Omaha Police Chief Todd Schmaderer's decision last week to fire four officers comes with an important caveat: It's not exactly a done deal.
Before the four are officially terminated from the Police Department, they'll get a chance to make their case in a hearing before the city's human resources director.
If the chief's decision stands after that hearing, the officers will get another chance to fight for their jobs, this time in front of the city's Personnel Board or an independent arbitrator.
And if a handful of high-profile cases involving fired officers are any indication, it's possible that the officers involved in the controversial arrests of three brothers at a north Omaha home March 21 could find their way back onto the force.
The city's multi-layered process for the discipline and termination of police officers, firefighters and civilian employees gives the employees and their unions room to push back against actions that they see as unfair.
Putting the brakes on major personnel decisions, said Sgt. John Wells, head of the city's police union, “ensures a fair process that doesn't become subject to emotional or political decisions.”
But it also means that the city might have to fight to fire an employee who it believes has behaved inappropriately — and the city might lose.
Two officers fired in September 2011 after a fight outside Creighton Medical Center were later reinstated by an arbitrator. An officer fired in 2003 after making controversial statements on TV got his job back after taking his case to the Personnel Board. In 2002, two officers were back on the job a month after being fired over claims that they had taken nearly $40,000 out of a bank account without the owner's permission.
Now the city may have to defend its firing of some of the officers in the March incident, which was caught on camera by a neighbor. Footage from the arrest drew allegations of excessive force, and The World-Herald has learned that one officer allegedly tried to destroy other footage from the scene. Other officers allegedly tried to help cover up the first officer's actions. The matter is being investigated by the Douglas County Attorney's Office.
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• Arrest video: Watch the controversial arrest unfold
• Timeline: March 21 events at 33rd and Seward Streets
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“We sought to make officers independent so they could not be politically fired at will,” said John Crank, a criminal justice professor at the University of Nebraska at Omaha. “And in the process, we made it very difficult to remove them.”
The situation isn't new for Omaha, and it isn't unique to this city.
Around the country, other public employees are entitled to similar protections that prevent their employers from firing them at will.
Sam Walker, professor emeritus of criminal justice at UNO, said complications involved in firing police officers have been well documented in several cities, including Chicago and Cincinnati. But he said it's nearly impossible to tell how frequently officers are able to win back their jobs, or the circumstances surrounding their terminations, because a most such proceedings are kept private.
Before Omaha cuts off an employee's pay, it must conduct a pre-termination hearing. The employee can provide additional information about the situation that led to his or her discipline or dismissal. The city's human resources director, who oversees the hearing, can take time to conduct an additional investigation.
The decision that comes out of the hearing is sent to the employee's department head — in this case, the police chief — so he or she can consider any new information. If the department head stands by the original decision, the employee moves on to a separate appeal process.
For decades, Omaha's police contract has provided fired officers with two options: the Personnel Board or arbitration.
The Personnel Board, made up of five mayoral appointees, conducts monthly public hearings. Arbitration, on the other hand, is handled out of the public eye.
The arbitration hearings look much like a court proceeding, in which the city and the fired officer's attorney present evidence and call witnesses. The final decision is made by the arbitrator, who is brought in from outside the area and is typically a retired judge or attorney, though a law degree isn't required. Some arbitrators are people with experience in human resources.
The arbitrators typically release detailed opinions about each case, but Assistant City Attorney Bernard in den Bosch said Omaha has not made a practice of releasing that information. “They are documents that are not necessarily public,” he said. “We could release them, but we don't believe it's a public record, and we have not released them. Everybody wants personnel matters to be public — except for their own.”
Walker said the behind-the-scenes arbitration proceedings make it difficult to set standards within a department or nationwide.
In criminal courts, he said, it's relatively easy to research what experts call the “going rate” for particular types of crimes. Searching through court records could reveal the average sentence for an armed robbery or a theft, and attorneys use that information to make deals in the courtroom.
But arbitrators, he said, don't have the same clear comparisons for cases like the ones that they may now see in Omaha, involving fired officers Bradley D. Canterbury, James T. Kinsella and Justin A. Reeve, along with Sgt. Aaron P. Von Behren.
Officers Dyea L. Rowland, Matthew C. Worm, John D. Payne and Joseph A. Koenig are still under investigation. None of the eight has been through an initial hearing.
“The bottom line is that we don't know the answers, and there are some barriers to finding the answers,” Walker said.
In many cases, Walker said, arbitrators tend to want to meet the two parties in the middle. If the case involves a suspension, that might mean shortening an officer's time off the job. But with a termination, it's more of an either-or proposition. And often, he said, that means the officer gets his or her job back.
The City of Omaha, however, has had successes. And according to in den Bosch, it's not a rarity.
A few years ago, he said, he reviewed a 15-year period of Personnel Board cases and found that the city had won between 80 percent and 85 percent of those proceedings. It prevailed in about 75 percent of the cases that involved terminating an employee.
It's hard to tell how often Omaha has come out on top in arbitration, but in den Bosch said the same attorneys handle both types of cases.
Schmaderer's quick decision to fire the officers — he could have taken up to 100 days — doesn't mean that the rest of the process will be quick. But Crank, with UNO, said the assistance of outside investigators is a signal that the city is carefully gearing up for any potential legal battle.
“(Schmaderer) is making sure he's getting his legal ducks in a row, and I'm pleased he's done that,” Crank said.
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OMAHA POLICE FIRINGS
World-Herald archives reveal no previous cases in the last 25 years in which more than two officers were fired over a single incident.
It should be noted that when an incident did not result in criminal charges, the fired officers were later reinstated.
Here are some of the most recent firings:
• September 2012: Officer Kevin Cave either resigns or is fired amid an FBI investigation of his use of a computer database. He is indicted in December 2012. City maintains it fired Cave; he contends he resigns before termination takes effect.
• February 2011: Sgt. Lance Harrison is fired by Police Chief Alex Hayes for a road rage incident while off duty. In May 2010 he was charged in Sarpy County with two misdemeanors, reckless driving and assault. The charges are later enchanced to felonies — terroristic threats and use of a weapon to commit a felony. In November 2011, a jury convicts Harrison on terroristic threats charge and acquitts him on the weapons charge.
• September 2011: Officers Aaron Pennington and Jackie Dolinsky are fired by Police Chief Alex Hayes for their roles in a videotaped fight outside Creighton Medical Center during the arrest of Robert A. Wagner. No criminal charges are filed. In June 2012, Dolinsky is reinstated by an independent arbitrator. She is disciplined in an unspecified manner and is to receive additional training. In January 2013, Pennington is reinstated by an arbitrator. He is awarded back pay for months of missed work and docked two days of pay.
• January 2010: David M. Kass is off the force after he is convicted of online child enticement; he had been on unpaid administrative leave since his July 2009 arrest. Sarpy County authorities said at trial that Kass had a sexually graphic online chat with a person he'd been told was a 14-year-old girl but was actually a La Vista police officer.
• July 2005: Officer Scott Antoniak is charged with first-degree sexual assault after he is accused of coercing a prostitute to perform oral sex on him in a police cruiser. He was placed on paid suspension during the internal and criminal investigations and then fired by Police Chief Thomas Warren. Antoniak is sentenced to five years of probation after being found guilty of first-degree sexual assault and, in May 2010, lost his license to work as a law enforcement officer.
• December 2003: Officer Tariq Al-Amin is fired by Police Chief Thomas Warren after making controversial statements on a cable television program. In March 2004, Al-Amin returns to work after the Personnel Board decided his punishment was too harsh and voted unanimously to give him back his job if he apologized publicly for his statements. Al-Amin later retired and is now a candidate for City Council in District 2.
• March 2002: Officers Reginald and Carma Gunter, husband and wife, are fired by Police Chief Don Carey after an internal police complaint and a civil lawsuit are filed, claiming the couple took $38,796 from a bank account without the owner's permission. In April 2002, the officers were reinstated under an agreement that the couple pay full restitution and accept their time away from the job as a suspension.
— World-Herald librarian Jeanne Hauser