Fired police officers regain their jobs in Florida with help of arbitration Cops fired or suspended for misconduct avoid lasting punishment

Lisa Conley | Naples

One Marco Island and one Naples police officer fired between 2010 and 2016 after being accused of offenses, including excessive use of force and untruthfulness, later had their terminations overturned through a union-backed arbitration process.

The Naples Daily News obtained a list of all internal investigations for the past 10 years for the Marco Island and Naples police departments. The records reveal that the two officers who were fired and later rehired had been accused of misconduct leading to their terminations or faced another allegation after being reinstated.

Marco Island Police Department: Officer John Derrig was fired from the department in 2010, accused of filing an inaccurate report. He was reinstated in 2012 as a result of arbitration but was fired again in 2014, accused of excessive use of force and insubordination. He appealed the decision and won his job back a second time.

Officer John Derrig was fired from the department in 2010, accused of filing an inaccurate report. He was reinstated in 2012 as a result of arbitration but was fired again in 2014, accused of excessive use of force and insubordination. He appealed the decision and won his job back a second time. Naples Police Department: Officer Russ Ayers was fired in February 2016 after investigators determined he was deceptive during two separate internal investigations. An arbitrator ruled that the city had just cause to fire Ayers; however, his supervisors waited too long under the Police Officers’ Bill of Rights to fire him. Ayers returned to work in May 2017.

The records also reveal that two Marco Island officers avoided punishment because the department did not take action within 180 days, as is required by the Police Officers’ Bill of Rights. In both cases, the investigators determined that the officers had violated department policy and would have been subject to disciplinary action if not for the 180-day rule.

Arbitration expert says the system is flawed

Stephen Rushin, law enforcement accountability expert and assistant law professor at Loyola University in Chicago, recently analyzed the union contracts of 656 municipal police departments nationwide and found that 74 percent of them use some form of arbitration.

He also found that in over half of those departments, police unions have “significant authority” in the selection of arbitrators, which can be problematic, he said.

The Florida Police Benevolent Association is the state's largest police union representing officers in more than 150 departments. PBA's Gulf Coast Chapter represents officers in Collier, Lee and Hendry counties, including at the Marco Island and Fort Myers police departments.

Officers with the Naples Police Department are represented by the Fraternal Order of Police.

Matt Sellers, PBA Gulf Coast Chapter president since 2012, said selecting an arbitrator for a case is similar to selecting a juror for a trial: Each side — the city and the union — is given a list of arbitrators and alternates, eliminating candidates until they agree on one, which makes it a fair process.

"It speaks to just doing the right thing," he said. "If an officer has been unjustly terminated, then they have the opportunity to appeal through a neutral third party."

However, that selection process is exactly the problem, Rushin said.

"In theory, arbitration is supposed to be a system with a neutral third party, but the way it's practically structured in a lot of cities can favor the officers because the arbitrators are a repeat player, so they have an incentive not to make anyone too angry," Rushin said. "That's fine if you're just looking for compromise, but if you have an officer who truly does deserve to be fired, then it's not a great solution."

Arbitration can also prevent the Florida Department of Law Enforcement from revoking an officer's certification or ordering any other type of punishment.

That's because if an arbitrator has ruled that no misconduct occurred, then FDLE cannot take any punitive action against the officer, said Roger Goldman, a St. Louis University law professor and nationally recognized authority on officer misconduct.

"Florida ought to follow the example of Arizona, Missouri and Vermont, which are the three states that aren't bound by the arbitrator's decision in any way," Goldman said. "They treat arbitration and decertification as two separate issues."

Marco officer was fired and rehired ... twice

John Derrig is one Marco officer who exemplifies the potential problems of arbitration.

The Marco Island Police Department fired Derrig in December 2010 after an internal investigation found he filed inaccurate reports after a late-night arrest turned into a brawl at a local restaurant. According to the investigation, Derrig also failed to follow his supervisor's orders to turn on his body microphone.

A year later, an arbitrator ordered Derrig’s reinstatement, finding that police officials hadn't taken proper steps to correct his behavior before firing him.

Derrig was reinstated in January 2012 and returned to service after completing an anger management program and retraining.

In June 2013, Derrig was the subject of another internal investigation after a fellow officer's mother reported an incident she witnessed in 2008.

The officer's mother was being interviewed for an unrelated internal investigation involving her daughter when "without prompting or additional inquiry ... she inquired as to Officer Derrig's status," according to investigators.

It was then that she told investigators she witnessed Derrig use excessive force while she was on a ride-along with her daughter in 2008. The subsequent internal investigation does not reveal why the mother did not report the incident sooner.

According to the investigation, the woman's daughter, officer Karie Petit, was on patrol when she drove past what appeared to be a fight outside a bar. As she approached, she saw Derrig punching a male subject on the ground.

“(Derrig) grabbed the kid that was on the ground by the hair on the back of the head, and lifted his head up and just smashed it into the asphalt,” Petit told investigators.

According to Petit, Derrig also “kicked (the suspect) in the head a couple of times,” even though the individual was restrained and not resisting orders.

Petit mentioned the incident to a superior shortly after it occurred, but according to the investigation, she got the vibe that "he wanted to sweep it under the rug and just for (her) to keep (her) mouth shut," so she didn't pursue the matter.

Derrig did not file a use of force report because he claimed it was a “low level" use of force; however, the man’s injuries caused him to seek immediate medical attention. Details about the injuries were redacted from the copy of the internal affairs investigation.

While the investigation into the 2008 incident was still ongoing, Derrig became the subject of another internal investigation, this time involving his decision to wield his gun during a traffic stop in August 2013.

Derrig was driving his squad car when a man who he knew had a suspended license drove past him. Derrig followed the 61-year-old man to his house and alerted his fellow officers that he was engaged in a vehicle pursuit.

When Derrig pulled into the man's driveway, he said he thought he saw him reach for a rifle. He responded by grabbing his own gun and aiming it at the man. Derrig realized the rifle was actually a cane, but he continued to point his gun at the man until he handcuffed him.

Officers sped to assist Derrig, some driving 82-98 mph after he announced a pursuit and later announced he had the suspect at gunpoint. Officers told investigators Derrig's actions were unwarranted for a routine traffic stop for a known suspect driving slowly — 20-30 mph — to his own home.

As a result of that incident, Derrig was taken off the night shift in September 2013 and placed on day shift under closer supervision.

On Oct. 4, 2013, Derrig was relieved of his law enforcement responsibilities and assigned to administrative responsibilities. Derrig alleged that action and his assignment to demeaning tasks were meant to punish him, not retrain him.

In April 2014, former Collier County Sheriff and then-Marco Police Chief Don Hunter wrote a letter to then-Marco City Manager Roger Hernstadt recommending Derrig’s termination.

Hunter joined the Marco department in August 2011, and an arbitrator ordered Derrig's reinstatment to the department the first time in January 2012.

“I remain troubled by the totality of Officer Derrig’s agency disciplinary and complaint files and his poor judgment when performing law enforcement duties on behalf of the city,” Hunter wrote in 2014. “His actions are an example of a reckless disregard for the lives of others and should not be further tolerated.”

Hernstadt fired Derrig on June 17, 2014.

Derrig’s PBA representatives alleged that Hunter had an aversion for bringing back a previously fired employee to his staff. The PBA also alleged that undue supervisory pressures were brought to bear on Derrig, in addition to retaliatory actions until a case could be brought against him.

The PBA representatives painted a picture of a department in disarray due to heightened turnover, tension among the staff members and an unhealthy workplace atmosphere wherein officers felt threatened.

In November 2015 an arbitrator again sided with the union, ruling that Derrig "did not commit or participate in acts of misconduct" related to the 2008 incident, and the claims against him were superficial because they lacked foundation and proof.

The arbitrator also found that the allegations against Derrig related to the 2013 traffic stop were unsubstantiated and ordered the Police Department to reinstate him with full back pay and seniority. The back pay totaled $87,223.

Derrig is currently serving as a police officer on the night shift and earns $54,148 annually.

Marco police Capt. Dave Baer said Derrig is the only officer in the department's history who was fired and later reinstated. He could not say how many officers were fired and either did not seek arbitration or were unsuccessful in overturning their termination.

Police chiefs are forced to rehire officers they don't want

Naples police fired longtime officer Russ Ayers in February 2016 after finding he was deceptive during two internal investigations, including one involving the disappearance of a gun belonging to the ex-husband of wounded former officer Amy Young.

Ayers, an 18-year veteran of the force, was uncooperative during an investigation into the theft of Sgt. Robert Young's pistol in November 2014. While taking a polygraph, Ayers attempted to use countermeasures to defeat the test, according to investigators.

Investigators also said Ayers lied when confronted with accusations he'd made to a local security guard about the July 2014 domestic shooting in Estero that injured Robert Young's ex-wife, Amy Young, and killed officer Dave Monroig.

A Lee County Sheriff's Office probe found that Monroig shot Amy Young in the face before shooting himself in the head.

An arbitrator ruled that the city had just cause to fire Ayers; however, after learning of the allegations, supervisors waited nine months to fire Ayers, which is too long according to the 180-day limit imposed by the Police Officers’ Bill of Rights. The arbitrator ordered Ayers' reinstatement to his previous position with all benefits and no loss of seniority.

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"We had just cause to terminate him but had to reinstate him based on a technicality," Police Chief Tom Weschler said last month. "It's kind of crazy."

During his career, Ayers has been involved in 18 internal investigations and has had 12 sustained policy violations, including 11 that resulted in disciplinary action, according to the Police Department.

"Those numbers are extremely high," Weschler said. "One or two complaints in an entire career is common."

Ayers currently works a desk job processing fingerprints. His annual salary is $75,914.

Three Naples Police Department officers were fired between 2008 and 2018, including Ayers, according to department spokesman Seth Finman. Ayers is the only officer who filed an appeal.

In Lee County, two Fort Myers Police Department officers won their jobs back through arbitration, said Sellers, the PBA Gulf Coast chapter president. A third officer also appealed his termination but was unsuccessful.

Fort Myers police officer Trevor Lehman was fired in summer 2013 after an internal investigation found he used excessive force during a traffic stop in February 2013. Lehman reportedly hit a man three times in the head and neck during an arrest for a traffic violation.

At that time, Police Chief Doug Baker said he fired the officer because Lehman committed several policy violations.

"Obviously, that's not what I want to portray to the public," Baker said in July 2013. "As police officers, and as we go out and perform our duties, that's not what we want to portray who we are."

Document: Fort Myers Police Department's grievance procedure

Lehman's union representatives argued that because the man was resisting arrest and a known felon, the action taken was not excessive. The arbitrator agreed and ordered Lehman's reinstatement in May 2014 with full back pay and benefits. It cost the city $38,781.

Ten months later a video surfaced showing Lehman shoving a man to the floor and yelling at him during an altercation at the Dixie Roadhouse in Cape Coral. Lehman resigned July 27, 2015.

Less than a year later, he was hired as a Lee County Sheriff's Office deputy.

In the Collier County Sheriff’s Office, the appeals process is conducted internally because the agency doesn't have a union, Sheriff's Office spokeswoman Michelle Batten said.

If the Discipline and Appeals Committee, which is made up of all of the agency's chiefs, recommends that a deputy is to be fired, the deputy has the right to appeal the recommendation. However, it's the sheriff, not an outside arbitrator, who makes the final decision whether to uphold the committee’s recommendation.

In the past 10 years, only two recommendations for termination have not been upheld. Batten could not say how many deputies have gone through the appeals process.

Officers across the state benefit from arbitration

Representatives from Florida PBA would not disclose how many arbitration cases it's handled in the past five years, nor how many officers have been reinstated as a result.

PBA's Gulf Coast chapter has been involved in five arbitration cases since 2013, according to chapter president Sellers. Three of the officers were reinstated: Derrig, Lehman and Fort Myers police detective Charles Newell, who was accused of being untruthful and was fired in March 2014.

Fort Myers police Sgt. Eric Gutridge, who was fired in August 2017 after being accused of lying on official documents and lying under oath during court proceedings, was not reinstated. The fifth case, which also involves a Fort Myers Police Department officer, is still ongoing.

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Sellers could not say how many officers were fired and did not seek arbitration.

"It's common for an officer to be fired and there be no grounds for an arbitration (because they were) terminated for things outside the scope of their duty, such as receiving a DUI while off duty," he said. "We only represent officers in terminations where the allegation against the officer was within their scope of their duty, like use of force and truthfulness."

The consequences of arbitration extend far beyond Southwest Florida.

In Miami, six of the 12 officers the city has fired since 2014 have been reinstated, The Washington Post reported. One of those officers had been accused of being involved in a killing.

In St. Lucie County, Sgt. Brian MacNaught of the Fort Pierce Police Department fatally shot an unarmed 21-year-old man in April 2016. The department fired MacNaught in May 2017 after a seven-month internal investigation found he violated several department policies and made a series of tactical errors.

An arbitrator reversed the decision in April because the city failed to prove MacNaught did anything wrong during the shooting.

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MacNaught returned to work earlier this month with the same pay, seniority and benefits he had before he left. His termination will be replaced with one day of suspension without pay, according to his arbitration award.

The shooting victim's grandmother said the arbitrator's ruling didn't surprise her because the system is built to protect the officers.

“I was expecting something like this to come forth anyway because of the system and how it’s run,” she told TCPalm.com. “You have a deep feeling that you see the end before the end comes, I’ll put it that way, and I just didn't have much faith in the system.”