The most severe punishments for police misconduct in Cincinnati are the least likely to stick.

        Police officers disciplined for major violations — from breaking policies to breaking laws — get their penalties reduced nearly three times more often than officers accused of minor violations.

        The result: Officers accused of serious misconduct often end up with punishments comparable to officers disciplined for minor mistakes.

        Inconsistencies in punishment frustrate city officials, send mixed signals to police officers and erode public confidence in the police division.

ABOUT THIS SERIES

After April's riots, the U.S. Department of Justice announced a comprehensive investigation of the Cincinnati Police Division. In its continuing series, “A Question of Justice,” The Cincinnati Enquirer has been examining the police force. Today's report focuses on inconsistencies in how officers are disciplined.

INFOGRAPHIC

• Cincinnati police arbitration cases

        In one case, an officer ended up with a reprimand after her arrest for public intoxication and recklessness, while another got the same punishment for failing to trim his beard.

        It is crucial for citizens to see that bad officers will be held accountable, says Ross Love, co-chairman of Cincinnati Community Action Now, a citizen's commission created after the April riots.

        “Having the ability to exert discipline uniformly, especially for major offenses, is critical to the police chief's ability to manage the department,” Mr. Love says. “Improving this area will increase public confidence in the police department.”

        Until last year, there were few guidelines to ensure that police supervisors imposed uniform penalties for specific misconduct.

        And years of contract negotiations between the city and the police union have produced a process that does not allow the police chief — or any city official — to have the last word on discipline.

        Instead, the final decision often is made by outside arbitrators who reduce the original penalty, or by city lawyers who grant reductions before the case gets to arbitration.

        Although Cincinnati officials have complained for years about arbitration, some didn't know their own lawyers have agreed to slash almost as many penalties as arbitrators.

        “How can we run a division where discipline is consistently overturned?” City Manager John Shirey says.

        An Enquirer analysis of all police disciplines from 1997 to May of this year found 166 cases in which officers were suspended or fired for misconduct by their supervisors. Nearly one of every four cases was reversed, reduced or settled on appeal.

        But the most serious disciplines were reduced more often. Nearly 37 percent of cases involving more than three days of discipline were reduced, compared to 14 percent of cases with lesser punishments, the analysis finds.

        Part of the reason is that officers who get the stiffest punishments are more likely to appeal.

        And when fired officers appeal to an outside arbitrator, they get their jobs back every time.

        The city's discipline process is under scrutiny because of an investigation by the U.S. Department of Justice, which came to Cincinnati following the April riots to examine whether there is a pattern of civil rights violations.

        “The basic tenet of a disciplinary process is consistency,” says James Ginger, a San Antonio police consultant who oversees court-ordered reforms of police departments in Pittsburgh and New Jersey. “If you have an inconsistent discipline system, it is a problem.”

        City lawyers reduced disciplinary actions in 10 of 11 police misconduct cases in the past five years.

        In a case involving an officer who police say admitted beating his wife in 1997, the lawyers agreed to overturn his firing from the force.

        They allowed the officer to resign with no blemishes on his record and gave him a severance package amounting to a month's pay.

        The officer was accused of choking his wife, hitting her and pointing his service weapon at her. And in a letter to his wife, obtained by police, he described six incidents of domestic violence, including “the time when I punched you as you were pregnant, knocking you over the love seat, giving you a black eye.”

        Deputy City Solicitor Pete Heile says cases are resolved by joint agreement between city lawyers and the police officers' lawyers.

        “Part of the purpose of that is you can forgo putting the case in the hands of arbitrators,” he says.

        In the domestic violence case, Mr. Heile points out that the officer is off the force. If his case had gone to arbitration, the results might not have been the same.

        “My guess is that every one of those cases was very thoroughly discussed with the police department,” he says, adding that the police chief must agree to any settlement.

        Mayor Charlie Luken says the practice must change. He says he will propose legislation to ensure that City Council reviews every settlement from now on.

        “It will give us an opportunity to say, "Hey, wait a minute,'” Mr. Luken says.

        “Several cases where I believe discipline was appropriate have been overturned. We have got to get control of this,” the mayor says

        But short of renegotiating a new contract with the police union, there is nothing the mayor, City Council or the city manager can do. And police union lawyer Steve Lazarus says there is no reason to change.

        “This system does work,” Mr. Lazarus says. “Until someone makes a suggestion that makes sense, there is absolutely no reason to move away from it.”

        Relatively few cases actually go to arbitration. But since 1997, the city has lost all 14 suspension and firing cases that were heard by arbitrators. Those cases involved 13 officers; the city attempted to fire one officer twice.

        “Arbitration is a miserable failure,” Mr. Shirey says. “We have arbitrators who cannot bring themselves to find fault with anyone wearing a badge.”

        Many cities struggle in arbitration — a recent report found that Philadelphia loses more than 65 percent of its cases — but few have as poor a track record as Cincinnati.

        “It's just really unusual to see all the cases go down that way,” says Mr. Ginger, the San Antonio consultant. “Just by chance, you ought to win one every once in awhile.”

        Theories abound as to why the city fares so poorly. Some say arbitrators tend to favor labor over management. Others say city lawyers don't prepare well enough for the hearings, or are outgunned by better qualified labor lawyers.

        A common complaint is that the rules are unfair to the city. City lawyers, for example, cannot discuss an officer's disciplinary history beyond the past three years.

        Officers, however, can show the arbitrator every commendation or favorable comment they have received since their first day on the job.

        “If the two sides were held to the same standard, it might level the playing field a little bit,” Mr. Heile says.

        He also contends the city's arbitration record isn't a total loss on police discipline cases. In 1998, a probationary officer lost his appeal when he fought to keep his job after failing probation.

        But the city's own records don't show it as a discipline or dismissal case.

        The American Arbitration Association, the company that provides the arbitrators, acknowledges that Cincinnati's track record is unusual but stands by its process.

        Company officials say its arbitrators are experienced and fair. Many have law degrees and have worked in the fields of business and labor relations. One arbitrator, James Dworkin, is a former dean of Purdue University's school of management.

        The officers' lawyers say their clients win for a very good reason: They deserve to win.

        They say both sides have input into the selection of the arbitrator, both present evidence at the hearings and both are held to the same standards.

        Whether the penalty is reduced by arbitrators or the city, inconsistencies in penalties result.

        One arbitration case ended with a fired officer returning to work with back pay, even though she was intoxicated while working an off-duty assignment.

        Another officer got his 40-hour suspension reduced to a reprimand, even though he admitted that he failed to report possible criminal activity by the mother of his four children.

        The final penalty in both of those cases was less severe than the one-day suspension typically given to officers for relatively minor offenses, such as missing too many court appearances.

        “Police are sensitive to that,” says Mark Iris, executive director of the Chicago Police Board, a citizens panel that reviews all officer discharge cases in Chicago. “(The reductions) have a corrosive effect on officers who do what they are supposed to do.”

        Cincinnati's police chief, Tom Streicher, says he can see why some officers might question the fairness of the system.

        “People who accept responsibility for their own actions and move on, more than anyone else, should be frustrated with the system,” he says.

        The argument for consistency cuts two ways. Mr. Lazarus, the union lawyer, says many appeals are filed because the city imposed too harsh a penalty in the first place.

        “There is room in public employment for abuse,” Mr. Lazarus says. “The city manager wants total control. He wants to discipline at will and punish at will.”

        Too often, he says, one officer is punished more severely than other officers accused of the same offense.

        Arbitrators seem to agree. Time and again, their decisions cite inconsistencies in the way the city imposes its most severe discipline.

        One arbitrator overturned a 40-hour suspension because the penalty imposed for a traffic accident was harsher than that given to at least three other officers involved in similar accidents.

        “Fundamental fairness requires an employer to treat like offenses in a similar manner,” wrote the arbitrator, Timothy J. Heinsz. “The city cannot decide each case on an ad-hoc basis without a consistently applied policy.”

        Mr. Shirey concedes inconsistency has been a problem. To solve it, he says, the city last year created new discipline guidelines that outline specific penalties for specific misconduct.

        Chief Streicher says he can't get overly frustrated with a decision he has no control over. The best thing, he says, is to accept it and move on.

        But when an arbitrator reinstated Officer Robert Hill in December 2000, Chief Streicher and other city officials found that decision hard to accept.

        Officer Hill was fired for excessive force after throwing Robert Wittenberg, a 68-year old Alzheimer's patient to the floor of a Madisonville store in November 1999. The city agreed to pay the Wittenberg family $700,000, the largest out-of-court settlement involving excessive force by Cincinnati Police.

        The arbitrator, however, found Officer Hill's actions were reasonable.

        Chief Streicher now says most officers understand bad behavior won't be tolerated. He says he doesn't dwell on their chances to get discipline reduced. “They have to know some forms of conduct carry consequences.”

        Officer Hill has since passed the department's sergeant exam with high enough marks to put him in line for promotion to supervisor.
       

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