to follow the proper procedure.
Fifth, Wilson failed to take appropriate supervisory action during the pursuit. He should
have ascertained the location of Third District Police Officers by checking the AVL system in
Edens zone car or asked the Third District dispatcher to do it. If he had done so, he would have
learned that 37 Third District Police Officers had responded to the pursuit. In addition, Wilson
35
had observed approximately 20 police vehicles engaged in the pursuit and knew that they were
traveling at approximately 50 miles per hour but he failed to provide this information to CCS or
any supervisor involved in the pursuit.
Finally, Wilson, like Zouhar, was the highest ranking officer on duty in his district. As
such, he bore overall responsibility to see that the pursuit was properly managed. The record
indicates that he failed to fully meet his responsibilities.
Sergeant Michael Donegan - The record establishes that there was just cause to
discipline Donegan. First, the testimony and evidence indicate that he did not adequately
supervise his Patrolmen. While they may have violated the Vehicle Pursuit Policy by joining the
pursuit without permission, Donegan should have used the AVL system to check on their
locations. If he was unable to do it himself, he should have asked the Second District dispatcher
to do it for him. His failure to more closely monitor the activity of the Patrolmen under his
supervision contributed to the inordinate number of police vehicles in the pursuit and perhaps,
indirectly to the use of deadly force at Heritage Elementary School.
Second, the record also reveals that Donegan failed to communicate information
regarding his actions and information about the pursuit to Daley. While Siefer and Hummel
provided information to Daley about the pursuit, Donegan, as a Sergeant, would have had a
different perspective, which would have proved useful to Daley in monitoring the pursuit. The
unions claim that Donegan was required to keep the air clear does not apply to radio
transmissions relevant to the pursuit.
Third, at some point in time, Donegan withdrew from the pursuit and parked his car on
the street and remained there for five minutes. In essence, he took himself out of action as the
pursuit was getting on I-90. This was not the proper course of action for a Sector Supervisor.
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PROPER PENALTIES
The parties disagree regarding the propriety of the penalties imposed on the grievants.
The city argues that the severe penalties were justified by the grievants multiple failures to meet
their job responsibilities and because of the impact their behavior may have had on the events of
November 29, 2012. The union responds that the severe penalties were improper because the
events in question constituted a systemic failure rather than a failure by the grievants and
because the severe penalties imposed by the city were due to public pressure rather than the
grievants offenses.
Since the unions arguments related to a systemic failure and public pressure apply
more or less equally to all of the grievants, the Arbitrator will consider these claims before
considering whether the conduct of each of the grievants was serious enough to warrant the
penalties imposed on them.
Systemic Failure - While the events of November 29, 2012, may or may not have
constituted a systemic failure, some of the unions complaints have merit. First, the Arbitrator
believes that certain resources which should have been available to the Police Officers during the
pursuit were not available to them. The Road Spikes Policy describes the use of the stop sticks
and indicates where they are and how they are to be deployed. It is undisputed that they either no
longer existed or could not be located. If the stop sticks had been available, it is possible that
their deployment could have ended the pursuit much sooner and perhaps the events that occurred
at Heritage Elementary School could have been avoided.
Second, the Arbitrator believes that pursuit training would have been useful. The record
indicates that there was little or no training in vehicle pursuits beyond the training Police
Officers received in the Police Academy. If nothing else, additional training may have resulted in
37
more compliance with the Vehicle Pursuit Policy, including by Patrolmen who appear to have
ignored some of the requirements of the policy.
Third, as noted by Attorney General DeWine, the radio communications system may
have contributed to the problems on November 29, 2012. At the time of the pursuit, each district
had its own radio channel and a department policy prohibited linking the channels together.
Since a pursuit is monitored by the supervisor of the Patrolman initiating the pursuit on his
districts radio channel, Police Officers in other districts are required to monitor a second radio
channel. In addition, information regarding a pursuit must sometimes be relayed from the
dispatcher for one district to the dispatcher for another district for broadcast over the second
districts radio channel. While the city was aware of the limitations of its radio communications
system and may have been working to find a solution, they may have contributed to the events at
issue in this arbitration.
Based on these factors, the Arbitrator concludes that the city bears some responsibility for
the events of November 29, 2012. This finding must be taken into account in determining the
propriety of the penalties imposed on each of the grievants.
Public Pressure - The Arbitrator does not believe that the union was able to establish
that the severity of the penalties imposed on the grievants was the result of public pressure. The
city acknowledges that the public expected heads to roll but it attempted to reduce public
pressure by creating the CIRC to promptly investigate the events of November 29, 2012, and by
making public a one-hour video presentation of the pursuit using footage from numerous
surveillance cameras along the route of the pursuit and the AVL system to show the location and
identity of the Cleveland police cars in the pursuit.
38
In any event, even if the city was subject to public pressure to severely punish the
grievants, the Arbitrators decision is not driven by public opinion. It is based on three days of
testimony and a large number of exhibits, including the video of the pursuit; the transcripts and
recordings of the grievants multiple interviews; the BCI report to Cuyahoga County Prosecutor
McGinty; the comments of Attorney General DeWine; and all of the documents related to the
disciplinary process. The evidence and testimony is viewed in the light of well-established
principles of labor arbitration to determine whether the penalties imposed by the city were
proper.
J OB PERFORMANCE OF THE GRIEVANTS
The citys motivation for removing the grievants from their jobs, two by demotion and
one by termination, is important in examining the propriety of the penalties imposed on them. In
some cases, an employer demotes or discharges an employee because it believes that the
employee is unable to satisfactorily perform his job. In other cases, an employee is demoted or
discharged from his job simply because he failed to properly perform his job. In the cases where
an employee is being punished for failing to do his job, the usual just cause considerations apply.
In the cases before the Arbitrator, the city did not suggest that any of the grievants were
incapable of properly performing their jobs. In fact, since all of the grievants were experienced
officers and had excellent job performance ratings, it would have been difficult to argue that they
had to be removed from their positions because they were unable to do their jobs. Thus, in
reviewing the penalties imposed on each of the grievants, the Arbitrator must compare the
severity of his discipline with the seriousness the grievants failure to fully perform his job,
determine whether his penalty is consistent with the penalties imposed on other employees who
engaged in the same kind of behavior, and take into account each grievants employment record.
39
Captain Ulrich Zouhar - While the city had just cause to discipline Zouhar, the
penalty it chose was too severe. First, the Arbitrator rejects the citys charge that Zouhar should
have intervened to make sure that the pursuit was monitored by a Sector Supervisor rather than
by Daley, a Support Supervisor. As discussed above, the evidence presented by the union shows
that 25% of the pursuits in 2012 were monitored by Support Supervisors. Since reports were
filed for each of the pursuits and were reviewed up through the chain of command, the city
cannot deny knowledge of the practice of Support Supervisors monitoring pursuits.
The Arbitrator also rejects the citys contention that the pursuit did not begin until Siefer
and Hummel encountered the suspect vehicle on the Detroit-Superior Bridge. The radio log
indicates that very shortly after Nan lost sight of the suspect vehicle, Siefer and Hummel
reported that they spotted the suspect vehicle on the Detroit-Superior Bridge. It is not
unreasonable to conclude that when Siefer and Hummel pursued the suspect vehicle, it was just a
continuation of the pursuit initiated by Nan and monitored by Daley.
Second, the Arbitrator believes that the penalty imposed on Zouhar was excessive and
disproportionate to his offense. In the year following his demotion, Zouhars base pay was
reduced by 16.1% or $11,957, which is equivalent to a 36-day suspension. In each subsequent
year, he faced the same penalty.
Third, the penalty imposed on Zouhar was significantly more severe than the penalties
given other officers who faced similar charges. The record indicates that two superior officers
were suspended for three days with two days held in abeyance, 5 were suspended for 10 days, 1
was suspended for 15 days, and 1 was suspended for 30 days, an average suspension of
approximately ten days. Wilson and Donegan were the only ones to face more severe penalties.
40
Finally, Zouhar has been a Cleveland Police Officer for many years and has an excellent
record. He was a Police Officer for 27 years, and a superior officer for 21 years, including 10
years as a Captain. Zouhar has received no discipline and in his most recent performance
evaluation, he received a rating of 4.97 out of 5.00 and his performance was described as
"outstanding." As indicated above, Arbitrators are expected to consider an employees record
when judging the propriety of a disciplinary penalty.
The Arbitrator believes that the proper penalty is to demote Zouhar to the rank of
Lieutenant from J une 11, 2013 until J uly 11, 2014, at which time he should be restored to the
rank of Captain. The reduction in Zouhars penalty reflects the nature of his shortcomings on
November 29, 2012; the factors generally taken into account in just cause cases; and the fact that
the city bears some responsibility for the events of November 29, 2012. The severity of his
penalty, including his substantial loss of pay, reflects the responsibility Zouhar bore as the
highest ranking officer on duty on November 29, 2012, and the impact his failure to take a more
active role in the pursuit may have had on the events of that day.
Lieutenant Paul Wilson - The record shows that the discipline imposed on Wilson
was too severe. First, the city acknowledged that one of its six charges against him was
relatively minor. Wilson admitted that he failed to ensure that some photos taken by Edens
were handled as evidence and forwarded to the appropriate investigating agency. However,
absent the other events of the day, he probably would have received no discipline for his
oversight.
Second, as with Zouhar, the penalty the city imposed on Wilson is excessive and
disproportionate to his offenses. His demotion resulted in a 16.1% reduction in his base wage or
41
$10,307 in the year following his demotion and similar amounts in each succeeding year. The
severity of this penalty exceeds the seriousness of his shortcomings.
Third, as in the case of Zouhar, Wilsons penalty is more severe that the penalties
imposed on other superior officers who committed similar offenses. As indicated above, the
penalties received by the other superior officers ranged from three-day suspensions with two
days held in abeyance to a 30-day suspension.
Finally, Wilson, like Zouhar, was a long-service employee with an excellent record. At
the time of his demotion, he had worked as a Cleveland Police Officer for 22 years, including 10
years as a superior officer. During that time, he received no discipline and he was rated 4.05 out
of 5.00 on his last performance appraisal.
The Arbitrator believes that the proper penalty is to demote Wilson to the rank of
Sergeant from J une 11, 2013 until J uly 11, 2014, at which time he should be restored to the rank
of Lieutenant. The reduction in Wilsons penalty reflects the nature of his shortcomings on
November 29, 2012; the factors generally taken into account in just cause cases; and the fact that
the city bears some responsibility for the events of November 29, 2012. The severity of his
penalty, including his substantial loss in pay, reflects the responsibility he bore as the highest
ranking officer on duty in the Third District and the impact his failure to fully perform his duties
may have had on the events of that day.
Sergeant Michael Donegan - The record establishes that the city did not have just
cause to terminate Donegan. First, the citys charge that Donegan violated the Vehicle Pursuit
Policy by not taking charge of the pursuit must be rejected. As indicated above, a document
showing all of the pursuits in 2012 reveals that 25% of the pursuits were monitored by a Support
Supervisor. Since the reports made after each pursuit are forwarded up the chain of command
42
and no action was ever taken against a Support Supervisor for monitoring a pursuit, Donegan
would have had no reason to believe that he had to take over monitoring the pursuit from Daley.
The Arbitrator also rejects the citys claim that Donegan should have monitored the
pursuit because it did not begin until Siefer and Hummel, who he supervises, encountered the
suspect vehicle on the Detroit-Superior Bridge. The radio log indicates that there was a short
period of time between when Nan lost sight of the suspect vehicle and when Siefer and Hummel
sighted the vehicle on the Detroit-Superior Bridge and reported that they were pursuing it. The
short time the suspect vehicle was out of sight does not mean that a new pursuit had begun and
that Donegan had to take over monitoring it, especially when Daley appeared to be competently
performing the job.
Second, the Arbitrator cannot accept the citys charge that Donegan falsified his Daily
Report. While his report is not as detailed as it could have been, it appears no different from
other Daily Reports. In any event, there is no evidence to support the charge that Donegans
report was an attempt to conceal his actions or inactions.
Third, the Arbitrator believes that the discharge penalty imposed on Donegan was
excessive and disproportionate to his offense. Discharge is the most severe penalty an employer
can impose on an employee. Arbitrators agree that it should be reserved for cases of severe
misconduct. The charges against Donegan do not support a discharge.
Fourth, the penalty imposed on Donegan was much more severe than other superior
officers. While Zouhar and Wilson were demoted, the other officers received suspensions which
averaged 10 days.
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Finally, the potentially mitigating factors routinely considered in discipline cases strongly
support Donegans reinstatement. He was a Police Officer for 15 years and a Sergeant for 4
years. Donegan has no prior discipline and excellent performance evaluations.
While the Arbitrator concludes that there is not just cause to discharge Donegan, he
believes that Donegan deserves a more severe penalty than Zouhar or Wilson. Donegan, like
Zouhar and Wilson, failed to fully meet his supervisory responsibilities, which may have
contributed to the events of November 29, 2012. However, as a Sergeant, he had more
operational responsibilities than Zouhar and Wilson yet he took himself out of action by parking
along a city street and remaining there for five minutes.
The proper penalty is clear. Donegans termination should be reversed and he should be
reinstated as a Patrolman and paid the base wages for a Patrolman and made whole for any lost
benefits.
5
However, because he not only failed to properly perform his supervisory duties but
also chose to sit idle for a number of minutes as the pursuit continued, he should remain a
Patrolman until J uly 11, 2015. On that date, he should be restored to the rank of Sergeant.

AWARD
The award of the Arbitrator is as follows:
1) Ulrich Zouhar shall be demoted to the rank of Lieutenant from J une 11, 2013,
through J uly 11, 2014. On the later date, he shall be restored to the rank of Captain
and assigned at the discretion of the Chief of Police.

2) Paul Wilson shall be demoted to the rank of Sergeant from J une 11, 2013, through
J uly 11, 2014. On the later date, he shall be restored to the rank of Lieutenant and
assigned at the discretion of the Chief of Police.


5
The Arbitrator understands the unions concern about reinstating Donegan to a position in the Cleveland Police
Patrolmens Associations bargaining unit. The Arbitrator, however, believes that in the interest of fairness, the
CCPA and the FOP should be able to resolve any issues that might arise.

44
3) Michael Donegan shall be reinstated as a Patrolman effective J une 11, 2013, and
made whole for the loss of base wages and benefits he suffered as a result of his
termination. Donegan shall remain a Patrolman until J uly 11, 2015, when he shall be
restored to the rank of Sergeant and assigned at the discretion of the Chief of Police.

4) The Arbitrator will retain jurisdiction to resolve any dispute over the interpretation
and application of his award.


_____________________________
Nels E. Nelson
Arbitrator

J une 12, 2014
Russell Township
Geauga County, Ohio






























45
American Arbitration Association
LABOR ARBITRATION TRIBUNAL
______________________________________________________________________________

In the Matter of the Arbitration between

City of Cleveland
and
Fraternal Order of Police, Lodge No. 8

CASE NUMBER: 53 390 00288 13
______________________________________________________________________________

AWARD OF ARBITRATOR(S)
I (WE), THE UNDERSIGNED ARBITRATOR(S), having been designated in
accordance with the arbitration agreement entered into by the above-named parties and dated
and having been duly sworn and having duly heard the proofs and
allegations of the parties, AWARD as follows:

1) Ulrich Zouhar shall be demoted to the rank of Lieutenant from J une 11, 2013, through
J uly 11, 2014. On the later date, he shall be restored to the rank of Captain and assigned
at the discretion of the Chief of Police.

2) Paul Wilson shall be demoted to the rank of Sergeant from J une 11, 2013, through J uly
11, 2014. On the later date, he shall be restored to the rank of Lieutenant and assigned at
the discretion of the Chief of Police.

3) Michael Donegan shall be reinstated as a Patrolman effective J une 11, 2013, and made
whole for the loss of base wages and benefits he suffered as a result of his termination.
Donegan shall remain a Patrolman until J uly 11, 2015, when he shall be restored to the
rank of Sergeant and assigned at the discretion of the Chief of Police.

4) The Arbitrator will retain jurisdiction to resolve any dispute over the interpretation and
application of his award.

J une 12, 2014 _______________________________________________
(Date) (Signature of Arbitrator)

STATE OF
COUNTY OF
}SS:
On this day of , 19 , before me personally came and
appeared , to me known and
he acknowledged to me that he executed the same.